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$Unique_ID{bob00349}
$Pretitle{}
$Title{Japan
Chapter 7E.   The Criminal Justice System}
$Subtitle{}
$Author{Melinda W. Cooke}
$Affiliation{HQ, Department of the Army}
$Subject{criminal
police
crime
offenses
justice
system
courts
japan
law
offenders
see
pictures
see
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}
$Date{1981}
$Log{See Violent Crime*0034901.scf
}
Title:       Japan
Book:        Japan, A Country Study
Author:      Melinda W. Cooke
Affiliation: HQ, Department of the Army
Date:        1981

Chapter 7E.   The Criminal Justice System

     Three basic features of the nation's system of criminal justice
characterized its operations in 1981. First, the institutions-police, the
government procuracy, courts, and the correctional organs-maintained close and
cooperative relations with each other, consulting frequently on how best to
accomplish the shared goals of limiting and controlling crime while also
protecting the rights of the accused. Secondly, citizens were encouraged to
recognize their obligations to maintain public order and participated
extensively in crime prevention campaigns, apprehension of suspects, and
offender rehabilitation programs. Finally, the public placed great trust in
the honesty, ability, and professionalism of officials who administered
criminal justice and allowed them considerable discretion in the manner in
which they dealt with offenders.

History and Development

     Until the Meiji Restoration the criminal justice system was controlled
mainly by provincial lords. Public officials, not laws, guided and constrained
people to conform to traditional morality. In accordance with the Confucian
ideal, officials were to serve as models of behavior; the people, who lacked
rights and had only obligations, were to obey. Such laws as did exist were
transmitted nationally through local military governors, bakufup, in the form
of general policies. 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. Offenses were
specified, and set punishments were established for particular crimes. Both
codes were innovative in that they dealt with 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 both abolished. Offenses against the emperor were
spelled out for the first time.

     Innovative aspects of the codes notwithstanding, certain provisions
tended to reflect traditional attitudes toward authority. The procurator
represented the state and sat together with the judge on a raised platform-his
position above the defendant and his counsel suggesting their relative status.
Under a semi-inquisitorial system, primary responsibility for questioning
witnesses lay with the judge, and counsel for the defense was permitted to
question witnesses only through the judge. Cases were referred to trial only
after a judge presided over a preliminary fact-finding investigation where
counsel was not permitted to assist the suspect. Since in all trials available
evidence had already convinced a preliminary judge of a defendant's guilt, a
trial judge acted less as an independent arbiter of guilt or innocence than as
a reviewer of preliminary procedures-undermining the defendant's legal
presumption of innocence at trial and further weakening the legal recourse
open to his counsel.

     Reflecting the growing influence of German law in Japan, the penal code
was substantially revised in 1907. The French practice of classifying offenses
into three types was eliminated. More importantly, where the old code had
allowed very limited judicial discretion, the new embraced a philosophy of
subjective punishment and granted a judge a wide margin in sentencing. In 1923
the codes concerning criminal procedure were also revised along German lines,
but court procedures continued to be run as earlier.

     After World War II, occupation authorities initiated reform of the
constitution and laws in general. Except for omitting offenses relating to
war, imperial family, and adultery, the 1947 code remains virtually identical
to the 1908 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, decides a case on evidence presented by both
sides. The preliminary investigative procedure was suppressed. Procurators and
defense counsel sit on equal levels, below the judge. Laws covering
indemnification of the wrongly accused, juveniles, prisons, probation, and
minor offenses were also passed in the postwar years to supplement criminal
justice administration.

Crime

     The National Police Agency divided crime into six main categories:
felonious offenses, violent offenses, larceny, intellectual offenses, moral
offenses, and other offenses. Felonious offenses-the most serious and carrying
the stiffest penalties-included murder and conspiracy to murder, robbery,
rape, and arson. Violent offenses consisted of unlawful assembly while
possessing dangerous weapons, simple and aggravated assault, extortion, and
intimidation. Larceny encompassed burglary, vehicle theft, and shoplifting.
Crimes classified as intellectual included fraud, embezzlement,
counterfeiting, forgery, bribery, and breach of trust. Moral offenses included
gambling, indecent exposure, and the distribution of obscene literature. Among
miscellaneous offenses, those most frequent involved the obstruction of
official duties, negligence with fire, unauthorized entry, death or injury
caused by negligence (other than traffic accidents), possession of stolen
property, and destruction of property. Special laws defined other criminal
offenses, among which were prostitution, illegal possession of swords and
firearms, customs violations, and possession of various controlled substances
including narcotics and marijuana.

     More than 1.2 million acts categorized as offenses under the criminal
code were identified by the police in 1979. Of these almost 5 percent were
classified as violent or felonious offenses; 86 percent involved larceny;
white-collar, intellectual, moral, or miscellaneous offenses accounted for the
remainder.

     These figures represented a very low rate of criminal activity relative
to comparable industrialized democracies (see fig. 19). In the late 1970s the
nation's rate of violent crime (murder and attempted murder, rape, robbery,
and aggravated assault) was approximately thirty-one per 100,000 persons-under
10 percent that of the United States, approximately 25 percent that of the
Federal Republic of Germany (West Germany), and 80 percent that of England and
Wales. Property crime was also correspondingly low. Tokyo enjoyed the
reputation of being the safest of the world's major metropolitan areas (see
fig. 20).

     Most important of the factors keeping crime low were traditional values
that emphasized the individual as a member of groups to which he must not
bring shame. Within these groups-family, friends, associates at work or
school-a Japanese incurred social rights and obligations, derived valued
emotional support, and met powerful expectations to conform. In 1981 these
informal social sanctions continued to display remarkable potency despite
competing values incumbent in Westernization.

     Other factors were also important. Japan had an essentially homogeneous
society, in which common social values and standards of behavior prevailed.
The economy was prosperous. Under a strict and effective weapons control law,
ownership of handguns was forbidden to the public, hunting rifles and
ceremonial swords were registered with the police, and the manufacture and
sale of firearms were regulated. The production and sale of bullets,
cartridges, and blank cartridges were also controlled as were transportation
and importation of all weapons. In 1979 only 171 crimes were committed with
firearms and almost entirely by members of criminal gangs.

     Despite increasing urbanization and modernization-conditions linked by
many criminologists to growing rates of crime-the nation did not suffer under
steadily rising levels of criminal activity. While crime continued to be
higher in urban areas, throughout the 1960-79 period rates of crime remained
relatively constant nationwide, and rates of violent crime decreased
uninterruptedly after 1961.

[See Violent Crime: Rates of Violent Crime in Tokyo and Other Major
Metropolitan Areas, 1978 (per 100,000 population)]

     The nation was far from problem free, however, and areas of particular
concern to the police involved crimes associated with modernization. Increased
wealth and technological sophistication brought new "white-collar" crimes such
as computer and credit card fraud, larceny from coin dispensers, and insurance
falsifications. The incidence of drug abuse, particularly of stimulants, grew
during the 1970s, and police admitted that recorded arrests represented only a
small portion of the problem. Traffic accidents and fatalities, though reduced
substantially after traffic safety campaigns in the early and middle 1970s,
continued to consume substantial amounts of law enforcement resources.

     Juvenile delinquency also caused considerable anxiety in the nation. In
1979 almost 39 percent of persons arrested for offenses under the criminal law
were nineteen years of age or under. Juvenile offenders were particularly
numerous in crimes involving motorcycle gangs, runaways, the abuse of paint
thinner (glue sniffing), and shoplifting. Commentators cited the failure of
the Japanese education system in dealing with non-university-bound students as
an important factor in the rise of crime by juveniles (see Education in the
1980s, ch. 3).

     Organized crime constituted a serious law enforcement problem in 1981.
Underworld groups were estimated to number over 2,500 and comprised almost
110,000 members. Although concentrated in big prefectures, they operated in 70
percent of cities in the nation. Following concerted police pressure in the
1960s smaller gangs either disappeared or began to consolidate under different
syndicate-type organizations. Seven large syndicates dominated underworld
crime in the nation and controlled approximately one-third of all gangs and
gangsters. In 1977 the 10,500 members of the largest gang, the Yamaguchigumi,
were found in thirty-four prefectures and were affiliated with 463 other
gangs.

     Known generally as yakuza, gangs had existed in Japan well before the
1800s and followed codes based on the samurai ethic. Their early operations
were usually closely knit, and the leader and gang members had a father-son
relationship. While this traditional form continued to exist, yakuza
activities were increasingly replaced by modern types of gangs that depended
on force and money as organizing concepts. Nonetheless yakuza often pictured
themselves as saviors of traditional Japanese virtues in a postwar society,
sometimes forming ties with right-wing groups espousing the same views and
attracting dissatisfied youths to their ranks.

     In 1978, according to arrest data, underworld figures accounted for 10
percent of all persons arrested and approximately 50 percent of those arrested
for drug smuggling, intimidation, extortion, and gambling. They were also
known to be increasingly involved in white-collar crime. In 1981 they
accounted for one-fifth of all sokaiya activity-a crime peculiar to Japan in
which extortionists buy small shares of company stocks, then are paid by
companies either to manipulate stockholders meetings or to refrain from
exposing company secrets and after-hours transgressions of its employees.

     Finally the police met with special problems in dealing with two minority
groups, the Koreans and the burakumin (see Population, ch. 2). The Koreans,
many of whom were brought to Japan in World War II to work as laborers,
numbered approximately 650,000 in 1981 and suffered from both social and
economic discrimination. As it was extremely difficult for any aliens to
acquire Japanese citizenship, nearly all Koreans were classified as foreign
residents and had to carry alien registration identity papers with them at all
times. For Japanese authorities the question of their allegiance either to
North Korea or South Korea posed both real and potential political and public
security problems. Accordingly Koreans leaving and reentering the country
(especially to and from North Korea) were subject to strict controls by
immigration officials.

     Burakumin, descendants of outcast communities in feudal Japan, although
ethnically Japanese, were also objects of extreme prejudice. They were
alienated from many aspects of the national life, suffered from a high
incidence of juvenile delinquency, and were generally uncooperative with
police. Members active in communist and burakumin "liberation" movements were
closely monitored by officers of the police security divisions.

Criminal Procedure

     In 1981 the nations's criminal justice officials followed specified legal
procedures in dealing with offenders. Once a suspect was arrested by police
from the national or prefectural forces, the case was turned over to attorneys
under the Supreme Public Procurators Office who served as the government's
sole agent in prosecuting lawbreakers. Though under the administration of the
Ministry of Justice, these officials worked under rules of the Supreme Court
and were career civil servants who could be removed from office only for
incompetence or impropriety. Procurators presented the government's case
before judges in the Supreme Court and the four lower courts-high courts,
district courts, summary courts, and family courts. Penal and probation
officials administered disciplinary programs to each convicted offender under
the direction of public procurators.

     After identifying a suspect, police had the authority to exercise their
discretion as to how he was brought to justice. If, in cases pertaining to
theft, the amount was 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 could either drop a case or proceed to turn
it over to a procurator. Reflecting the belief that appropriate remedies could
sometimes best be found outside the formal criminal justice mechanisms, police
placed great stock in victim-offender mediation, warnings, and the salutary
effect of both apprehension and the threat of police investigations. In 1978
approximately 40 percent of criminal cases were so disposed.

     Police also exercised wide discretion in matters concerning juveniles. By
law police were instructed to identify and counsel minors who appeared likely
to commit crimes in the future, and they could refer juvenile offenders and
nonoffenders alike to child guidance centers to be treated on an outpatient
basis. Police could also assign juveniles or those considered harming the
welfare of juveniles to special family courts. These courts were set up in
1949 in the belief that adjustment of a family's situation was a prerequisite
to the protection of children and the prevention of juvenile delinquency.
They were run in closed sessions, tried juvenile offenders under special laws,
and operated extensive probationary guidance programs. Those between the ages
of fourteen and twenty could, on the judgment of the police, be sent to the
public procurator for trial as an adult under the general criminal law.

     Numerous safeguards have protected the rights of a suspect. Police had to
secure warrants to search for or seize evidence. Warrants were also necessary
before an arrest, although if the crime were very serious or the perpetrator
likely to flee, it could be obtained immediately after arrest. Within
forty-eight hours after placing a suspect under detention the police had to
present their cases before a procurator who then was required to apprise the
accused persons of the charges before them and of their right to counsel.
Within another twenty-four hours the procurator had to go before a judge and
present a case for obtaining a detention order. Suspects could be held for ten
days (extensions were granted in special cases) pending an investigation and a
decision whether or not to prosecute.

     Prosecution could be denied on grounds of insufficient evidence or on the
procurator's judgment. Under Article 248 of the Code of Criminal Procedure,
after balancing an offender's age, character, and environment against the
circumstances and gravity of the crime and against the accused's
rehabilitative potential, public action did not have to be instituted, but
could either be denied or suspended ultimately to be dropped after a
probationary period. Using their discretionary powers, in 1979 procurators
prosecuted only 65 percent of criminal cases presented to them, not only
sifting out poor cases and lightening court dockets, but also enhancing the
rehabilitative potential of some accused. Because the investigation and
disposition of a case could be held behind closed doors and the identity of an
accused for whom prosecution had been denied or suspended was rarely made
public, an offender could successfully reenter society and be rehabilitated
under probationary status without the stigma of a criminal conviction.

     Institutional safeguards check the procurators discretionary powers of
nonprosecution. Committees of lay persons were established in conjunction with
branch courts to hold inquests on a prosecutor's decisions. They met four
times yearly and could issue orders for a case to be reinvestigated and
prosecuted. Victims or interested parties could also appeal a decision not to
prosecute.

     Most offenses were tried first in district courts before one or three
judges depending on the severity of the case. Defendants were protected from
self-incrimination, forced confession, and unrestricted admission of hearsay
evidence. In addition defendants had the right to counsel, public trial, and
cross examination. Trial by jury was authorized by the 1923 Jury Law but was
suspended in 1943. I had not been reinstated as of 1981 chiefly owing to
defendants' distrust of jurors, who were believed to be emotional and easily
influenced, and the generally greater public confidence in the competence of
judges.

     The judge conducted the trial and was authorized to question witnesses,
independently call for evidence, decide guilt, and affix a sentence. He had
the additional power to suspend any sentence or place a convicted party on
probation. Should a judgment of not guilty be rendered, an accused was
entitled to compensation by the state on the basis of the number of days spent
in detention.

     Criminal cases from summary courts, family courts, and district courts
could be appealed by both the prosecution and the defense to the high courts.
Criminal appeal to the Supreme Court was limited to constitutional questions
and a conflict of precedent with the Supreme Court or high courts.

     The criminal code set minimum and maximum sentences for offenses to allow
for the accommodation to varying circumstances incident to each crime and
criminal. Penalties ranged from fines and short-term incarceration to
compulsory labor or the death penalty. Heavier penalties were meted out to
repeat offenders and for offenses against lineal ascendants. Capital
punishment consisted of death by hanging and could be imposed on those
convicted of leading an insurrection, inducing or aiding foreign armed
aggression, arson, or homicide.

The Penal System

     Prisons, in existence in some feudal domains as early as the end of the
sixteenth century, originally functioned as institutions designed to hold
people for trial or prior to execution. Due both to the cost and difficulty
involved in long-term incarceration and to prevailing standards of justice
that called for sentences of death or exile for serious crimes, life
imprisonment was rare. Facilities were sometimes used for short confinement,
however. Prisoners were treated according to their status and housed in
barracks-like quarters. In some cases the position of prison officer was
hereditary, and staff vacancies were filled by relatives.

     During the Meiji period, along with systems of law and legal
administration, the country also adopted Western-style penology. In 1888 an
after-care hostel (halfway house) was opened for released prisoners. Staffed
mainly by volunteers, the institution helped ex-convicts reenter society, many
of whom had been ostracized by their families for the shame they had incurred
and had literally nowhere to go. The Prison Law of 1908 provided basic rules
and regulations for prison administration, stipulating separate facilities to
house those sentenced to confinement with labor, without labor, and those
detained for trial or for short sentences.

     The Juvenile Law of 1922 established administrative organs to deal with
offenders under the age of eighteen and officially recognized volunteer
workers as the major forces in the community-based treatment of juveniles.
After World War II juvenile laws were revised to extend jurisdiction to those
under the age of twenty, and a probation and parole system for adults was
established. Volunteer workers were reorganized under a new law and in 1981
remained an indispensable part of the rehabilitation system.

     The Correctional Bureau of the Ministry of Justice was responsible for
the administration of the adult prison system as well as the juvenile
correctional system and three women's guidance homes (set up to rehabilitate
prostitutes). The ministry's Rehabilitation Bureau operated the probation and
parole systems. Prison personnel were trained at an institute in Tokyo and in
branch training institutes in each of the eight regional correctional
headquarters under the Correctional Bureau. Professional probation officers
studied at the Research and Training Institute of the Ministry of Justice.

     In 1978 the prison population stood at over 50,000; more than 9,500 were
held in short-term detention centers and the remaining 41,500 in prisons. A
relatively high proportion of the prison population, 46 percent, were repeat
offenders, a level held by many commentators to result from both the
discretionary powers available to police, prosecutors, and courts, which
tended to weed out first offenders from penal sentences, and the perception
that society was not always best served by incarceration of criminal
offenders. Those who were imprisoned were generally held unlikely to benefit
from other forms of resocialization.

     The penal system was intended to resocialize, reform, and rehabilitate
offenders. Upon confinement prisoners were first classified according to sex,
nationality, kind of penalty, length of sentence, degree of criminality, and
state of physical and mental health, then placed in special programs designed
to treat individual needs. Vocational and formal education were emphasized as
was instruction in social values. Most convicts engaged in labor for which a
small stipend was set aside for use on release. Under a system stressing
incentives, prisoners were initially assigned to community cells, then earned
better quarters and additional privileges based on their good behavior.

     While a few juvenile offenders were handled under the general penal
system, the majority were treated in separate juvenile training schools. More
lenient than the penal institutions, these facilities provided correctional
education and regular schooling for delinquents under the age of twenty.

     According to the Ministry of Justice, the government's responsibility for
social order did not end with imprisoning an offender, but also extended to
after-care treatment and to noninstitutional treatment to substitute for or
supplement prison terms. A large number of those given suspended sentences
by judges were then released to the supervision of volunteer officers under
the guidance of professional probation officers. Adults were usually placed on
probation for a fixed period and juveniles until they reached the age of
twenty. Volunteers were also used in supervising parolees, though professional
probation officers generally assumed the responsibility for those offenders
with a high risk of recidivism. These volunteers hailed from all walks of life
and handled no more than five cases at one time. They were responsible for
overseeing the offenders' conduct to ensure that no further offenses occurred
and also offered guidance and assistance in assuming a law-abiding place in
the community. Though sometimes criticized as too old compared to their
charges (more than 70 percent were retired, aged fifty-five or over) and so
unable to understand all the problems facing those in their custody, the
volunteers were held by most authorities to be of critical importance in the
nation's criminal justice system.

                                   * * *

     By far the most comprehensive treatment of the SDF is available in the
annual white papers published by the Japanese Defense Agency in English, The
Defense of Japan. Other sources include: Japan's Contribution to Military
Stability in Northeast Asia prepared for the United States Senate by the
United States Arms Control and Disarmament Agency; "The Navy of Japan" by
Sadao Seno and James E. Auer in Guide to the Far Eastern Navies edited by
Barry M. Blechman and Robert P. Berman; "The Japanese Maritime Self-Defense
Force" by Lieutenant Joseph F. Bouchard; and the section on Japan in World
Armies by John Keegan. The International Institute for Strategic Studies'
excellent annual, The Military Balance, provides current data on the size,
budget, and equipment inventory of the armed forces. Dick K. Nanto's "Japan's
Defense Expenditures and Policy: Recent Trends and Comparisons with the United
States" offers a detailed treatment of the nation's policies toward defense
spending.

     Two very fine books, Police and Community in Japan by Walter L. Ames and
Forces of Order: Police Behavior in Japan and the United States by David H.
Bayley provide information on the police system, public attitudes toward law
enforcement, and the criminal justice system.

     Journals such as Japan Quarterly, Far Eastern Economic Review, and
Summaries of Selected Japanese Magazines (issued monthly by the United States
Embassy in Tokyo) frequently have articles dealing with defense and internal
security and public order. Crime statistics were derived from the following
sources: Crime and Traffic Enforcement Statistics, 1978; Japan Statistical
Yearbook (1970, 1976, 1980); Polizeiliche Kriminalstatistik 1963-79;
Polizeiliche Kriminalstatistik der Freien und Hansestadt Hamburg 1978; Report
of the Commissioner of the Police of the Metropolis 1960-79; Report of Her
Majesty's Chief Inspector of the Constabulary 1960-79; and United States
Federal Bureau of Investigation Uniform Crime Reports: Crime in the United
States 1960-79. (For further information see Bibliography.)