Justice Matters: Plea Bargains are Ubiquitous. But are they Un-American?

Imagine you’re arrested for a crime you didn’t commit. You can’t afford bail. While you panic in your jail cell, your children are at home alone and your boss wants to know why you can’t come to work.

You can plead guilty and get out today with probation. Or you can try to prove your innocence at trial — after waiting months in jail.

Which would you choose?

Welcome to the plea agreement. It can be a Faustian bargain, but it’s also a constant presence in our criminal justice system. Despite television courtroom dramas filled with on-the-stand revelations and surprise witnesses, trials are extremely uncommon.

Instead, most criminal cases live and die in the dull world of paperwork and closed-door negotiations. More than 95 percent of cases resolve through plea bargains. The accused person forfeits his or her constitutional right to trial and agrees to plead guilty. In exchange, prosecutors drop counts, or reduce charges. And the plea bargaining mill chugs along.

Plea agreements are often characterized as a necessary evil, providing a measure of efficiency and cost-savings for our clogged courts.

But it took a recent trip to Japan to remind me of a simple fact: When plea bargains dominate the criminal justice landscape, our constitutional protections shrink in importance. And that is fundamentally un-American.

Japan is halfway around the world but poles apart from the U.S. when it comes to resolving criminal cases. Plea bargaining is forbidden by Japanese law, meaning each case, from shoplifting to murder, goes to trial. It is a luxury borne of a low crime and incarceration rate. For every 100,000 people jailed in the U.S., only 701 are locked up in Japan.

But all that may be changing. Today, Japan is at a fork in the road, its national congress poised to consider legislation that would allow plea agreements.

Japan is considering two types of plea bargains. The first allows people to confess to crimes or implicate others in exchange for prosecutors dropping the charges against them. Such deals would be permitted in cases involving drugs or financial crimes, but not in crimes of violence. In the second type, a witness could make a confession in a trial in exchange for immunity from prosecution.

I traveled to Tokyo to discuss the pros and cons of the plea bargain with the Japan Federation of Bar Associations. I told the assembled criminal defense lawyers and academics that a system based on plea bargaining often coerces innocent people to plead guilty rather than face a heavy prison sentence if convicted at trial. I then had to acknowledge the reality that plea bargaining was so entwined that we would likely continue our dependence on it.

Describing our system out of its usual frame of reference made it sound preposterous. We routinely offer millions of Americans an excruciating choice: Plead guilty, or risk everything you hold dear.

Naturally, the audience had questions. Would people be forced to accept deals without ever knowing the strength or weakness of the case against them? In Japan, there is no requirement that the state provide accused people with the evidence against them. Would people falsely confess to reduce their punishment?

I had to tell them the truth: that plea bargaining absolutely contributes to false confessions and unjust convictions in the United States. According to the Innocence Project, of the 227 wrongful convictions overturned by DNA, 12 defendants pleaded guilty to crimes they didn’t commit. Virtually every time, they did so to avoid the threat of longer sentences — or in some cases, the death penalty.

The plea bargaining system is taking center stage in Japan’s criminal justice debate. In the U.S., it’s a discussion that’s long overdue. It’s time for us to break from our resigned acceptance of coerced guilty pleas and unjust convictions as a necessary evil in an overburdened system. Our constitutional rights are worthy of protection — and that includes the Sixth Amendment right to trial.

Jeff Adachi is the elected Public Defender of San Francisco. His public affairs program, Justice Matters, can be seen on SFGOV-TV or at sfjusticematters.com.

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