Punishment & Society

2 downloads 118 Views 1MB Size Report
criminal justice system and a reintegrative shaming approach toward offenders. Despite the lack of reintegrative disposals in the formal Japanese criminal ...

Punishment & Society http://pun.sagepub.com

Japanese criminal justice: Was reintegrative shaming a chimera? Koichi Hamai and Thomas Ellis Punishment Society 2008; 10; 25 DOI: 10.1177/1462474507084196 The online version of this article can be found at: http://pun.sagepub.com/cgi/content/abstract/10/1/25

Published by: http://www.sagepublications.com

Additional services and information for Punishment & Society can be found at: Email Alerts: http://pun.sagepub.com/cgi/alerts Subscriptions: http://pun.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations (this article cites 9 articles hosted on the SAGE Journals Online and HighWire Press platforms): http://pun.sagepub.com/cgi/content/refs/10/1/25

Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

Copyright © SAGE Publications Los Angeles, London, New Delhi and Singapore. www.sagepublications.com 1462-4745; Vol 10(1): 25–46 DOI: 10.1177/1462474507084196 PUNISHMENT & SOCIETY

Japanese criminal justice Was reintegrative shaming a chimera? KOICHI HAMAI Ryukoku University, Japan THOMAS ELLIS University of Portsmouth, UK

Abstract Despite its post-war reputation as one of the most crime-free industrialized countries Japan has a rapidly increasing recorded crime rate and corresponding falling clearance rate in police statistics. In 1998, only 19 per cent of the Japanese public thought crime was getting worse, but by 2005 this had increased to 48 per cent. The first part of this article, therefore, examines statistical records to assess the public’s perception of increasing crime. Recent evidence (Hamai and Ellis, 2006), summarised here, shows that in the late 1990s, press coverage of police scandals provoked key policing policy changes. These changes resulted in a sudden drastic increase in recorded crime, due to the increase in hitherto unreported and less serious forms of crime, and a coincident dramatic decrease in clearance rates. The second part of the article then examines, in more depth, how the myth of the collapse of secure society was created and has been maintained. The main focus is on the inaccurate media coverage of crime and the growing influence of the victims’ movement. The article then considers the impact of increasing punitivism along with an analysis of changes in the prison population. Key Words crime • criminal justice • Japan

INTRODUCTION

As Hughes (2007: 48) notes, ‘The appeal of discovering general trends and common comparative futures across different societies has a long and at times tarnished tradition in the social sciences.’ This concept of ‘convergence’ through technological imperatives and the pressures of late or post-modernism was appealing, though ultimately criticized 25 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

as functionalist and/or technocratic speculation (Hughes, 2007). Hughes (2007: 48) cites Pollitt’s (2001) idea that convergence may take place at different levels and stages, and points out himself that it is heavily mediated by location. The most striking feature of Japanese crime and criminal justice is that it has largely been excluded from these notions of convergence, and instead, primarily cultural explanations persist. Japan is certainly out of step with the European and US examples Hughes uses. Recorded crime had increased significantly in most western advanced democracies since the end of the second world war, while in Japan it fell by around half between 1945 and 1973 (Vogel, 1979: 204). More recently, as other countries’ crime rates (based on official and victim surveys) have declined, the official Japanese crime rates, though still relatively low, have risen. Commentators such as Braithwaite (1989) and Bayley (1976) have argued that low crime rates are due to an efficient but lenient Japanese criminal justice system and a reintegrative shaming approach toward offenders. Despite the lack of reintegrative disposals in the formal Japanese criminal justice process, Braithwaite’s theory of reintegrative shaming is still the most influential vision of Japanese criminal justice for non-specialist scholars (see Aldous and Leishman, 2000). This article is primarily about Japan, but it uses the UK – more specifically, England and Wales (E&W) – as a point of comparison. This is not simply to reflect the authors’ nationalities, but because many recent criminal justice developments in Japan appear to have mirrored those of E&W in what Hughes (2007) calls a ‘dirigiste nation-state project of self-conscious modernization and transformation of institutional practices involving a growing battery of centralizing powers’. Until the late 1990s there was little public concern about crime levels in Japan. Since then, public confidence in the criminal justice system has decreased while fear of crime has increased. According to the International Crime Victims Survey (ICVS) 2004,1 75.5 per cent of the public think that Japan has recently become a more dangerous society in terms of crime. Over this same period, Japanese newspapers focused heavily on a ‘rising tide of youth violence’ and on the lack of ‘safety of school children’, magnifying incidents like the Osaka school stabbings2 in June 2001. As Hamai and Ellis (2006)3 have argued elsewhere, the rise in crime in Japan is more apparent than real, and has, in the main, been created by police and government policy in reaction to press criticisms. As a consequence, reporting and recording (see Maguire, 2002 for a summary of these points) of relatively trivial crimes have increased rapidly. Both Japanese authors (Miyazawa, 1992) and western authors (Aldous and Leishman, 2000) have, for some time, challenged the ‘myth’ perpetuated by many earlier western authors that Japanese crime statistics are uniquely more reliable than those from other countries (see particularly Bayley, 1976; Gurr, 1977). It is likely, therefore, that Japan always had a substantial ‘dark figure’ of crime, in common with most other countries (Kitamura et al., 1999). As such, cultural explanations for low crime rates in Japan are incomplete. As Reiner et al. (2000) and Surette (1998) have noted, homicide and violent crimes, in contrast to volume crimes, are over-represented in media crime stories. Therefore, the focus of the Japanese press on drastic decreases in clear-up rates and arrest rates for ‘serious’ rather than ‘trivial’ crimes (Hamai and Ellis, 2006) is hardly culturally determined. This sudden rise in recorded crime has, however, triggered a moral panic, supporting Young’s (2000: 11) notion that moral 26 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

panics occur when a society is in flux, as Japan was in the 1990s, and when taken-forgranted structures seem threatened. Below, we consider whether the evidence indicates a rise in violent crime; then we outline the impact of the press-induced moral panic, paying special note to new public perceptions of Japan as an unsecure society. We also question whether public attitudes have truly shifted from support for reintegrative approaches toward popular punitivism, or whether diversions from formal criminal justice processes prior to the late 1990s owed more to the power of the legal professionals. We argue that recent changes have reduced the power of lawyers and strengthened victims’ voices. Additionally, we believe the evidence indicates that the public has been more punitive than reintegrative all along.

RISING VIOLENCE?

As Hamai and Ellis (2006) argue, the popular perception is that Japanese society has grown far more dangerous since the early 1990s. This perception finds some support in the White Paper on Crime4 issued by the Ministry of Justice. If one considers only the White Paper’s official statistics on violent crime in Japan, for example, violent crime rose nearly 80 per cent between 1991 and 2001 (see Figure 1a). Over the same time period, the White Paper states, clearance rates for assault with injury declined dramatically, from 86.8 per cent to 66.4 per cent (see Figure 1b). More striking still, though unreported in the press, is that most of this increase in reported violent crime was due to the enormous increase in less serious violent crimes, as Figure 1a and 1b demonstrate. This owes little to cultural explanations. Rather, as Hamai and Ellis (2006) argue, a series of police scandals in 1999,5 the subsequent press reaction to them, and consequent changes to policing policy and practice,6 resulted in dramatic changes to both public and police reporting methods for ‘any’ violent crime. As a result, many hitherto unreported and undetectable minor offences were recorded, the aggregate effect of which is an apparent explosion of violence in Japan. There are, of course, many examples from comparable countries, where changes in policy and practice have affected recorded crime figures – for instance, rape reporting in England and Wales (Home Office, 1988) and reported filial violence in Japan (Kumigai, 1983; Watts, 2002). However, the sheer scale of the impact now observed in Japan is unprecedented. Homicide trends, as one of the most reliable crime statistics (White, 1995), also furnish strong grounds to question press representations of increasing violent crime. Homicide trends turned downward in the 1980s and were relatively static in the post-1999 period,7 with the clearance rate remaining consistently high (see Figure 2). In addition, official statistics (Vital Statistics in Japan from 1984 to 2004) indicate that the number of people killed by any kind of violence has also decreased (see Figure 3). The first named author was also in charge of conducting the last fully published International Crime Victims Survey (ICVS, 2000) in Japan,8 which shows that Japanese victimization rates are still lower than most comparable countries. In addition, consistent with our hypothesis and in contrast to the media’s emphasis, ICVS 2004 shows that victimization rates have actually fallen for most crimes in Japan (see Hamai and Ellis, 2006). Most relevant to our argument, however, is that victimization rates for violent 27 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

60,000 50,000

new police policy

40,000 30,000

People slightly injured

20,000

People severely injured People killed

10,000

19

93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03

0

•Figure 1a Trends in serious and minor injuries as a result of crime in Japan, 1993–2003 Source: White Paper on Crime 2004

% 80,000

100 90

70,000

80 60,000 70 50,000

60 50

40,000 30,000 20,000

40 Recorded Cases cleared Clearance rate

10,000

20 10 0

19

46 19 49 19 52 19 55 19 58 19 61 19 64 19 67 19 70 19 73 19 76 19 79 19 82 19 85 19 88 19 91 19 94 19 97 20 00 20 03

0

30

•Figure 1b Assault with injury 1946–2004 Source: National Police Agency

crimes decreased, while rates of reporting to the police rose. This latter phenomenon explains why the number of recorded violent criminal offenses has risen so dramatically and it suggests that the increase in fear of crime is disproportionate to the relatively low level of risk (see Hamai and Ellis, 2006, for a fuller explanation). 28 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

(%) 2000

100

1800

90

1600

80

1400

70

1200

60

1000

50

800

40

600

30

400

20

200

10

19

19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02 20 04

0

82

0

Recorded Clear-up

•Figure 2 Homicides 1982–2005 Source: National Police Agency

1200 1000 800 600 400 200

19 8 19 4 8 19 5 8 19 6 8 19 7 8 19 8 8 19 9 9 19 0 91 19 9 19 2 93 19 9 19 4 9 19 5 9 19 6 9 19 7 9 19 8 99 20 0 20 0 01 20 0 20 2 0 20 3 04

0

•Figure 3 People who were killed by any kind of violent acts Source: Vital Statistics in Japan

VICTIMS AND THE ‘MYTH OF THE COLLAPSE OF SECURE SOCIETY’ IN JAPAN

Subsequent to the ICVS 2000 survey, and the effective non-publication of most of ICVS 2004, the first named author conducted a further victimization survey in 20069 based 29 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

on the ICVS and British Crime Survey questionnaire. For the purposes of this article, two key and related questions were asked: ‘Do you think that the number of crimes is increasing in Japan?’, and ‘Do you think that the number of crimes is increasing in your community?’ The results, shown in Figure 4, indicate that people tend to perceive that crime is not increasing in their own community, but is in the rest of Japan. Unsurprisingly, the Japanese public rely less on official statistics and more on media sources for opinions on crime. According to the Cabinet Office’s most recent opinion poll on crime and safety in the community (2004), 84 per cent of respondents reported that ‘they became concerned about community safety because newspapers and television programs have often featured the issue’. The disconnect between these media reports and actual recorded crime is especially stark with respect to murder. Figure 5 shows the relationship between the number of recorded murders between 1985 and 2003 and the number of articles in Asahi Shinbun (roughly equivalent to the Guardian in the UK) in the same period that included keywords ‘heinous (kyoaku)’10 as well as ‘murder’. This analysis clearly shows that, even though the number of recorded murders has remained stable and relatively low, and the clearance rate has remained remarkably high, the number of articles containing such keywords has risen, in keeping with the theory of moral panic. The moral panic identified by Hamai and Ellis (2006) has proven quite durable, already having lasted over five years. Crime-related fears and concerns among the Japanese public have grown to such an extent that, so to speak, the moral panic has been almost institutionalized. Japanese scholars such as Kawai (2004) have responded by positing a progressive collapse of a pre-existing psychological boundary between the ordinary world, where crime is rare, and another world where crime is common. Kawai (2004) argues that this ‘collapse of secure society’ has caused members of the Japanese public to perceive the presence of crime in their vicinity and to fear the risk of victimhood. However, to understand fully these intensifying perceptions of crime, it is most

1.2 40.8

In their community

49.8

0.2 0.2

1.3 5.1

3.8 23.2

0%

No answer Decreasing a lot Decreasing Not changed Increasing Increasing a lot

7.8

64.2

2.3

100%

50% In their community 2.3 1.3 5.1 64.2 23.2 3.8

In Japan 0.2 0.2 1.2 7.8 40.8 49.8

•Figure 4 Perception of increasing crime Source: Victimization survey done by the author in 2006 (Hamai, 2007) 30 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

Increasing a lot Increasing Not changed Decreasing Decreasing a lot No answer

HAMAI & ELLIS Japanese criminal justice

600 500 400 300

Recorded murder Articles on henious and murder

200 100

19 8 19 5 86 19 8 19 7 8 19 8 8 19 9 90 19 9 19 1 9 19 2 9 19 3 94 19 1995 9 19 6 97 19 9 19 8 99 20 0 20 0 0 20 1 0 20 2 03

0

•Figure 5 Trend of recorded murders and articles on ‘heinous and murder’ Source: ASAHI’KIKUZO’ Data Base (Tokyo’s main volume only) and White Paper on Crime Note: All figures are re-calculated as (the number of each year/the number of 1985)* 100

important to consider the role played by the recent victim support movement in Japan, especially in relation to media representations of crime. As has been the case in many developed countries, and in contrast to the vision provided by Braithwaite (1989), the criminal justice system in Japan has tended to neglect victims. Notably, though, individual victims have had a more central role in the Japanese prosecution process (Foote, 1992; Hayley, 1999; Johnson, 2002), especially in contrast to E&W where the Crown Prosecution Service has always played a less central and powerful role. However, victims remained collectively powerless until the introduction in 1996 of the National Police Agency guidelines, which instructed police officers as to the proper treatment of victims (with an eye to reducing instances of secondary victimization by the police). Before these guidelines were issued, there was little lobbying by organized victims’ movements, but since then, the victim support movement has grown rapidly in both private and public sectors. Survivors and family members of the victims of violent crimes have begun to demand that the government take measures to help and support victims. The media has gained interest in victims’ perspectives and has increased its tendency to portray emotionally moving first-person accounts of victimization and grief. As such, in the reporting of murders, the focus has shifted from offenders to victims, and a common theme is a message from the victims along the lines of ‘do something now, or your family will be next.’ Consequently, victims and bereaved family members have become more publicly visible. Serizawa (2006) has pointed out that, since the Kobe murder11 in 1997, the media has increased coverage of victims and their families in crime’s aftermath, and has done so in an increasingly empathetic manner. Our own analysis of Asahi Shinbun also shows that the number of articles covering ‘victim’ issues increased from 12 in 1996 to 90 in 2000. These articles tend to depict young offenders as cold-blooded monsters. 31 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

Best (1998: 93) has argued that ‘The rise of victims to public prominence parallels the way we learn about new crime problems. The media not only bring new crimes to public attention; they also discover and describe new categories of people.’ Following Kawai (2004), one might argue that the recent increased coverage of victims in the Japanese media has accelerated or even caused the collapse of the psychological boundary dividing the largely crime-free ‘ordinary world’ and the crime-ridden ‘other world’, so that in comparison to the past, crime is perceived as part of daily life. This link between victim issues and the public’s perceptions of crime has been reflected in the implementation of new legislation. On 1 December 2004, the Upper House enacted two bills: one Act to improve the treatment of victims and a second Act to toughen the punishment of offenders. The former Act12 recognizes the government’s responsibility to help crime victims and notes in its preface that the risk of being victimized is increasing for ordinary Japanese citizens. The second Act13 revised the Penal Code to increase the minimum and maximum prison sentences for violent crimes. The Act explicitly identifies itself as a response to victims’ demands and states that deterrence is its aim. Matsubara (2007) argues that while victim-driven activism has played some part in increasing the retributive punitiveness of sentencing in Japan, the more crucial contributing factors are public tendencies toward empathy with victims and anger against offenders. From a structural perspective, Best (1998) has argued that crime-related concerns are institutionalized by collaboration among what he calls the ‘Iron Quadrangle’: the media, victim activists and advocates, the government and experts. In Japan, these roles are respectively filled by the Japanese press; Japanese crime victims and their advocates (including families as well as some ‘experts’); the National Police Agency and politicians; and lawyers and psychiatrists. In its quest to spotlight victim-related issues, the Iron Quadrangle has persistently disseminated the message that Japanese society is in danger. These efforts have triggered the creation, sponsoring and organization of various victim support groups, which organize seminars and symposia, as well as collect signatures for petitions to render criminal laws more punitive. 1996, the year in which the NPA guidelines were published, was the ‘take-off ’ year in which such groups proliferated and expanded their activities. Arguably, the 1999 policing scandals produced the reaction they did in part because the victims’ groups had established their power base three years earlier. These groups still exert a palpably strong influence on the mass media: crime coverage in Japan is now overwhelmingly from the victim’s perspective. The Iron Quadrangle in Japan tends to function in the following way. Victims groups are established and galvanized by charismatic former victims who adeptly garner support from other victims, victims’ advocates and experts. These groups are politically astute and effective lobbyers. They are most obviously, though indirectly, supported by the National Police Agency, who are motivated to influence the crime control policy discourse and thus to enhance public importance. It is now common to see victim support groups on TV, submitting official petitions and lobbying influential politicians in support of more punitive laws. Several recently enacted laws can be traced to such lobbying. For example, on 20 June 2007, the House of Councillors passed a controversial bill that revised the Criminal Procedure Law to enable crime victims to participate in trial proceedings and confront defendants in trials. On 19 June 2007, The Japan Times carried the following statement: ‘The Tokyo-based National Association of Crime 32 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

Victims and Surviving Families, a strong advocate of letting the victimized participate in trials since its establishment in 2000, says the “criminal justice system should exist not only for the public but also for the victims themselves”. The organization says on its Web site14 that court participation will help the victimized learn the truth about a crime, protect their dignity and honor, and let them have a say in meting out punishment.’ The next day, special advisor to the Association, Professor Hidemichi Morosawa of Tokiwa University, in a press interview, argued, ‘Why shouldn’t (the courtroom) be a place for retaliation? [No one] can deprive a victim of the right to vengeance in accordance with the law of nature. The modern state prohibits revenge using physical force, but legal vengeance should be permitted’ (The Japan Times, 20 June 2007). Best’s model and the newly enacted legislation meshes with Kawai’s ‘agency’ perspective. Many victims (and victim survivors) of serious violent crimes have effectively organized for the purpose of channelling their experiences of suffering into concrete ‘reforms’ of the criminal justice system, specifically demanding harsher punishments that would presumably deter offenders. Indeed, since the notorious Kobe murder in 1997, victim survivors, advocates, and experts have regularly spoken before the Diet (the Japanese parliament) on the above themes. As part of the resulting shift in policy trends, 2000 saw the first amendment of Japanese juvenile law since the Second World War, which subjected more juvenile offenders to trials in adult courts and to adult custodial disposals. Since then, the Diet has passed a raft of criminal justice legislation, including an Anti-Stalker Act. The legislative trend toward harsher punishment culminated in the 2004 (1 December) revision of the Penal Code, which raised the maximum prison term for a single crime from 15 to 20 years and the minimum sentence for murder from three to five years, thus limiting judicial power to suspend custodial sentences. The impact of the new penal code was made strikingly apparent in the media coverage of a gang rape case at Waseda University in 2003. The previous penal code did not distinguish gang rape from other rape incidents, for which the minimum penalty is still two years. Gang rape now carries a minimum sentence of four years, or six years (with a maximum of life) if resulting in death or injury.15 These legislative revisions, driven largely by victim support lobbyists, have resulted in a drastic rise in the prison population, as Figure 6 shows.

THE IMPACT OF THE NEW PUNITIVISM AND CHANGES IN JAPAN’S PRISON POPULATION

Despite the changes to the Penal Code and Japan’s consistently low crime rate, especially for violent crime, the Japanese public now exhibits low confidence in its safety, a high fear of crime, and a punitive stance toward offenders. The increasing media focus on crime and the intensifying victims’ rights campaign have contributed to these attitudes. Much more research is required to untangle the relationships, within the Japanese context, between crime rates, fear of crime, social variables, and attitudes about punishment. However, as we have demonstrated, links between media representations, victim support movements, public pressure, and changes in sentencers’ behaviour have jointly precipitated a sharp rise in the Japanese prison population, and the consequences of this need to be addressed. 33 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

80,000

70,000

60,000 as of 31 Dec. 50,000

40,000

30,000

20,000 newly convicted 10,000

19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06

0

•Figure 6 Prison population in Japan Source: Annual Report of Statistics on Correction

Figure 7 shows that public prosecutors have requested a progressively greater proportion of formal trials than summary proceedings in order to obtain harsher punishments for offenders. Figures 8–11 show the profiles of the convicted prison population, illustrating the characteristics of people who have been incarcerated in the wake of recent ‘get tough’ policies. As the figures show, prison sentences are lengthening, the prison population is aging, and the proportions of mentally ill people as well as foreign nationals are rising sharply. In addition, there has been a rise in the proportion of unemployed and divorced people among newly convicted prisoners (see Figures 12 and 13). Further, as Figures 14 and 15 show, the numbers of lifers and death row inmates are increasing, even though the murder rate has been stable. Figure 16 shows the number of lifers released on parole and their time served in prison. This indicates that the chances of release on parole among lifers has almost disappeared in Japan. The next two figures show the number of prisoners who died in prisons and where prisoners return after release. More prisoners, mainly the elderly, are now dying in prison, and more prisoners are released with no fixed address. Of those inmates who died, most died of natural causes. The implication is that, due to changes in sentencing practice, many people who may otherwise have died in hospitals or other places in the community now die in prison. 34 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

160,000 140,000 demand for a trial 120,000 100,000 80,000

summary proceeding (⫼ 10)

60,000 40,000 20,000

19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03

0

•Figure 7 Changes in the number of requests by public prosecutors for offenders to be tried by summary process, or by formal trial Source: Annual Report of Statistics on Prosecution

100%

Longer than 5 years

80%

5 years or less 3 years or less

60%

2 years or less

40%

Less than 1 year

20%

3 20 0

20 00

19 94 19 97

19 88 19 91

2 19 85

6

9

19 8

19 7

19 7

19 7

3

0%

•Figure 8 Changes in the proportion of prison sentences by length of prison sentences Source: Annual Report of Statistics on Correction

In concise terms, the new legislation has not only imposed harsher punishment but also widened the criminal justice net. A greater proportion of the population once diverted from criminal justice processes are now processed formally, and a greater proportion of the offenders who were tried in summary courts and fined, are now 35 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

100% 90% 80% 60 or over 70%

Younger than 60

60%

Younger than 50

50%

Younger than 40

40%

Younger than 30

30%

Younger than 20

20% 10%

03

00

20

20

94 19 97

19

91

88

19

85

19

79

82

19

19

19

76 19

19

73

0%

•Figure 9 Age of newly convicted prisoners Source: Annual Report of Statistics on Correction

2500 2000

Others

1500

Neurosis

1000

Psychopath

500

Learning impaired

2

20 04

20 0

20 00

19 98

96 19

94 19

2 19 9

19

90

0

•Figure 10 The number of mentally disordered among new prisoners Source: Annual Report of Statistics on Correction

formally tried and sentenced to prison (see Figure 7). The impact of the victims’ movement has been to reduce the discretion of criminal justice agencies, especially the police department and the public prosecutor’s office, to use informal procedures. This has resulted in the imprisonment of more socially disadvantaged, elderly, and handicapped people. 36 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

2500

2000

Other

1500

American Chinese 1000

Korean

500

20 04

20 02

20 00

19 98

96 19

94 19

92 19

19

90

0

•Figure 11 Foreign prisoner population Source: Annual Report of Statistics on Correction

Employed

25,000

Unemployed

20,000

15,000

10,000

5000

19 73 19 75 19 77 19 79 19 81 19 83 19 85 19 87 19 89 19 91 19 93 19 95 19 97 19 99 20 01 20 03



•Figure 12 Employment status of new prisoners Source: Annual Report of Statistics on Correction

DISCUSSION

The Iron Quadrangle has ensured that no criminal incident is forgotten and that whenever similar incidents occur, the victims’ movement employs the media to criticize society for failing to learn from previous incidents. The impact of this phenomenon is 37 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

100% 90% 80% 70% 60%

Unknown Widowed Divorced Married Not married

50% 40% 30% 20% 10%

75 19 77 19 79 19 81 19 83 19 85 19 87 19 89 19 91 19 93 19 95 19 97 19 99 20 01 20 03

19

19

73

0%

•Figure 13 Marital status of new prisoners Source: Annual Report of Statistics on Correction

160

1600

140

New lifer

1400

Lifers as of 31 Dec.

120

1200

100

1000

80

800

60

600

40

400

20

200 0 20 04

98 20 01

19

19 95

92

89

19

86

19

19

83 19

80 19

74

71

68

77 19

19

19

19

65 19

19

62

0

•Figure 14 The number of newly convicted lifers and the number of lifers in prisons as of 31 December Source: Annual Report of Statistics on Correction

cumulative. Ever since eight elementary schoolchildren were stabbed to death in 2001,16 every incident in which schoolchildren are harmed, anywhere in Japan, is widely reported by print and broadcast media, and even by email, regardless of the distance between the incidents and the recipients of the news. A 4 January 2006 article in the Japan Times typifies the approach: 38 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

Newly convicted Death row

90 80 70 60 50 40 30 20 10

05 20

03 20

01 20

99 19

97

95

19

19

93 19

19

91

89 19

87 19

19

85

83 19

81 19

79 19

19

77

0

•Figure 15 The number of newly convicted prisoners sentenced to death and the number of death row prisoners Source: Annual Report of Statistics on Correction

120

100

80 ⬎ 20 years ⬉ 20 years ⬉ 18 years ⬉ 16 years ⬉ 14 years

60

40

20

2005

2003

2001

1999

1997

1995

1993

1991

1989

1987

1985

1983

1981

1979

1977

1975

1973

0

•Figure 16 The number of lifers released on parole by length of stay Source: Annual Report of Statistics on Rehabilitation

Japan was once thought to be one of the safest countries to live in by residents as well as visitors. But a series of incidents the past year suggest that this is no longer the case. Crimes and accidents have cost people their lives, while the shirking of responsibility and business ethics on the part of enterprises and professionals have deprived people of their sense of safety. 39 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

250

200

150

20–39 40–49 50 and over

100

50

20 02

20 01

00 20

99 19

98 19

97 19

96 19

95 19

94 19

19

93

0

•Figure 17 The number of deaths in prison by age Source: Corrrections Bureau, Ministry of Justice 100% Other (undetermined)

80%

Halfway house 60%

Employers Friends

40%

Relatives

20%

Siblings Spouse Parents

20

05

02 20

99 19

96 19

93 19

90 19

87 19

84 19

81 19

78 19

19

75

0%

•Figure 18 Prisoner accommodation on leaving prison Source: Annual Report of Statistics on Correction

However, our analysis of ‘Vital Statistics in Japan’ shows that from 1984 to 2004, the number of children (age 10 and below) killed has actually fallen from 273 to 79. Despite this, national and local government agencies, as well as communities, are facing public pressure to take additional measures to protect children. Many parents’ and neighborhood organizations have emerged, generating more frequent reports to the police of suspicious incidents and people. As a result, many homeless, foreign, and mentally handicapped people have been arrested, prosecuted and sentenced to custody. Although 40 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

no statistics are available on the number of homeless people in Japan, police figures17 show that the number of homeless people arrested for the Penal Code offences rose from 5350 in 2000, to 6147 in 2005 (National Police Agency [2006] Criminal Statistics in 2000 and 2005. NPS: Tokyo). One interpretation of these developments is that the Japanese public has adopted punitive attitudes due to its growing perception that Japanese communities are no longer safe. To support this view, we have presented evidence that the government and politicians have enacted and revised legislation that widens the criminal justice net and thereby increases the number of those incarcerated. Now, if a child dies in Japan as a result of an accident in a public place, such as a park or swimming pool, the police and the public prosecutors routinely seek to file a criminal charge against the supervising adult. For example, in 2006, the police officer placed in charge of crowd control at a firework show in Akashi was indicted and sentenced to 30 months in prison for failing to prevent a fatal crush on a pedestrian overpass after the show (nine children and two elderly women were killed; 247 others were injured). The victims’ families have pressed for further punishment for the head of the Akashi Police and for others in the chain of command. The media has supported these retributivist demands (International Herald Tribune (IHT)/Asahi: 15 June 2006). A recent case, when compared to the approach in previous decades, throws into sharp relief the Japanese judiciary’s increasingly punitive tendencies. Since 1983, when the Supreme Court set conditions for death sentences, 20 people have been executed for murder-robbery or repeat murders. However, on 26 September 2006 a man was sentenced to death for abducting, sexually assaulting and murdering a 7-year-old girl before terrorizing the victim’s family with threats and photographs. Until this case, no one had received the death sentence for a single count of murder committed under these circumstances. Significantly, the judge ruled that ‘In view of the fact that many small children have been targeted in sexual assaults, it is impossible to avoid giving a death sentence just because of the number of victims’ (IHT/Asahi: 30 September 2006). This newly punitive orientation extends to other criminal justice agencies. Whenever a former prisoner, parolee or probationer commits a serious crime, such as murder, the media criticize the prison or probation services. While the media demand more effective treatment programs for inmates to prevent re-offending after release, they also demand more surveillance of offenders – instead of more care – from probation services. For example, in February 2005, a man who had been released on parole absconded from a halfway house became homeless. He then turned up in a supermarket near Nagoya and stabbed an 11-month-old boy and his three-year-old sister, killing the boy. After the incident, the media and legal experts blamed the probation and parole service for being too lenient on offenders, demanding stricter supervision (see Japan Times, 3 September 2006). In response, the Minister of Justice created the Expert Committee on Probation and Parole in July 2005 to discuss how to reorganize those services. On 27 June 2006, the Committee proposed a reform plan to the Minister, which stated in the preface that ‘The Probation and Parole services are an important part of the criminal justice system whose main responsibility is to arrest offenders and punish them.’ Although the plan generally supports rehabilitation of offenders in the communities, it demands more surveillance. Specifically, it recommends that probation and parole services: introduce 41 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

mandatory urine tests on drug offenders; use intensive supervision such as more frequent contacts and home visits by officers; impose more restrictions on travel and address changes; and apply revocation more actively. The new law on probation and parole adopted the above policy on 6 June 2007. Braithwaite (1989) once claimed that Japan’s success in maintaining a low crime rate could be explained by the commitment of the Japanese criminal justice system, and Japanese society in general, to notions of reintegration and reparation. To support this claim, Braithwaite has pointed to the prominent roles of apology and forgiveness in daily life and the general emphasis on achieving reconciliation. Indeed, a well-known Japanese proverb states: ‘condemn the crime rather than the criminal’. However, the developments outlined above suggest that Japan has begun to resemble other developed countries, such as the USA and UK, and is moving toward popular punitivism. As a result of this shift, a developing revisionist view on Japan now questions the original characterization of Japanese society as pervaded by a reintegrative ethic. While apology and forgiveness may have played roles in diverting offenders from formal criminal justice, these diversions were almost completely controlled by professional lawyers and judges. Most out-of-court settlements, which enabled prosecutors and judges to drop cases, were also instigated by the same prosecutors and judges. But as victims have gained influence in the criminal justice system, the legal professionals have gradually lost control. From an outsider’s perspective, Japanese criminal justice may have seemed reintegrative and lenient to offenders (Johnson, 2002), but in reality, the system was operating under the control of professional lawyers and bureaucrats rather than according to the views of ordinary people. Indeed, Braithwaite’s claims are not based on any substantial interaction with the Japanese public. We must ask in the first place, then, whether the Japanese people have genuinely preferred apology and forgiveness to punishment. As Kawai (2004) argues, it is easy to find historical bases for the public’s punitive attitudes toward offenders. For example, as far back as the Edo era (during the 18th century), the local rules dispensed by village courts mandated execution as the penalty even for petty thefts.18 Figure 19 shows more recent changes in public opinion about the death penalty, based on government-conducted surveys. While Japanese support for the death penalty has indeed increased in the past decade, as early as 1956 more than 60 per cent of the public supported death penalty. The above argument finds further support in the results of ICVS 2000, which posed two questions designed to measure attitudes to punishment. First, the survey presented a range of sentencing options and asked respondents to choose the most appropriate sentence for a 21-year-old man found guilty of a second burglary offense. Second, the survey asked respondents to identify the most effective way of reducing youth crime. Even though Japan’s self-reported victimization rate for burglary is among the lowest in ICVS, Japan (along with England and Wales) returned the second highest proportion (51 per cent) of respondents recommending a custodial sentence for the burglar. Only the USA scored higher (56 per cent). In addition, the proportion of Japanese respondents choosing custody as the best means to reduce youth crime was the highest at 48 per cent.19 Further, while the reasons for not reporting crime differed little between countries participating in ICVS, the reasons for reporting crime were distinctly different. In Japan, 66 per cent of respondents reported offences in order to obtain 42 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

100% 80% 60%

Do not know

40%

Against death penalty For death penalty

20% 0% 1956

1975

1980

1989

1994

2004

2006

•Figure 19 Public opinion on the death penalty Source: Cabinet Office (1956–2004) and Victimization Survey by Hamai in 2006 (Hamai, 2007)

‘retribution’, compared to a range of 11 per cent to 35 per cent for other counties (excluding Poland, which also recorded 66 per cent). As Kawai (2004) has pointed out, Japanese people are at least as likely to be punitive as people in other industrialized countries. In addition, greater concern about crime, as well as ongoing judicial efforts to improve both the quality of criminal justice and public faith in the system, have led to greater civic engagement in the last decade. As Merritt et al. (2006) argue, this greater engagement tends to push the system toward more retributive and punitive sanctions. The Japanese government will introduce the lay judge (saiban-in) system by May 2009, in which ordinary citizens, together with judges, will pass judgment on whether to apply capital punishment in a criminal case. In addition, the revised Criminal Procedure Code, enacted on 20 June 2007, enables crime victims and their families to participate actively in criminal court hearings, in roles akin to that of a public prosecutor. Given that the conviction rate in the Japanese court system is 99 per cent, there is a great risk that Japanese criminal sanctions will grow increasingly retributive and punitive in the foreseeable future. Acknowledgement

Funding by GB Sasakawa Foundation is gratefully acknowledged. Notes

1 The results of ICVS 2004 in Japan are summarized in the White Paper on Crime (2004) ( 16 ). 2 Mamoru Takuma, a 37-year-old psychiatric outpatient from Ikeda, ran amok inside Osaka Kyoiku University Ikeda Elementary School, stabbing 21 children and two teachers. Eight of the children died. 3 It is written and developed based on the article by Koichi Hamai (2004). 4 The White Papers on Crime by the Research and Training Institute of the Ministry of Justice are now established as an authoritative annual report by government and press alike. These papers compile the general crime and criminal justice statistics each year, but each edition also includes an additional theme, e.g., overcrowding in prisons. 43 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

5 The most infamous two incidents were: a) the Okegawa stalker murder in July 1999, where a woman and her family complained to the police that the woman’s former boyfriend was stalking her, no action was taken, and the woman was stabbed to death, after which three Saitama police officers were fired, indicted and found guilty of falsifying written evidence relating to the original complaint; and b) the Tochigi lynch murder, where a young man was forced into a car by a group of teenagers, in December 1999, and later strangled in a wooded area in Tochigi Prefecture, according to police. When the victim’s parents filed the abduction report, an officer at the police station allegedly told them that the ‘police will not act unless it becomes a criminal case.’ 6 In March 2000, the NPA issued the instruction entitled ‘[The police should make] more effort to prevent crimes or accidents before they are committed’ (National Public Safety Commission and National Police Agency, 2000:1) and also issued the ‘Summary of the restructuring of the police’ (National Public Safety Commission and National Police Agency, 2000: 2), a key outcome of which was to ensure that all reported incidents be recorded without police discretion. 7 The definition of homicide and murder has changed in Japanese statistical returns throughout the 1980s and 1990s (Finch, 2001). The figures here include: eijisatsu (infanticide); jisatsu kanyo (assisting suicide); satsujinzai (‘murder’ or ‘crime of homicide’); satsujin yobi (preparation for or conspiracy to murder); sonzokusatsu (patricide). They exclude gokanchisi (rape resulting in death) and gotosatsujin (murder as a result of robbery), (Hisei 00nen no Hanzai: Hanzai Tokeisho). 8 ICVS 2004 has been conducted and is now under analysis in detail. Limited results are published in the White Paper on Crime 2004. 9 The sample was 2000, with a 60 per cent response rate. 10 Essentially crimes considered atrocious and cruel, such as serial murders. 11 A 14-year-old boy was arrested and confessed to the beheading of an 11-year-old boy, Jun Hase. Jun Hase’s his head was left on the front gate of the junior high school, with a defiant message stuffed in the mouth. The killer also went out of his way to taunt the police and threaten more slayings. 12 The Basic Law for Crime Victims ( ) (http://law.e-gov.go.jp/cgi-bin/ idxsearch.cgi). 13 The Penal Code ( ) (http://law.e-gov.go.jp/cgi-bin/idxsearch.cgi). 14 For example, the National Association of Crime Victims and Surviving Families (see http://www.navs.jp/introduction/introduction.html) argue that their mission is to demand victims’ rights from government and society. They argue on their website that their achievements have been to force revisions of criminal laws to impose more severe punishment on offenders. 15 Article 178(2), The Penal Code (http://law.e-gov.go.jp/cgi-bin/idxsearch.cgi). 16 Mamoru Takuma, a 37-year-old psychiatric outpatient from Ikeda, ran amok inside Osaka Kyoiku University Ikeda Elementary School, stabbing 21 children and two teachers. Eight of the children died. 17 Annual Report on Crime of the National Police Agency has a figure for ‘furosha ( , a type of homeless person)’ arrested by the police. 18 Eventually, the reforming Tokugawa government tried to end this custom and provide the chance for rehabilitation. 19 In both measures, data from Switzerland were not available. 44 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

HAMAI & ELLIS Japanese criminal justice

References

Aldous, C. and F. Leishman (2000) Enigma variations: Reassessing the koban. Nissan Occasional Paper No.31. Oxford: Nissan Institute of Japanese Studies. Available at: http://www.nissan.ox.ac.uk/nops/nops31.pdf Bayley, D. (1976) Forces of order: Policing modern Japan. Berkeley, CA: University of California Press. Best, J. (1998) Random violence: How we talk about new crimes and new victims. Berkeley, CA: University of California Press. Braithwaite, J. (1989) Crime, shame and reintegration. Cambridge: Cambridge University Press. Foote, D. (1992) ‘The benevolent paternalism of Japanese criminal justice’, California Law Review 80: 317–90. Gurr, T.R. (1977) ‘Crime trends in modern democracies since 1945’, International Annals of Criminolgy 16(1–2): 41–85. Hamai, K. (2004) ‘How ‘the myth of collapsing safe society’ has been created in Japan: Beyond the moral panic and victim industry’, Japanese Journal of Sociological Criminology 29: 10–26. Hamai, K. (2007) Developing the first Japanese independent crime victimization survey. Research report for the Grant-in-Aid for Scientific Research (B) of the Japan Society for the promotion of science (2004–2006, No.16330013). [ 2007 (B) 16–18 16330016] Hamai, K. and T. Ellis (2006) ‘Crime and criminal justice in modern Japan: From reintegrative shaming to popular punitivism’, International Journal of the Sociology of Law 34(3): 157–78. Hayley, J.O. (1999) The spirit of Japanese law. Athens: University of Georgia Press. Home Office (1988) Criminal statistics in England and Wales, 1987. London: HMSO. Hughes, G. (2007) The politics of crime and community. Basingstoke: Palgrave Macmillan. Johnson, D.T. (2002) The Japanese way of justice: Prosecuting crime in Japan. New York: Oxford University Press. Kawai, M. (2004) Paradox of the myth of the collapse of secure society. Tokyo: Iwanami Publications. [ 2004 ] Kitamura, T., N. Kijima, N. Iwata, Y. Senda, K. Takahashi and I. Hayashi (1999) ‘Frequencies of child abuse in Japan: Hidden but prevalent crime’, International Journal of Offender Therapy and Comparative Criminology 43(1): 21–33. Kumigai, F. (1983) ‘Filial violence in Japan’, Victimology 8: 173–94. Maguire, M. (2002) ‘Crime statistics. The “data explosion” and its implications’, in M. Maguire, R. Morgan and R. Reiner (eds) The Oxford handbook of criminology (3rd edition). Oxford: Oxford University Press. Matsubara, Y. (2007) ‘Crime and punishment produced by the public perception on crime’, Sekai 761: 53–71. [ 2007 761 53–71 ] Merritt, N., T. Fain and S. Turner (2006) ‘Oregon’s tough sentencing reform: A lesson in justice system’, Criminology and Public Policy 5(1): 5–36. Miyazawa, S. (1992) Policing in Japan: A study on making crime (translation by F.G. Bennett with J.O. Haley). Albany, NY: State University of New York Press. 45 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.

PUNISHMENT & SOCIETY 10(1)

National Public Safety Commission and National Police Agency (2000) Summary of the restructuring of the police. Tokyo: National Police Agency. [ 2000 ] National Police Agency (2000–2005) Criminal statistics in 2000 and 2005. Tokyo: National Police Agency. Pollitt, C. (2001) ‘Convergence: The useful myth?’, Public Administration 79(4): 933–47. Public Relations Office of the Cabinet Office (2000) Report of the national survey on the public’s image of Japanese society. Tokyo: Cabinet Office. [ 2000 ] Public Relations Office of the Cabinet Office (2004) Public opinion on crime. Tokyo: Cabinet Office. Available at: http://www8.cao.go.jp/survey/h16-chian/index.html [ 2004 ] Reiner, R., S. Livingstone and J. Allen (2000) ‘No more happy endings? The media and popular concern about crime since the second world war’, in T. Hope and R. Sparks (eds) Crime, risk and insecurity, pp. 107–25. London: Routledge. Research and Training Institute of the Ministry of Justice (2001–2004) White Paper on crime. Tokyo: Ministry of Justice. [ 2001–2004 13–16 ] Serizawa, K. (2006) House of horror society Japan. Tokyo: Koudansha. [ 2006 ] Statistics and Information Department, Ministry of Health, Labour and Welfare (1984–2004) Vital statistics 1984–2004. Tokyo: Ministry of Health, Labour and Welfare. [ 1984–2004 ] Surette, R. (1998) Media, crime and criminal justice: Images and realities (2nd Edition). Belomont: Wadsworth. Van Kesteren, J., P. Mayhew and P. Nieuwbeerta (2000) Criminal victimization in seventeen industrialized countries. Leiden: NSCR. Vogel, E.F. (1979) Japan as number 1: Lessons for America. New York: Charles E. Tuttle Co. Inc. Watts, J. (2002) ‘Japan’s teen hermits spread fear’, Observer, 17 November: 17. White, P. (1995) ‘Homicide’, in M.A. Walker (ed.) Interpreting crime statistics, pp.130–44. Oxford: Oxford University Press. Young, J. (2000) The exclusive society: Social exclusion, crime and difference in late modernity. London: Sage. KOICHI HAMAI is a professor at Ryukoku University, Law School. He joined the Justice Department in 1984 and resigned in 2003. During his service he worked at correctional institutions as a psychologist, the probation service, the Headquarters of the Department of Corrections, and the Research and Training Institute as a senior researcher. He was seconded to the United Nations Interregional Institute of Crime and Justice (UNICRI) in Rome as a researcher. He became a professor in 2003, teaching Criminology, Research Methodology and Legal Research. THOMAS ELLIS is a principal lecturer at the Institute of Criminal Justice Studies at the University of Portsmouth. His areas of expertise include Japanese criminal justice, youth justice, prisons, prostitution, and race, diversity and criminal justice. Until 1999, he worked for the Home Office Research, Development and Statistics Directorate and also had a two-year spell at UNICRI in Rome.

46 Downloaded from http://pun.sagepub.com at University of Portsmouth on January 8, 2008 © 2008 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.