Paper 2
farra004
Japan.docx
1
Chapter 3: JAPAN
Introduction
JAPAN is an island country located off the eastern coast of the Eurasian continent. It is generally considered a small country, in part because its geographical proximity to China and Russia dwarfs its size. However, compared to western European countries, Japan’s 145,902 square miles make it larger than England or Italy. In terms of the United States, it is slightly smaller than the state of California (see Figure 3.1 ). Japan’s population of 126.5 million is more than twice that found in England, and they are among the world’s most literate people. It is also interesting to note that Japan’s population is growing older faster than any other country in the world. This fact raises a host of economic and social issues for the country’s future. Because the terrain is very mountainous and the habitable land limited, Japan is one of the most densely populated regions in the world.
Although the climate is conducive to farming, less than 15 percent of the land is fertile enough for agriculture. Fishing has long been a significant source of income, but the attention Japan receives regarding its economy generally centers on its industrial production. Before the middle of the nineteenth century, Japan was one of the most isolated countries in the world, and this insular position was by design. The political leadership realized, however, that it could no longer maintain that posture completely. As a result, the leaders made a conscious decision to industrialize. Although the country is not rich in mineral deposits, Japan has emerged as an industrial giant since World War II. Japan is unique in that it is the only non-Western country that has become completely industrialized, exporting a wide range of products that include motor vehicles, electronic equipment, and mechanical tools.
Like the Scandinavians, the Japanese have remained one of the most homogenous of the advanced peoples in the world. More than 98 percent of the population is Japanese, and the largest minority group is Korean. The Japanese have a common history, language, and race. The dominant religions are Shintoism and Buddhism, but these are viewed more as features of Japanese custom than as beliefs that attract devoted followers. It has been estimated that between 70 and 80 percent of the people do not practice any religion. The homogenous qualities of the Japanese are enhanced further by their insular society and entrepreneurial spirit. This may appear somewhat contradictory from a Western perspective, but it is an example of a curious blending of the country’s traditions with modern pragmatism.
The Japanese recognized the value of expanding their trade routes and introducing industrialization to an economy that for centuries had been based on feudal principles. Because of their commitment to this change, the Japanese are recognized today for a competitive spirit that had long been associated with capitalist countries in the West. However, it is a group competitiveness rather than an individual competitiveness that has dominated the Japanese psyche. This style is rooted in the traditional cohesiveness of a society marked by a sense of conformity and uniformity. This explains, in part, why greater attention is focused upon the group rather than the individual. It has been suggested that the reliance upon the group is illustrated in a number of ways (Reischauer, 1977). In the world of business, for example, a person is valued more as a member of a team rather than for individual contributions. As a result, the Japanese are competitive in the business world but not very creative. Emphasis on the group stifles the individual initiative that has traditionally been considered the source of creativity and originality. The group characteristic is also evident in the political arena, as emphasis is placed on reaching consensus opinions through decisions made in committee. At a more personal level, parental authority and familial ties are also stronger in Japan than in Western society, although this is beginning to change.
Edwin Reischauer (1977) argued that the group mentality is evident in yet another context. Individuals in Japan generally are not guilt-ridden when they do something wrong, because the culture does not condition people to feel that they have in some way sinned. This is partially attributable to the lack of a dominant Christian heritage. The sense of belonging to a group has a significant impact, however. When committing a wrong, a member is more apt to feel a sense of shame because of violating the norms of the group or society. Thus, deviant behavior is considered a rejection of the social norms to which individuals are expected to conform—norms that are a part of the country’s tradition.
Because of an absence of the Judeo-Christian heritage, deviants are neither held in contempt by society nor condemned by the agents of the administration of justice. The Japanese are more likely to display a sense of pity toward the transgressor, and this is accompanied by more lenient judgments imposed on the person.
By the late 1860s, the Tokugawa Shogunate, which represented the last vestiges of Japanese feudalism, was overthrown. In 1868, the imperial family was returned to a new position of reverence. This event is referred to as the Meiji Restoration. The date is usually cited as the beginning of extensive contact with the West. It has been suggested that this contact led to a transformation in the economic system that has enabled Japan to emerge as an industrial giant. At about this time, the Japanese were introduced to Western political principles, and in 1889, Japan adopted its first constitution.
The Constitution
People have a tendency to associate the establishment of a constitutional form of government with the modernization of a country’s political system. With our historical hindsight, however, we tend to view Japan’s Meiji Constitution as more of a transitional document toward modernity. Although the political ideas of the West were introduced in the document, they had to be justified and placed in the context of Japanese tradition. The form of the Meiji Constitution followed Western tradition. It was noted for the establishment of executive, legislative, and judicial branches of government; the development of cabinet government with a prime minister; the creation of a bicameral legislature; and the emergence of a sophisticated government bureaucracy. However, the similarities to Western tradition end there, for in substance, the political powers were not separated by a system of checks and balances. The emperor became, at least in name, an absolute sovereign, and the state ruled supreme over the citizenry. The authoritarian nature of the system led to a militaristic posturing both at home and abroad that did not end until the Japanese defeat in World War II.
The close of World War II brought the next major political change since the Meiji Restoration. As victors in battle, the United States controlled the postwar reconstruction of Japan. The period between 1945 and 1952 is known as the Occupation. As a part of that control, a new constitution was introduced in 1947. The Preamble to the document states:
We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolve that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution.
Thus, both the country’s future prospects and recent past are acknowledged at the beginning of the document. The Showa Constitution is truly an Anglo-American document modeled after the British parliamentary system. The emperor’s status is limited to a symbolic function, and political power rests in the legislative branch. The constitution established a cabinet form of government with a prime minister and created a new judicial system.
Moreover, Chapter III of the Showa Constitution is devoted to the rights and duties of the people. Many of the articles in this section are similar to the constitutional or statutory pronouncements found in the United States. Articles 31 through 39 are of particular interest because they establish many of the rights that are espoused in the Fourth, Fifth, Sixth, and Eighth Amendments of the United States Constitution. To illustrate, article 31 states: “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedures established by law.” Article 32 proclaims: “No person shall be denied the right of access to the courts.” Article 33 includes the statement: “No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, . . .”; while article 34 indicates: “No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel. . . .” Article 35 proclaims, in part: “The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause.” Article 36 states that “cruel punishments are absolutely forbidden,” while article 37 indicates that “in all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.” Article 38 points out that: “No person shall be compelled to testify against himself . . . ,” while article 39 addresses the matter of double jeopardy, among other things. Clearly, the Japanese constitution embraces the principles associated with the rule of law. From time to time, questions have been raised about the agents of the justice system actually complying with these principles. Those questions will be covered in the subsections of this chapter.
The Diet
Legislative authority rests with the Diet, which is a bicameral parliament consisting of a House of Representatives and a House of Councillors. The House of Councillors is the upper chamber; it includes 242 members who are elected to six-year terms. Candidates for election must be at least 30 years of age. The House of Representatives is the lower chamber. Like other parliamentary democracies, this chamber is the larger one. It has 480 members elected to four-year terms and is considered the more powerful of the two. Candidates for election must be at least 25 years of age. The House of Representatives elects the prime minister and controls the budget. Each of the houses has a committee system that was originally modeled after the American approach. The manner in which the system works is actually more in line with that found in Sweden. The government bureaucracy does most of the work in the preparation of legislation, which is then introduced to the Diet by the cabinet. It should be noted that all Japanese citizens who have attained the age of 20 are eligible to vote.
The Cabinet
Although the Showa Constitution states that “the highest organ of state power” is the Diet, it is the cabinet that holds the political initiative. The prime minister selects the people to serve in the cabinet, and the majority must be members of the Diet. The cabinet is collectively responsible to the Diet. It numbers approximately 20 people, of which about one-third are ministers without portfolio, who administer subministry departments. The other ministers head specific ministries, the most important being finance, foreign affairs, and international trade and industry.
Prime Minister
The political position of the Japanese prime minister is similar to that in England. The prime minister is elected by members of the Diet. The person selected is always a member of the House of Representatives. This individual is the leader of the government (or administration) and of his or her political party. The prime minister selects the people to serve in the cabinet and functions like a chair of the board for that body. The prime minister and other cabinet ministers are responsible for developing and defending their government policy in the Diet. They can appear in either chamber to explain the government’s position on a specific issue. As in the British system, the Japanese House of Representatives can pass a no-confidence resolution forcing the prime minister and the associated government to resign.
Political Parties
It was not until the Meiji Restoration that political parties were introduced in Japan. Reischauer (1977) indicated that the Japanese, just as the Chinese, had long opposed the party concept. He pointed out that during the premodern period the notion of a political party was interpreted to mean disharmony and, on occasion, was associated with subversive activities. This attitude was tempered somewhat during the late Tokugawa Shogunate (the period before the Meiji Restoration) when political factions established rivalries within the bureaucracy.
Today, the Japanese maintain a multiparty system. Since 1955, the Liberal Democratic Party had usually held a majority in the Diet and thus ruled the country. The party attracted a fairly wide following from a number of sources, but tended to be labeled conservative in its overall position on policy issues. What precipitated the party’s brief loss of power was a series of corruption scandals that emerged in 1989 and implicated many party leaders. In addition, it was unable to introduce fundamental political reform, in large part because of infighting within its ranks (Yokoyama, 2005).
In 2009, the Liberal Democratic Party again lost power when they were overwhelmingly defeated by the Democratic Party. It has been generally suggested that this defeat was the result of Japan’s continuing economic troubles and the demise of communism as a serious threat to the region. The nature of the defeat also proclaimed the end of a one-party rule for the country and the emergence of a more competitive political landscape with two major parties vying for power.
The Democratic Party, however, failed to gain widespread support. There had also been a good deal of tension with its socialist policy agenda and leadership issues. The Liberal Democratic Party returned to power in 2012, while adhering to its conservative political, economic, and social principles.
In addition to these two major parties, there are other parties, all fairly small. They include the Japan Restoration Party, which supports a more open economic system and a reduction in the size of government. New Komeito is the political wing of the Japanese Buddhist organization, Soka Gakkai. While its platform focuses on the environment, health care, social security, education reform, and the promotion of peace, it has moved somewhat to the right as a coalition partner with the Liberal Democratic Party. Your Party attracts young urban professionals with its agenda of small government, lower taxes, and a more open economy. Finally, the Japanese Communist Party is the oldest political party. It remains quite small and espouses a socialist political and economic agenda, supports the country’s pacifist constitution, and opposes the security alliance with the United States.
The Emperor
The restoration of the imperial family in 1868 did not lead to the emperor actually assuming authority. Instead, the political leaders behind the restoration wanted the emperor to reign rather than rule. He was to serve as a symbol of national unity, whereas civilian politicians were responsible for governing the country. The fact that the Emperor Meiji was a boy when he assumed the throne made the system easier to implement. He was succeeded by Taisho (1912–1926), who was mentally incapable of asserting his position, even if he had so desired. Finally, many Japanese scholars are of the opinion that Emperor Showa (1926–1989) had never aspired to be anything but a symbol for his country.
At the end of World War II, the new constitution changed the doctrine of imperial sovereignty spelled out in the Meiji Constitution to the principle of popular sovereignty. Article I of the Showa Constitution states that “[t]he Emperor shall be the symbol of the State and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power.” Thus, the emperor has a position comparable to that of the heads of the few remaining royal families in Europe; he is a figurehead. With his ascension to the throne in 1989, Emperor Akihito announced his firm support for democratic principles and the rule of law. Moreover, opinion polls indicate that the people continue to express a deep attachment to the imperial family and its symbolic role.
Administration
Government administration is carried out at three levels: national, county, and local. The national administration is conducted by governmental ministries and a large bureaucracy. The Japanese system is in line with European systems in that most of the power and control rests with the central administration. Following the war and during the American occupation, attempts were made to decentralize the national government’s authority. For example, control of the police and the educational systems were placed at the local level in an attempt to introduce home rule in Japan. The size of the country and its history of modeling procedures along the lines of European governments combined to lead to the abandonment of this scheme. Thus, the Japanese have returned to a system in which the national government dominates the political decision-making process.
In the realm of criminal justice administration, the police are ultimately responsible to the prime minister. The correctional system and some aspects of the legal profession are regulated by the Ministry of Justice. The justices of the Japanese Supreme Court are initially appointed by the prime minister; they, in turn, nominate judges to the lower courts. During the occupation, the Americans introduced the concept of judicial review on the constitutionality of legislation. In comparison to American courts, however, the Japanese justices rarely wield this authority.
The other two forms of government are found at the county and local levels. Japan has long been divided into prefectures. These are similar in size to American and British counties, and they function along the lines of French departments. There are 47 prefectures in Japan, each having an elected assembly and a governor as the chief administrative officer. The local administration includes cities, towns, and villages. These units also have elected assemblies and mayors. Most of the work at prefectural and local levels involves the implementation of national policy. It has been suggested, however, that this trend may be shifting slightly, for the local units are beginning to address local and regional concerns about the environment and the quality of life (Reischauer, 1977). Nevertheless, national issues and priorities continue to take precedence over local concerns.
Historians of the Japanese police generally divide the evolution of that system into five distinct phases. In many respects, the history of the police (at least before the Meiji Restoration) mirrors the events that occurred in Europe. During the first phase, which encompassed the period from 700 to 1603, Japan had a dual police system composed of both public and private forces. The central government’s ministries of War, Justice, and Popular Affairs retained police and judicial responsibilities (Ames, 1981; Hall and Beardsley, 1965). It was the army, however, that initially served as a professional police force. With the advent of feudalism, the method of maintaining order was decentralized. The shogunate increasingly turned to the samurai to provide law enforcement during peacetime. These forces were assisted in their endeavors by mutual self-help groups composed of family households. Mandated by the Taiho Code, this system was strikingly similar in operation to that of the English tithing system.
The second phase occurred between the years 1603 and 1868. This time, known as the Tokugawa period, was marked by efforts to centralize governmental authority and to assure a degree of political stability. While the self-help groups of the previous era continued to exist, this period is noted for developing a centralized law enforcement system similar to that which would emerge in eighteenth-century France. For example, a secret police force was created and given the responsibilities of identifying corruption in government and spying on those who opposed Tokugawa rule (Ames, 1981). In addition, magistrates were also established throughout the countryside and were given the tripartite authority to serve as chiefs of police for their regions and as prosecutors and judges in criminal cases. They were assisted in their police functions by mounted and foot patrols and by a detective unit.
The period between the Meiji Restoration (1868) and the close of World War II (1945) marked the third phase in the evolution of the Japanese police. Until 1868, the development of law enforcement techniques was largely indigenous to the country (although strikingly similar to those occurring in Europe). As the Japanese began to remove their self-imposed barriers of isolation, they borrowed organizational and administrative techniques from the West. The transformation was made easier by the fact that the evolution of Japan’s police system coincided with that which was taking place in Europe.
In 1872, Kawaji Toshiyoshi, a government official and noted police reformer, was sent abroad to study European police systems; the measures that he recommended for adoption in Japan were largely borrowed from the French and German systems. A Home Ministry was created to control the police system throughout the country. It was operational at the prefectural level of government. Although the police retained quasi-judicial functions, especially those involving minor criminal matters, judicial responsibilities were largely given to the new Ministry of Justice. The police were given the authority to regulate a wider range of social activities, along the lines of the French model. Duties not related to law enforcement included the issuance of licenses and the regulation of a significant number of public health issues.
Thus, the Meiji period introduced a highly centralized police force. During the first half of the twentieth century, this police force became more powerful and increasingly militaristic in approaching its law enforcement and order maintenance tasks. As a result, heavy-handed tactics were employed to govern the citizenry, tactics that today would not be tolerated because they would be in violation of a person’s constitutional rights.
The fourth phase (1945–1954) was highlighted by changes brought about by the American occupation following the war. This brief period was marked by two kinds of reforms that were both substantive and organizational in nature. With the adoption of the new constitution, the authority of the police was harnessed by the constitutional rights given to citizens. The other reform involved the adoption of an American style of decentralized autonomous police forces. The Home Ministry was abolished with this change, and approximately 1,600 independent forces were created to serve the various towns and cities of Japan. Public safety commissions were established to assure that citizens had greater control of their local police force.
The fifth and final phase in the evolution of the Japanese police commenced with the Diet’s approval of the Police Law in 1954. This legislation abandoned the decentralized scheme, which had proved both financially and functionally ineffective. That law is the basis for the current police system. To a large extent, it is a return to a highly centralized national police service.
Organization and Administration of the National Police Agency
Although the Japanese have established a national police force, there are a number of significant differences between the current system and the old centralized force that emerged following the Meiji Restoration. The police retain a degree of local autonomy because they are organized into individual units at the prefectural level. In terms of financial considerations and efficiency of operations, this scheme is much more cost-effective than the pre-1954 system, which had independent police forces. The Japanese have retained the public safety commissions that oversee the supervision of the various forces, but the actual control of the police rests with the National Police Agency, which coordinates the nationwide law enforcement system (see Figure 3.2 ).
National Public Safety Commission
In countries that have a national police force, usually either the minister of justice, interior, or home affairs is assigned the task of serving as the government’s advocate in the legislature on issues pertaining to law enforcement. Japan had such a system before the American occupation. The minister of home affairs was the civilian politician ultimately responsible for the police. However, the ministry of home affairs was abolished at the end of the war because of the manner in which it managed police activities. This left the police under the direct control of the prime minister. Because of the nature of the office, the prime minister appoints one of the cabinet ministers, without portfolio, to be the civilian politician directly accountable for the national police, although the minister is not singly charged with this authority. The Police Law mandates that the National Public Safety Commission, which is under the jurisdiction of the prime minister, be responsible for the administration of the police. This arrangement is designed to achieve a degree of political neutrality for the police.
The National Public Safety Commission is composed of six people. The chair, who is a nonvoting member unless there is a tie vote, is the cabinet minister designated by the prime minister to oversee law enforcement issues. The other members are appointed by the prime minister with the consent of both houses of the Diet. The appointment is a five-year renewable term. Excluded from serving on the commission are people who in the previous five years have served in either the police or prosecutor service. In another attempt to ensure a degree of political neutrality, only three members of the commission can belong to the same political party.
The commission has extensive responsibilities regarding the establishment of basic policy throughout the police system. According to the Police Law, these include matters involving the budget, planning and research, police operations, national emergencies, traffic control, training, communications, criminal identification files, criminal statistics, equipment, personnel, administration, inspection, and the Imperial Guard. The actual implementation of these duties is the responsibility of the National Police Agency. It coordinates this work with the various public safety commissions in the prefectures.
Figure 3.2 Organization of the National Police Agency
It has been suggested that the authority of the various public safety commissions is negligible (Ames, 1981; Hill, 2003; Yokoyama, 2001). They appear to suffer from many of the same problems that had been attributed to local police authorities in England; that is, commission members tend to display a good deal of deference to the authority and opinions of police administrators. As a result, the members do not provide a significant substantive check on the power of the police. Thus, the responsibility for the police actually rests with the National Police Agency.
National Police Agency
The National Police Agency is responsible for the control and coordination of the prefectural police forces. The agency is under the direction of the commissioner general, who is appointed (and can be dismissed) by the National Public Safety Commission with the prime minister’s approval. In addition to a secretariat, the National Police Agency is divided into the following bureaus: administration, criminal investigation, traffic, security, communications, and safety. The agency is also responsible for the National Research Institute of Police Science, the National Police Academy, and the Imperial Guard. Given the extensive supervisory role of the agency, it is actually more involved than the National Public Safety Commission in the active administration of the police throughout Japan. There are approximately 1,600 police officers and 5,000 civilian personnel assigned to the National Police Agency. In addition, the Imperial Guard consists of a force of about 900.
To illustrate how the National Police Agency both controls and coordinates police work at the prefectural level, one need only consider the role played by the National Research Institute of Police Science. The Institute has essentially three goals. The first is to conduct research on crime and to develop better techniques either to prevent crime or to assist police in their investigation of crime. The second is to promote the use of the scientific method in criminal investigations and their own analysis of criminal evidence. The third goal is to assist in training people at the prefectural level in forensic science techniques. The Institute has a broad range of disciplines represented among its staff members that include anthropology, biology, chemistry, engineering, medicine, pharmacology, physics, psychology, and sociology. The staff work in one of the departments that are part of the Institute. These include forensic science, crime and delinquency, traffic control and safety, identification, and training.
The National Police Academy is designed to educate and train senior police officers as they assume leadership positions either at the national level or in a prefectural police force. The Academy also provides advanced training in specialized areas of police work. These areas include community policing, criminal investigation, traffic enforcement, security policing, physical training, and instructor training. Also at the Academy are a series of institutes and centers that include the Highest Training Institute for Investigation Leaders, the International Research and Training Institute for Criminal Investigation, the Police Policy Research Center, the Police Info-Communications Research Center, the Police Info-Communications Academy, and the Research and Training Center for Financial Crime Investigation.
Brief mention should be made of the Imperial Guard. The Guard provides escorts for the emperor, empress, and members of the imperial family. It is also responsible for the security of the Imperial Palace and any other imperial facility.
With the increase in high-tech crime involving computers and telecommunications systems, the Japanese government, like other industrialized nations, has directed its attention to this international problem. One part of the strategy is to pass new legislation such as the Unauthorized Computer Access Law (1999). Another is to improve the enforcement side of the effort. The National Police Agency has developed a National Center that addresses problems associated with high-tech crime and new threats of cyberterrorism. The objectives of the Center are to provide technical assistance to prefectural police, to assist and support international investigations of high-tech crimes, to investigate cases of high-tech crimes or offer analysis of evidence related to such crimes, and to establish a collaborative relationship with various companies associated with the telecommunications industry.
To assist the National Police Agency in its work with the prefectural police forces, seven regional police bureaus have been established. With the exception of the metropolitan area of Tokyo and the Hokkaido prefecture, which are accorded a special status, these bureaus coordinate police activities in their respective regions. Each bureau is specifically responsible for conducting a regional training school and supervising the region’s communications center.
Prefectural Police
Each of the nation’s prefectures has its own autonomous police force that performs law enforcement and order maintenance responsibilities. The 47 prefectural police forces employ approximately 257,100 officers, of which 18,700 are women; and 28,300 civilians, of which 12,100 are women. While each of the prefectures determines its own policies and procedures, because the National Police Agency does not possess the legal standing to authorize a national uniform system of rules, the agency can suggest or guide the prefectures in the establishment of local policies and procedures. Encroachment on the autonomy of the prefectural forces also occurs in other ways. For example, part of the expense for maintaining each force is defrayed by the national treasury. All senior police officers above the rank of senior superintendent are considered officers of the national government and employed by the National Police Agency. These officers are sent by the agency to administer the prefectural forces. Their appointment is made through the National Public Safety Commission with the approval of the local public safety commission. Finally, the costs of maintaining the training facilities, communications network, criminal identification files, crime statistics, equipment, special escorts, and special nationwide investigations are the responsibility of the national government.
Each prefecture has an elected governor. A public safety commission for the prefecture is appointed by and accountable to the governor. The commission oversees the administration of the police. In prefectures containing large metropolitan areas, the commission consists of five members; three-member commissions are found in areas that are not as densely populated. The duties of the prefectural commissions are similar to those of the National Public Safety Commission.
The Metropolitan Police Force of Tokyo is headed by a superintendent general, while the prefectural forces are administered by directors. Appointment to these positions comes from the National Public Safety Commission with the approval of the local Public Safety Commission. In the case of the superintendent general for the Metropolitan Police Force of Tokyo, the appointment also must have the consent of the prime minister. The Metropolitan Police Department consists of more than 43,000 officers (approximately 3,000 of these are women) and more than 2,500 civilian employees.
It should be noted that Japan has had to confront terrorist activities within its borders as well as acts against Japanese citizens abroad for more than 30 years. As such, the Metropolitan Police and some of the prefectural forces have established special assault teams that deal with hijackings, hostage incidents, and other emergency cases. In light of the activities of the Aum Shinrikyo (Supreme Truth) cult, namely the placing of nerve gas in a Tokyo subway in 1995, the work of these special assault teams has been enhanced to include the prevention and investigation of terrorist acts that utilize or threaten to employ biological, chemical, and nuclear substances. The Metropolitan Police have also created a Mobile Rescue Unit and a Water Rescue Unit to assist with operations at disaster areas and accident scenes.
There are several police stations within each prefecture that serve as the principal operational units of the police. Each station is further subdivided into police boxes. A police box is more popularly referred to as a koban. In the late nineteenth century in Tokyo, kobanshos were established at major intersections and other significant locations. A kobansho was a specific place where a police officer stood watch. Over time a box was built at some of the kobansho locations to protect the officers from the weather. Today, there are approximately 6,200 kobans situated in the urban areas of the country, and about 20 percent of the Japanese police are assigned to them. In rural areas, a chuzaisho (a residential police substation) may be operated by a single officer. There are more than 6,600 chuzaishos. Because the officer is on duty 24 hours a day, living accommodations for the officer’s family are included in the chuzaisho.
The size and location of the koban will determine how many officers are assigned to it. All newly recruited officers will spend time at a koban following their initial training. A number of officers who have additional training in community policing are also deployed at kobans, so that the officers represent a diversified age group. The duties of officers assigned to a koban include standing watch either outside or inside the koban, patrolling their neighborhood, and visiting homes or businesses often about a crime-prevention matter. When the police emergency call number is used, the command center dispatches officers from the koban to the scene.
Depending on the size of the area the koban is serving, officers may patrol on foot, bicycle, motorcycle, or small patrol cars. One of the principal purposes of a koban in densely populated urban areas was to provide aid or assistance to people. As such, kobans have a reception area to assist local residents or strangers. The types of issues that they address include taking a crime report, mediating a dispute, counseling a person, receiving lost property, and providing directions for people.
In recent years it has been difficult to guarantee that a koban would always have at least one officer on the premises at all times. As a result, retired officers were recruited to volunteer as police box counselors. Presently, there are more than 6,200 counselors assigned to kobans throughout the country. They perform non-law enforcement duties, such as consulting citizens, receiving lost property, and giving directions. At the chuzaishos, an officer lives with his family on the premises. When the officer is out on patrol, his wife often assists local people. Although not an employee of the police, the wife receives a monthly allowance from the prefectural police in recognition of her contribution. Finally, there are approximately 13,000 liaison councils that present community concerns about security and crime prevention to the local koban or chuzaisho.
Duties and Legal Status
Article 2 of the Police Law explains the general duties and legal position of the Japanese police. It states that the “[r]esponsibilities and duties of the police are to protect the life, body and property of an individual, and to take charge of preventing, suppressing and investigating of crimes, as well as apprehension of suspects, traffic control and other affairs concerning the maintenance of public safety and order.” It was pointed out earlier that the Showa Constitution contains many of the individual guarantees found in the Constitution of the United States. In the Penal Code, Chapter 25 (crimes of official corruption) and Chapter 31 (crimes of arrest and confinement) illustrate the extent to which the police are subject to the criminal law. If the police are accused of a crime, the public procurator’s office conducts the investigation and prosecutes the case, if deemed necessary.
The Japanese police are involved in the host of law enforcement activities necessary for a society that is both urbanized and industrialized. The police are concerned with preventive patrol, traffic enforcement, criminal investigation, juvenile delinquency, and organized crime. They carry firearms, but their policy on the use of weapons is similar to that found in Sweden. With the exception of traffic officers, the weapon is carried only while the officer is on duty. Weapons are stored at the police station at all other times. The frequency of incidents in which firearms are utilized in the line of duty are indeed small compared to the extent to which they are used in the United States. Although the police are authorized to use deadly force if necessary, there is a strong tendency to utilize nonlethal methods when a suspect must be subdued. The reluctance to use such force is essentially a product of the police organizational culture, as they remain conscious of the negative image they generated during the pre-war years. Moreover, the country’s strict gun law prohibits citizens from owning most types of guns. Nevertheless, the police are confronted with the problem of the smuggling of handguns into the country. The most common methods include smuggling through imported cars, fishing boats, sea and air cargo, and hand luggage.
Brief mention should be made of the security police, who are responsible for counter-intelligence and the surveillance of political extremists. A select group of these officers provide security for domestic and foreign dignitaries. The security police are also responsible for crowd control at holiday events and festivals. Within the security police is a unit called the Kidotai, or riot police. The Kidotai are organized into units within the prefectures throughout Japan. Members of the Kidotai are selected from the ranks of the regular police. The criteria for selection include physical strength, command of the martial arts, and ability to cope in stressful situations. The recruits are in their twenties and live a military-style existence while serving in the Kidotai. They generally serve a three-year term with the unit before returning to the regular force. A term served with the Kidotai often enhances the officer’s chances of promotion within the police service.
People in the West often associate riots with racial or ethnic minority groups. Although there are some ethnic minorities in Japan, their numbers are insignificant. In a country that is as homogenous as Japan, the groups that cause confrontations with the Kidotai are ideological in nature. The Japanese police perceive minorities as being those people on either the extreme right or left of the political spectrum. An especially fascinating item to the Western observer is the fact that the Kidotai do not arm themselves with guns when called upon to quell a riot. Once again, Japan’s strict gun law is the reason for this policy. The Kidotai do not see the need for such weaponry in this kind of confrontation. They are provided, however, with a good deal of up-to-date technical equipment to assist them.
The Police and the Public
Throughout the 1960s, 1970s, and 1980s, Japan had been the only country in the industrialized world that did not register a significant increase in the number of nontraffic offenses reported to the police. In some years, it reported either a decrease or no change. Starting in 1991, however, there was an increase in reported crime. Of particular concern were offenses referred to as felonious crimes, including homicide, robbery, arson, and rape. Increases also had been noted in two other categories: violent crimes and larceny crimes. Violent crimes included unlawful assembly with dangerous weapons, assault, bodily injury, intimidation, and extortion; larceny crimes consist of burglary, vehicle thefts, and larceny.
Part of the increase in crime was attributed to the justice system’s efforts to address problems associated with organized crime. For many years, the authorities viewed organized crime, referred to as boryokudan, as operating solely outside the mainstream of society. Following the devastation of World War II, the government was not in a position to direct limited resources at this issue. As Japan’s economy developed, so did the boryokudan. It is alleged in some respects that the boryokudan aided the police in their efforts to maintain order by keeping foreign organized crime elements out of the country. In addition, some developed a cooperative relationship with the police by exchanging information and identifying suspects in ongoing criminal investigations (Hill, 2003; Huang and Vaughn, 1992; Katzenstein, 1996).
By 1990, it was acknowledged that boryokudan were responsible for a significant number of crimes committed with weapons, particularly guns. It was also recognized that some of these gangs were moving into legitimate businesses. The Law Concerning Prevention of Unjust Acts by Boryokudan went into effect in 1992 and was amended in 1993. This legislation not only enabled the police to crack down on the traditional illegal activities of gang members but also made it possible for the tax authorities to investigate the gangs for unlawful income (Sinnosuke, 1992). In light of the problems raised by boryokudan, critics argued that this legislation was not as aggressive as it could be when compared to organized crime legislation in England or the United States (Hill, 2003).
The police also pointed out that there had been a significant increase in the number of foreign visitors, which more than doubled between 1982 and 1992. The police expressed concern over the number of drug-related arrests of these visitors. They also indicated an increase in the number of crimes committed by foreign nationals from Asian countries who were working in Japan. Moreover, there was a recognition that international crime organizations had contributed to this increase in crime (National Police Agency, 1995). More recently, there has been a steady decline in the number of foreigners arrested from the peak years of 2004 and 2005, that is, 21,842 and 21,178, respectively. In 2011, only 12,582 persons were arrested. The highest proportion of these came from: China (which includes Hong Kong and Taiwan), North and South Korea, the Philippines, Vietnam, and Brazil. The most common offenses were theft, assault, unlawful assembly with weapons, and counter feiting. The police are making a concerted effort to train officers about international crime organizations and networking with foreign law enforcement agencies (National Police Agency, 2010).
When compared to other industrialized countries, Japan continues to enjoy a fairly low crime rate. In 2010, the United States reported 10,329,135 major cases; England and Wales had 4,150,097; and France had 3,447,903. Japan reported 1,586,189. For the year 2011, a total of 2,139,725 penal code offenses were reported in Japan. The most common offense recorded was theft at 1,133,127. This represented a decline of 80,315 offenses from the previous year. In 2011, there were 1,051 homicides, 3,673 robberies, 25,832 bodily injuries, 29,237 assaults, 1,185 rapes, and 6,870 indecent assaults (White Paper on Crime, 2012).
Western scholars who have studied the Japanese police have described an organization that utilizes a good deal of discretion and maintains a highly cooperative posture with the citizenry (Ames, 1981; Bayley, 1976a; Fenwick, 1983b; Fenwick, 1985). In turn, the police had elicited from the people a sense of trust and public support. Opposition to the police by way of open hostility was generally limited to extreme political groups.
According to David Bayley and Charles Fenwick, this positive relationship between the police and the public was partially attributable to the traditional submissiveness that the Japanese showed to authority figures. Bayley and Fenwick further suggested that neither the police nor the public perceived the police as mere agents of the law; instead, they viewed the police as moral authority figures. Despite this significant position, the police usually avoided asserting their authority in a formal manner. They preferred to maintain a more informal presence if possible.
American scholars have suggested that both the position of authority and the style of policing is reflected in an almost total lack of concern for several issues that have been perpetual points of tension in other countries. For example, it was believed that the job of the police officer was not as stressful in Japan as in other countries. Because they already had the public’s support, the police were not forced to justify their position to a hostile citizenry. Although stress can be attributed to other factors, at least the Japanese police did not have to cope with that particular stressor.
Police corruption was rare in Japan. According to Bayley (1976a), when it did occur, an individual rather than a group was accused of criminality. This was attributed both to the position that the police held in society and to their team approach to policing. As has been indicated, in Japan, the team approach to any enterprise is valued more than an individual’s contribution. Allegiance to the group and its goals are taken very seriously. With that team mentality present in law enforcement, the opportunities for group corruption were reduced significantly.
Police brutality was also almost nonexistent in Japan, and there was no movement to impose a civilian review mechanism on the police, as was the case in a number of other countries. Civilian supervision of the police was already available both formally and informally, and it was considered adequate. The human rights bureau of the Ministry of Justice had the authority to review human rights violations, including police misconduct. Bayley discovered that few complaints against the police were filed with the bureau, and those that were had been declining in number. The prefectural legislators and the Public Safety Commission also acted as a check on the police. In addition, Bayley pointed out that defense attorneys and the news media actively scrutinized the tactics of the police. Each group supported the contention that brutality was not a problem. When it did occur, newspapers freely reported such cases, as they did other instances of professional misconduct.
Finally, in an effort to augment their own internal commitment to assuring integrity within the law enforcement community, the National Police Agency established a committee on the prevention of misconduct and the development of police integrity. As a result of that committee’s work, the agency issued a new code of ethics for police in 1986. The code reiterated the important qualities expected of police officers: honesty, courtesy, impartiality, respect for human rights, and a sense of professional pride and mission.
This favorable image of the Japanese police has been popularized by the writings of American scholars, endorsed by other components of the justice system, and supported by the attitudes of the general public. One should not be left with the impression, however, that the Japanese police have not been the subject of some criticism. In more recent years, a good deal of criticism has been directed at the police. It began with a small group of Japanese scholars and members of the Joint Committee of the Three Tokyo Bar Associations who had become highly critical of some law enforcement practices. The criticisms were not directed solely at the police; they included concerns about some procedures at the pretrial stage that the police were responsible for implementing and that appeared to be endorsed by procurators and judges (Futaba, nd; The Joint Committee of the Three Tokyo Bar Associations, 1989).
These critical issues centered on the investigative tactics of the police—tactics that helped to explain their high clearance rates (Miyazawa, 1992). For example, under the Code of Criminal Procedure, the police have fairly broad powers to arrest people without a warrant. Once arrested, the person is often detained for questioning for up to 23 days. People can be rearrested on other charges in order to continue the detention; these warrants are readily issued by the courts, which tend to defer to the judgment of the police investigators. The accused also has no right to legal counsel during questioning. Once indicted, access to counsel can be and often is restricted by the police; moreover, written communications between counsel and the accused can be censored. In addition, there is no system of court-appointed counsel until after the indictment is issued, and suspects who maintain their innocence are usually refused bail.
The process is further facilitated by the policy of using police holding cells as substitute prisons. Unlike the regular detention facilities maintained by the Ministry of Justice, the substitute prisons are administered by the police. Over the years, the police have encouraged the government to provide more funding for the construction of such facilities, and successive governments have supported this request. There are presently more than 1,000 substitute prisons throughout Japan.
The use of extended detention in these substitute prisons, coupled with the broad procedural powers accorded the police, has led detectives to focus almost exclusively on extracting confessions from the accused rather than building cases based on other kinds of evidence. Critics maintain that the circumstances of detention lead police to employ unjust treatment and sometimes illegal tactics during interrogation. In support of this contention, critics have identified instances in which people have elicited false confessions. They point out further that the United Nations Human Rights Committee recently expressed concern about possible violations of human rights in this context.
While critics of the status quo are concerned about the situation, they readily admit that all the blame cannot be leveled at law enforcement. Procurators tend to support police tactics, and judges take a passive attitude when it comes to pretrial procedures, often deferring to the procurator. This leaves defense counsel to scrutinize and criticize police tactics. However, as few lawyers specialize in criminal law, they lack strength in numbers. Finally, political parties either support the system or have not raised the issue in any political forum because the general public has not displayed much interest in the issue.
These criticisms do not necessarily mean that American scholars have projected an inaccurate image of Japanese police. What the critics are suggesting is that there has been a shift to some extent in the goals of law enforcement. Presently, the police organization appears to emphasize law enforcement rather than order maintenance and social service objectives. The critics allege that this change began to occur in the 1980s. Thus, some of the generalizations about Japanese police by American scholars may be dated as they pertain to certain contexts or particular areas of the country. This is especially the case when applied to prefectures that have a higher incidence of criminal activity.
Finally, it was already public knowledge that some conservative politicians, especially those associated with the Liberal Democratic Party, were linked to prominent leaders within the Japanese organized crime community. In the 1990s, there emerged a series of revelations about police corruption and abuse, of which some were associated with organized crime (Hill, 2003; Katzenstein, 1996; Yokoyama, 2004b). This was a period when the Japanese people were becoming highly critical of their government and financial institutions as the country remained in an extended period of recession. Revelations about several cases of police corruption coupled with cases of theft, sexual offenses, bribery, violence while drunk, and driving while under the influence added to the negative image of the police.
In 1983, the public was asked to rate the major institutions in Japanese society. The police ranked higher than the government, business, and the press (Katzenstein, 1996). It is important to point out that the vast majority of police in Japan are honest professionals. This is illustrated by the fact that in 2000 only 546 officers received a disciplinary penalty out of roughly 267,000 officers (Yokoyama, 2004b). Unfortunately, the cases mentioned previously have led to a decline in the public’s trust of the police. One indicator noted by the National Police Agency was that people’s willingness to report crimes and suspects fell from 61.6 percent in 1969 to 49.9 percent in 2000 (White Paper on Police, 2000). In 2008, the National Police Agency reported that among 2,454 detectives, 79 percent were having a difficult time getting witnesses, suspects, and others to cooperate in criminal investigations (White Paper on Police, 2008). The police are making a concerted effort to recapture the very positive image that the public had of them throughout the 1960s, 1970s, and 1980s. Two areas of attention include recruitment and training and crime prevention.
Recruitment and Training
Japan’s recruitment scheme is similar to that found on the continent of Europe. A recruit can enter the service as either a police officer or an assistant inspector. Both are required to pass a national qualifying examination. The successful candidates then must complete a physical exam, an aptitude test, and a series of personal interviews. Those recruited to the rank of police officer must have completed high school; at present, approximately 65 percent are university graduates. Candidates for the rank of assistant inspector must have a college degree and must have passed an advanced civil service examination. As a whole, the police are better educated than the rest of the population.
During the evaluation process, the personal and family history of the recruit is scrutinized extensively in order to screen out candidates who fail to meet the predetermined profile of a successful officer. Among the issues considered in the background check that can lead to disqualification are a criminal history, a history of mental illness, identification with left-wing political groups, associating with extreme religious groups, and possessing a “tainted” background because of a prior association with a former outcast class in Japanese society (Ames, 1981). These apply to both the candidate and family members. Obviously, some of these factors would be considered a violation of a candidate’s civil rights if applied in the United States.
The candidates for police officer are recruited and trained at police schools in the prefectures. The program is regulated by the National Police Agency. High school graduates spend 10 months at the school, whereas college graduates complete the training in six months. Recruits study law, police procedures, sociology, psychology, history, literature, and the martial arts. Thus, the program contains a general educational component as well as technical training. After completing this initial training, the recruit spends three months at a police station for on-the-job training. The recruit then returns to the academy (a high school graduate for three months, a college graduate for two months) for additional training that focuses on legal topics and community policing. Finally, the recruit (a high school graduate for five months, a college graduate for four months) will participate in on-the-job training at a koban. A senior officer at the koban will train the recruit on the importance of community policing. Once a person becomes a police officer, there are opportunities for in-service training that facilitates promotional opportunities. Some young officers are even given the opportunity to participate in training programs in Europe and the United States.
People who have been recruited to the rank of assistant inspector spend six months in training at the National Police Academy, where the program is designed to groom future police executives. There is also an extensive system of special training to enhance officers’ skills in particular aspects of police work. In-service courses, which prepare officers for promotional examinations, are also offered. These are run by regional police schools. Bayley concluded from his study that the typical police officer is young, male, married, a high school graduate, of marginal middle-class background, and, in general, raised outside the larger metropolitan areas of Japan.
The minimum age for recruiting a male candidate is 19, whereas the age established for females is 20. Although female recruits are empowered with all the authority of a police officer, their responsibilities have been limited usually to such areas as traffic, juvenile, and communications functions. This attitude is beginning to change as female officers are being assigned a wider range of police duties, including that of criminal investigation.
In 1991, the National Police Agency embarked on a new policy designed to alter the rank structure of the police within six years. Prior to the implementation of this policy, 80 percent of the police were at the rank of police officer or police sergeant. The goal has been to increase the number of officers above the rank of police sergeant to 40 percent of the total force, with the specific objective of doubling the number at the assistant inspector rank. This policy has two objectives. First, there is recognition that the current crime problem requires that officers have a combination of breadth of experience and knowledge as well as depth of expertise and specialization. Second, there is a need to recognize and reward people based on merit. The goal, therefore, is not to create a larger desk bureaucracy within the police establishment; rather, the aim is to recognize excellence and reward it, while keeping the officers in the field so that they can continue to excel at what they do best (Leishman, 1993).
Crime Prevention
According to Walter L. Ames, the Japanese police have established two approaches to crime prevention. One is in the form of a public relations campaign that enhances the public’s image of the police. For example, information about crime-prevention techniques is published and distributed by the police. Special programs also have been developed to curb the illegal use of drugs and to reduce traffic accidents.
The other approach, creating a dialogue between the police and the public, is implemented through voluntary citizen support groups. The Japanese have had a long tradition of citizen participation in law enforcement. This is reflected by the neighborhood associations in which every household is represented. Within the neighborhood associations, there are crime-prevention and traffic-safety associations. The crime-prevention associations assist the police in advising residents on household security techniques. The traffic-safety associations conduct campaigns to reduce traffic accidents. There are also hundreds of specialized associations that reflect crime-prevention needs and strategies of businesses. Banks, department stores, bars, and restaurants are examples of some businesses that have developed their own particular crime-prevention associations with the cooperation of the police.
Probably the most important feature of the Japanese crime-prevention program is the existence of police boxes, or kobans. Kobans, which are scattered throughout the urban areas, function along the lines of the mini-police stations that have become popular in some cities in the United States. Kobans serve two principal functions: (1) they offer information to those in need of assistance, and (2) they are the first line of defense in the system’s attempt to maintain law and order, because it is the officers assigned to the kobans who provide the basic street patrols. As Bayley (1976a) has pointed out, these are the officers who physically demonstrate the existence of police authority, resolve minor problems, and enhance the public’s trust in the law enforcement community.
The kobans reflect a neighborhood-centered policing function. By patrolling a specific area over an extended period of time, they become particularly conscious of the needs and concerns of their immediate community. Their knowledge and understanding of the area is enhanced further by a survey conducted by koban officers twice a year. While conducting the survey, it is common for the officers to advise the residents on various crime-prevention techniques. The officers collect a host of information about the neighborhood through the survey. The names, ages, and employment of each resident are recorded, and the ownership of cars and their license numbers are routinely taken down. Additionally, the police inquire about any suspicious behavior or illegal activities in the area. Although people are not required to answer these questions, most cooperate willingly. Any information gathered remains at the koban to assist the officers in their work; it is not passed on to a government agency.
Bayley pointed out that the survey serves another purpose. In the course of their duties, most police come in contact only with the criminal or deviant elements of society. In the process of the survey, however, the police are more frequently in contact with law-abiding citizens. In the long run, it is a healthy experience for the officer, and it also serves to reinforce the public’s positive image of the police.
Because of the increased concern of citizens about crime, the police have recently issued some new policy guidelines to address these concerns. They include a concerted effort to reduce street crimes by supplying more crime-prevention information to the public, by increasing the number of officers assigned to kobans, and by enhancing the officers’ street patrol activities. Kobans have also benefitted from the introduction of koban counselors, civilians who assist the officers with social service requests, which in turn enable the officers to handle law enforcement issues.
Because juveniles commit 70 percent of the street crime, particular attention is focused on them. Community policing efforts focus on counseling juveniles about issues often associated with them, such as drug abuse and other circumstances that could lead to them becoming a crime victim. Community police officers also volunteer their time to teach young people about various sports, such as judo and kendo. They assist in educating juveniles about cultural activities such as, for example, painting and calligraphy. Finally, officers are present at community events to supplement their agency efforts at crime-prevention education.
Efforts are also being initiated to improve the manner in which major crimes are investigated. A greater emphasis is being placed on the collection of forensic evidence rather than securing a confession from a suspect. Both Japanese gangs and foreign gangs are being targeted, and information is being shared among government agencies, such as the Immigration Bureau, and with other governments, such as the Ministry of Public Security of the People’s Republic of China (Police Policy Research Center, 2006).
In addition to these initiatives, police focus a good deal of attention on traffic-safety education for children and senior citizens, as well as motorcyclists, who have been a particular concern for some time now in Japan. The police also have a significant presence in most schools for purposes of providing crime-prevention and drug-education lessons and in offering guidance to juveniles. Finally, the police have targeted fraud and other business offenses, child abuse, and stalking in both the pre-cyber form and when these offenses are facilitated by the Internet.
As a result of the efforts at recruitment and training and the strategies directed at crime prevention, polls have indicated some improvement in the public’s confidence in the police. When compared to other public-sector organizations, the police have enhanced their standing in the community. Although improvements in public safety are welcome, it has been suggested that the most critical factor in improving the public’s confidence is for further reform and change within the police organization (Kanayama, 2010).
When compared to the traditions of Western countries, the histories of both the Japanese court system and legal profession are fairly brief. The reason for this is that until the Meiji Restoration, the Japanese had neither a court hierarchy nor a legal profession, at least not in the sense that those terms had been utilized for centuries in other countries. Prior to the Restoration, the Japanese followed the Chinese tradition of including judicial matters within the purview of government administrators. In fact, attempts were first made to conciliate disputes privately before turning the matter over to a court. When a case could not be resolved informally, it was usually handled by a local administrator of the shogunate, who also served as a magistrate. Serious matters were resolved at the headquarters of the shogunate. Because the parties in both civil and criminal cases were not permitted legal representation, there had been no need for a legal profession.
With the demise of the Tokugawa Era and the advent of Meiji, a significant change occurred that was based upon the introduction of the principle of the separation of powers. Japan’s first judicial code was introduced in 1872. It not only established a court hierarchy, but also created the legal offices of judge and procurator, which, in theory, were not a part of the executive branch of government. The application of the separation of powers in the Western tradition was incomplete, however. This was to be expected in a country that was embracing Western legal concepts, yet lacked the historic traditions and understanding essential to making the new system work. As a result, the minister of justice (a member of the executive branch) sat as the chief judge in the Ministry of Justice Court, the highest court in the land. The minister of justice also had the authority to appoint and dismiss judges and procurators. Because the country did not have a trained judiciary, the minister usually appointed government administrators to serve as judges in the local courts. Thus, the old ways had not been totally abandoned.
Nevertheless, changes in the courts and legal profession were in the offing during the two decades that preceded the adoption of the Meiji Constitution of 1889. For example, the minister of justice ceased taking an active role in the Ministry of Justice Court by 1875. In fact, the name of the highest court was changed to the Great Council of the Judicature. However, the minister continued to control the appointment and dismissal of judges and procurators. In 1884, a regulation mandated that judges pass an examination prior to their appointment to a court. Procurators were subject to the same regulation by 1886. In that same year, judges were assured a greater degree of independence, because they could no longer be removed without just cause.
For centuries, the Japanese had not recognized the need to have legal counsel representing clients in court. With the acceptance of Western legal ideas, this attitude was to change, albeit rather slowly. Litigants in civil matters could employ the services of counsel by 1872, and this was extended to criminal cases in 1880. Scholars who have examined the history of the Japanese bar have pointed out that the advocates were not accorded special standing in the courts; they were more or less treated like the litigants. Moreover, little was done to regulate the profession. It was not until 1876 that the Ministry of Justice required the passing of an examination to practice law. In 1880, advocates were organized into associations that were responsible to the district procurator. Finally, people began to attend universities to acquire formal legal training.
From the Meiji Restoration until the adoption of Japan’s first Constitution in 1889, the Japanese modeled their legal reforms along the lines of the French system. This tradition ended, however, with the drafting of a constitution. Because the Japanese found the Prussian system of an absolute monarchy more fitting to their needs, the Meiji Constitution and the subsequent reforms in the legal system were modeled after the German system. In terms of the manner in which the legal system would operate, the changes were not all that significant. Both the German and the French systems were part of the Romano-Germanic legal tradition that dominated the continent of Europe.
Between the adoption of the Meiji Constitution and the end of World War II, the Japanese judiciary matured into a highly professional body. Part of this success was attributed to the constitutional guarantee of judicial tenure. Another was the marked improvement with which the credentials of judges and procurators were scrutinized. The Attorneys Law of 1893 enhanced the professional status of the Japanese bar and established new admissions standards. Finally, the minister of justice took an active role in regulating the profession.
With the creation of a new constitution during the Occupation, the judiciary was subject to considerable reform. These changes largely reflected the Anglo-American legal background of the occupation forces. Most experts identify three salient reforms that are attributed to the Showa Constitution. The courts were assured complete independence and autonomy; they would have the power of judicial review over legislative acts, which had been prohibited under the old constitution; and they would adjudicate all litigation, including administrative matters, between the state and a citizen. Special administrative courts handled such cases under the Meiji Constitution, as is the tradition in Romano-Germanic law countries, but these courts were abandoned with the passage of the Showa Constitution.
Although the Japanese established a modern judicial system, there remained deeply rooted in the social context of the country some reluctance to use the system as it was intended (or at least as perceived by people from the West). Central to understanding this attitude is the influence of Confucian natural law on Japanese culture. Two beliefs from this doctrine help to illustrate the basis for the Japanese attitudes to the judiciary: (1) the belief that people do not possess rights but rather have a duty to be loyal to their superiors, and (2) the belief that one should strive to attain individual and collective harmony in society.
In an attempt to follow the Confucian philosophy, procedural rules were devised throughout the Tokugawa Shogunate and the Meiji Era so that conciliation and mediation might resolve a dispute before it was brought to a court of law. The notion of going to court to litigate was considered anathema. Litigation implied that a person had a claim of recourse as a right and threatened to disrupt the social harmony by eventually declaring a winner and a loser in the suit. The loser would feel a sense of shame that would disrupt his or her personal social harmony. Both of these notions were at cross-purposes with the Confucian natural-law doctrine.
The idea of social class, as defined by Japanese law, has been abolished, and people have acquired several rights with the Showa Constitution. Nevertheless, social status remains important in Japan, and people still prefer to have disputes mediated rather than litigated. This helps to justify the amount of time courts spend functioning as conciliators in disputes. It also explains the large number of cases from the lower courts (approximately 50 percent) that are either withdrawn or end in a compromise (See, 1982). It has been suggested, however, that the apparent lack of litigiousness among the Japanese is more a product of institutional constraints (the limited number of people who are permitted to pursue a career as a judge, procurator, or attorney) than of deference to Confucian philosophical principles (Berat, 1992).
More recently, those institutional constraints have led to a good deal of comment and study on the state of the judiciary. As mentioned earlier in the section on police, throughout the 1990s the Japanese people were becoming highly critical of their government and other institutions in their modern society. Both the extended period in which the country had been in recession and the move toward a more global economy had placed a significant strain on the country’s rather small legal profession. As a result, the Japanese business community joined the disgruntled citizenry in demanding reform of the judicial system. To illustrate the issue of the size of the profession for such an advanced industrialized and urbanized society and by way of comparison, Japan had 20,730 legal professionals in 1999. In that same year, the United States had about 941,000; England and Wales had approximately 83,000; and France had around 36,000 (Justice System Reform Council, 2001).
Even before the recession, critics of the status quo, which included a number of the local bar associations, had suggested that there was a need for comprehensive judicial reform. They pointed out that before the end of World War II the judiciary was viewed as part of the bureaucracy designed to control the people. With the introduction of democracy following the war, one of the goals was to introduce the principle of separation of powers in government and, with it, the establishment of an independent judiciary. Critics maintained that the judiciary remained too bureaucratic. Because of the limited number of judges, procurators, and attorneys, people were restricted in their access to the justice system. As such, the judiciary was considered remote and not terribly user-friendly. Suggestions to improve the judiciary and the justice system had been far-ranging. They included appointing practicing attorneys to serve as judges and procurators, reforming the bar examination, and protecting human rights. Concerns that had been directed specifically at the criminal justice system focused on providing a better criminal defense, protecting the rights of the detained, and abolishing the death penalty.
The Justice System Reform Council was created in 1999 with a mandate to consider measures for judicial reform in the context of defining the role of the judiciary for the twenty-first century. The council was composed of 13 people who were appointed by the government with the approval of the Diet. According to the enabling legislation that created the council, six of the members had experience either practicing law or as legal scholars. The other seven members were expected to come from other fields. The objective of this was to enhance the likelihood that the public’s views were expressed and considered during the deliberations of the council.
After its creation, the council collected information from a variety of sources about the state of the judiciary and the administration of justice. In an initial report, they concluded that “the administration of justice is hard to understand and difficult for the people to utilize.” Obviously, a central goal of the council was to make the justice system more open to the public. Among the issues raised in this initial report were a recognition not only of the shortage of lawyers but also their uneven distribution throughout the country; the need to reexamine the system of legal education and training; the necessity to improve the legal aid system; a review of criminal procedures to assure that they are in compliance with human rights guarantees; the value of providing information to the public about the administration of justice and also the use and role of alternative dispute resolution programs; and finally, in terms of making the public more knowledgeable about the administration of justice, whether the use of lay judges or the jury should be utilized as in civil and common law countries (The Justice System Reform Council, 1999).
The council issued its final report, Recommendations of the Justice System Reform Council for a Justice System to Support Japan in the 21st Century (hereafter RC21), in June 2001. The report explains the reasons for the government creating the council, which were:
[for] clarifying the role to be played by justice in Japanese society in the 21st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system, achievement of a legal profession as it should be and strengthening the functions thereof, and other reforms of the justice system, as well as improvements in the infrastructure of that system.
The report went on to state that there were three pillars or basic policies to this effort at reforming the justice system and contributing to a more free and just society. The first of these addressed the need to meet the public’s expectations by which “the justice system shall be made easier to use, easier to understand, and more reliable.” The second pillar focused on the legal profession and its support of the justice system through improving both the quality and quantity of the profession. The third pillar cited the need to improve the public trust in the justice system. This could be achieved by permitting the public to participate in legal proceedings and provide their views in other forums. The report contained a very comprehensive plan for revising the country’s judicial system. Proposals were put forward that would change both the civil and criminal justice systems. All the suggestions alluded to in its initial 1999 report were included and expanded upon in the final report. What has been somewhat surprising is the speed with which the government accepted the recommendations and introduced enabling legislation to move ahead with a plan.
Organization and Administration of the Courts
Japan has a four-tiered hierarchy with five courts responsible for all litigation (see Figure 3.3 ). The family courts deal with juvenile delinquency cases and will be examined in the section devoted to juvenile justice. Before the court system is described, brief mention should be made of the responsibilities of the Ministry of Justice.
Ministry of Justice
The Ministry of Justice is a cabinet-level department headed by the minister of justice, who is appointed by the prime minister. Before the adoption of the Showa Constitution, the ministry was afforded a good deal of authority over the courts, judiciary, and other members of the legal profession. The adoption of the new constitution altered the ministry’s authority considerably. The principal reason for this change was the inclusion of the principle of the separation of powers in the Showa Constitution. Modeled after the American system, the Japanese made a clear distinction between the duties and responsibilities of the executive, legislative, and judicial branches of government.
The ministry is divided into seven bureaus: the criminal affairs and civil affairs bureaus are responsible respectively for the research and preparation of bills involving the criminal and civil law; the correction bureau coordinates the prison system and issues involving prisoners; the rehabilitation bureau handles matters pertaining to released inmates and offenders on probation; the litigation bureau serves as the legal department for government agencies and represents the government in court; the immigration bureau processes people entering and leaving the country; and the civil liberties bureau is ultimately responsible for the investigation of allegations of civil rights violations. Most staff members within the ministry are public procurators.
Figure 3.3 Organization of the Japanese Courts
Also under the organizational control of the ministry is the Public Security Intelligence Agency. This agency was created in 1952 with the passage of the Subversive Activities Prevention Law. The purpose of the legislation was to assure the protection and further development of democratic principles in the country by controlling organizations that might attempt violent subversive activities. As such, the agency conducts investigations into groups that are suspected of threatening public security. Because such circumstances are not always limited to internal threats, the agency collects information on international matters that might influence subversive groups within the country. In addition to its headquarters, the Public Security Intelligence Agency is divided into eight regional bureaus throughout the country. There are also field offices in each of the 47 prefectures.
The Supreme Court
The Supreme Court has judicial and administrative responsibilities. These are explained in both the Showa Constitution and the Court Organization Law. The court’s judicial responsibilities are limited to issues involving constitutional interpretation. The court, which consists of a chief justice and 14 associate justices, hears cases as either a grand bench or a petty bench. A grand bench includes all 15 members of the court and must sit when an issue involves a new constitutional ruling or a new precedent is set. According to Supreme Court rules, nine justices constitute a quorum, and eight justices must concur for a law to be declared unconstitutional.
The court is also divided into three petty benches, which deal with all other cases brought to its attention. A petty bench includes five justices. A minimum of three must be present to hear a case. The court usually reaches its decision by examining only documentary evidence when hearing a case; however, it does permit oral arguments. Opinions of the court are written, and each justice is afforded the opportunity to express personal views on the case.
It should be noted that the Japanese Supreme Court has ruled only six times on the unconstitutionality of statutes (Bolz, 1980; Itoh, 1990). A number of scholars have mentioned various reasons for the court’s reluctance to utilize its review powers in this manner. Among the factors frequently mentioned are the court’s conservative outlook, the political system’s emphasis on the Diet’s supremacy as lawmaker, and the inexperience of the legal profession in dealing with constitutional matters because of its long association with the Romano-Germanic legal tradition.
The court has tended to declare unconstitutional only those cases in which the government’s discretionary authority points to an extremely unreasonable or arbitrary action. Of the six cases that declared a law unconstitutional, the court considered all of them violations of civil liberties. Two involved equality issues, two addressed property rights, one dealt with due process, and one focused on a freedom of occupation issue. It is also interesting to note that after the court declared a law unconstitutional, it did not provide a policy remedy to rectify the situation. It assumed that politicians and government bureaucrats would correct the wrong by amending the statute and providing appropriate policy guidelines (Itoh, 1990). This is in keeping with the Romano-Germanic tradition that it is the responsibility of the legislature to make or rescind a law and not that of the courts.
The administrative responsibilities of the Supreme Court include the regulation of attorneys (through rule making), the public procurators (by the same method), the internal discipline of the courts, and the administration of all other judicial issues. When the court exercises its administrative responsibilities, it sits in a grand bench session. Finally, the Supreme Court is responsible for three research and training institutes: one specializes in the training of members for the legal profession, another prepares people to work as court clerks, and the third trains family court investigators.
High Courts
There are eight high courts that serve as the intermediate courts of appeal. Each court has a president and a number of other judges who entertain appeals from district, family, and summary courts. When hearing an appeal, three judges sit to decide the case, and one is designated to be the presiding judge. On occasion, judges from either district or family courts may be called upon to supplement the judges of a high court.
As a rule, a case on appeal does not have to be heard in its entirety, because the judges are interested only in the issue that is being questioned. Because of the nature of the issues contested, however, the court often reviews the entire case. The written opinion of the court contains only the majority view, which is signed by all the judges. Unlike the Supreme Court, high courts do not record dissenting opinions. A high court decision can be appealed further to the Supreme Court if the matter involves a constitutional issue. High courts also act as courts of first instance when a person is charged with insurrection or sedition. In such cases, five judges sit to hear the case.
District Courts
There are 50 district courts, and these are the principal courts of first instance. Each of the 47 prefectures has one district court, with the exception of Hokkaido. (Hokkaido’s size has warranted the establishment of three additional district courts.) District courts handle both civil and criminal cases. If the matter is relatively simple, a single judge sits to hear the case. In more complex cases, a three-judge panel handles the issue. Criminal cases that must be heard in this collegial format include offenses for which the defendant could receive a sentence of death, life imprisonment, or imprisonment for one year or more. There are some exceptions to this rule, and they tend to involve robbery cases. District court judges also sit in panels of three to hear civil cases on appeal from summary courts.
Family Courts
As it pertains to criminal justice, the role of the family courts is limited to juvenile delinquency cases. As such, family courts will be highlighted in the section on juvenile justice. Brief mention is made here because of its unique position and history in the judicial hierarchy of Japan. Family courts are the only courts in the system that specialize in particular kinds of cases, namely juvenile and family matters. There are 50 family courts that are equal to but independent of the district courts.
The family courts were created in 1949 as a result of the new Constitution. Article 24 established the idea of “equal rights of husband and wife” in marriage. It also states that “laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.” In both tradition and law, Japanese family life had been dominated by the male head of the household. The introduction of equality in family law through the Constitution necessitated a change in existing laws. This resulted in a new court—the family court—being authorized to handle domestic and juvenile matters.
Summary Courts
There are 438 summary courts. These courts handle minor matters that do not warrant a formal trial. Summary court judges hear civil issues in which the value of the action is less than 1,400,000 yen. They also offer conciliation proceedings if the issue is a civil law matter. In such instances, a conciliation committee handles the issue. The committee consists of a summary court judge and two conciliation commissioners who assist the parties in resolving their dispute.
The criminal jurisdiction of the summary courts involves cases in which the sanction is either a fine or a lighter penalty, or involves a minor offense, such as theft. If the court concludes that the sanction should be greater than that which it has the power to impose, the court must transfer the case to a district court. Approximately one-half of the judges serving in the summary courts are not trained lawyers but have held legal positions such as court clerks for a number of years.
The Legal Profession
As it relates to the criminal justice system, Japan’s legal profession is divided principally into three groups: judges, public procurators, and attorneys. Members of each group have been professionally trained in the law. Most have received a law degree from a university. All have passed the national bar examination and have continued their studies at the Legal Training and Research Institute for an additional 18 months. It is the legal profession and how they are educated that received a good deal of attention in the RC21 report. A number of these recommendations are noted in this section of the chapter.
As mentioned earlier, the size of the Japanese legal profession is small compared to that in other industrial countries with similar populations. At least three reasons are frequently cited for the small size of the Japanese legal profession. First, the Japanese have never been a highly litigious people. Since the medieval period, they have preferred to resolve disputes through private conciliation. As was pointed out earlier, however, this attitude appears to be changing. It also has been suggested that after a civil case reaches the trial stage, the process is often continuously drawn out in the hope that the litigants will settle the issue out of court (Thompson, 1985).
Second, there has been a failure rate of more than 98 percent for applicants who take the national bar examination. One should not conclude from this figure that the educational system is inferior, however. The high failure rate on the bar examination was planned for several reasons. The Legal Training and Research Institute could only accommodate between 450 to 500 new candidates each year. All the students at the institute receive a subsistence stipend for the two years during which they are in attendance. For years, the government claimed that extra funding was not available to support more students. As was discussed earlier, critics of this system have maintained that this policy discouraged litigation indirectly by controlling the number of people who were authorized to assist litigants. The Ministry of Justice changed its policy as a result of this criticism. It admitted 600 new candidates in 1992 and planned to raise that to 700 in 1993. Critics maintain that while it is a step in the right direction, this figure remains inadequate. Some have even questioned the extent to which the government controls the training of the legal community (Berat, 1992; Leonard, 1992).
Finally, Japanese attorneys do not have a monopoly in what Westerners generally consider the practice of law. For example, they are not widely employed as corporate counsel. That elite position is reserved for people who have studied law at a university and have entered the business world. Generally, they have neither passed the bar examination nor studied at the Legal Training and Research Institute. Tax and patent work are also handled by specialists who have studied law but not passed the bar examination.
The size of the legal profession is about to change considerably as a result of the recommendations of RC21. First, the system and methods of legal education are undergoing significant changes that will be explained shortly. Second, the RC21 recommended, and the government accepted, the goal of having 1,500 applicants pass the existing national bar examination in 2004 and set a higher goal of 3,000 applicants passing a new national bar examination by around 2010. These changes are being made as a result of the basic policies in the RC21 report that were alluded to earlier: the need to increase the size of the legal profession in order for it to support the justice system more effectively and to provide the public with greater access to the legal profession. There is already some improvement in this regard: in 1999, there were 20,730 legal professionals; by 2007, there were 24,302 attorneys, of which 3,423 were women (Japan Federation of Bar Associations). A goal of the government is to increase the number of legal professionals to 50,000 by 2018.
Judges
For the most part, Japanese judges represent a separate tier in the legal profession. Once a student has passed the national bar examination, he or she spends the next 18 months in training at the Legal Training and Research Institute. When a person graduates from the institute, he or she can apply for a career as either a judge or public procurator. Individuals selecting a career as a judge are appointed to a court and classified as assistant judges. After 10 years, the assistant judge is raised to the status of judge.
The appointment procedures and requirements for serving on different courts vary according to the Court Organization Law. The justices of the Supreme Court, for example, are formally appointed by the cabinet, with the exception of the chief justice, who is appointed by the emperor on the recommendation of the cabinet. Justices of the Supreme Court must be at least 40 years of age and can serve the court until their seventieth birthday. Most justices, however, are not appointed until they are about 60 years old.
One notable provision in the law is the manner in which the composition of the court is decided. Before the end of World War II, the Japanese adhered to the Romano-Germanic tradition of a career judiciary. Following the war and as a result of the Anglo-American influence, it was decided that this tradition fostered a narrow legal background that was not conducive to handling the significant changes in the constitutional status of the judiciary—especially the responsibility for judicial review. The goal, therefore, was to assure that the court’s members would possess both breadth and depth of vision when interpreting the law. This call for a more balanced background from members on the court led to a change in the criteria for selection. Though the Supreme Court judges must meet the previously mentioned requirements, at least 10 members are chosen from among high court and district court judges who have 10 or more years of experience. Judges from the summary courts, public procurators, attorneys, or law professors who have 20 or more years of experience also can be selected to serve on the Supreme Court. Candidates for the remaining five positions must be at least 40 years of age and possess some knowledge of law.
Judges for all the lower courts are formally appointed by the cabinet upon the recommendation of the Supreme Court. Specifically, it is the personnel bureau of the court that prepares the list of names. As such, it is the judiciary that makes judicial appointments through consultation with senior judges and the careful screening of candidates. It has been suggested that Japan’s judiciary is an autonomous bureaucracy that has the trust of both the politicians and the public in how it selects and promotes its members (Haley, 1998).
High court and district court judges can serve until their sixty-fifth birthday. Many started their careers as assistant judges and then were elevated to regular status after 10 years. Summary court judges do not have the same status as high or district court judges. Many had careers earlier in life either as clerks or administrative assistants to a court, or they were career judges or procurators who had reached mandatory retirement age but had an interest to continue to work. Unlike regular judges and procurators, the retirement age for a summary court judge extends to their seventieth birthday.
According to article 76 of the Showa Constitution, “judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the Laws.” Judges can be removed, however, if they are declared incompetent because of a mental or physical disorder. They also can be removed by public impeachment, a process handled by members from both houses of the Diet.
The approach taken by Japanese judges toward interpreting the law reflects both their Romano-Germanic tradition and their more recent association with Anglo-American principles. From the Meiji Restoration to the end of World War II, the influence was almost completely that of the Romano-Germanic tradition. That tradition viewed judges as enforcers of the law that had been passed by legislators, who, in turn, were elected by the people. Thus, there was no room for judicial creativity in establishing precedents. The court decision was to be arrived at deductively through either a literal or logical interpretation of a code or statute. The intent of the legislative mandate reigned supreme.
By the turn of the century, two factors altered this perspective of the role of the judge. It was discovered that the codes were not always capable of resolving legal issues. This was especially true of the complex civil and commercial cases that became more prevalent as Japan increased its industrialization efforts. In addition, after World War I, some Japanese legal scholars were exposed to free-law theories from France and Germany. The free-law movement attacked the narrow deductive reasoning of civil law jurisprudence; its scholars were influenced by American legal realism. Increased attention was drawn to the need to decide cases based upon the facts of the individual case. It was argued that this would lead to a more equitable interpretation of the law. The adoption of an American form of constitutionalism after World War II enhanced this movement further. Although the principle of stare decisis does not exist in Japan, Japanese judges have adopted the practice of following judicial precedent when rendering a decision.
The impact of the RC21 report on judges is somewhat limited and subtle. The report suggests that more lawyers should be appointed judges and that assistant judges should have a more diversified experience as a legal professional beyond that of serving as a judge. As such, a system has been established that enables assistant judges to work as practicing lawyers for a temporary period of time.
Public Procurators
The position of public procurator represents another career path in the legal profession. Public procurators have long displayed a great affinity to the judges in the court system. Several things account for this attitude. One is the fact that, before the war, procurators and judges were both considered components of the judiciary. Reflecting the long-standing influence of the Romano-Germanic tradition in Japan, this relationship is displayed in a number of ways. For example, procurators are trained, like judges, at the Legal Training and Research Institute. They practice a good deal of discretion in their work, as do judges. They are members of the civil service bureaucracy, and they hold offices that correspond to the court hierarchy.
At the top of the procuratorial bureaucracy is the Supreme Public Procurator’s Office. This office supervises all the other procurator offices. There is one procurator office located in each of the courts. The procurator general administers the entire system and is, along with the other members of the upper echelons of the procurator service, appointed by the cabinet. The other procurators are selected by the procurator general.
The purpose of the procurator is to prosecute criminal cases and to determine how a case will be disposed. Although the police conduct most of the criminal investigations, the procurator has the authority to investigate, arrest, and detain suspects. This is similar to the role of prosecutors in other countries that have a criminal justice system modeled after the Romano-Germanic tradition. Although the procurator’s office is afforded much independence and is perceived as a part of the judiciary, it is nonetheless part of the executive branch of government. The minister of justice has a certain amount of control over procurators but does not control the actual investigation and disposition of cases. There is one exception to this rule: the minister can control the procurator’s investigation through the procurator general. Although this authority is rarely utilized, it has become a controversial political issue when actually employed by the minister.
Because he or she has been afforded a good deal of discretionary authority, a procurator determines how a case will be disposed. Even when the evidence establishes guilt, the procurator may suspend the prosecution. For example, approximately 35 percent of the nontraffic offenses for 1985 in which the evidence established guilt were suspended from prosecution. This included about 5 percent of the homicide and robbery cases and approximately 50 percent of theft charges. The rationale offered for this policy of suspension is that it contributes to the rehabilitation of the offender. The Japanese government views this as an important feature of their criminal policy (Ito, 1986). Ten years later, the percentages had not shifted significantly. Almost 38 percent of the nontraffic offenses for 1995 were suspended from prosecution. The suspension rate for homicide was 4.3 percent, and for robbery it was 6.5 percent. Finally, more than 41 percent of the larceny cases were suspended (Kurata and Hamai, 1998).
It is important to point out that this discretionary authority is associated more with the office of procurator than with an individual procurator. To illustrate, there are published guidelines and standards for charging offenders, decisions are often reached by consulting with superiors within the office, there is an annual audit of case dispositions, and the annual personnel review of a procurator’s work will undoubtedly influence the manner in which a person exercises his or her discretionary authority. Ultimately, the objectives of the procuratorial bureaucracy are to be consistent and to prevent mistakes (Haley, 1998).
Procurators are expected to be impartial in determining how a case will be disposed; to promote this, they are protected from arbitrary dismissal. Procurators can be removed from office if they are either physically or mentally disabled, or removal can be used as a form of disciplinary action. When needed, a special committee is assigned the task of implementing dismissal. Under the direct authority of the prime minister, the committee is composed of 11 members: six selected from the Diet and five chosen from various walks of life. With the exception of the procurator general, who retires at 65, procurators must retire at 63.
It should be noted that like judges, the RC21 report recommended that procurators have a more diversified legal background. The objective is to afford the procurator an opportunity to have a greater understanding of the public’s views and in turn improve the public’s trust in the office of the procurator. The government has created a system that allows procurators to work temporarily with public-interest groups, with private enterprises, or as a practicing lawyer.
Attorneys
Attorneys represent the third branch of the legal profession. Like judges and procurators, attorneys must pass the national bar examination and participate in two years of additional study at the Legal Training and Research Institute. All attorneys are registered with the Federation of Bar Associations and one of the 52 local bar associations. Each prefecture has at least one bar association. The profession is assured its independence under the Lawyer Law, which also empowers the Federation of Bar Associations with the ultimate authority in the regulation and discipline of the profession’s membership.
In Japan, an accused can either hire a private attorney or utilize the services of a court-appointed lawyer. As has been mentioned, the number of practicing Japanese attorneys is small compared to that found in other industrialized societies. Most attorneys practice alone, and they tend to specialize in representing people in court rather than working as office lawyers. For years, attorneys were considered second-class citizens within the legal profession. Although these prejudicial barriers have decreased since the end of World War II, they continue to exist to some extent.
In light of the RC21 report, the work of defense attorneys has been impacted considerably. Two criticisms have been directed at Japan’s criminal procedure. First, a suspect does not receive the services of a court-appointed lawyer until after he or she is indicted. Second, trials are not conducted in a cohesive fashion. It is not uncommon for a trial to go on for years, because the court calendar is not set up to hear a case over consecutive days. As such, there is no attempt to assure the defendant a speedy trial, although article 37 of the Showa Constitution provides them with that right.
To help rectify these and other problems, a legal support center will be established across the country in at least each of the 50 district courts. The centers will essentially provide five services. The first three are not directly related to criminal justice. They include: providing general legal aid to people who are unable to pay for the services of an attorney, providing legal services in general to areas of the country that have a shortage of lawyers, and providing consulting services that are designed to mediate disputes.
The two services that directly relate to criminal justice are the establishment of a court-appointed defense attorney system for both suspects and defendants, and the provision of assistance to crime victims in the form of lawyers and organizations that specialize in victim support. The court-appointed defense attorney system is designed to permit a suspect to seek the advice of a lawyer before an indictment is handed down. It is also designed, along with other changes, to facilitate the ability to proceed with the trial process.
Saiban-In
The jury was introduced into the Japanese justice system in 1923 with the Jury Law. Juries were required in cases in which the defendant could receive the death sentence or life imprisonment. Defendants could also demand a jury trial if the sanction would lead to a term of at least three years in prison. At the time, jurors were selected from male taxpayers who were at least 30 years of age. For a number of reasons, among them the fact that a court was not bound by a jury’s decision, the jury gradually fell into disuse. The Jury Law was suspended officially in 1943, and for some time there was no movement to reintroduce its use. Some scholars reexamined the prospects for using juries, in light of the growth in both product liability cases as well as the acquittals of some death row inmates after they had been granted new trials (Foote, 1992; Lempert, 1992).
Once again, the RC21 report rejuvenated a serious discussion regarding increasing citizen involvement in the justice system. One of the three pillars shaping the reform effort was to enhance the public’s trust in the justice system by having citizens participate in a meaningful way in legal proceedings. While the Japanese are not reintroducing the jury, the Diet passed the Lay Assessors Act (2001), which called for the implementation of the saiban-in system by May 2009. The saiban-in system is designed to accomplish three objectives: (1) to improve the public’s understanding of and support for the justice system by having them participate in the trial process; (2) to facilitate the objective of assuring speedy trials because of the citizens’ involvement; and (3) to make the proceedings and rulings more intelligible through the public’s participation in the process.
Presently, the plan calls for utilizing saiban-in (lay assessors) for serious cases in which there is a considerable public interest. This would obviously include trials in which the defendant is accused of murder. The Ministry of Justice has outlined how the system will work. Once a year in December, the names of people above the age of 20 within the jurisdiction of a district court and who are eligible to vote would be selected randomly. These people are notified that they might be called upon to serve as a lay assessor in the coming year.
When a serious case arises in the district, another random selection would occur from the pool of candidates. The people selected would complete a questionnaire. Each candidate would then be interviewed privately by the judge, procurator, and defense lawyer(s). Once all the interviews are completed, the aforementioned legal professionals would meet privately to determine which candidates should serve as a lay assessor for the case in question. Both the procurator and defense can eliminate four candidates from serving, and they do not have to offer a reason for their decision. If the trial court consists of three judges, six saiban-in will be selected, whereas if the trial court consists of one judge, only four saiban-in will be selected. The judges and the saiban-in are considered a panel. As a panel, they hear witnesses and examine evidence as a group. They will also decide if the defendant is guilty or not guilty and determine the nature of the sentence if the defendant is found guilty. Finally, a lay assessor will serve for only one case.
Like other systems that include citizen participation in the trial process, there are ways in which a person can be excused from serving in the saiban-in system. They include people who are at least 70 years of age or older, suffering from illness or injury, raising or caring for a family member, or would suffer financial difficulty by serving. People can also be disqualified if they are in some way connected to the case or are unlikely to consider the case objectively. In addition, some people cannot serve because of their occupation. This includes members of the legal profession, law professors, police and military officers, members of the Diet, and governors and mayors.
The Ministry of Justice and the Supreme Court have spent a good deal of time preparing for this innovation. There was a need to orient the legal profession to the changes, in part because it impacts procedures in a criminal trial. Courtrooms had to be reconfigured to accommodate the lay assessors, who will sit alongside the judges. Even more important was the need to educate the public about the saiban-in system, for one of the original reasons for this innovation was to improve the public’s understanding of the justice system and to have them participate in the process.
To illustrate how the public has been informed about the innovation, in addition to several newspaper articles, the Ministry of Justice has made mock trials available in which citizens can receive a hands-on practical orientation to the new process. Some mock trials have even taken place in high schools to enable young people to become aware of the change. Among those who have either participated or observed a mock trial, most have found it an educational experience. In spite of these efforts, it is uncertain if the people will embrace this change with any degree of enthusiasm. The Asahi newspaper sent a questionnaire on the saiban-in system to 3,000 people in December 2008. It received responses from 1,830. When asked whether they support the saiban-in system, 34 percent said yes and 52 percent said no. When asked if they would like to participate in a criminal trial as a lay assessor, 22 percent responded positively and 76 percent did not wish to participate. When asked if the public’s confidence in the criminal trial process would increase with the introduction of the saiban-in, 20 percent thought it would increase, 52 percent did not anticipate a change, and 10 percent thought confidence would decrease. Finally, when asked if the new system would be accepted widely in the country, only 26 percent responded in the affirmative, while 50 percent did not think it would be accepted (Asahi Shinbun, 2009).
Legal Education
The most significant recommendation of the RC21 report was the dramatic suggestion to reform the country’s system and method of legal education. These reforms began to be introduced in 2004. In order to appreciate the new system, it is useful first to understand the one being abandoned. The Japanese approach to legal education closely resembled that found on the continent of Europe. Although it was not required, most aspiring legal practitioners first entered a university and completed the undergraduate degree requirements in about four years. The future legal practitioner usually specialized in a law curriculum while at the university, but this was not required. In fact, many who studied law as an undergraduate had no intention of practicing law. The study of law had long been the academic discipline of choice for people pursuing careers in government and business. The candidate for a university law degree spent the first two years taking general liberal arts courses and devoted the final two years to legal studies. This involved instruction in the basic legal principles found in the Constitution, the Civil Code, the Code of Civil Procedure, the Commercial Law, the Penal Code, and the Code of Criminal Procedure. The method of instruction was lecture, in which little effort was made to introduce the student to how the law was applied in practice. Thus, as was the case in France, the exposure of the university student to the law was limited to a theoretical orientation of the subject.
Those who aspired to a career in the legal profession (judges, public procurators, or attorneys) had to pass the national bar examination. A passing grade on this test enabled a candidate to enter the Legal Training and Research Institute, which offered the clinical training necessary to begin a career in the legal profession. For a long time, the bar examination had been characterized as “something of an endurance contest” (McMahon, 1974). To illustrate, less than 2 percent passed the test between 1974 and 1984. From 1985 through 1997, the percentage who passed was more than 2 percent, with the exception of one year. During this period, the percentage went above 3 percent for three consecutive years (1993 to 1995).
Changes had been introduced to the examination, the most recent having been adopted in 2000. The first part of the examination tested general knowledge and academic skills. If a candidate had obtained a liberal arts degree from a university, he or she was exempt from taking that part of the examination. The second part of the examination consisted of three components. It included a multiple-choice test on the Constitution of Japan and the Civil and Penal Codes. There was also an essay component that covered six areas: the Constitution of Japan, the Civil Code, the Code of Civil Procedure, the Commercial Law, the Code of Criminal Procedure, and the Penal Code. The third component of the examination, the oral test, covered the aforementioned branches of the law, with the exception of the Commercial Law. A person who passed the examination entered the institute as an apprentice.
The Legal Training and Research Institute offered the apprentice clinical training in law. The teaching staff was selected by the Supreme Court and was composed of judges, procurators, and attorneys. The candidates spent 18 months in training: three months of classroom instruction, 12 months of field training, and an additional three months of final training. Irrespective of career aspirations to either judge, procurator, or attorney, each apprentice received the same training at the institute. Fifty sites had been identified nationally for the field training; they included courts, offices of public procurators, and various bar associations. It has been suggested that this method of training fostered a sense of unity and mutual understanding within the legal profession, for each candidate was oriented to the work and responsibilities of all the principal members of the courtroom group. Therefore, all apprentices were given a systems view of the court process. It was argued that this led to greater cooperation and coordination of policies among the courtroom work group, which in turn enhanced the goal of achieving a more efficient and effective administration of criminal justice (Shikita, 1981).
Although the method of legal instruction was usually praised, the high failure rate among people who took the national bar examination was a principal point of concern among critics. As mentioned earlier, the high failure rate was planned. All who participated in the process knew that only roughly 2 percent would pass. While there had not been any attempt to radically change the system, efforts had been successful at introducing some incremental amendments to the process. The Japanese preferred to maintain a highly elite group of legal professionals, and they believed that a rigorous bar examination ensured that goal.
The RC21 report recommended the development of a new method of legal training through the creation of law schools. The reason for this recommendation was that the law faculties at the universities were not in the business of training students to become legal practitioners; rather, they were introducing students to the law through their lectures. Students were being prepared with a certain level of knowledge about law that would enable them to find employment in a variety of occupations. Moreover, the focus of that education was not designed to prepare a person for the national bar examination.
Law schools will provide a professional graduate training for people planning a career in law. This training will bridge the gap between the theoretical education received from law faculties at universities and the practical knowledge needed to function as a legal professional. In law schools the objective is to train people to think critically about the law. The Socratic method, rather than lectures, will be employed to enhance the students acquiring the appropriate method of legal analysis for a legal professional. In addition, law school training will in part be directed at the national bar examination, which should facilitate the government’s goal of increasing the number of people who pass the test. Finally, although the RC21 report did not specifically refer to clinical legal education, a number of law schools recognize that this should be a component of their curriculum if they are indeed going to train people as legal professionals.
By 2005, 74 new law schools had been approved. Some are found at public and private universities that already had a faculty of law. Faculty at these universities had been accustomed to teaching law primarily to undergraduate students. Other law schools are new ventures at both public and private educational institutions.
Presently, people who wish to pursue a career in law can still seek an undergraduate degree from a faculty of law at a university. Upon graduation, they must secure a position in a law school. When they complete this three-year program, they take the national bar examination. This examination was revised and is based on the curriculum of the law schools. In 2006, 48 percent (1,009) of the 2,091 applicants passed. In 2007, however, just 40 percent (1,851) of the 4,607 applicants were successful. Since 2007, the pass rate has declined each year. Of the 8,163 people who took the bar examination in 2010, only 2,074, or 25 percent, were successful. It has been suggested that the recent proliferation of law schools has contributed to lowering the quality of law school students.
It should be noted that the Legal Training and Research Institute will continue to exist for the practical training of people planning on careers as judges, procurators, and attorneys. With the advent of the law schools, the institute’s program has changed somewhat. Candidates to the institute must first pass the national bar examination. Once admitted to the program, the candidates are referred to as legal apprentices. The title is reflective of the practical training offered that is designed to provide both knowledge and skills for practice in one of the three legal professions of concentration: judge, procurator, and attorney. Much of the training involves participation in internships where the apprentice receives practical skills training.
The program at the Legal Training and Research Institute consists of three segments and takes a year to complete. The first segment, and the longest at eight months, consists of field training at each of the principal components of the judiciary, that is, civil trial and criminal trial with a district court, district public procurator, and time with both civil and criminal attorneys. The second phase consists of a two-month period of field training in the area that the candidate plans to specialize: judge, procurator, or attorney. The third segment of the program takes place at the institute and lasts two months. Here the focus is on standards associated with judicial practice. The training encompasses civil trial, criminal trial, public procurator, civil advocacy practice, and criminal advocacy practice. Once this phase of the program is complete, the candidates must pass a national examination before commencing careers as either assistant judges, public procurators, or practicing attorneys.
Japan’s criminal law and procedure has evolved through four fairly distinct periods. The first phase existed from ancient times until approximately the twelfth century. This phase was marked by early attempts at the codification of law, specifically the Code of 702 (Taiho) and the Code of 718 (Yo-ro). Both were modeled after Sui and T’ang Codes of China. These early codes required that the injured party in a criminal case level a complaint against the accused. The person’s guilt was then determined by either a confession or the testimony of witnesses. Torture was permissible for securing a confession, and there was also a system of appeals (Dando, 1965). Although these procedural nuances were similar to those emerging in the West, historians have concluded that these developments were separate, indigenous creations.
The second phase occurred during what is characterized as the medieval period of Japanese history. It started before the twelfth century and ended with the Meiji Restoration in 1868 and was marked by the emergence of Japanese feudalism. Feudalism destroyed the notion of centralization and, with it, the early legal codes. Feudal codes that emphasized an inquisitorial method for determining fault and encouraged the frequent use of torture were introduced. While physical evidence is of value at a trial, torture was employed principally to elicit a confession. Once again, there were similarities with procedural developments in the West, but these were also indigenous creations.
The restoration of the Meiji in 1868 is usually cited as the beginning of the third phase in the evolution of Japanese law. The restoration was noted for its extensive borrowing from Western continental legal thought. At first, the restoration led to a revival in the use of the old Chinese-style codes, with the abandonment of the feudal codes. It was quickly discovered, however, that these codes were too dated to meet the needs of a society that was entering the modern era. The Japanese began to borrow heavily from the French, largely because the Napoleonic Code had received worldwide attention. However, toward the end of the nineteenth century, a more absolute and militaristic attitude emerged in Japan. This led to yet another shift in the search for a Western model to emulate. Japan turned to German legal scholarship for inspiration in adopting its Meiji Constitution of 1889 and assistance with implementing other reforms in their codified legal system. This association with German legal thought lasted until the end of World War II.
The fourth phase began with the American occupation following the war. As has already been indicated, the adoption of the Showa Constitution in 1946 led to some significant changes in criminal law and criminal procedure. The largest number of changes was in the Penal Code, which had been in force since 1908. The Penal Code was only partially revised with regard to the sanctioning and treatment of offenders. New classifications of crime were added as more sophisticated kinds of deviant behavior associated with modern society emerged. A total revision of the Code has been considered, and a draft for a new penal code has been written, but as yet, it has not been approved by the Diet. According to Yoshio Suzuki (1977), the 1908 Code has retained its usefulness because of the document’s flexibility. The definitions of various crimes are written in fairly general terms, leading to a more extensive use of judicial interpretation. In addition, the court’s discretion for imposing a sentence is quite broad. Although many of the codes involving criminal justice reflect the Romano-Germanic tradition, the procedures have become more adversarial in nature, reflecting the increased Anglo-American influence.
Criminal Law
The Showa Constitution is quite clear on how the Japanese criminal justice system is regulated. The Diet is responsible for enacting laws, although the initiative in this process is generally controlled by the cabinet. Article 31 of the Constitution states that “no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Thus, the legal norms of nullum crimen sine lege and nulle poena lege, which were absent from the Meiji Constitution, were incorporated into the Showa Constitution. While article 77 invests the Supreme Court with certain rule-making authority, article 76 also states that all judges are bound by constitutional law and other laws. The Diet, therefore, is preeminent in enacting criminal legislation.
It has been suggested that the criminal law should be viewed as a tri-part system: the Penal Code, the Code of Criminal Procedure, and the Prison Law (Dando, 1965). Each law is interrelated with the others in the totality of the criminal justice process. The Penal Code defines the crimes and the types of punishment. The Code of Criminal Procedure assures that legal standards will be followed in determining guilt or innocence and in the execution of the sentence. Finally, the Prison Law governs the policies related to the nature of commitment and confinement to a correctional facility.
All crimes appear either in the Penal Code or in a supplementary statute. Because of the general wording of the code, judges are given extensive authority to interpret the law. This has led the judiciary to establish precedents based on the case-law method, always relating precedent to the interpretation of a specific written law. Japanese judges, therefore, employ the practice of following judicial precedents when rendering decisions, but they have not officially adopted the principle of stare decisis.
The most important source of the criminal law is the Penal Code, which went into force in 1908 and since has been revised to some extent. The code is divided into two books or parts. The first book covers general provisions. These illustrate an absence of any gradation of offenses. The Japanese, therefore, have not established a formal distinction between felonies and misdemeanors. They have recognized the existence of minor violations, however. These are regulated by the Minor Offense Law (1948).
The code recognizes the importance of the mental state of the offender. Only people who have acted with criminal intent can be punished, unless “special provisions to the contrary exist.” Thus, some negligent crimes are punishable. Ignorance of the law is not a defense, but the penalty can be reduced if the circumstances warrant such a consideration. Provisions also exist to avoid punishing offenders who are mentally deranged and to reduce sanctions for those who are “weak-minded.” The code establishes the age of criminal responsibility at 14. Offenders who have not attained the age of 20 are generally treated under the rules of the Juvenile Law. Finally, a sanction can be reduced if a person admits guilt before the offense is brought to the attention of the authorities.
The code also explains the types of sanctions available. These include death, imprisonment with compulsory labor, imprisonment without compulsory labor, detention, fine, and confiscation.
The second book of the code lists the major crimes and elements that constitute each offense. The crimes are not grouped into categories, such as “crimes against the person” and “crimes against property,” as is the case with modern codes. Because the code is worded in a fairly general manner, distinctions are not made with regard to the gravity of the offense. For example, the crime of homicide is defined as “a person who kills another.” There is no distinction or consideration for degrees of intent or malice, as is made by differentiations between first-degree and second-degree murder and manslaughter. This further enhances the discretionary authority of the judiciary.
Criminal Procedure
A scholar comparing the criminal procedural systems of the United States and Japan offered these summary generalizations that should prove useful in this section of the chapter. First, the American system places procedural fairness at the center of the process, whereas the Japanese system is more focused on achieving the correct decision. Second, the approach to sentencing an offender in the United States is more punitive, while the principal objective of the Japanese is rehabilitation. Finally, there is less public trust of agents of the justice system in the United States, whereas in Japan the public tends to trust its public officials (Goodman, 2003).
This examination of Japan’s criminal procedure is divided into two categories. The first involves the pretrial process, including an examination of police powers and other issues pertinent to the preliminary investigation. The second category is concerned with the trial process, consisting of the hearing and the appellate review. The Code of Criminal Procedure, in force since 1949, explains the aforementioned procedures.
Suspension of Criminal Proceedings
In examining the pretrial process of the preliminary investigation, it is important to recognize that the Japanese suspend criminal proceedings in a number of cases. It is not imperative that all people accused of a crime have their day in court. The significance of the suspension rests with both the underlying philosophy behind the Japanese procedure and the official authorities who are permitted to make such a decision. It should also be noted that plea bargaining is illegal in Japan.
It was pointed out by Reischauer (1977) that the Japanese place a good deal of emphasis on the importance of belonging to a group. A person is valued more as a member of a team rather than for his or her individual contributions. Because of this kind of social posturing, cooperation and conformity are highly prized attributes. In addition, the Japanese have never embraced the Judeo-Christian heritage that has long encouraged criminal offenders to feel a sense of guilt because they have “sinned.”
In light of these cultural attitudes, deviant and criminal behavior is viewed quite differently in Japan than in most Western countries. People who are unwilling to conform are pitied rather than held in contempt and condemned. The offender is more likely to feel a sense of shame because he or she has violated the cultural norms of the group rather than a sense of guilt because he or she has in some way sinned. Because the emphasis is placed on pity for the transgressor rather than condemnation, the deviant is usually handled with leniency by the agents of the administration of justice.
The manner and extent to which the formal adjudication process is avoided is a principal difference between Japanese and Western systems of justice. Both the police and the public procurators employ this kind of discretion quite frequently. It should be pointed out that law enforcement’s use of this discretion is neither codified nor established as part of a written policy (Bayley, 1976a). It is more or less a custom—long exercised by the police and familiar to the public—that has acquired the stamp of legitimacy. This type of discretion is exercised in cases involving minor theft, fraud, buying stolen goods, and gambling. These cases, however, must be reported to the procurator for approval. In other cases of minor violations, such as public drunkenness, the officer may simply warn the offender or demand that a formal written apology be made as an alternative to arresting the person or issuing a citation.
David Bayley (1976a) has identified at least five factors that usually influence the officer’s willingness to avoid the formal sanctioning process. These factors include: (1) the public’s tolerance of the deviant act in a particular location, (2) the officer’s acceptance of such behavior, (3) police priorities regarding law enforcement, (4) the effect that the officer’s option to utilize discretion will have on the future behavior of the offender, and (5) the sincerity of the offender’s contrition. This last factor is considered very important. Bayley has pointed out that an offender’s apology is a sign that the person will not commit the offense again. The acceptance of the apology not only holds the person to that promise but is also a sign that the offender has been forgiven.
Even more significant, however, is the extent to which the public procurator can suspend the prosecution of a case. Unlike the police, the procurator’s use of this kind of discretion is explained in the Code of Criminal Procedure. Article 248 states: “In case it is unnecessary to prosecute according to the character, age and environment of an offender, the weight and conditions of an offense as well as the circumstances after the offense, the public prosecution may not be instituted.”
The Japanese custom of allowing procurators to suspend prosecutions has been in existence for more than 100 years (Satsumae, 1978). The initial argument offered for utilizing the scheme was that it would free the courts from handling trivial matters. It is even used today to resolve serious offenses, because the law does not limit the applicability of this authority. Offenses such as robbery, rape, and homicide have been handled by suspended prosecutions. Another cogent argument put forth for utilizing suspended prosecution is that it might prove more effective in rehabilitating the offender because the offender would avoid the stigma of being formally processed through the justice system.
The application of the suspension scheme has been attributed to five major factors. One is the quasi-judicial nature of the procurator’s office, which is common in countries with a Romano-Germanic tradition. Another is the public’s faith in the procurator’s use of discretion. This kind of trust and the deference that is paid to the procurator is common for most agents of the Japanese justice system, because they are perceived as moral authority figures as well as agents of the law. The procurator is also vested with broad powers to investigate alleged criminal activity. From another perspective, the willingness to forgive has long been a feature of Japanese custom. Finally, there is a traditional belief that the family is capable of assuring and regulating the conduct of its members. The importance of belonging to a group is again evident (Satsumae, 1978).
The suspension of prosecution is devoid of any court involvement. The offender is usually required to write a letter of apology and make a promise to avoid further criminal activity. The apology often includes compensation to the victim or the family. The offender’s family might also be alerted and advised on how to assist the person in leading a more law-abiding lifestyle. Takeshi Satsumae (1978) has pointed out that the procurator will occasionally place the offender in the custody of his or her family or employer, who, in turn, is requested to promise in writing to supervise the offender. Although the effectiveness of the suspension of prosecution scheme has not been studied extensively, the Japanese appear to be pleased with its results.
Finally, it should be pointed out that the system has established three mechanisms to assure that there is not an abuse of authority by the procurator. Within the procurator’s office, there are guidelines stating that if a procurator elects to suspend prosecution in a case, reasons must be given in writing and the decision must be reviewed by a senior member of the staff. There are also 207 inquest committees throughout the country. A committee consists of 11 citizens who were selected at random from the voter registration rolls. They have the authority to receive complaints about suspended prosecutions, investigate the matter, and recommend a change in the procurator’s initial decision. Although the procurator is not bound by the committee’s decision, Satsumae is of the opinion that it serves as an informal check on procuratorial discretion. The RC21 report suggested that an inquest committee’s recommendations to a procurator should be legally binding. This recommendation reflected two general themes of the report: agents of the justice system should listen to public opinion, and the public should participate in the administration of justice. Finally, the concept known as “analogical institution of prosecution” enables the court to conduct its own hearing into a suspended prosecution when it is alleged that procuratorial authority has been abused in this regard. The court initiates such hearings when it receives a complaint, and it either can agree with the suspension or order a trial. Thus far, courts have overwhelmingly sided with the procurator’s initial decision. In those instances in which a trial is ordered, the court would select an attorney to assume the duties of the public procurator.
The suspension of the formal adjudication process by the police and the procurators assists in clarifying a number of points about the Japanese criminal justice system. It is a graphic illustration of why the police are portrayed as a source of both legal and moral authority. The judicious use of cautioning people rather than issuing citations or arresting offenders undoubtedly enhances the public’s perception of the police. Suspensions of prosecutions also illustrate the extensive authority that has been mandated to the public procurators. Moreover, suspensions by either the police or procurators offer a clear example of the interrelatedness of the Japanese criminal justice system. Judges are not solely empowered to adjudicate criminal acts, because the police and procurators share in that responsibility. This has led to the perception that there is a greater degree of cooperation between the various components of the system.
Preliminary Investigation
Once it has been determined that a crime has been committed, a preliminary investigation is undertaken to determine who committed the act or who can be reasonably suspected of being involved in the crime. Preliminary investigations are usually conducted by police detectives. The procurator can issue instructions regarding the course of an investigation. After receiving the police report, the procurator can elect to conduct another investigation into the matter. If the decision is to prosecute rather than to suspend the prosecution, the procurator files an indictment that names the offender, cites the facts in the case, and identifies the nature of the offense.
Power to Arrest and Detain
Most of the rules pertaining to arrest and detention are codified in the Code of Criminal Procedure; the Constitution does address itself to this issue. Article 31 states: “[n]o person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Article 33 contains the provisions that “[n]o persons shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed.” Finally, article 34 states that “[n]o person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.” As was stated in the section on police, some critics question the extent to which some agents of the justice system comply with these provisions.
The power to arrest involves two sets of circumstances: arrests with a warrant and arrests without a warrant. Most arrests are made by the police who have obtained a warrant from a judge. There is one condition, however. If the offense is punishable by a fine of under 100,000 yen, penal detention, or a minor fine, the accused cannot be arrested unless he or she is found to have no fixed residence or has failed to appear before a procurator when requested to do so. A flagrant offender also can be arrested without a warrant. Flagrant offenders are people who are caught in the act of committing a crime or have been determined within reason to have just committed a crime. The Code of Criminal Procedure also calls for emergency arrests. There are cases in which the police or the procurator have the authority to arrest a suspect without a warrant. This occurs when police have reasonable grounds to believe that a suspect has committed a crime that is punishable by death or imprisonment for more than three years, but they are unable to secure a warrant from a judge.
When the police arrest a person, they must inform the suspect of the reason for the arrest and of the suspect’s right to counsel. The suspect is also given an opportunity to provide an explanation for the alleged behavior. If the police believe that detention is not necessary, the suspect can be released. Decisions to detain a suspect must be made within 48 hours of arrest. The suspect, along with the police report, must be sent to the procurator’s office. The procurator has an additional 24 hours to determine whether the suspect should be released or detained. With regard to the suspect’s right to counsel, the Code of Criminal Procedure makes a distinction between a suspect and a defendant. A suspect is not entitled to the services of a state-appointed counsel. This situation has changed slightly with the creation by local bar associations of a lawyer-on-duty scheme. Under this scheme, an indigent suspect can consult with counsel for an initial visit free of charge. If a detained person’s status remains that of a suspect, rather than a defendant, they would be charged a fee for any subsequent meetings with a lawyer.
Before 72 hours have elapsed from the initial arrest, a judge must authorize the continuance of a detention. The judge receives such requests from the procurator. If the grounds are reasonable to hold the person, the judge issues a warrant of detention. Reasonableness is based on the belief that the suspect indeed committed the offense and either has no fixed residence, may destroy evidence, or may flee the jurisdiction. Arguments for or against the detention are heard in court with counsel present. One can apply to a higher court to rescind the initial warrant of detention. The propriety of the warrant is determined by a three-judge panel. If the warrant is upheld, the suspect can be detained for up to 10 days, and extensions can be granted for an additional 10 days if requested by the procurator. Thus, a person could be detained for up to 23 days while the police and procurator continue to investigate the matter. One should realize that approximately 90 percent of all offenders are not detained to guarantee their appearance in court.
The police have the authority to stop and question people on the street if they believe them to be suspects or witnesses, or to have some knowledge of a crime. They also can stop and question people who they believe are about to commit a crime. The police may detain the person at the scene for purposes of questioning or may request that the person accompany them to a police station or koban. The person must freely agree to accompany the police, however. Police who are found guilty of abusing this authority are subject to criminal prosecution. If the person is injured in the course of a detention, a civil suit can be filed for damages.
Power to Search and Seize
The laws governing searches and seizures are contained principally in the Constitution and the Code of Criminal Procedure. Article 35 of the Constitution states, in part, that “[t]he right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized.” The Constitution further states that only a judge can issue a warrant to search. There are exceptions to this rule, however. When an arrest is of a flagrant offender or when an emergency arrest is undertaken without a warrant, the investigating officers have the authority to search for and seize evidence.
Public procurators and police investigators have the authority to conduct search and seizure, and specific procedures have been established for when this is carried out. For example, a search cannot be conducted in a private home before sunrise or after sunset unless a judge orders a nighttime search. Warrants are to indicate the persons, places, and things to be searched and seized. Upon arrival at the premise to be searched, the investigating officer must present identification and show the occupant of the premise the search warrant. The search is to be conducted in the presence of the occupant or a witness if the occupant is absent. The police are permitted to frisk a person for the purpose of discovering weapons.
Some judges in lower courts have excluded evidence seized during an irregular search (Suzuki, 1978b). In 1978, the Supreme Court acknowledged the application of an exclusionary rule in serious cases. Thus, evidence seized in an illegal or improper manner may be excluded from the trial. Under the Penal Code, police are subject to criminal prosecution if they have abused their authority in such a manner. In addition, a victim of police abuse may bring a civil suit for damages.
The reader should be apprised of the fact that an accused person has the right to remain silent. Article 38 of the Constitution states, in part, that a “[c]onfession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.” Moreover, a person cannot be convicted of a charge when the only proof is the suspect’s confession.
Bail
The Code of Criminal Procedure also has established rules pertaining to the issuance of bail. Bail can be requested by the accused, the accused’s counsel, or relatives of the accused. The judge grants bail but may seek the opinion of the procurator before approving the request. Bail is paid in money or negotiable securities, and the court can permit any person to post the bail. The court has the authority to revoke bail, while the public procurator may only recommend this action to the court. Upon a revocation, the court can confiscate all or part of the bail.
Various categories of suspects are excluded from bail consideration, for example, people who are charged with a crime that could lead to imprisonment for more than a year, recidivists who have served lengthy prison terms, and offenders who habitually commit offenses. If the authorities believe a suspect might destroy evidence or harm a witness, the suspect is excluded from the privilege of bail. Suspects whose name or residence is unknown are also declared ineligible.
The Trial
Following World War II, the Japanese clearly established the principles of an adversarial trial emulating the Anglo-American legal system. Trials are open to the public, and both the prosecution and defense counsel have the opportunity to present their case orally.
The standard trial procedure for the main hearing is as follows:
1. The public procurator reads the information explaining the criminal charges.
2. The judge then advises the defendant of the right to remain silent and of the right to refuse to answer questions. The accused or the accused’s counsel also has the opportunity to make a statement. In the course of such a statement, the defendant usually admits or denies guilt. If the accused admits guilt, the trial simply moves to an examination of the evidence before the imposition of a sentence. About 95 percent of the defendants in Japanese courts plead guilty.
3. If the defendant does not admit guilt, the public procurator is afforded the opportunity to make an opening statement and present an outline of the case.
4. The evidence is introduced and examined. Included are real evidence, documents, and witnesses. The witnesses are examined and cross-examined at this time. The defendant has the opportunity to introduce evidence designed to refute the procurator’s case.
5. The procurator then introduces the accused’s prior arrest record, if there was one. Statements supportive of the accused’s character are presented by the defense counsel.
6. The defendant is then questioned by the procurator, defense counsel, and the court; however, he or she has the right to remain silent.
7. Closing arguments are made by the procurator.
8. Closing arguments are presented by the defense counsel.
9. The court then concludes the fact-finding phase of the trial and announces a date at which a judgment will be rendered. If the case is fairly simple, an immediate judgment might be announced.
Minor cases are heard in a summary court, and the proceedings found there are rather informal. No public hearing is held; rather, the procurator offers the documentary and real evidence in the matter to the court. In a summary proceeding of this kind, a sanction cannot exceed 500,000 yen. If the sanction is not mutually agreeable to both sides, a formal trial is initiated. A formal trial in a summary court follows the same steps as just presented.
Once the trial is concluded with the court passing judgment, the parties have an opportunity to appeal the decision to a higher court. Criminal appeals from both the summary and district courts are entertained in a high court. The Supreme Court has the principal responsibility of handling appeals involving constitutional issues. In the Japanese system, the appeals process is open to the public procurator, the accused, or anyone else to whom the court has rendered a judgment.
The Code of Criminal Procedure has established three kinds of appeals. Kokoku appeals are made against court rulings during the course of a trial but prior to the rendering of a judgment. Koso appeals are made against the judgment of either a district court, family court, or summary court. The appeal can be based on a point of law or some factual discrepancy. The appellate court can affirm the original judgment, or it can reverse it and remand the case either to the original trial court or another trial court. The new trial court cannot render a decision that is contrary to the appellate court’s judgment in the appeal. Finally, although most issues involving interpretations of the law are resolved through koso appeals, there are some exceptions. Questions of constitutional interpretation, errors pertaining to precedents already established by the Supreme Court, and any other issues that involve a significant question of legal interpretation are resolved through jokoku appeals. Jokoku appeals are heard by the Supreme Court.
Critical Issues
Speedy Trials
Criminal trials in Japan had not been held on consecutive days until a verdict was reached. The judge determined when the court met. In light of the significant workload of the courts, some trials continued for years. This procedure raised questions about the system’s commitment to article 37 of the Showa Constitution and its proclamation that people have a right to a speedy trial.
The RC21 report has addressed this problem in several ways. One, which has been mentioned and has implications for the speedy trial issue, is that the growth in the size of the legal profession will result in more judges, procurators, and defense attorneys. This alone should aid in resolving the problem over time. A second change resulting from the RC21 report is that suspects will now have the right of access to a lawyer. In the past, a suspect could not see a court-appointed attorney until after the indictment had been handed down. A third change, which is associated with the court-appointed attorney scheme, is the establishment of legal support centers throughout the country. The fact that these centers will provide legal aid and mediation services should reduce the volume of cases that are litigated in court.
Finally, another new feature that was recommended in the RC21 report was the introduction of a new procedure before the start of a trial. In order to improve the efficiency and effectiveness of the trial process, it was recommended that a “preparatory procedure” be introduced and presided over by the court. The purpose of the procedure would be to resolve contested issues between the procurator and defense, especially those involving evidentiary matters, that have frequently contributed to impeding the flow of a trial. The ultimate goal is to expand the disclosure of evidence before the trial commences. This recommendation was adopted, and the Code of Criminal Procedure was revised to require its use in all trials involving serious crimes. In addition, once a trial begins, it is expected to meet daily, thus, expediting the trial process.
Crime Victims
Throughout this chapter, we have noted the importance the Japanese place on the group versus the individual, which places a good deal of value on cooperation and conformity with community norms. It was further pointed out in this section that the suspension of prosecution is devoid of any court involvement. In that context, what is being sought is usually a letter of apology from the offender, the promise to avoid further criminal behavior, and sometimes compensation to the victim or the victim’s family. Much of this is done informally by the offender or his or her family through an attorney in conjunction with an attorney for the victim or his or her family. The procurator is aware of this, but it is not part of formal judicial process (Haley, 1998). Finally, it was noted at trial that the vast majority of offenders who reach the trial stage admit guilt. In such an environment, questions are raised about the extent to which the justice system directs any attention to the victims of crime.
In many justice systems throughout the world, the plight of crime victims has been acknowledged in the formal judicial process in only roughly the past 25 to 30 years. Because the Japanese system has often relied upon an informal process, it has been criticized for lagging behind other advanced countries in looking out for the rights and welfare of the victims. However, it should be pointed out that the Japanese system has not totally ignored the victims of crime. For example, the Crime Victims Benefit Payment Law was introduced in 1981 and is specifically designed for the family of a deceased victim of a random murder or victims of unprovoked acts of violence. The victim makes application to the Prefectural Public Safety Commission in the area, and the Commission determines the eligibility of the applicant and the amount of the compensation.
The national government has set aside funds to support this scheme. It is interesting to note that a victim is excluded from these benefits if he or she is not a Japanese national or does not reside in Japan.
Nevertheless, the Ministry of Justice has acknowledged that it needs to do more in aiding victims of crime. In more recent years, the ministry conducted a series of surveys in an effort to understand the problem and establish a strategy to address it (Hamai, Yokochi, and Okada, 2000). With regard to the issues of apology and compensation, it was discovered that 48 percent of the offenders apologized. When the issue involved professional negligence that resulted in death or bodily injury, the percentage was higher at 60 to 79 percent. For homicide and larceny, however, the percentage was considerably lower at 25 and 35 percent. Information about the victim’s feelings toward the offender was also collected. Of those who would never forgive the offender, the percentage was 64, and this rose to 84 percent for rape victims and 91 percent for families of homicide victims. Only 16 percent were of the opinion that they could forgive the offender.
The victims were also asked what was the most important thing that an offender could do to atone for his or her crime. The most popular response at 34 percent was that the offender should reintegrate themselves back into society through rehabilitation. This was followed by obey the court order, 22 percent; provide compensation, 14 percent; apologize, 12 percent; and get a pardon from the victim or the victim’s family, 7 percent.
What the ministry learned from these survey results was the extent to which crime victims and their families suffer—not only from the direct impact of the event but also the subsequent damage that was caused in part by the criminal justice process and, most importantly, the long-term mental suffering that impacts the victims’ emotional well-being and life beyond the specific damage caused by the crime. Because the information was such a revelation, the ministry plans to conduct victimization surveys each year.
The results from such surveys have assisted the initiative to provide more assistance to crime victims. In 2001, the Crime Victims Benefit Payment Law was amended to enable expanded benefits to crime victims and their families. Survivor benefits are determined by the age and income of the victim. Disability benefits are determined by the severity of the injuries. Benefits are also available for medical expenses beyond that covered by the victim’s health insurance. Finally, the family of a deceased victim can claim medical expenses incurred prior to the death of the victim.
The National Police Agency had taken the lead on support for crime victims. It initiated several measures that are being implemented across the country at the prefectural police level. Once a crime occurs, the police provide a brochure for crime victims, assign crisis intervention officers and counselors to help victims of serious crimes, promote counseling to crime victims that is provided by the police, assign female officers to investigate sex crimes, and install a hotline for counseling. After the investigation is completed, the police establish a victim support network and provide a victim liaison on the case. Finally, the police are developing networks with administrative agencies and medical institutions to aid the victims. They are also assisting in the establishment of private victim support organizations.
The Ministry of Justice has also become more actively involved in the support for crime victims. Legislation was introduced that would allow victims to recover the cost of damage to property. The legal support centers that were created as a result of the RC21 report will also be involved in providing information and support to crime victims, in particular the access to an attorney who is familiar with victim rights. Moreover, some victims or their families can participate at the trial. In the past, families of deceased victims could make a statement at the trial. Now, victims or families of victims involving certain offenses can request the public procurator to permit them to participate at the trial. Among the types of offenses that are included within this policy are murder, rape, assaults, and death caused by negligent driving. If participation at trial is granted by the public procurator, either the victims or families of victims can make a statement at trial and question the defendant and witnesses. Participation at trial can occur in person, or the victim can elect to utilize the state-appointed attorney service.
Capital Punishment
The United States and Japan are the only highly advanced industrialized countries that have retained capital punishment. The Japanese Penal Code lists 13 crimes that identify the death penalty as an appropriate sanction, and an additional five are cited in other statutes. Since 1967, capital punishment has been limited to murder, death caused in a robbery, and death caused by explosives. The method employed to carry out the sentence is hanging. While the United Nations, Amnesty International, and other human rights organizations have called for the abolition of the death penalty throughout the world, the Japanese government has consistently rejected this position.
Opposition to capital punishment within Japan began to receive notoriety in the early 1980s. What led to this development was a 1975 Supreme Court decision that made it easier to seek retrials. Essentially, the court indicated that it would grant retrials if new evidence came to light that, along with existing evidence, led to a conclusion that reasonable doubt exists. As a result of this ruling, four men who had been on death row for years (each on separate murder convictions) sought and were granted retrials. In each case, the person had originally confessed to the crime but had recanted and claimed innocence either before or during the original trial. Each had maintained his innocence since the first trial.
The retrials were granted between 1983 and 1989, and each man was found not guilty. It was revealed that the police had acted inappropriately during their investigations, and the actions of the procurators and judges were also the subject of criticism. The notoriety of these cases was based not so much on exposing the inappropriate behavior of members of the justice system as on the fact that these crimes were committed between 1948 and 1955. As a result, these men had been on death row for 34, 33, 31, and 27 years, respectively. Proponents of capital punishment contend that the circumstances surrounding such cases would not occur today. When these cases were adjudicated, Japan was still suffering from the social upheavals caused by World War II (Foote, 1992). It should be noted that there have not been any death penalty retrials since 1989 (Johnson and Zimring, 2009).
Another concern voiced by opponents of capital punishment is the nature of the process, specifically the length of time it takes to carry out the sentence and the secrecy surrounding it. It often takes 20 years to carry out a death sentence in Japan, given the various appeals and clemency hearings that are available. Critics argue that an appellate process that takes so long to complete is inhumane. Once the appeals are exhausted, the minister of justice must sign the execution order, which can lead to further delays. Once the order is signed, however, the execution is carried out within five days. It is interesting to note that the actual execution is shrouded in secrecy, so much so that the inmate is not told in advance, and the family of the offender is informed of the execution after it has occurred. Critics maintain that this also is inhumane, but the authorities argue that they are protecting the privacy of the family.
Prompting some criticism of the sanction was the fact that death penalty abolitionists had apparently been hoping that the various human rights organizations were having an impact on their government. In 1993, however, seven prisoners were executed. This was an unusually large number, topped only by 12 people executed in 1976. From 1979 to 1989, the death sentence was carried out on one person per year. No one was executed from 1990 to 1992, which is attributed to the fact that the justice minister was a Buddhist. From 1993 through 2000, 33 people were executed, for an average of about five executions per year. In addition, the defense attorney for one of the people executed in 1993 argued that his client was mentally unstable when the sanction was handed down, and the doctor at the detention center who examined his client indicated that the client was unstable at the time of the execution. According to the Penal Code, these are grounds to stay the execution (Dean, 1994). Nevertheless, a survey was conducted by the government in 1994 to assess public attitudes about capital punishment. Approximately 13.5 percent supported abolition of the sanction, while almost 74 percent favored its retention. Later surveys by the media reported results similar to those of the government (Kurata and Hamai, 1998).
Another issue that has been raised is whether the saiban-in system will have any impact on the extent to which the death penalty is employed (Johnson and Zimring, 2009). Saiban-in, which was explained earlier, is the use of lay assessors in trials. The lay assessors sit with the professional judges and together decide the outcome of the trial. If the accused is found guilty, the group would collectively impose a sentence. Since saiban-in was introduced relatively recently, in 2009, it is too early to tell if it will have any impact on the use of capital punishment in Japan.
Finally, it has been suggested that the abolition of the death penalty will come to Japan only with a revision of the Penal Code, because the nature of the Japanese judiciary is such that it will not act independently of the legislative branch (George, 1990). The abolitionists recognize the difficulties that they face in gaining converts to their cause. One observer suggested that a compromise might be reached by substituting capital punishment with the sanction of life imprisonment without parole (Kikuta, 1993). Nevertheless, a 2004 government opinion poll found that 81.4 percent supported the death penalty, while only 6 percent were opposed to it. The poll noted that supporters were of the opinion that only capital punishment could provide closure for families of the victims. Supporters also maintained that the punishment had a deterrent effect.
It should come as no surprise that Japan’s correctional system has evolved in a manner not unlike that of their police, judiciary, and law. The Penal Code of 1908 and other legal measures related to corrections were initially influenced by French and German ideas from the mid-nineteenth century through the early twentieth century. Some of this legislation remains in force today, albeit with some modifications. In addition, the American occupation had many effects on the correctional system, the introduction of probation and parole being most notable. Finally, a clearly distinct juvenile justice system also was created following the war.
The significant influence of Western ideas on corrections must be placed in the Japanese context. Although the form the correctional community has taken appears strikingly Western, the substance of the system must be viewed and understood within the social and cultural framework of Japan. The purpose of this section is to offer a brief explanation of the sentencing philosophy, a description of the organization and administration of the correctional system, an examination of both the institutional and non-institutional forms of sanctioning, and the identification of some of the critical issues confronting the correctional system.
Sentencing Philosophy
The traditional objectives behind sanctioning an offender are retribution, deterrence, isolation, and rehabilitation. Most countries emphasize one or more of these objectives as a rationale for their sentencing philosophy. In that regard, Japan is no different than the others. However, both practitioners within the Japanese justice system and foreign observers of it are in agreement that the Japanese tend to emphasize retribution and rehabilitation.
Before these two objectives are examined, it is important to mention why there is a greater impetus directed at them than at deterrence and isolation. Japanese and foreign commentators are fond of pointing out the homogeneity of Japan’s population and the social cohesiveness of the people, as illustrated by the importance placed on group associations. It is within this context that the Japanese sentencing philosophy must be understood.
In determining how to proceed with the disposition of an offender, the paramount concern for the Japanese is how the decision will benefit society. This goal is strikingly different from that found in many countries, which claim, at least in theory, the principal concern is for the individual offender. Of course, the Japanese are still concerned about the individual, just as justice systems that appear to concentrate their efforts on the offender are also interested in the societal benefits that result from their decisions.
This helps to explain two features of the Japanese criminal justice system: (1) agents of the justice system are not viewed only as enforcers of the law but also as guardians of society’s morals (a good deal of deference is paid to them as dispensers of this authority), and (2) broad discretionary power is accorded these agents. It is an accepted practice for the police to decide whether a minor infraction of the law should be resolved through a formal citation or an apology. It is legally permissible for the procurator to decide if a criminal, irrespective of the nature of the offense, should be prosecuted or have the prosecution suspended. Those offenders who are formally adjudicated may have their sentence modified by the judge exercising powers of discretion. These extensive discretionary powers are accepted by the public because the public displays a great deal of faith in the agents of its criminal justice system. This faith is based on a belief that in each case, the agent’s judgment will be guided by the interests that best serve society.
Returning to the twin objectives of retribution and rehabilitation, the Japanese base the specific sentence on the gravity of the offense and the degree of culpability of the offender. The offender’s character, personality, age, and environmental history (criminal, familial, and educational background) are also taken into consideration. It should be pointed out that this kind of information is usually provided to the court by the procurator and defense counsel, rather than by a professional who has a specific expertise in the social or behavior sciences. All the previously mentioned criteria are used, however, in determining the extent to which retribution and rehabilitation will be sought in the sentencing process.
According to Tadahiro Tanizawa (1979), the principal rationale for the imposition of a formal sanction is retribution. However, Yoshio Suzuki (1978a) has pointed out that this should not be misconstrued as a Japanese revival of the old talionic law. Rather, it is simply an acknowledgment that the need to satisfy vengeance is deeply rooted in any society. The victim, as well as society, wants to be assured that justice is done. Retribution either achieves or enhances the prospects of that realization. The actual application of retribution is considerably different, however, from the old notion of “an eye for an eye, a tooth for a tooth.”
Nevertheless, for the Japanese offender who is not a professional criminal, the sanction can be as psychologically painful as some of the earlier forms of corporal punishment. Retribution is achieved through disgrace. This is specifically brought about by alienating the offender from the group—that coveted association that often ensures and fosters a person’s identity. Imprisonment is the ultimate form of alienation from the group and rejection by society. The long-standing impact that this is intended to achieve explains, in part, why prison sentences in Japan are fairly short.
Another reason for the brief length of most sentences is associated with the second major objective for sanctioning, that is, rehabilitation. Tanizawa (1979), among others, has indicated that a lenient sentence, whether or not it includes incarceration, is meant to encourage the rehabilitation process. The goal is to impress upon the offender the court’s generosity, thus leading the offender to desire rehabilitation. The Japanese seem to understand, possibly better than most cultures, that the chances of success are greater within the community than in an institutional setting. Once again, this is based on the importance placed on maintaining close ties with a group. If membership in a group provides emotional sustenance to the noncriminal, it is assumed that such an association for a criminal offender can only strengthen the efforts to rehabilitate oneself.
Organization and Administration of Corrections
Ministry of Justice
The Ministry of Justice is a cabinet-level department headed by the minister of justice, who is appointed by the prime minister. Like the rest of the Japanese criminal justice system, the administration of corrections is controlled by the national government. As mentioned earlier, the ministry is divided into seven bureaus, of which two—the Correction Bureau and the Rehabilitation Bureau—are concerned with all matters pertaining to correctional administration.
Correction Bureau
The Correction Bureau is responsible for the administration of adult prisons as well as facilities for juvenile delinquents. The chief administrative officer of the bureau is the director general. The director general’s staff is divided into six divisions. The general affairs division is responsible for such issues as planning, budgeting, inspections, staff training and welfare, and the drafting of regulations and policy. The treatment division handles the admission and release of prisoners, along with the daily security needs of the correctional facilities. The industry division is concerned with issues related to prison labor and vocational training. The medical care and classification division is responsible for such issues as the feeding, sanitation, and medical needs of the inmates, along with classification and parole procedures. The education division addresses all academic training, welfare concerns, and recreational needs. Finally, the counselor’s office is responsible for drafting and amending changes in the laws and regulations that impact on the services provided by the correctional system.
The director and staff are assisted in their work by eight regional headquarters. The regional centers are designed to coordinate the management of the various correctional institutions in their respective geographical areas. Their duties range from administrative concerns, inspection of facilities, and dealing with personnel issues involving the staff, to supervisory responsibilities such as the classification and transfer of inmates and the coordination of prison industries (see Figure 3.4 ).
The Japanese have developed a fairly elaborate scheme for classifying offenders as they enter the prison system. The scheme is employed to determine the placement of inmates either in a particular correctional facility or in a specific section within an institution. The first method of classification takes into consideration the gender, nationality, and age of the offender, as well as type of sentence. The Japanese have established correctional facilities that are specifically designed for different populations: females, foreigners, people sentenced to imprisonment without compulsory labor, inmates serving a term of more than eight years, adults under the age of 26, and juveniles. The second classification issue takes into consideration the degree of criminal tendency. Under this scheme, inmates are categorized as either having or not having advanced criminal tendencies. A third method of classification identifies those inmates who have either a mental or physical disability. Finally, inmates are categorized according to their treatment needs.
Figure 3.4 Organization of the Bureau of Corrections
Imprisonment
Before the regimen of the correctional institutions is explained, it is important to offer some general comments about the sanction of imprisonment in Japan. According to the Penal Code, an offender sentenced to a term of incarceration receives either a sanction of imprisonment with compulsory labor, imprisonment without compulsory labor, or penal detention. Imprisonment with compulsory labor and imprisonment without compulsory labor are either for a fixed term or for life. The fixed terms range from one month to 15 years; however, they can be increased to 20 years when circumstances warrant such an extension. The only difference between imprisonment with compulsory labor and imprisonment without compulsory labor is that the former requires the performance of some type of work. Although imprisonment without compulsory labor does not require a work assignment, most inmates request one. The sanction of penal detention requires the offender to serve a term of between one and 29 days in a house of detention.
An examination of the data provided by the Ministry of Justice on people sentenced to prison since World War II indicates that there has been a dramatic decline. In 1950, there were 83,492 people sentenced to a period of incarceration, creating a total prison population of 103,204 in that year. Of those sentenced, approximately 71 percent were guilty of some form of theft. Japanese criminologists attribute the high level of this particular crime to the fact that the country was in a state of social chaos and economic collapse during the years immediately following the war. People convicted of war crimes are also included in these totals. In 2008, the population in penal institutions was 79,809. Of that number, 65,508 were convicted inmates, while 14,301 were awaiting trial.
Several reasons are offered for the small number of offenders sentenced to prison. One is that the rate of nontraffic offenses either continues to decline or remains stable. Another is that judges prefer to sanction the offender with a fine, if at all possible, or to a minimum term of deprivation. Fines are the most popular form of sentence. It is estimated that approximately 97 percent of all sanctions involve a fine. Finally, about 60 percent of all prison sentences imposed are granted a suspension of execution by the judge. Offenders who are sentenced for up to three years of imprisonment can have the sentence suspended if they meet one of two criteria: (1) the person has never been sentenced to imprisonment before, or (2) a period of five years has elapsed since a prison term has been imposed.
Although greater attention was directed at the issue of capital punishment earlier, brief mention should be made here of the apparent support for the death penalty in Japan. While the Japanese tend to favor its retention, they also expect its use to be restricted. The Penal Code permits the death sentence for particularly heinous crimes, such as murder or murder in the course of committing a robbery. Hanging is the only method employed to execute the sentence.
Types of Institutions
Compared to other countries, the number of offenders sentenced to incarceration in Japan might be small and the length of sentences fairly short, but several scholars have pointed out that Japanese prisons impose a good deal of discipline on inmates. It has been suggested that “leniency is extended to those who confess, demonstrate remorse, accept their accountability by compensation to any victims,” but that it “stops at the prison door” (Haley, 1998). The justification for the rigorous discipline imposed on inmates is that it is designed to correct behavior rather than to punish the person. The principle behind the treatment of sanctioned offenders is explained in article 30 of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees (2005). The article states: “Treatment of a sentenced person shall be conducted with the aim of stimulating motivation for reformation and rehabilitation and developing the adaptability to life in society by working on his/her sense of consciousness in accordance with his/her personality and circumstances.” This approach is considered a central feature in the Japanese rehabilitative process.
Moreover, article 103 of the Act on Penal Detention indicates: “The warden of the penal institution shall provide with necessary guidance to sentenced persons in order to awaken them to the responsibility for the crime, cultivate healthy mind and body, and acquire knowledge and lifestyle necessary for adapting themselves to life in society.” The guidance or discipline is reflected in the very detailed daily schedule that inmates follow. There are a number of rules, which range from general rules (e.g., how inmates are expected to speak and act toward others), to rules within the cell (e.g., when a person is permitted to lie down), to an extensive array of work rules. All correspondence is censored and may not even be delivered. Moreover, inmates do not have access to telephones.
The Japanese have established two types of adult correctional facilities: prisons and houses of detention. There are 62 prisons and eight branch prisons, and there are seven detention houses and 104 branch detention houses. There is also a women’s guidance home, which is utilized for the purpose of rehabilitating prostitutes. The purpose of this facility is to provide social and vocational guidance along with medical and psychological treatment. The houses of detention are used either to hold suspects or defendants awaiting trial or to incarcerate offenders sentenced to penal detention for committing minor crimes. Among the prisons, three are medical facilities designed to house inmates who are not capable, either physically or psychologically, of serving their sentence in a regular prison. Finally, six of the prisons are designated for women.
As mentioned earlier, the purpose of the adult prison is to aid in the rehabilitation of the offender. In order to enhance the prospects of that, the convicted offender is first sent to one of the eight regional classification centers. While at the center, the inmate is oriented to prison life and given a series of aptitude tests to assist the authorities in determining the institution that might best serve the inmate’s needs. A host of other factors also are taken into consideration, including age, gender, nationality, criminal record, type of sentence, mental stability, and any physical handicaps.
Sentences to imprisonment (either with or without labor) are subject to a progressive system. In operation since 1934, the progressive system is a scheme involving four grades or steps in an inmate’s period of detention. Inmates begin their term in the fourth grade. When they display self-discipline and a willingness to accept and cooperate with the rehabilitative regimen, they are advanced to the other grades. First-grade inmates enjoy more privileges and a greater degree of self-government. There is also a greater likelihood that they will be released on parole. It should also be pointed out that a number of the prisons are open facilities.
Most sentences mandate that inmates perform some kind of compulsory labor. In light of this fact, it has been pointed out that much of the Japanese prison system is organized along the lines of a factory system (Clifford, 1976). Among the types of work found in a prison are woodwork, metalwork, tailoring, and printing. An appropriately qualified inmate could be assigned a job in industry. With the absence of restrictions imposed by Japanese trade unions, the prisons are able to negotiate contracts with the private sector to produce goods. While some products are manufactured within a prison, it is not uncommon to send crews of inmates out of an institution to work. This is primarily limited to farming. All profits from such contracts are transferred to the national treasury. Other inmates are assigned maintenance tasks around the prison, such as kitchen, janitorial, or physical plant repair duty. Finally, a few inmates are selected for vocational training. This enables them to learn a skill while in prison, apply that skill in a prison industry, and find employment upon release from the institution. Although inmates are awarded some financial remuneration for their work, it is not considered a wage. It is regarded as a gratuity designed to encourage the inmate to work. Some of this money is saved for the prisoners and returned to them upon their release from prison, while the rest can be used to buy necessities or help support their families.
The prison regimen also includes educational programs that are generally designed for younger inmates. For example, inmates who have not completed the nine years of compulsory education or who need remedial assistance are required to attend classes. Correspondence courses are also provided, including high school classes and vocational education courses, of which some have been approved by the Ministry of Education. Moreover, vocational training is provided in the prisons. The participants of such programs have their regular work hours reduced so they can participate. Those who complete a vocational or technical program and then pass the appropriate national examination are eligible to receive a license or certificate issued by the Ministry of Labor. This enhances the inmate’s opportunities for employment upon release. As mentioned earlier, article 103 of the Act on Penal Detention notes the importance of assisting the inmate to acquire skills necessary to adapt to life in society. The work and educational programs are designed to assist with this endeavor. Both general and specialized rehabilitative programs are also available to complement those efforts. They include drug-treatment, sexual-offender, and traffic-safety programs.
The Japanese have had remarkable success in maintaining the internal security and order within the prison system. By way of illustration, in 1991, there was one escape, one case of an inmate seriously assaulting another inmate, and no instances of an inmate killing an officer or another inmate (Yokoyama, 1994). Articles 150 through 156 of the Act on Penal Detention explain the issue of disciplinary measures that can be taken against an inmate. These include a simple warning, suspension from work or a reduction in the amount of remuneration, complete or partial suspension of the use or consumption of items that inmates are permitted to purchase, complete or partial suspension of access to reading materials, and a period of disciplinary confinement. Confinement includes the suspension of access to reading materials, sending and receiving of letters, visits with the exception of visits from defense counsel, and restrictions on exercise as long as this does not endanger the person’s health. Most sanctions of confinement are for 30 days. Periods of disciplinary confinement can be extended to 60 days if the inmate’s transgression is deemed “especially serious.”
Rehabilitation Bureau
Whereas the Correction Bureau is responsible to the Ministry of Justice for the penal institutions of Japan, the Rehabilitation Bureau is the central bureaucracy within the ministry that is concerned with the release and oversight of inmates from a correctional facility. The facilities include prisons, juvenile training schools, and women’s guidance homes. It is recognized that inmates often require a transition phase in their movement from a total lack of freedom to the exercise of responsible freedom. Parole serves the purpose of testing an inmate’s ability to cope with this responsibility. The Bureau is also responsible for monitoring the progress of those adults who received a suspended sentence and those juveniles who have been placed on probation.
The National Offenders Rehabilitation Commission has an important role to play in this process, and it is accountable to the ministry through the Rehabilitation Bureau. The commission is composed of five people who are appointed by the minister of justice with the approval of the Diet. According to the Offenders Prevention and Rehabilitation Law (1949), the commission is mandated two responsibilities. It makes recommendations to the Ministry of Justice regarding pardons, reductions, and remissions of sentences, as well as the restoration of inmates’ rights. It also oversees the eight regional parole boards that determine who is eligible for parole. These boards are located in each of the cities that have one of the high courts. A board is composed of three to 12 members; at least three members are needed to render a parole decision.
According to the Penal Code, inmates sentenced to a fixed term are eligible for parole after they have served one-third of their sentence. Inmates condemned to a life sentence are considered for parole after serving 10 years. Approximately 60 percent of all inmates are granted parole, but the favorable decision usually comes after they have served more than one-half of their original sentence. While on release, inmates are supervised by a probation officer who is expected to offer aid and guidance. Among the most notable problems associated with the Japanese parole system is the fact that most prison sentences are relatively short. As a result, the length of time on parole is equally short. It has been argued that there is simply not enough time to assist the parolee in any meaningful way before the termination of the conditional release. The other major concern focuses on the apparent passivity displayed by members of the parole boards. They tend to rely upon the opinions expressed by the superintendents of the correctional facilities rather than actively attempt to collect their own data and formulate their own opinions based on a particular case (Horii, 1973).
It has been suggested that there might be support in the Diet to add a new sanction, life without parole. This idea has emerged because of the soon-to-be-introduced saiban-in system, which was discussed previously in the section on the judiciary. At issue is the concern that lay assessors might be reluctant to impose the death penalty and thus be left with the next most severe sanction, life with the possibility of parole after 10 years. While technically eligible after 10 years, most inmates sentenced to life serve between 20 and 30 years in prison. There appears to be support in the Diet to add life without parole to the list of penal sanctions, but it has not been introduced at this time.
Noninstitutional Sanctions
The role that the police and procurators play in diverting offenders from the formal adjudication process can be considered a form of noninstitutional sentencing. Like many progressive countries, Japan recognizes the value of utilizing noninstitutional sanctions when sentencing its offenders. They realize that if rehabilitation is truly a goal of the sentencing philosophy, then it is more likely to succeed if the offender is kept in the community and is able to benefit from the positive influences of a group. This is especially noteworthy in Japan, where the family remains an important source of that group support.
The suspension of a sentence can be granted in two kinds of circumstances. According to the Penal Code, a person sentenced to imprisonment for not more than three years or fined less than 200,000 yen can have the sentence suspended for a period of one to five years, depending upon the offender’s sentencing history. A person who is sentenced to imprisonment for not more than a year and who has previously received a suspended sentence of imprisonment is also eligible for a suspended sentence. In the former case, the court can order the suspension with or without supervision, while in the latter case, the court orders the suspension with supervision. Thus, a suspension of sentence with supervision is the Japanese version of a probation order.
The Japanese utilize the suspended sentence in approximately 50 percent of the cases that go to trial. In each of the 50 cities containing district courts, there is a probation office that is under the jurisdiction of the Ministry of Justice. Each probation office employs full-time probation officers and volunteer probation officers who assist offenders on probation or parole. The Japanese have long emphasized the importance of the community’s role in reducing crime; the extensive use of volunteer probation officers is one example of that tradition. Presently, there are about 49,000 volunteers working in this area.
As was previously indicated, approximately 97 percent of the sentences involve a fine. A regular fine ranges from 4,000 yen and up, but the amount can be reduced to below the 4,000 yen figure. A minor fine ranges from 20 to 4,000 yen. If a person is unable to pay either a regular or a minor fine, he or she may be detained at a workhouse for a period of time. The amount of time is determined by the court and is based on the amount of the fine.
A final aspect of Japan’s correctional system is the aftercare program. Although the government is responsible for this program, Japan’s system of aftercare is dependent on the help of voluntary organizations to provide halfway houses. The system is available on a voluntary basis to specific kinds of offenders and is designed to enhance their prospects of reintegration into society. The scheme specifically assists inmates released without parole supervision, parolees who have completed their term of parole, offenders who have received a suspended sentence without probation, and people released by the procurator’s suspension of their case. The type of care provided includes food, lodging, clothing, medical care, counseling, and employment or welfare assistance.
Critical Issues
It should be noted that the Japanese correctional system is not devoid of problems. The government is mindful of several concerns and speaks fairly openly about them in their official reports. Some scholars also have commented on these issues (Archambeault and Fenwick, 1988; Johnson and Hasegawa, 1987; Yokoyama, 1994). Among the problems mentioned is the fact that the law regulating the prison system came into effect in 1908. As such, it contained serious defects with regard to modernizing the management of the correctional system. In particular, this involved timely issues related to rights versus restrictions that were placed on inmates. While some modifications had occurred, attempts at revision were usually slow.
In 1995, Human Rights Watch/Asia issued a highly critical report on the conditions in Japanese prisons. While it acknowledged that Japanese prisons are sanitary and that inmates are provided clean clothes and an adequate diet, it focused much of its attention on the rigid enforcement of prison rules and the restraints placed on human contact. To illustrate, many prisoners live in single cells that are very small and sparsely furnished. The lighting in the cells is controlled from outside by guards and is only dimmed at night. All forms of communication with the outside world are controlled. For example, correspondence is read and may be censored, and if the censors are not familiar with the language, the materials may never be delivered. Legal visits are usually curtailed, and when they do occur, they are monitored by guards. The amount of time inmates are permitted to exercise outside is restricted usually to three times a week and usually for less than 30 minutes. Prisoners are told how and when to sleep; they are told how they must sit in the cell, especially during inspection; they are told when and where they can write; and they are taught how to march when they are permitted to leave their cells. Finally, the most common method of punishment for a violation of any prison rule is to spend up to two months in solitary confinement.
Human Rights Watch/Asia acknowledged that the existence of rules in the course of regulating behavior is a common feature of Japanese society. As early as primary school, numerous rules have been established to control the behavior of students. More recently, the educational system has become a bit more flexible with regard to the importance of rules. This has not happened in the prison system. As such, prison policies appear for some critics to be devoid of any notion that prisoners have rights.
Following the revelation of some incidents of inmate abuse at the Nagoya Prison, in some cases fatal abuse, and often involving injuries sustained while inmates were manacled in solitary confinement, the government created a panel of experts on penal reform to investigate the concerns. The panel’s report led to the passage of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees in 2005. This legislation incorporated revisions to the 1908 Prison Law that had been the subject of criticism for a number of years.
The Act on Penal Detention introduced several changes. For example, inmates are allowed to wear their own clothes and eat their own food when possible. It is also possible in some circumstances for an inmate to seek medical treatment from a doctor of his or her choice (Shinkai, 2010). Of particular interest for those concerned about the potential for human rights abuses, the legislation authorized the minister of justice to appoint members (a maximum of 10) to a Visiting Committee that will be established at each penal institution. This is a part-time position, and the appointment is for one year with the possibility of reappointment. Members of a Visiting Committee are authorized to seek information from the warden, to conduct visits to the penal institution, to interview inmates, and to make recommendations to the warden. The minister of justice is kept informed of the Visiting Committee’s work and the warden’s response to the Committee’s recommendations. A similar scheme is established for police detention facilities, with the local Public Safety Commission delegated the responsibility of appointing members to the Visiting Committees of detention facilities. In both instances the goal is to provide a degree of oversight of facilities that incarcerate people by permitting civilians to inspect correctional facilities and to entertain grievances of those incarcerated. Over time, some of the concerns mentioned earlier by Human Rights Watch might be raised by these Visiting Committees and lead to further reform.
Another problem involves the age of most prisons. Many are older facilities that are in need of either reconstruction or demolition. The problem with tearing down an old facility is that it would have to be replaced with a new one—at a staggering cost. Economics is not the only consideration, however. Citizens are sensitive to the prospect of having such an institution located near them. If an existing facility is demolished and a new facility is constructed in a different location, the prison staff would have to relocate. This would require selling their residence, possibly moving to a remote area of the country, and placing their children in a school system inferior to the one that they left in a more urban setting. Because the Japanese place such a high premium on a quality educational program for their children, this could have a serious effect on prison staff morale.
Although the Japanese have established a fairly progressive system for recruiting, screening, and training correctional officers, a specific point of concern involves the nature of a demographic change that has been occurring among prison staff. At issue is the large number of staff presently retiring from the correctional service. This mass exiting from the workforce was to be expected; its roots date back to the close of World War II when prison authorities had to recruit a large number of people to work within the system.
These numbers are now at retirement age and are being replaced by younger people. This might be considered a blessing in some countries, particularly by those who consider it an excellent opportunity to reduce the generation gap between the staff and the inmates. That is not the case in Japan, however, because the prison population is aging. Therefore, the system is employing staff younger than the bulk of the inmates. Although the younger officers are capable of maintaining prison discipline and security, it is feared that they will not be as successful at counseling inmates. In this instance, a reversal of the generation gap works to a disadvantage in maintaining or implementing various rehabilitation programs for long-term prisoners.
In recent years, Japan has become a popular place for tourists. Although most visitors are law-abiding, those who throw caution to the wind may find themselves placed in prison. This creates a host of problems for the inmates and their keepers. The most obvious is the language barrier. There are additional problems, however, that include such issues as dietary needs, sleeping accommodations, and correspondence from home. The Japanese have designated three prisons to receive foreign inmates. Some staff can speak other languages at these facilities; Western-style meals are prepared; beds have replaced the traditional Japanese sleeping mat; and showers have been installed instead of the traditional bathing pools. Problems with correspondence and reading materials remain, however. Article 207 of the Act on Penal Detention may prohibit the distribution of such materials, and the prison system is simply unable to provide inmates with a free translation service. The absence of correspondence from the outside obviously compounds the unsettling experience of the foreign inmate.
Another management and supervisory concern for the prison system is the growing number of inmates who are members of either organized crime syndicates or gangs. These inmates represent a significant part of the total prison population. Their numbers are estimated at more than 25 percent. Because they have been ingrained in their own subculture, these career criminals reject any effort to cooperate with the system’s rehabilitation programs. They also pose a constant threat to the maintenance of security within the prison.
Finally, as is the case with most prison systems, the Japanese are confronted with the problem of drug abuse inside the prisons. While the number of stimulant-drug offenders entering the prison system has increased significantly for both sexes, of particular alarm to the Japanese is the greater increase of such abuse among women. For the most part, the problems mentioned here are not unique to Japan; they can be found in almost any modern correctional system in the world today.
Among modern industrialized countries with a comparable population, the low level of criminality in Japan is enviable. Both Japanese experts and foreign observers have identified a number of reasons for this. They usually include the homogeneity of the population, the emphasis directed at family solidarity, the importance placed on the cultural trait of respect for authority, the extent to which transgressions of society’s norms are translated into a stigma of shame toward the violator, the low rate of unemployment, the stringent controls on firearms and drugs, the overall efficiency of law enforcement, the fact that the geographical size of the country reduces the likelihood of easy escape from the police, and the extent to which the public cooperates with agents of the criminal justice system. For the most part, these are social structural characteristics of the society.
Since the end of World War II, the degree of criminality among people under the age of 20 has undergone three distinct phases in which delinquent activity increased to serious proportions (Saito, 1993; Yokoyama, 1986). The level of juvenile crime reached its first peak in 1951. This was attributed largely to the aftermath of the war. The war not only had placed the country in a social and economic state of chaos, but also left a large number of poor and orphaned children who turned to crime in order to survive their personal economic hardships.
The second peak occurred in 1964. As was the case in many industrialized countries, this increase was attributed to the large postwar baby boom generation reaching the delinquency-prone years. Of particular concern at that time was the rise in crimes of violence, intimidation, and injury. In 1965, the level of serious crime started a steady decline.
The third phase reached its peak around 1981. While violent offenses continued to decline, there were significant increases in theft, especially shoplifting, theft of bicycles, and cases of embezzlement. In Japanese law, embezzlement is used in two contexts. One, which is a familiar term employed in common law countries, is the misappropriation of entrusted property. A common example is the taking of money for personal use by a person who has been entrusted to serve as an administrator of an estate. The other use of the term embezzlement, which is significant in the context of Japanese crime and juveniles, is categorized as lost property embezzlement, that is, the taking possession of property that has been misplaced by the owner. A common example of this form of embezzlement can be the unauthorized use of an unattended bicycle. More than 98 percent of all embezzlement arrests involve lost property (West, 2005).
The number of young people arrested on drug abuse charges was also escalating. Abuse included using stimulants, sniffing glue, and inhaling paint thinner. Another type of concern was the emergence of the bosozoku, which are reckless driving gangs consisting of a large number of school dropouts.
What was particularly distressing to the authorities was the emergence of a new profile of the juvenile offender. More offenders were coming from middle-class families. A large number were junior high school students or dropouts from school. They were also younger than the typical offender of previous years; in addition, there was a significant increase in the number of female offenders.
At the height of this new phase, the police augmented their efforts toward curtailing these problems. The nature of that particular strategy will be discussed later in this section. What is important at this point are the explanations offered for the emergence of these problems (Fenwick, 1983a; Tokuoka and Cohen, 1987; Yoder, 2004). At the top of the list was the changing nature of the Japanese family. The rapid industrialization of the country caused a shift from extended families to nuclear families. As a result, the degree of quality in parent–child relationships declined. More mothers entered the work force, fathers were at work for longer hours and away from home more, and the divorce rate increased. This problem was not limited to the family though. Industrialization also led to demographic shifts in housing patterns, which had an adverse effect on the constitution of the community. Children were no longer spending their entire formative years in the same community. As a result, other adults in the community ceased to function as surrogate parents if and when the need arose. The diminished role played by family and community in insulating young people from delinquent behavior is an issue familiar to students of the United States justice system.
Another factor was the emergence of a highly competitive school system. Traditionally, the Japanese teacher played a vital role in dispensing moral education. Although this remains true to some extent, the role of the teacher has shifted principally to imparting academic knowledge. The pressure for academic excellence has hindered the low achievers, enhancing the likelihood that they become alienated from the system and eventually drop out of the process.
Finally, industrialization has led to the expansion of a highly skilled work force. This has placed in jeopardy the opportunity for some unskilled workers to participate in, and benefit from, the country’s economic expansion. This problem is especially acute among young workers who have dropped out of school. They have already experienced one form of isolation in the educational system and may avoid the threat of economic isolation by turning to illegitimate modes of economic enterprise.
The breakdown in the role of family, community, school, and work in assisting and augmenting the Japanese method of structural integration led some of these isolated young people to turn to delinquent peer groups, which they relied on for purposes of socialization. Therefore, the traditional social structure conditions and processes that had explained the decline in crime among the adult population are presently in a state of flux and have lost some cogency among the younger generation.
The rate of juvenile crime declined until 1994, at which point it started to increase again. Since 2004, the number of juveniles who committed Penal Code violations has declined again. In 2008, the number of juvenile Penal Code offenders was 90,966. This represented an 11.9 percent decrease (12,258 offenders) from the previous year. Juveniles represent 26.8 percent of all Penal Code violators.
Of particular concern is the continued level of violent offenses committed by bosozoku groups, which are motorcycle and customized car gangs that have existed for a long time in Japan. The gangs are primarily made up of males between the ages of 17 and 20. Criminologists have suggested that membership in these gangs usually lasts about two years (Kersten, 1993). What has alarmed the police is the relationship between the increase in violence among bosozoku members and the apparent influence that boryokudan groups (organized crime) are having on some of these gangs.
Part of the increase in delinquency rates, however, is attributed to first-time offenders or juveniles who did not have a prior record. The Research Department of the Ministry of Justice conducted a survey of juvenile offenders in the hope of seeking an explanation for this development. For a large percentage of the Japanese population, poverty and economic hardship are almost nonexistent. In light of these circumstances, what motivates juveniles to commit larceny, extortion, and embezzlement offenses? The survey found that more than 50 percent were motivated by greed, while between 20 and 39 percent considered their actions to be a form of amusement. With regard to offenses involving assault, more offenders indicated that they were motivated by violent emotion rather than by a grudge or revenge. The researchers who analyzed the data identified four trends or characteristics among these juvenile delinquents: diminished moral standards, fragile support groups, limited self-control, and a tendency toward impulsive behavior (Research Department, 2000).
It should be noted that in the late 1990s and after the turn of the century there have been a few horrific murder cases in which both the victim and perpetrator were at or younger than 14 years of age. In light of the public outrage, the government moved to amend the Juvenile Law in 2000. The amendments lowered the minimum age (from 16 to 14) in which a juvenile can be tried in an adult criminal court, ordered the family court to refer all juvenile murder suspects who are at least 16 years of age to the procurator, and emphasized the importance of parental responsibility for children. For the first time since the Juvenile Law was enacted in 1948, there was a shift in policy as to how a juvenile offender who commits a serious crime would be handled. There would be punitive consequences for such offenders (Fenwick, in Muncie and Goldson, 2006; Yokoyama, 2009).
The Japanese government also acknowledges that juveniles are victims of certain criminal enterprises. The Act on Punishment of Activities Relating to Child Prostitution and Child Pornography and for Protecting Children was enacted in 1999, and then revised in 2004. The police have endeavored to address these issues. In 2008, the number of children under the age of 18 who were victimized by prostitution declined to 846, a decrease of 26 percent from 2007. Unfortunately, the number of children under the age of 18 who were victimized by pornography increased to 338, a 23 percent growth over the previous year. The government also noted that the level of child abuse by parents has become a particular concern. The police were able to clear 307 cases of abuse in 2008, which was an increase of seven cases over the previous year. The number of children victimized was 319, of which 45 were killed. The police are attempting to address these problems through both prevention and detection strategies that involve Child Counseling Centers and Juvenile Support Centers (National Police Agency, 2010).
Family Court
Before the personnel and jurisdiction of the family court are examined, it is important to explain how juveniles are classified according to their age and level of criminal responsibility.
Responsibility of Juveniles
The term juvenile refers to anyone under the age of 20. The Juvenile Law (1948), which established the procedures for handling juveniles committed to trial, created a categorization scheme for making distinctions among juveniles who are labeled delinquent. A “juvenile offender” is a person between the ages of 14 and 20 who has committed a criminal offense cited in the Penal Code or some other statute. A “lawbreaking child” is a juvenile under the age of 14 who has committed a criminal offense. A “pre-offense juvenile” is a young person considered to be susceptible to committing criminal acts. Incorrigibles, runaways, and young people prone to harmful behavior are examples of this last category. Harmful behavior could include such actions as loitering at midnight or smoking.
Personnel
The Japanese have established the family court to handle juvenile matters. In cases involving juveniles, the police are usually the first to respond. They send all cases pertaining to lawbreaking children and pre-offense juveniles directly to this court or to a child guidance center. If the matter involves a juvenile offender, the police refer the case to the public procurator. The procurator, out of necessity, may conduct a second investigation to determine whether charges are warranted. The procurator does not have the power to suspend a prosecution, as is the case with adult offenders; he or she must turn the matter over to the family court judge. The judge in a juvenile case, therefore, is accorded a good deal of discretionary authority in determining how juvenile cases are disposed.
In addition to the judge, family court probation officers offer an invaluable service. Trained in the social and behavioral sciences, the probation officers administer psychological and aptitude tests to the juveniles; interview the young offender and members of the family; and investigate the juvenile’s family, social, educational, employment, and criminal history. They prepare a profile on the juvenile that is used by the judge when determining an appropriate manner for handling a case.
Jurisdiction of the Family Court
The family court has original jurisdiction over all matters pertaining to family or juvenile cases. In the court hierarchy, the family court is considered an equal to district courts. Its jurisdiction is totally independent from that of district courts. Appellate reviews from family courts are entertained in high courts. Although family courts have principal jurisdiction over juvenile cases, a judge can send a case back to the public procurator for criminal prosecution in an adult court, if the person could be sentenced to death or imprisonment if found guilty.
Procedures
The procedures of the family court are usually quite informal. In many cases, the court is not overly concerned with establishing the offender’s guilt, but rather with determining an appropriate format for treatment. The process adheres to the principle of parens patriae (in which the court takes the position of guardian), and the hearings are not open to the public. In addition, the media is forbidden from publishing articles or photographs of juveniles processed in a family court. Cases involving juveniles that have been transferred to a district court are more formal, but they also retain the principle of parens patriae as the case proceeds and a decision is rendered.
Disposition
According to the Juvenile Law, the purpose of the juvenile justice system is “the sound upbringing of juveniles, to carry out the protective dispositions relating to the character correction and environmental adjustment of delinquent juveniles, and to take special measures with respect to the criminal cases of juveniles and adults who are harmful to the welfare of juveniles.” The thrust of the juvenile system, therefore, is to protect, educate, and rehabilitate the young offender. This is reflected in the kinds of dispositions that are available to the judge. The most important consideration offered for adopting this strategy is the desire to avoid labeling the young person as a delinquent. If at all possible, the court also prefers to keep the child at home in the hope that the family and other institutions traditionally associated with exerting a positive influence on a young person’s behavior (such as schools) can be utilized to the fullest extent possible. Once again, the importance that the Japanese place on the group is reflected here.
Beyond an outright dismissal of a case or a referral to the public procurator for prosecution in a district court, the family court has five alternatives remaining. The juvenile could be placed on probation. In 2004, 4,575 nontraffic offenses were handled in this manner. There are about 50,000 volunteer probation officers who assist the professional officers. One of the greatest concerns among Japanese experts is the failure of younger volunteers to come forward and serve as probation officers for juveniles. There are a number of older volunteers, but what is needed presently are younger people who could help bridge the generation gap and serve as realistic role models. Unfortunately, the average age of the volunteer is rising rather than falling. In 1953, it was 53 years of age, while in 1994 it was 62 (Winterdyk, 1997).
A second possibility is that the court will issue a conditional probation. Under this order, the delinquent is placed in the custody of a family court probation officer. This order enables the court to study the conduct of the juvenile more closely before deciding to issue a regular probation or a protective custody measure.
A third type of disposition is a court order that requires the juvenile and his or her parents to avail themselves of the services provided at a child guidance center. There are a number of these centers located throughout Japan; they are under the direction of the Ministry of Health and Welfare. These centers are staffed by child specialists in medicine, psychology, and social work. Their goal is to assist the child and the parents through counseling and therapy.
Commitment to a home to support the independence of children is another alternative. It is granted to children under the age of 18 who have committed delinquent acts or who have been neglected. The governor of a prefecture also can impose such an order with the parents’ consent. Although the juvenile delinquent is usually sent to a home under an indeterminate sentence, he or she is released after having completed junior high school studies. The purpose of the home is to provide both an educational and a protective environment for these children.
The fifth alternative is to send the juvenile to one of the Ministry of Justice’s juvenile training schools. In recent years, approximately 2.5 percent of all cases led to such dispositions. The purpose of these schools is to offer rehabilitation, along with regular school and vocational courses. The schools are divided into four categories, each designed to handle a particular type of juvenile offender. Primary juvenile training schools house young offenders between the ages of 14 and 15 who have no serious psychological or physical defects. Middle juvenile training schools handle offenders between the ages of 16 and 20 who have no mental impairments or physical handicaps. Advanced juvenile training schools are designed to handle juveniles above the age of 16 who have established serious criminal tendencies. Finally, medical juvenile training schools are responsible for delinquents above the age of 14 who suffer from either a mental or a physical handicap. Juveniles who are sent to these facilities are given an indeterminate sentence but usually are released after two years. Some of the training schools have been converted to short-term facilities in which juveniles serve a term of less than six months.
Finally, juveniles who have been found guilty in a district court and sentenced to a term of imprisonment are sent to a juvenile prison. There are seven of these facilities, and while they emphasize a work regimen, it is in the form of academic or vocational training. There has been a marked decline in the number of young people sent to juvenile prison. Over the course of the past decade, less than 100 juveniles per year have received a sentence of incarceration. Part of the reason for this low figure is that juveniles cannot be sentenced to a term of imprisonment unless they are at least 16 years of age.
Critical Issues
When cases of juvenile delinquency increased during the early 1980s, the police augmented their efforts at curtailing the problem. They essentially instituted proactive strategies designed to prevent juveniles from becoming delinquent. This involved the police exercising broad discretionary authority to determine what constituted potentially “bad” behavior and who fit the profile of a pre-delinquent. Smoking, drinking, and hanging around public places late at night were considered “bad” behaviors. Police began to issue warnings to these pre-delinquent juveniles and monitored their activities. They reported such instances of improper behavior to parents, schools, and employers in the hope that these people would assist the police in guiding the juvenile to avoid such behavior.
Criticism of this strategy developed, with three concerns in particular receiving a good deal of attention (Fukuda, 1988; Yajima, 1988; Yokoyama, 1989). The first involves a policy issue. Should the police be permitted to exercise such broad discretionary authority in defining what constitutes “bad” pre-delinquent behavior when the law governing juveniles does not even define what constitutes delinquent behavior? The police are of the opinion that this authority falls under their legal responsibility to provide public security. Critics maintain that the exercise of this discretion is too broad. After all, the Juvenile Law places the exercise of discretion in delinquency cases with the family court and not with other agents of the justice system.
The second criticism raises the whole issue of whether it is prudent to label so many juveniles as pre-delinquent. While admitting that some juveniles might benefit from this strategy, critics point out that too many juveniles are being subjected to this strategy and labeled pre-delinquent. For example, of all the cases of police intervention with juveniles in 1985, it has been suggested that 84 percent involved pre-delinquents (Fukuda, 1988).
The third concern addresses a basic legal issue that can be understood only in its historical context. Before World War II, children had few legal protections and were subject to abuse by the authorities. The postwar Constitution provided all Japanese citizens with basic rights, and the tone of specific juvenile justice legislation passed after the war was a reaction to the abuse suffered by juveniles during the pre-war period. To illustrate, the Juvenile Law (1948) indicates that the purpose of the juvenile justice system is for the welfare of the individual. This process should involve protection, education, and rehabilitation. Some critics alleged that the police may be going too far in their tactics directed at pre-delinquents and in the process are endangering the juvenile’s constitutional and legal rights (Yokoyama, 1992).
This chapter has offered an introduction to the Japanese criminal justice system. The major components of the system—the police, judiciary, law, corrections, and juvenile justice— were surveyed, along with an overview of the country’s political system. A brief history of some of the components of the system was presented, the organization and administration were described, the various roles of the practitioners were explained, the legal process was examined, and reference was made to some of the areas of concern within the system.
To the American observer, Japan’s justice system displays many Anglo-American characteristics resulting from the postwar influence. Nevertheless, the system still retains many of the Romano-Germanic legal traditions that have had an impact for a far longer period of time. An interesting feature of the system is the extent to which deference is shown to agents of all components of the system. This is largely based on the fact that the public views the agents of the administration of justice as enforcers of both law and social morality. Because this attitude is so pervasive, there appears to be a great degree of cooperation between the various components. One is left with the impression that the Japanese are sincerely attempting to make the criminal justice system function as a system rather than as a series of dysfunctional components.
For some time now, the Japanese have been able to mix the ancient traditions of their culture with the modern innovations of an industrialized society. They have borrowed Western ideas judiciously and have uniquely blended them to fit their Eastern mores. Although these attitudes may change in time, thus far they have had a profound and positive effect on their criminal justice system.
