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The Whole Story on Japan’s 99% Conviction Rate, and the Corruption that Follows

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The conviction rate in Japan is unbelievable. Some reports say 99.8%, others say 99.97%; but it’s clear that it’s above 99%. Why is this so? Are Japanese police really so perfect that they almost always arrest the real criminals and always have the evidence to prove their cases? Don’t bet on it. The Japanese legal system is corrupt, and the effects of this broken system can be felt by anyone in Japan who has ever been detained, regardless of innocence.

Confessing for Nothing

This excerpt from The Economist sums up the problem:

A TAXI driver in Toyama prefecture is arrested for rape and attempted rape, confesses to both crimes, is convicted after a brief trial and serves his three years in prison. Meanwhile, another man, arrested on rape charges, also confesses to the two crimes the first man was convicted for. He, too, goes to jail and serves his time.

Is this a story by Jorge Luis Borges, a case of trumped-up charges from the annals of Stalinist Russia, a trick question in a Cambridge tripos? None of the above. It is a recent instance, and not an uncommon one, of the Japanese judicial system at work.

On January 26th Jinen Nagase, Japan’s justice minister, apologised for the wrongful arrest of the taxi driver and declared that an investigation would take place. After all, the suspect had an alibi, evidence that he could not have committed the crime and had denied vociferously having done so. But after the third day in detention without access to the outside world, he was persuaded to sign a confession.

[. . .] Now a new film about wrongful arrest by one of Japan’s most respected directors, Masayuki Suo, has just opened to critical acclaim. The movie, entitled “I Just Didn’t Do It”, is based on a true story about a young man who was accused of molesting a schoolgirl on a crowded train—and refused adamantly to sign a confession. Thanks to support from friends and family, the real-life victim finally won a retrial after two years of protesting his innocence, and is today a free man.

The film [. . .] depicts how suspects, whether guilty or innocent, are brutalised by the Japanese police, and how the judges side with the prosecutors. Mr Suo argues that suspects are presumed guilty until proven innocent, and that the odds are stacked massively against them being so proven.

According to The Economist, 95% of people arrested in Japan sign confessions, and Japanese courts convict 99.9% of those who come before them. This is not normal among democratic nations, and even China has a rate of ‘only’ 98%. That’s a country where you can get arrested for taping Tiananmen Square on the anniversary of the 1989 massacre, even if you’re a foreign reporter – which British journalist Mark Stone learnt earlier this year – and you’re not even allowed to talk about it. Luckily for Cirque du Soleil, who showed an image of the famous “Tank Man” photo during one of their shows in China, they were allowed to continue their show without being detained… so long as they never show such an image ever again.

But does anyone actually think that Japan, with an even higher conviction rate than China, serves more justice in their courts?

A few years ago, Nepalese migrant worker Govinda Prasad Mainali came into the news for being released after 15 years in prison for a murder he was later exonerated for. Amnesty International says that he wasn’t allowed to speak to a lawyer after his arrest, and was beaten by police officers. Mainali never confessed; it’s just that the DNA test was conducted a decade and a half later than it should have.

Japan’s connection to justice may be little more than the letter “J.”

Who is Responsible?

To understand what is going on, John Ramseyer from Harvard University and Eric Rasmusen from Indiana University published an investigative paper in 1999. The abstract explains the 99% rate in terms of corruption among judges:

Conviction rates in Japan exceed 99 percent — why? On the one hand, because Japanese prosecutors are badly understaffed they may prosecute only their strongest cases and present judges only with the most obviously guilty defendants. On the other, because Japanese judges can be reassigned by the administrative office of the courts if they rule in ways the office does not like, judges may face biased career incentives to convict.

Using data on the careers and opinions of 321 Japanese judges, we conclude that judges who acquit do indeed have worse careers following the acquittal. On closer examination, though, we find that the punished judges are not judges who acquitted on the ground that the prosecutors charged the wrong person. Rather, they are the judges who acquitted for reasons of statutory or constitutional interpretation, often in politically charged cases. Thus, the apparent punishment of acquitting judges seems unrelated to any pro-conviction bias at the judicial administrative offices, and the high conviction rates probably reflect low prosecutorial budgets instead.

As in many countries, prosecutors can advance their careers through convictions, which already implies a level of corruption – they want it to end badly for someone else, so it will end well for them. The Ramseyer & Rasmusen paper showed the same type of corruption among judges.

We see this kind of corruption all over the world, and it affects millions of people among all strata of society. For example, judges in Japan who do the right thing and allow a court to investigate a suspect more carefully tend to have a worse career. In the same vein, commanding officers in the US military who do the right thing and actually respond to reports of sexual assault tend to have worse careers, because they are seen as not being able to manage their units compared to other commanding officers, who in turn get promoted for doing the wrong thing.

Global Voices Online brings up another factor in the guilty-until-proven-innocent syndrome – the media:

Why do such cases of false accusation occur? It’s because of the culture of exacting confession which is rampant among both prosecutors and cops. Another element is information leaked by the same prosecutors and cops to the media.

The leaked information becomes news, which impacts on the perception of people towards crime suspects or defendants who will be automatically be perceived as guilty. Consequently, this ends up affecting the investigation and the trial itself.

According to the Law

So now the question is… why do people like Borges sign confessions even when they know they’re innocent? The Economist explains something important about Article 38 of the Japanese constitution:

Despite Article 38 of the Japanese constitution, which guarantees an accused person’s right to remain silent, the police and the prosecutors put maximum emphasis on obtaining a confession rather than building a case based on evidence. The official view is that confession is an essential first step in rehabilitating offenders. Japanese judges tend to hand down lighter sentences when confessions are accompanied by demonstrations of remorse. Even more important, prosecutors have the right to ask for lenient sentences when the accused has been especially co-operative.

It is how the police obtain these confessions that troubles human-rights activists. A suspect can be held for 48 hours without legal counsel or contact with the outside world. After that, he or she is turned over to the public prosecutor for another 24 hours of grilling. A judge can then grant a further ten days of detention, which can be renewed for another ten days.

Japan’s constitution also states that confessions obtained under compulsion, torture or threat, or after prolonged periods of detention, cannot be admitted as evidence. Yet threats and even torture are reckoned to be used widely in detention centres—especially as interrogators are not required to record their interviews. Accidental death during custody happens suspiciously often. Facing up to a possible 23 days of continuous browbeating, or worse, could persuade many wrongfully arrested people to accept their fate and sign a confession as the quickest way to put the whole sorry mess behind them.

According to the US Embassy in Japan:

“Under Japanese law, you may be arrested and detained without bail for 48 hours by the police on suspicion of having committed a crime. During this period, the police are required to inform you of the crime of which you are suspected, of your right to remain silent, of your right to hire a lawyer at your own expense… The police usually begin their initial questioning before you have an opportunity to see a lawyer.”

In 2010, the New York Times reported this:

The suspects in a vote-buying case in this small town [Shibushi] in western Japan were subjected to repeated interrogations and, in several instances, months of pre-trial detention.

In all, 13 men and women, ranging in age from their early 50s to mid-70s, were arrested and indicted. Six buckled and confessed to an elaborate scheme of buying votes with liquor, cash and catered parties. One man died during the trial – from the stress, the others said – and another tried to kill himself.

But all were acquitted two months ago in a local court, which found that their confessions had been entirely fabricated. The presiding judge said that the defendants had “made confessions in despair while going through marathon questioning.”

The Japanese authorities have long relied on confessions to bring suspects to court, instead of building cases based on solid evidence. Human rights groups have criticized the practice for leading to abuses of due process and the railroading of the innocent.

[. . .] Suspects come under strong pressure to plead guilty, on the premise that confessions are the first step toward rehabilitation.

The conviction rate in Japanese criminal cases – 99.8 percent – cannot be compared directly with those of other countries because there is no plea bargaining in Japan and prosecutors bring only those cases they are sure to win. But experts say that in court, where acquittals are considered harmful to the careers of prosecutors and judges alike, there is a presumption of guilt.

[. . .] “Traditionally, in Japan, confessions have been known as the king of evidence,” said Kenzo Akiyama, a lawyer who is a former judge and has written critically of the criminal justice system. “Especially if it’s a big case, even if the accused hasn’t done anything, the authorities will seek a confession through psychological torture.”

The New York Times article introduces many people who were coerced into fabricating confessions through threats and psychological torture – some of whom are later able to sue for damages. But in all of these cases, it never really ends well.

From the Words of a Coercive Prosecutor

The BBC had a fascinating article that not only talked about the injustice I have described here, but they spoke to a prosecutor who actually did the coercion:

Hiroshi Ichikawa was a prosecutor for nearly 13 years – until he lost his job for threatening to kill a suspect during an interrogation.

“I am not trying to make an excuse for my behaviour by saying that others did the same, but I don’t think I was some kind of a monster in making a death threat to a suspect,” he says. “I have overheard other prosecutors yelling at suspects and one of my bosses boasted how he kicked the shin of a suspect underneath the desk.”

Another thing he regrets – aside from making the death threat – is writing up a confession statement which did not correspond with the truth. “After I grilled the suspect for eight hours, I got him to sign this statement even though he didn’t say a single word of it,” he says. “My boss was pressuring me to get his confession so I thought I couldn’t go home without it.” For Ichikawa, it didn’t matter if it was true or false as long as he had the confession.

The fact that he lost his job for threatening to kill a suspect suggests that regulations governing interrogations are working. But while the Japanese police and prosecutors are not widely accused of resorting to more aggressive forms of interrogation such as torture, no-one outside the small interview room really knows what happens inside because suspects’ interviews take place behind closed doors – without an attorney.

Convictions in Japanese Courts

Jeff Kingston from Temple University in Tokyo also repeated the phrase that evidence is “the king of evidence.” He says that “If you can get someone to confess to a crime, the court is going to find them guilty.”

Yoshiki Kobayashi, a 25-year veteran of the National Police Agency, says that the emphasis on confessions is also because the police in Japan don’t have the same investigative powers as other countries to which they are often compared. “The police in other countries can have plea bargaining, undercover operations and wire-tapping,” he said, “so they rely on these techniques. In Japan, we are not allowed these powers so all we can do is to rely on confessions.” Included in the BBC article is an excerpt from Richard Lloyd Parry’s book “People Who Eat Darkness,” which explains this in greater detail:

Unlike a British or American court, where it is only necessary to prove the facts, Japanese courts attach great importance to motive. The reasoning and impulses which led to a crime must be proved in a court; they are a crucial factor in determining a convicted criminal’s sentence. The who, what, where and when are not enough: a Japanese judge demands to know why. A detective, then, is obliged to get inside his subject’s skull – if he fails to do that, he is not considered to have done his job. In reality the only way to do this is by obtaining a confession.

In some cases, police prefer to carry out their physical investigation only after obtaining a confession. The hope is that a suspect will disclose incriminating information unknown to the detectives, which will then be confirmed by subsequent investigation – thus making the confession all the more convincing, and allaying suspicious that it may have been obtained under duress.

If you’re still wondering how someone could confess if they know themselves that they are innocent, read through some of the full stories that I have mentioned. Maybe after you hear some of the more colourful stories of vivid-sounding threats (e.g., not just to yourself, but to your family as well) – not to mention the false convictions despite maintaining innocence – you may be more able to consider what you would do in that situation. But don’t think it’s so simple to just say “Oh well I wouldn’t buckle under that pressure.” Such a thought would be naive and misguided. We’re talking about people who have become suicidal from such incarcerations and interrogations.

Lay Judges

In 2009, a water-down version of a jury system was introduced in Japan, called saiban-in, or “lay judges” in English. Silvia Croydon from the University of Tokyo wrote an article at the end of 2011 looking at how the Japanese public’s opinion on the new system:

This article considers the reactions in Japan to the newly introduced quasi-jury system. It illustrates how first-hand experience with jury justice has transformed Japan from a country hostile to that institution to one where it is widely endorsed. This finding undermines the popular notion that Japan’s legal culture is incongruous with this democratic institution, and thus augurs well for analogous transitions being made in other East Asian countries with legal traditions similar to that of Japan. Furthermore, it underlines the reasons why those countries in the West that are letting jury trial erode should perhaps think twice about doing so.

But that doesn’t mean it’s all positive. There have been some improvements, but there have also been some unintended side-effects (such as post-trial trauma for the lay judges). So if this will indeed make a difference in the long run, it hasn’t happened yet. The Japan Times published this information in May of this year:

In the past, public prosecutors’ records of suspects’ and witnesses’ oral statements played a central role in criminal trials. After the lay judge system started, courts started to pay more attention to oral statements made and objective evidence presented during trials. In response, public prosecutors have started to disclose more evidence.

[. . .] Some citizens serving as lay judges have been exposed to evidence depicting gruesome crime scenes. In some of these cases, they’ve felt that they’ve had no alternative but to pass death sentences. So far, lay judges have handed down 17 of them.

In July 2012, lay judges at the Osaka District Court handed down a 20 year prison sentence to a man with Asperger’s syndrome, a type of autism, for committing murder even though the prosecution had only demanded 16 years. That ruling came under criticism, and the Osaka High Court later reduced the sentence to 14 years.

It’s always a good thing if there is a demand for more evidence, so this is an improvement. But as you can see, there seem to be instances where lay judges can be persuaded to make even harsher sentences. I’m not defending the murder in the excerpt above – I really can’t comment on the case – but it does suggest that if they could be convinced to make a harsher sentence, then the same might be true for a case in which the suspect is innocent. Obviously, this is not a good thing. But hopefully with time, things may change for the better.

The Bottom Line

Several years ago, I heard a lecture from a Canadian lawyer who said an interesting thing about the justice system in the west. “In our courts, the idea is that it’s better to let 100 guilty people go free than to incarcerate  one innocent person.” Clearly, this idea does not resonate in the Japanese court system.

In some places, they say “you have nothing to fear from the law if you never commit a crime.” In some of the worst places, they say “you have nothing to fear from the law if you never get caught.” But those are not enough on their own here. So in Japan, it should be said like this: You have nothing to fear from the law if you don’t get caught for a crime you didn’t commit.

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