Police, Courts, and Prisons

Part 5 – Modern-day Japan

Lee Friday

I recommend reading Parts 1 through 4 before reading this essay

With fewer police per capita than in North America, in a comparatively poorer and more densely populated country, Japan’s low crime rate is a curiosity. For many observers, this flies in the face of conventional wisdom. In his book The Trouble with Canada . . .Still, William Gairdner wrote:

Japan experienced a national crisis in 1982 when the number of murders in Tokyo rose to thirteen in one year (as many as New York City had at that time on an average weekend). By 2006, Japan had 565 murders – fewer than Canada’s 606, even though Japan has a population four times as large as ours. Japan is even more densely populated than North America (with which it is mostly compared), poorer, and is 70 percent urban, with fewer police per capita. . . . The reasons for low crime in Japan have partly to do with ethnic and cultural unity (racially mixed countries tend to have far more crime), and the fact they have somehow preserved the village communal spirit even in their large cities.[1]

Japan is an oddity. Authoritarian law predominates, yet victim justice (restitution) is a noticeable feature of Japanese society. To be fair, restitution occasionally occurs in the United States and Canada, but ‘occasionally’ is the operative word. It does not happen often, whereas in Japan it is a prominent feature of the system, and therefore worthy of our attention. On the subject of Restorative Justice, Professor John Haley wrote:

In terms of outcomes and long-term crime prevention, Japan has by all accounts the most successful criminal justice system in the world. Not only does Japan enjoy the lowest crime rates of any of the major industrial countries, including those a fraction of its size, it is the only country that had witnessed significant reduction in violent crime over the course of a half century. Ethnic homogeneity, social density and the effectiveness of informal social controls, as well as other “cultural” factors may help to explain low crime rates in Japan . . . Those offenders who confess, apologize, and seek to compensate any victims and in return receive some formal expression of pardon are far more likely than not to be in some fashion “diverted” out of the formal system and receive no punishment.[2]

In his book To Serve and Protect, Privatization and Community in Criminal Justice, Bruce Benson explains:

. . . in contrast to plea bargaining in the United States between prosecutors and criminals, the bargain struck in Japan is between victims and criminals. Rather than satisfying a prosecutor with a guilty plea, the criminal must satisfy the victim with sufficient restitution. . . . the criminal bargains with the victim through an intermediary (mediator), offering restitution in an effort to convince the victim to write a letter to the prosecutor or judge stating that the victim has been restored and no further punishment is necessary. Without such a letter, punishment can be harsh. Thus, the victim generally receives restitution before prosecution occurs . . .

The underlying focus on admission of responsibility and remorse also has a great moral force in Japan. In contrast to prosecutors and judges in the United States, who appear to be more concerned with getting large numbers of convictions, the officials in Japan apparently desire to obtain confessions that are sincere and expressions of remorse that are genuine. Thus, as Evers explains,

The rectification of crime, leniency of punishment, and rehabilitation of criminals in Japan have a moral basis that would be undermined by false confessions. Honest, uncoerced confession and genuine remorse put the criminal on the path of rehabilitation and provide the moral motivation for restitution. Restitution and future good behaviour are discernible evidence of rehabilitation. The criminal’s likely rehabilitation and restitutive effort justify punishing leniently. This integrated, balanced system of criminal justice will not work if false confessions are extracted from the accused.

The vast majority of the cases that are prosecuted are settled in a summary procedure based on documented evidence, for which the maximum public penalty (on top of the privately negotiated restitution) is a fine. . . . Summary proceedings are not allowed for serious offenses like murder, fraud, and extortion, for which fines are not statutory options for punishment (although prosecution can be suspended in such cases). Nonetheless, although conviction rates are very high (almost 99.5 percent), few offenders receive government-imposed penalties on top of their restitution other than small fines or short prison terms (generally less than a year).

The number of offenses and the numbers of criminals are substantially lower in every crime category than they are in any other modern, industrialized country in the world. [3]

Gairdner, Haley, and Benson have each noted the low crime rates in Japan. What produces this outcome? Is ethnic homogeneity a factor, as Gairdner and Haley suggest? Perhaps. Is the widespread practice of restitution also a factor? While correlation does not imply causation, this is also possible, and I think likely. Here is Benson on the Japanese cultural attitude towards crime, and enforcement of norms:

A key feature of Japanese culture that apparently underlies the success of restitution is that there is no acceptable excuse for criminal activity. . . . in the United States criminals see themselves as victims of society, and they rationalize their criminal behaviour by convincing themselves that they are not responsible for their actions. In contrast, “the process of confession and restitution found in Japan discourages such self-indulgent self-forgiveness and develops honest attitudes and patterns of conduct by punishing in moderation only when criminals show remorse and pay restitution.”

As Evers notes . . . “Norms are mostly enforced through social pressure in the family, school, workplace, and local neighborhood. Face-to-face communities enforce conformity . . . [and] strive to curb criminal violence and to correct its practitioners. . . . In Japan, it is mostly society rather than government that is in charge of crime control.” What makes restitution work as well as it does in Japan, then, is the fact that by and large, private individuals and groups are much more responsible for controlling crime.[4]

Real justice is not achieved unless the victim is made whole. This means full and complete restitution from the offender. There will always be cases where the damage cannot be reversed e.g. murder and rape, but an appropriate level of restitution must still be calculated and paid. When restitution is not forthcoming, there is only injustice, which is not consistent with any moral notion of a civilized society.

We discussed costs and incentives in Part 2. When full restitution is likely, victims become highly incentivized to report crimes and pursue prosecution. This is a common-sense approach which any ten-year-old can understand, yet this incentive is virtually non-existent in most countries. In Canada for example, a majority of crimes committed against person and property are not reported, for a variety of reasons – the victim does not expect restitution, does not trust the police, does not believe the police will do anything, does not have faith in the judicial process, does not feel inclined to participate in lengthy convoluted police and judicial procedures with the attendant costs.

Private individuals are playing a big role in Japan and they are doing something right. Let’s copy them and extend the process further. This is the long forgotten lesson of our medieval ancestors.

Go to Part 6

 

[1] William D. Gairdner The Trouble With Canada . . . Still! (Key Porter Books Limited, Toronto, 2010) p 343

[2] John Owen Haley, Introduction—Beyond Retribution: An Integrated Approach to Restorative Justice, 36 Wash. U. J. L. & Pol’y 1 (2011)

[3] Bruce L. Benson To Serve and Protect, Privatization and Community in Criminal Justice (New York University Press, 1998) pp 251-53 (Benson draws from Evers, Williamson M. 1994 Victim’s Rights, Restitution, and Retribution. Oakland, CA: Independent Institute Report prepared for the William I. Koch Commission on Crime Reduction and Prevention for the State of Kansas, November (published as an Independent Policy Report in 1996 under the same title). pp 22-26

[4] Ibid.

Leave a Reply

Your email address will not be published.