Three basic features of Japan’s system of criminal justice characterize its operations. First, the institutions—police, government prosecutor’s offices, courts, and correctional organs— maintain close and cooperative relations with each other, consulting frequently on how best to accomplish the shared goals of limiting and controlling crime. Second, citizens are encouraged to assist in maintaining public order, and they participate extensively in crime prevention campaigns, apprehension of suspects, and offender rehabilitation programs. Finally, officials who administer criminal justice are allowed considerable discretion in dealing with offenders.
Until the Meiji Restoration in 1868, the criminal justice system was controlled mainly by daimyo. Public officials, not laws, guided and constrained people to conform to moral norms. In accordance with the Confucian ideal, officials were to serve as models of behavior; the people, who lacked rights and had only obligations, were expected to obey. Such laws as did exist were transmitted through local military officials in the form of local domain laws. Specific enforcement varied from domain to domain, and no formal penal codes existed. Justice was generally harsh, and severity depended upon one’s status. Kin and neighbors could share blame for an offender’s guilt: whole families and villages could be flogged or put to death for one member’s transgression.
After 1868 the justice system underwent rapid transformation. The first publicly promulgated legal codes, the Penal Code of 1880 and the Code of Criminal Instruction of 1880, were based on French models, i.e. the Napoleonic code. Offenses were specified, and set punishments were established for particular crimes. Both codes were innovative in that they treated all citizens as equals, provided for centralized administration of criminal justice, and prohibited punishment by ex post facto law. Guilt was held to be personal; collective guilt and guilt by association were abolished. Offenses against the emperor were spelled out for the first time.
Innovative aspects of the codes notwithstanding, certain provisions reflected traditional attitudes toward authority. The prosecutor represented the state and sat with the judge on a raised platform—his position above the defendant and the defense counsel suggesting their relative status. Under a semi-inquisitorial system, primary responsibility for questioning witnesses lay with the judge, and defense counsel could question witnesses only through the judge. Cases were referred to trial only after a judge presided over a preliminary fact-finding investigation in which the suspect was not permitted counsel. Because in all trials available evidence had already convinced the court in a preliminary procedure, the defendant’s legal presumption of innocence at trial was undermined, and the legal recourse open to his counsel was further weakened.
The Penal Code was substantially revised in 1907 to reflect the growing influence of German law in Japan, and the French practice of classifying offenses into three types was eliminated. More important, where the old code had allowed very limited judicial discretion, the new one permitted the judge to apply a wide range of subjective factors in sentencing.
After World War II, occupation authorities initiated reform of the constitution and laws in general. Except for omitting offenses relating to war, the imperial family, and adultery, the 1947 Penal Code remained virtually identical to the 1907 version. The criminal procedure code, however, was substantially revised to incorporate rules guaranteeing the rights of the accused. The system became almost completely accusatorial, and the judge, although still able to question witnesses, decided a case on evidence presented by both sides. The preliminary investigative procedure was suppressed. The prosecutor and defense counsel sat on equal levels, below the judge. Laws on indemnification of the wrongly accused and laws concerning juveniles, prisons, probation, and minor offenses were also passed in the postwar years to supplement criminal justice administration.
The nation’s criminal justice officials follow specified legal procedures in dealing with offenders. Once a suspect is arrested by national or prefectural police, the case is turned over to attorneys in the Supreme Public Prosecutors Office, who are the government’s sole agents in prosecuting lawbreakers. Although under the Ministry of Justice’s administration, these officials work under Supreme Court rules and are career civil servants who can be removed from office only for incompetence or impropriety. Prosecutors presented the government’s case before judges in the Supreme Court and the four types of lower courts: high courts, district courts, summary courts, and family courts. Penal and probation officials administer programs for convicted offenders under the direction of public prosecutors.
After identifying a suspect, police have the authority to exercise some discretion in determining the next step. If, in cases pertaining to theft, the amount is small or already returned, the offense petty, the victim unwilling to press charges, the act accidental, or the likelihood of a repetition not great, the police can either drop the case or turn it over to a prosecutor. Reflecting the belief that appropriate remedies are sometimes best found outside the formal criminal justice mechanisms, in 1990 over 70 percent of criminal cases were not sent to the prosecutor.
Police also exercise wide discretion in matters concerning juveniles. Police are instructed by law to identify and counsel minors who appear likely to commit crimes, and they can refer juvenile offenders and non offenders alike to child guidance centers to be treated on an outpatient basis. Police can also assign juveniles or those considered to be harming the welfare of juveniles to special family courts. These courts were established in 1949 in the belief that the adjustment of a family’s situation is sometimes required to protect children and prevent juvenile delinquency. Family courts are run in closed sessions, try juvenile offenders under special laws, and operate extensive probationary guidance programs. The cases of young people between the ages of fourteen and twenty can, at the judgment of police, are sent to the public prosecutor for possible trial as adults before a judge under the general criminal law.
2. Arrest, Prosecution, Suspect’s rights:
Limited safeguards protect the suspects’ rights. Under the controversial Daiyo Kangoku system, police can detain suspects in police stations without charges, access to legal counsel or telephone calls for up to 23 days.
Police have to secure warrants to search for or seize evidence. A warrant is also necessary for an arrest, although if the crime is very serious or the perpetrator likely to flee, it can be obtained immediately after arrest. Within forty-eight hours after placing a suspect under detention, the police have to present their case before a prosecutor, who is then required to appraise the accused of the charges and of the right to counsel. Within another twenty-four hours, the prosecutor has to go before a judge and present a case to obtain a detention order. Suspects can be held for ten days (extensions are granted in almost all cases when requested), pending an investigation and a decision whether or not to prosecute. In the 1980s, some suspects were reported to have been mistreated during this detention to exact a confession.
Prosecution can be denied on the grounds of insufficient evidence or on the prosecutor’s judgment. Under Article 248 of the Code of Criminal Procedure, after weighing the offender’s age, character, and environment, the circumstances and gravity of the crime, and the accuser’s rehabilitative potential, public action does not have to be instituted, but can be denied or suspended and ultimately dropped after a probationary period. Because the investigation and disposition of a case can occur behind closed doors and the identity of an accused person who is not prosecuted is rarely made public, an offender can successfully reenter society and be rehabilitated under probationary status without the stigma of a criminal conviction.
Institutional safeguards check the prosecutors’ discretionary powers not to prosecute. Lay committees are established in conjunction with branch courts to hold inquests on a prosecutor’s decisions. These committees meet four times yearly and can order that a case be reinvestigated and prosecuted. Victims or interested parties can also appeal a decision not to prosecute.
Most offenses are tried first in district courts before one or three judges, depending on the severity of the case. Defendants are protected from self-incrimination, forced confession, and unrestricted admission of hearsay evidence. In addition, defendants have the right to counsel, public trial, and cross-examination. Trial by jury was authorized by the 1923 Jury Law but was suspended in 1943. New jury law was enacted in 2004 and is going to come into effect by May 2009.
The judge conducts the trial and is authorized to question witnesses, independently call for evidence, decide guilt, and affix a sentence. The judge can also suspend any sentence or place a convicted party on probation. Should a judgment of not guilty be rendered, the accused is entitled to compensation by the state based on the number of days spent in detention.
Criminal cases from summary courts, family courts, and district courts can be appealed to the high courts by both the prosecution and the defense. Criminal appeal to the Supreme Court is limited to constitutional questions and a conflict of precedent between the Supreme Court and high courts.
The criminal code sets minimum and maximum sentences for offenses to allow for the varying circumstances of each crime and criminal. Penalties range from fines and short-term incarceration to compulsory labor and the death penalty. Heavier penalties are meted out to repeat offenders. Capital punishment consists of death by hanging and can be imposed on those convicted of leading an insurrection, inducing or aiding foreign armed aggression, arson, or homicide.
4. Conviction rate:
The Japanese criminal justice system has an extremely high conviction rate which was significantly lower before Japan eliminated its jury system in 1943. Lobbying by human rights groups and the Japan Federation of Bar Associations resulted in the passing of a judicial reform bill in May, 2004, which will reintroduce a lay-jury system in 2009
Many Western human rights organizations alleged that the high conviction rate is due to rampant use of conviction solely based on confession, notwithstanding Article 38 of Japan’s Constitution, which categorically requires that “no person shall be convicted or punished in cases where the only proof against him is his own confession,” and that no person can be convicted unless accompanied by other evidence to collaborate that confession.
Due to the lack of a jury system, the Japanese justice system (along with all other civil law jurisdictions) is said to be very bureaucratic and predictable. Because judges work under a fairly uniform system of evidence and procedure, which is indirectly supervised by Ministry of Justice, the district prosecutor knows exactly the types of evidence which are needed to secure a conviction from a judge. Consequently, failing to secure a conviction would be seen as serious failure in his judgment for pressing charges in the first place and even a single failure would have a serious negative impact on the career of a prosecutor, which is considered more important than an individual’s guilt or innocence.
While given the predictable nature of court proceedings, judges are often assessed by the efficiency (i.e. speed) of court proceedings. Moreover, unlike common-law jurisdictions, the most adversarial part of court proceedings between prosecutors and the defense focus on sentencing.
The Japanese criminal justice system, despite retaining the death penalty, is relatively lenient in sentencing by the standard of other developed countries. Outside capital cases, many of those sentenced to life sentences are paroled within 15 years. Those convicted of less heinous murder and manslaughter is likely to serve less than 10 years. Those convicted of rape will often serve less than two to five years. It is even possible for someone convicted of murder to serve a suspended sentence if the defense successfully argues for mitigating circumstances. Moreover, in Japanese criminal proceedings the conviction and sentencing phase are separate. In common law jurisdictions, prosecutors make cases not just for the guilt of the accused, but also for the punishment. In the Japanese criminal justice system, these are distinct phases. The court proceedings first determine guilt, and then a second proceeding takes place to determine the sentence. Prosecutors and defense teams argue each phase. Defense lawyers, given the predictability of the outcome in term of guilt once the charge is brought, together with leniency of punishment (except in death penalty cases); often advise the accused to confess their guilt in trial. Remorse is seen as a mitigating factor which tends to bring reduced sentences.
During 1970s, a series of reversals of death penalty cases brought attention to the fact that some accused, after intensive interrogation, signed as-of-yet unwritten confessions, which were later filled in by investigating police officers. These coerced confessions, together with other circumstantial evidence, often convinced judges to (falsely) convict.
Currently the Japanese Federation of Bar Associations is calling for the entire interrogation phase to be recorded to prevent similar incidents occurring. The International Bar Association, which encompasses the Japanese Federation of Bar Associations, cited problems in its “Interrogation of Criminal Suspects in Japan”. Further more, the office of prosecutors has reversed their opposition to this proposal. Part of the reason is their worry that, without the credibility of confessions supported by electronic recording, the soon-to-be-introduced jury system may refuse to convict in a case other offered evidence is weak.
- Gen Itasaka, Japanese History, Kodansha International Ltd., Japan, 2006.
- John E. Orchard, Japanese Economic History, Routledge, London, 2000.
- Marius B. Jansen, The Emergence of Meiji Japan, Cambridge University Press, New York, 1997.
- Michio Morishima, Why has Japan ‘Succeed’?, Cambridge University Press, Australia, 1982.