Japan's criminal justice system has become a target of international criticism since the arrest, detention and escape of former Nissan executive Carlos Ghosn. While the author recognizes the need for targeted reforms, he calls for a holistic understanding of the system in the context of Japanese culture and society.
Japan's criminal justice system came under severe scrutiny after the November 2018 arrest of Carlos Ghosn, former Nissan chairman. Many outside Japan were shocked to learn of a system where suspects and defendants can be held for months and subjected to endless interrogations until they confess. The Ghosn case has brought this “hostage justice” system into the spotlight.
Ghosn is hardly a figurehead for those wrongly accused. My aim here, however, is neither to condemn nor to defend his conduct, but to use his case and the criticisms it aroused as a stepping stone to a more holistic assessment of the Japanese criminal justice system - including its merits as well as its shortcomings - with a Emphasis on underlying attitudes towards crime and punishment.
Criminal Proceedings and the Ghosn Case
Let's start with an overview of the Japanese criminal process through the lens of the Ghosn case.
On November 19, 2018, Carlos Ghosn, then CEO of Nissan, was arrested at Tokyo's Haneda Airport on suspicion of financial irregularities. On December 10, the Tokyo District Procuratorate charged him with failing to declare his income in violation of the Financial Instruments and Stock Exchange Law. Ghosn was re-arrested twice and was only released on bail on March 6, 2019. He was arrested a fourth time on April 4 and released on bail on April 25 under extremely restrictive conditions. On December 30, 2019, Ghosn fled to Lebanon in violation of his bail conditions.
According to the Japanese Code of Criminal Procedure, the police have 48 hours after an arrest to refer the case to the prosecutor's office. The prosecutor then has up to 24 hours to either charge the suspect or request a judge to detain him for a further 10 days. A further extension of 10 days can then be granted. Overall, a suspect can be held in this way without charge for a maximum of 23 days after arrest. This in itself is not very unusual; other countries have preload detention periods of between 16 and 30 days.
The big problem is that prosecutors in Japan can easily circumvent this limit by re-arresting the suspect on various charges before the 23 days are up. In some cases, they keep arresting a person by breaking a single case into multiple crimes. This is exactly what happened to Ghosn, who has been arrested four times in total. During long detention suspects are often grilled for hours (although recent reforms have helped curb harsh interrogation techniques). Also problematic from the point of view of international norms is the fact that defense counsel are not allowed to be present during the interrogation process.
Ghosn and his lawyers have been vocal in denouncing this system, citing Japanese prosecutors' conviction rate of 99.9% as the reason for his flight that he could never have received a fair trial in Japan. (Others have suggested that Ghosn was primarily motivated by a desire to avoid a civil trial, since his criminal trial would undoubtedly have resulted in a suspended sentence.)
A 99.9% conviction rate is hard to justify. My goal here isn't to defend it, but to put it in the context of a system that, by and large, has worked quite well for Japan.
Japan's strange criminal courts
Westerners tend to view criminal courts as the place for deciding conflicting claims regarding an accused's guilt or innocence. In Japan, however, it rarely works that way. In about 70% of the cases that come to court, the accused has already confessed to all the allegations. After the prosecutor's opening speech, the defense attorney immediately admits the accused's guilt. The defense then puts a number of witnesses on the stand to testify of the defendant's remorse in order to obtain a lenient sentence. The goal in most cases is a suspended conviction, and that is often the result.
In the remaining 30% of criminal cases, the defense typically argues that the charges are too severe – for example, that the defendant is guilty of manslaughter but not murder. Rarely does a defense attorney appear before a Japanese court and protest the innocence of the accused.
In short, in Japan, a criminal court is basically a place to ask for clemency, not to argue a person's guilt or innocence. From a Western point of view, such a procedure hardly deserves the name process. How did such a system come about?
Japan's first encounter with the western world was in the 16th century, in the age of navigation, but it was not until the second half of the 19th century - after the arrival of Commodore Matthew Perry's ships in 1853 - that western ideas and systems began to emerge incursions in Japan. With the Meiji Restoration of 1868, Japan rushed to transform itself from a semi-feudal society into a modern nation-state. In the process, she quickly established a national assembly, a code of law, and a Western-style judicial system.
France provided the models for Japan's first modern legal systems and early courts (designed by French jurist Gustave-Emil Boissonade). In the early 20th century, however, the influence of German legal thought began to dominate, and the 1907 revision of the Penal Code reflected this trend. Japan's penal code has changed little since then, despite the promulgation of a new constitution drafted by the occupation authorities after World War II.
From a formal point of view, therefore, Japan's criminal justice system very superficially resembles the continental model. The differences stem from typically Japanese procedures and practices, many of which stem from ingrained ideas of crime and punishment.
Of course, Japanese criminal justice did not start in the Meiji era. Public safety was a major concern during the Edo period (1603–1868), particularly in relation to the capital, Edo (present-day Tokyo), an urban center of over 1 million people. Despite the lack of western-style law enforcement and criminal justice, Edo was a very safe city, just like Tokyo is today. In fact, Japan is known for both its low crime rate and very low incarceration rate.
Catch but don't punish
An important differentiator of the Japanese criminal justice system is the high detection rate. While the reality isn't quite as impressive as the myth, the speed at which serious crimes are solved in Japan is still quite impressive.
While the system is intent on apprehending criminals, it is not particularly intent on punishing them; But on the contrary. The vast majority of criminal cases that reach Japanese prosecutors are resolved through "suspended prosecution," i. H. without charge, or in summary prosecution, an informal process that usually ends with the imposition of a fine. In this way, most offenders avoid the social stigma of a trial. Furthermore, while 99.9% of cases brought to trial end in conviction, sentences are often suspended and the prison system is geared towards rehabilitation, early release and reintegration into society.
At the same time, it would be a mistake to conclude from this description that the system as a whole is simply crime-friendly. Indeed, people found guilty of the most serious crimes face very harsh penalties, including the death penalty, especially if they show no remorse. And since these are the cases that get the most media attention, the public is largely unaware of how lenient the system is to the typical offender.
Japan's Unique Social Context
If people who break the law are treated so leniently, what prevents them from committing other crimes? In Japan, volunteer probation and parole officers play a key role in monitoring those released from custody or prison, and this approach has proven very effective in preventing recidivism. The rate of first-time juvenile delinquents in Japan is not particularly low by international standards, but 90% of these offenders are never arrested, indicating a very low recidivism rate. In this way, Japan has maintained law and order without excessive police or criminal scrutiny.
In short, despite Japan's 99.9% conviction rate, there are aspects of the system worth admiring and possibly even emulating in the West. As it turns out, however, this is a tough sell. The reasons are complex, but the main factors I believe are as follows.
- The hard data required for a rigorous comparative study is not available, largely because Japanese police, prosecutors and prisons believe secrecy is essential to the system's continued effectiveness.
- Japan's low crime rate must be attributed in large part to factors outside the criminal justice system, as suggested by the law-abiding, orderly behavior of Japanese citizens during natural disasters and other emergencies.
- One of the factors contributing to this behavior in emergencies is the fact that local yakuza gangs have traditionally rallied to protect ordinary citizens at such times - not an approach to recommend to other countries, even if you have the guts has to discuss it in order to defy the taboos of the Japanese.
- The volunteer citizens who play such an important role in preventing recidivism in Japan are rewarded for their service with a direct audience with the emperor (as are the correctional officers).
- Japan has the advantage of a comparatively cohesive society free from serious racial or religious divisions and relatively close police-community ties. Dialogue between police and correctional officers on the one hand and suspects and prisoners on the other also contributes to the successful rehabilitation of offenders, although this factor is difficult to quantify.
In short, Japan's low crime rate cannot simply be attributed to specific features of its criminal justice system, which is isolated from the broader social context.
A culture of redemption
In my view, the traditional Japanese treatment of criminals reflects ingrained cultural attitudes towards crime and redress.
From a cultural-anthropological perspective, Ruth Benedict famously emphasized the role of shame versus the threat of punishment in maintaining social order in Japanese society (in her 1946 paperThe Chrysanthemum and the Sword). And while Benedict's characterization of Japan as a "culture of shame" had a decidedly negative bias, scholars such as sociologist Sakuta Keiichi have now emphasized the societal value of shame.(*1)Others have emphasized the indigenous Japanese conceptCloth(sin or guilt) as a state of defilement in need of purification. Such analyzes provide a powerful cultural context for the Japanese system's focus on remorse as opposed to punishment.
From a religious perspective, the idea that no one is beyond salvation is central to the highly influential teachings of the Buddhist monk Shinran (1173–1263), founder of the Jōdo Shinshū sect of Pureland Buddhism. It is a little-known fact that Japanese law enforcement officers are typically members of the Honganji school of Jōdo Shinshū. Historically, the ancient practice of assigning convicted criminals to guard imperial mausoleums also supports the idea of salvation as fundamental to the Japanese treatment of criminals.
The need for targeted reforms
All of this helps explain why the Japanese criminal justice system focuses on arrest, repentance, apology and rehabilitation rather than appropriate punishment as a crime deterrent. Only in this context can we understand the ban on the presence of a lawyer at interrogations.
The critical flaw in this system, of course, is the lack of safeguards to protect those wrongly accused from conviction and punishment.
Miscarriages of justice are not at all common in Japan, where it is difficult to escape the scrutiny of neighbors and the community at large. Yet it is undeniable that innocent people have been charged, tried and convicted. Most notorious are the cases of four convicted prisoners who were retried and exonerated in the 1980s after decades on death row. (They were released and received financial compensation for their years in prison.) This is an area in need of reform.
On the other hand, the Japanese emphasis on prevention, rehabilitation and reintegration has received high marks in a number of Western studies, including that of legal scholar Daniel Foote (ex-University of Tokyo).(*2)
Unfortunately, criminal justice reform in Japan has been simplisticly presented as a process of correcting Japan's backward approach by adopting laws and procedures based on the superior Western model. Asking Japan to adopt Western systems across the board, regardless of cultural and social context, is no more sensible than asking Western societies to adopt the Japanese system. I believe our best hope for progress is to actively learn from each other's successes and failures while acknowledging our fundamental cultural differences. I hope that future studies of Japanese criminal justice will lead in this direction.
(Originally published in Japanese. Banner photo: Former Nissan chairman Carlos Ghosn visits his law firm in March 2019 after being initially released on bail. © Jiji.)
(*1)^Sakuta Keiichi, "A Reconsideration of the Culture of Shame,"Review of Japanese culture and society, Bd. 1, no. 1 (October 1986), pp. 32-39.
(*2)^Siehe Daniel Foote, „The Benevolent Paternalism of Japanese Criminal Justice“ inCalifornia Law ReviewBd. 80 (1992), S. 317-90.
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The cultural explanation is simplistic. Explaining low crime with culture is to say that collectivist traits like group-orientation, inclination towards harmony, and high self-control are why the Japanese do not murder, assault, and steal from each other as much as others in different countries.