Abstract:
Abstract: Plea bargaining, the practice that permits the prosecution and defense to
negotiate reduced charges or a lighter sentence in exchange for the defendant’s guilty
plea, is a bedrock component of the criminal justice system in many nations. The
Japanese legal community, however, has resisted introducing plea bargaining into Japan’s
legal system. From 2001 to 2004, the Japanese legislature passed over twenty reform
laws to prepare the country’s criminal justice system for the demands of the twenty-first
century, but provisions for plea bargaining were conspicuously absent from the reform
package. This is largely because the Japanese legal community views plea bargaining as
antithetical to the Japanese justice system’s core values: obtaining the truth, encouraging
the defendant’s remorse and rehabilitation, and protecting victims’ interests. Resistance
to plea bargaining in Japan takes on heightened significance in light of increasing
pressures on the nation’s legal system to expedite criminal proceedings. Currently, there
are “tacit” informal types of plea bargaining that Japanese prosecutors use to simplify
trial procedures. This comment argues that tacit bargaining is an inadequate substitute
for formal institutionalized plea bargaining. While tacit bargaining may relieve burdens
on congested Japanese criminal courts, tacit bargains are unenforceable, leaving the
defendant without a remedy in the event the prosecution breaches the informal
agreement. The use of tacit bargaining is also concerning in regards to defendants’ rights
because it sustains coercive aspects of the Japanese justice system and leads to
uninformed, involuntary confessions. In order to address Japan’s cultural aversions to
plea bargaining, this comment examines the use of plea bargaining in international
criminal tribunals. These tribunals can serve as models for Japan because they have
demonstrated that plea bargaining can aid rather than undermine the goals of the Japanese
justice system.
