Abstract
Few people convicted of crime have been exonerated in Japan, leading some commentators to claim that the country does not have a problem with wrongful convictions. But this view is mistaken. Japan’s wrongful conviction problem is probably much larger than it appears. Criminal suspects in Japan have a duty to receive interrogation even after they have invoked their right to silence, leading to long and intense questioning that can overbear their will. On average, interrogations in Japan last 30 to 50 times longer than interrogations in the USA. Japan also detains many suspects who do not confess, and restricts their meetings with family and friends, thereby raising the risk of false confession and wrongful conviction. This system of Hostage Justice is enabled by Japanese law and by Japanese courts especially. Japan needs to tame its interrogation practices, which will continue to produce high risks of false confession until its judiciary acknowledges that it is dangerous to permit police and prosecutors to question suspects for dozens or hundreds of hours.
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Notes
In recent years, some death row inmates in Japan have been hanged while petitioning for retrial. For a summary of retrial cases and an analysis of how “the dangers of wrongful conviction are buried in Japan’s 99.9% conviction rate,” see Maruyama (2021).
Japan experienced an unofficial 40-month moratorium on executions from November 1989 to March 1993 (Johnson & Zimring, 2009, pp.45–101). Then, from 1993 through 2021, Japan executed 133 people, all by hanging. Over the same 29-year period the country’s 50 District Courts sentenced well over 200 people to death. As of March 2022, a total of 109 inmates were under a finalized sentence of death.
There is also the magazine Enzai File (“False Charges File”), which focuses on wrongful convictions and has published 32 issues since 2008.
Takano’s (2007) estimate of 1500 wrongful convictions per year relies on assumptions that are not unreasonable. He made it shortly before Japan’s lay judge reform took effect, when 1500 wrongful convictions would have been approximately 1% of the cases in which prosecutors requested pretrial detention for criminal suspects each year (Takano, 2021, p. 17). In the United States, “the conventional view” is that for violent crimes the wrongful conviction rate is “at least 1% and perhaps as high as 4% or even more,” but critics of the conventional view contend that the rate is 16 to 62 times lower– “somewhere in the range of 0.016%-0.062%” (Cassell, 2018, p.815). For all crimes in the USA (including lesser offenses such as theft and drug crime), one “upper bound” estimate of the rate of wrongful conviction is 6% (Loeffler et al., 2019).
A related feature of Hostage Justice is the place of detention. Investigators often detain suspects in police holding cells (ryuchijo) instead of official detention centers (kochisho), thereby making it easier for police to interrogate (Croydon, 2016). This “substitute imprisonment” (daiyo kangoku) system has long been criticized as a “hotbed of false confessions” (Igarashi, 1984).
In response to domestic and international criticism, Japan’s Ministry of Justice has published (in Japanese and English) 14 “Frequently Asked Questions on the Japanese Criminal Justice System” (Homusho, 2022). Several of the questions concern detention, bail, interrogation, and other issues related to Hostage Justice, but on the whole the Ministry’s answers are thin and unpersuasive, for they frequently rely on non-sequiturs, general assertions about what the law supposedly requires, and the confusion of “is” and “ought” statements. The Ministry’s replies also fail to mention some of the most troubling features of Japanese criminal justice, including the “duty to receive interrogation,” which is the main pillar of Hostage Justice (Takano, 2021).
This section focuses on the length of interrogation and the pressures to confess, but as in the USA (Leo, 1996b), psychological manipulation and deception are also common in Japan. In 2001, the National Police Agency’s manual of “Guidelines for the Interrogation of Suspects” was inadvertently leaked to the internet from a police computer in Ehime prefecture. It included instructions such as: “It is a one-to-one contest”; “Do not leave the interrogation room until you obtain a confession”; “If the suspect denies the charges, keep him in the interrogation room from morning till night (this also weakens the suspect)”; and “If you get into the suspect’s head quickly, your victory will be that much sooner” (quoted in Croydon, 2016, pp.136–137). Accounts by people who have been interrogated by Japanese prosecutors report similarly “abusive” and “malicious” practices (Ezoe, 2010; Johnson, 2002, ch.8).
In 2019, recording interrogations became mandatory for some serious cases, but the vast majority of interrogations are still not recorded (Japan Times, 2019).
For analysis of how false confessions were obtained from six citizens in a vote-buying case in Shibushi, see Nihon Bengoshi Rengokai (2008). One confession was extracted after 17 days of interrogation that lasted more than 10 h each day, and other suspects were interrogated for hundreds of hours each. In the end, all the defendants were acquitted when the trial court concluded that their confessions had been fabricated and coerced (Onishi, 2007).
The best account of police interrogation in Japan remains Miyazawa (1992), whose study was reviewed by Foote (1993a). In Foote’s view, “the Japanese police routinely engage in aggressive investigations, often accompanied by long and intense interrogation of suspects, and at times utilize techniques of at least questionable legality in achieving their aims.” But Foote also said “Japanese police for the most part carefully observe the existing procedural standards and truly attempt to conform their behavior to the law, as it has been interpreted by the courts, without seeking to push every judicial precedent to the limit” (Foote, 1993a, pp. 425–427). In Takano’s (2021) view, “the law” and “existing procedural standards” are the core problem, for they enable and legitimate detention and interrogation practices that are coercive and disrespectful of human dignity and rights.
For a personal account of interrogation in Japan from the perspective of a corporate executive who was convicted of white-collar crimes, see Ezoe (2010).
To help secure the right against self-incrimination, Japan’s Miranda Association (Miranda no Kai) recommends three strategies for the criminally accused: do not talk to interrogators without a defense counsel present; do not sign any statements (chosho) until the defense counsel has reviewed them; and contest the admissibility of statements that are obtained in violation of the first two recommendations. Some police and prosecutors criticize defense lawyers who employ these strategies for allegedly failing to contribute to “finding the truth” and for “obstructing the investigation” (Takano, 2002, pp. 130–133). The push for a “Miranda for Japan” has also been questioned by scholars who believe “it is hard to imagine how a Miranda-like warning and waiver regime could possibly succeed in Japan” because such a regime “would have to be linked to a massive reform of other rules of criminal procedure, such as the duty to submit to questioning or the laws permitting police to interrogate a suspect for 23 days continuously per offense, outside of the presence of counsel” (Leo, 2002, pp. 216–217).
These “what if” estimates are conservative in two ways. First, false confessions can also occur on the first day of interrogation. Second, the 8193 cases in the Ministry of Justice survey constitute a small proportion of all the suspects who get interrogated in any given year. Japanese prosecutors ask courts to detain approximately 100,000 persons per year (Takano, 2021, p. 17), which can be taken as a rough estimate of the number of people who are interrogated for serious crimes each year. But this number is a lower bound, for most crimes are not serious, and most interrogations are not for serious crime.
In 2010, after the Asahi newspaper revealed that prosecutors had tried to frame an elite bureaucrat (Muraki Atsuko) by forging a floppy disc (Kingston, 2011), a survey of 1300 prosecutors found that 26% of them had been ordered by a superior to compose a written statement that differed from what a suspect or witness had actually said (Johnson, 2012, p. 63).
One scholar has observed that in the United States, “Something like 50 people are involved in every wrongful conviction: the police, the prosecutor, their investigators, the judge, the jurors, the appellate judges. It’s staggering. They all missed the fact that the defendant was innocent” (Richard A. Leo, quoted in Leviton, 2017, p.15). In Japan, too, dozens of people participate in the production of each false confession and wrongful conviction. Isa Chihiro (1983) found that Menda Sakae stood 19 times before a total of 65 judges who reviewed the murder accusations against him, and 51 of the judges approved his sentence of death. Menda was condemned to death in 1949 and exonerated at a retrial in 1983.
In addition to these plea bargaining problems, Scheffler (2022a) argues that Ghosn himself was tortured, as were three American defendants in related cases: Greg Kelly (Ghosn’s former colleague at Nissan), and the father-and-son team of Michael and Peter Taylor, who helped Ghosn escape from Japan to Lebanon. Kelly and both Taylors have been convicted. For a series of articles describing other problems in these cases, see Scheffler (2022b).
Police in Japan use arrest less often than police in other societies partly because Japanese law enables them to obtain the “voluntary” cooperation of suspects in ways that are actually coercive (Miyazawa, 1992).
Japanese criminal justice is cautious in many respects, but not with respect to death sentencing. Rhetorically, almost everyone associated with capital punishment in Japan claims that life-and-death decisions should be made as “carefully” (shincho) as possible, but the institutional and procedural reality is that capital cases are treated much the same as other criminal cases. In law and practice, death is not “different” in Japan, and death sentencing per homicide is as frequent there as in some of the most aggressive death penalty jurisdictions in the USA (Johnson, 2019, pp. 25–51).
Abolishing “the duty to receive interrogation” would mean overturning a 1999 decision by Japan’s Supreme Court which holds that requiring detained suspects to endure interrogation does not violate a provision of Article 38 of the Constitution, that “No person shall be compelled to testify against himself.” Takano is scathingly critical of this decision (Takano, 2021, pp. 141–144 and pp. 259–263).
This is Takano’s most questionable reform proposal, for more “hostages” might be taken if release on bail is forbidden to defendants who confess while bail remains rare for those who do not. A related issue concerns the common judicial practice of allowing “time served” by suspects in pretrial detention to be applied to the sentence they receive after conviction (see Horitsu Jimusho Shiriusu, 2021, on “miketsu koryu nissu sanyu”). Some analysts believe this practice creates a perverse incentive for judges to detain suspects since the detention period can be subtracted from the sentence if the defendant is convicted—as almost all are. This is a difficult issue. On the one hand, many suspects are never charged, and about twice as many defendants receive a suspended prison sentence (shikko yuyo) as a term of imprisonment (jikkei). For suspects who are not charged and defendants who are not imprisoned, the “time served” discount brings no benefits. On the other hand, pretrial detention is certainly experienced as punishment by many detainees. In my view, since it feels like punishment and functions like punishment, Japanese courts should continue to treat it as punishment, which they have discretion to do (Penal Code, Article 21). On the reluctance of American courts to regard pretrial detention as punishment, see Hessick, 2021, pp. 66–70.
Hearings in open court are important because, as Jeremy Bentham observed, “Publicity is the very soul of justice… It keeps the judge himself, while trying, on trial.”.
The tendency to deny criticism is strong among police and prosecutors in Japan (Sasakura & Johnson, 2020), and it is also strong among Japanese judges, who are trained to believe that “even if new scientific evidence proves that the outcome of a criminal trial was wrong, the judges are not to be blamed” (Vanoverbeke, 2022).
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Acknowledgements
For helpful advice the author thanks Takashi Takano, Makoto Ibusuki, Kana Sasakura, Dimitri Vanoverbeke, and Richard A. Leo, and for financial support he thanks the Center for Japanese Studies at the University of Hawaii at Manoa.
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Johnson, D.T. Hostage Justice and Wrongful Convictions in Japan. Asian J Criminol 17 (Suppl 1), 9–32 (2022). https://doi.org/10.1007/s11417-022-09384-5
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DOI: https://doi.org/10.1007/s11417-022-09384-5