[Op-Ed] Plea Bargaining

Plea bargaining is a system under which a prosecutor negotiates with a defendant’s attorney to give a suspect who confesses to a crime lighter punishment or penalty to speed up the conviction process. The system was first used in countries using English common law, including the U.S., on the premise that it is irrational to make a suspect undergo a jury trial if he or she confesses to the crime. The system was later adopted by countries using the continental civil law system, including France and Italy. If a driver who commits a major traffic violation asks a police officer to reduce the penalty or fine on the ticket, this is an example of plea bargaining. Korea does not use this system, however.

Plea bargaining is often used in drug trafficking or bribery cases, for which securing evidence is difficult without a confession. Instead, Korean prosecutors openly use plea bargaining in large bribery cases. Considering that the methods of committing crimes are growing more sophisticated, plea bargaining is advantageous because it allows prosecutors to use their investigative capacity more effectively. Another advantage is elimination or curbing of harassment or torture of a suspect by prosecutors in their attempt to get a confession. A third pro is the reduction of the cost of an investigation and trial. Dispute over plea bargaining in the U.S. is so intense, however, that certain regions in Michigan and Alaska have revoked it.

A similar system to plea bargaining is immunity, or granting protection from prosecution for a witness who testifies against a criminal suspect. Prosecutors in Korea are investigating a bribery allegation surrounding a test for selecting school inspectors. They indicted without detention teachers who paid between five million (4,300 U.S. dollars) and 11 million won (9,470 dollars) in bribes to rise to the position. Not indicted, however, was a school inspector who confessed while drunk to having paid a bribe of 20 million won (17,185 dollars) to get his position. Prosecutors call the school inspector a whistleblower, saying the nature of the money he paid can be different from bribes made by others. This claim cannot be justified, however.

If the school inspector is not indicted in the end, prosecutors will have effectively used the immunity system, but there are no legal grounds for this just like plea bargaining. They have unsuccessfully sought to introduce plea bargaining three times since 2005. This is because of the legal sentiment of the Korean public, who will probably reject deals made between legal authorities and suspects and a convenience-focused investigation system. Fears could also rise over the deterioration of investigative capacity. In a Seoul Bar Association survey of member lawyers, 57 percent backed the adoption of plea bargaining. Nevertheless, it is premature to believe that conditions for plea bargaining are ripe.

Editorial Writer Kwon Sun-taek (maypole@donga.com)