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Considering Japanese Criminal Justice from an Original Position

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Crime and Justice in Contemporary Japan

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Abstract

The criminal justice systems of the United States and Japan are both severely flawed. While some have worked hard to present these deep-seated problems to the public, the overall situation in either country is of stalled reform initiatives and ongoing injustices.

Race underlies a difference in how reform discussions proceed in the two nations. It is at the core of what ails the system in the United States, as authors such as Professor Michelle Alexander have powerfully demonstrated. On the other hand, Japan’s would-be reformers operate in an atmosphere of widespread race obliviousness despite there being meaningful racial dynamics at play in Japan today.

This work posits that differences in public awareness of race in the two nations are salient. The piece encourages reformers in Japan to contemplate this when strategizing their efforts. To that end, discourse that deploys John Rawls’ veil of ignorance in his A Theory of Justice into the Japanese public consciousness may provide a fruitful mechanism for improving the efficacy of reform efforts there.

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Notes

  1. 1.

    Transcript of a tape recording of murder suspect Toshikazu Sugaya recorded during interrogations on December 7 and 8, 1992. Despite repeatedly recanting a confession he had given under duress in the interrogations, Sugaya was convicted and incarcerated for 17 years before being fully exonerated by modern DNA testing.

  2. 2.

    I do not have permission to share this judge’s name. However, his views match those recently published by Hiroshi Segi. Concerning the same film, Segi writes: “frankly, this movie was neither particularly shocking nor interesting for me. The reason is that any right-minded legal professional knows that the situation portrayed in the movie can happen anytime in Japan’s criminal justice system” (Segi, 2014, p. 146).

  3. 3.

    Professor Michelle Alexander’s profound work, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, a compelling and distressing account of the horrific social failure of the US system, may be the best place to begin learning more (Alexander, 2012; see also Davis, 2007).

  4. 4.

    Exceptions are vocal interests supporting stronger victims’ rights protections, described below. Another crucial exception is the important work done by the Buraku Liberation League in partnership with the International Movement Against All Forms of Discrimination and Racism—Japan Committee (IMADR-JC) .

  5. 5.

    My choice here to write “obligations” as compared to “norms” is because these are not merely matters of ethics and morality, but are directly tied to legal commitments by Japan pursuant to international human rights law, particularly its obligations under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

  6. 6.

    For example, problems concerning the adequacy of court interpretation at criminal trials for non-native speakers of Japanese.

  7. 7.

    For example, the United Nations Human Rights Committee’s action of April 15, 2013, adopting a Working Group Report with harsh criticisms of Japan on all of these issues.

  8. 8.

    The 2014 release of Mr. Iwao Hakamada after 46 years on death row became famous in the news, just as Mr. Sugaya’s exoneration after 17 years of imprisonment in 2009. It was deeply regrettable that prosecutors decided to appeal against his release, though without success to date (see Johnson, 2015; McNeill, 2016).

  9. 9.

    See also Foote (1991).

  10. 10.

    As to legislative actions in May 2016 and since, see below.

  11. 11.

    Miranda restated the rule from Escobedo and then obligated police authorities to meaningfully advise suspects of their rights.

  12. 12.

    I oppose the death penalty, but I repeat that my writing here pertains to how the death penalty is imposed and carried out in Japan, rather than whether it should continue.

  13. 13.

    The United States also misses. As a starting point, see, for example, McCleskey v. Kemp (1987) (dissenting opinions by Justices Brennan, Blackmun, and Stevens); see also The Innocence List, Death Penalty Information Center, www.deathpenaltyinfo.org (listing 159 cases between 1973 and June 1, 2017, in which innocent people were freed from death row in the United States).

  14. 14.

    “The features of the 1960s, however, made capital punishment an obvious target for an organization like the NAACP LDF, which focused on racial justice” (Blume & Steiker, 2009, p. 95, 98).

  15. 15.

    “Almost 90% of the 455 defendants executed for rape since 1930 were blacks convicted of raping white women” (Greenberg, 1994, p. 440).

  16. 16.

    Professor Alexander forcefully criticizes US mainstream civil rights organizations for abandoning criminal justice issues in recent years. “Challenging mass incarceration requires something civil rights advocates have long been reluctant to do: advocacy on behalf of criminals” (Alexander, 2012, p. 226). At the same time, her involvement and those standing with her precisely demonstrate my point that racial justice issues remain a vital entry point for criminal justice policy debates in the United States.

  17. 17.

    Another marker of difference is evident in a recent study finding support for the death penalty to be significantly lower among Hispanics (50% opposing, 40% supporting) and African Americans (55% opposing, 36% supporting) in contrast to 55% support overall (Pew Research Center, 2014).

  18. 18.

    These wrongs are also imposed on Native Hawaiians in my home state (see Office of Hawaiian Affairs, 2010; Hawai‘i Advisory Committee to the US Commission on Civil Rights, 2011).

  19. 19.

    Again, the most important exception is the Buraku Liberation League’s partnership with IAMDR-JC. Their engagement with international human rights bodies such as the United Nations Human Rights Committee represents a vital voice of civil society in these issues. More recently, there are 17 Muslim plaintiffs who sued to stop the Tokyo Metropolitan Police’s massive surveillance of over 70,000 individuals, all profiled as “suspects,” discussed in more detail below (Blakkarly, 2016; Spying on Muslims in Tokyo and New York-“Necessary and Unavoidable?”, 2016).

  20. 20.

    “I believe Japan’s Wajin-dominated racial discourse represents the epitome of majority race transparency” (Levin, 2008, p. 87). However, it is important to note that Japan also incorporates growing populations of visible minorities, and Debito Arudou’s work on this subject offers a vital contribution (e.g., Arudō, 2015). Arudou, a Japanese national, writes forcefully against racist institutional biases in Japan, including ones accomplished via civil and criminal justice processes, in both his comprehensive monograph and via a regular column in the Japan Times.

  21. 21.

    Again, one appreciates the exceptions mentioned above of IAMDR-JC, the Muslim plaintiffs in the police surveillance litigation and Dr. Arudou’s scholarship. Perhaps these give hope for positive changes to come.

  22. 22.

    It seems difficult to imagine Prime Minister Abe expressing that he could have experienced Iwao Hakamada’s life history in the way that President Obama spoke about what happened to Trayvon Martin.

  23. 23.

    This is admittedly idealistic; increasing social empathy seems to be a likely route toward better circumstances, but benefits are not guaranteed (see Bloom 2013).

  24. 24.

    “They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations” (Rawls, 1999, pp. 136–137).

  25. 25.

    This is the opening plot of “I Just Didn’t Do It” (Suo, 2006).

  26. 26.

    This began Mr. Sakae Menda’s true-life encounters with the police on January 13, 1948, leading to his wrongful conviction and 33 years of incarceration on death row until being completely exonerated on July 29, 1983, the first of Japan’s four famous death penalty retrial cases of the 1980s (Foote, 1992).

  27. 27.

    Perhaps one measure of the movement’s reach is its 239,000 followers on Twitter.

  28. 28.

    Taking quick counts, the book has been cited in 1141 law review and journal articles, 17 judicial opinions, and drawn nearly one million views on YouTube to Professor Alexander’s talks and online documentaries considering her work.

  29. 29.

    In the leaked documentation from the Tokyo Metropolitan Police, all 70,000 profiled individuals were listed as “suspects.” In other words, TMP criminalized an entire minority community on the basis of their religious affiliation (Id.).

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Authors and Affiliations

  1. William S. Richardson School of Law, University of Hawai‘i at Mānoa, Honolulu, HI, USA

    Mark A. Levin

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  1. Mark A. Levin
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Correspondence to Mark A. Levin .

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Editors and Affiliations

  1. Department of Social Sciences, University of Macau, Taipa, Macau, China

    Jianhong Liu

  2. Hastings College of the Law, University of California, San Francisco, California, USA

    Setsuo Miyazawa

Additional information

Mark A. Levin, Professor of Law and Director, Pacific-Asian Legal Studies Program, of the William S. Richardson School of Law, the University of Hawai‘i at Mānoa, Honolulu, Hawai‘i, United States. Thanks to Professors David Johnson and Lawrence Repeta for thoughtful comments on an earlier draft of this article. Of course, any errors or omissions are mine. This article is dedicated to the memory of Justice Shigemitsu Dando, a courageous campaigner for criminal justice in Japan. I treasure my autographed copy of his Shikei Haishi Ron.

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Levin, M.A. (2018). Considering Japanese Criminal Justice from an Original Position. In: Liu, J., Miyazawa, S. (eds) Crime and Justice in Contemporary Japan. Springer Series on Asian Criminology and Criminal Justice Research. Springer, Cham. https://doi.org/10.1007/978-3-319-69359-0_10

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  • DOI: https://doi.org/10.1007/978-3-319-69359-0_10

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