Falling Conviction Rates in Japan

The Supreme Court said Monday that 2.9 percent of defendants who pleaded not guilty to criminal charges were found innocent at their initial trials in 2007, marking the highest level in a decade.

– ‘Innocent rate’ rises to highest in decade, The Japan Times, Tuesday, June 3rd, 2008

The above quote summarises the progress of legal change in Japan, a country renowned for its incredibly high conviction rate in the region of 99.9%. Note that the 2.9% mentioned above by no means leave a conviction rate of 97.1%: the statistic refers to the rate of people found innocent after having pleaded not guilty.

District courts handed down rulings on 69,238 defendants last year, of whom 4,984 denied the charges against them as their trials opened.

Of the defendants pleading innocent, 97 were found fully innocent and 48 partially innocent. Among their trials were 896 serious cases, such as murder and arson, that will require the involvement of citizen judges. In the serious category, 19 of the defendants were found completely or partially innocent.

The 4,984 denial cases represent just 7.2% of the total cases brought to court. The 145 defendants that were found fully or partially innocent represent only 0.21% of the total cases brought to trial. Thus Japan can be said to have a conviction rate of 99.79%. When seen this way, this news hardly seems spectacular, despite urgings to the contrary:

The so-called innocent rate at the initial trial level was up from 2.6 percent in 2006 after hovering above 2 percent since 2003, according to the Supreme Court’s Criminal Affairs Bureau. It hovered between 1.2 percent and 1.9 percent from 1998 to 2002.

The 0.3% difference between 2006 and 2007, based on 4984 denial cases, translates into just over 14 extra people being let off.

I just finished watching Sou Masayuki’s Soredemo, Boku wa Yattenai starring Kase Ryo and Yakusho Koji. For me, this movie and more particularly its reception represents the culmination of pressure movements against the Japanese legal system. The movie is as much a criticism of the system as any of the Phoenix Wright (Gyakuten Saiban) games – which present very bleak pictures of the flaws in the system: an overly powerful prosecution, biased judges and police, and flawed evidence presentation procedures.

Returning to the movie, it is the story of a false accusation of molestation aboard a train. In this crime there are two victims: the woman who was actually molested, and the man whose life is ruined by her misidentification of him as the culprit. It is this man’s refusal to accept this charge that sets him up against the system as Sou masterfully exposes the flaws of the Japanese justice system.

“As a Japanese citizen, I was very angry to find that such injustice exists in this society. But even though I lived in Japan, I didn’t know this, and I think many others don’t know about it, either,” Suo said. “And having recognized this, I couldn’t just go on with life as if I didn’t know anything about it.”

– ‘I Just Didn’t Do It’ questions court system, The Japan Times, Friday, February 2nd, 2007

I can recommend this movie to anyone for any purpose. It is great entertainment as well as a great insight into both the Japanese style of power and the minutiae of the justice system.

To summarise the problem at hand, I want to leave you with the conclusion to a paper by J. Mark Ramseyer and Eric Rasmusen entitled ‘Why is the Japanese Conviction Rate so High?’ (1999):

Japanese courts convict. Courts convict in America too, of course, but in Japan they convict with a vengeance: over 99 percent of the time. Even in cases where the defendant contests his guilt, they convict over 98 percent of the time. Are courts convicting the guilty and innocent alike, or are prosecutors merely choosing the guiltiest defendants to try? Absent independent evidence of the guilt of the accused, one cannot directly tell.

In this article, we pursue indirect evidence on point. First, Japanese prosecutors are woefully understaffed. Tied as they are to a severe budget constraint, one might expect them to try only the most obviously guilty. Unbiased courts would then convict. The conviction rate would
approach 100 percent, but only because most of the defendants were guilty. […]

Are Japanese courts unbiased? Initially, Japanese judges seem to face significantly biased incentives: judges who acquit seem more likely to suffer a career penalty than those who convict. Yet a closer look at the judges punished for their acquittals suggests a classic omitted-variable problem — and returns us to our hypothesis about prosecutorial resources. The acquittals that generate apparent punishment are sometimes cases where judges sided with opposition parties in politically charged cases, and otherwise cases where the judge may simply have interpreted the law wrongly. Never are they cases where the judge decided that the prosecutors simply brought the wrong man. Instead, we know from other studies that the Japanese courts generally reward politically reliability and intelligence — and the observed punishment may simply reflect that broader phenomenon.

A Brewing Storm…

The United States’ lack of real regard for the Japanese conduct of the abduction issue, or perhaps Japan’s hyper-sensitivity on the issue, is causing fractures in the US-Japan alliance.

The US has been linked to the abduction issue since it exploded into the Japanese public consciousness in 1997. The issue supposedly caught Clinton off-guard in an April 1997 summit; as Clinton asked the Japanese to provide food aid to the North Koreans, Prime Minister Hashimoto stated the new Japanese concern regarding North Korea’s abductions. The 1998 ‘Taepodong Shock’ showed the Clinton administration, and the rest of the world, that diplomacy with North Korea had to concentrate on North Korea’s destabilising missile and nuclear projects.

President Clinton argued in May 1999 that the best way to deal with the kidnapping issue was to settle the nuclear and missile issues and end the threat of war on the Korean peninsula. He asserted that once these issues were resolved, “it is more likely that other matters will also be resolved.” Unlike 1997, however, the Clinton administration recognized the credibility of the kidnapping issue. President Clinton and other administration officials acknowledged that Japan considered the issue important and that the United States would support Japan’s attempts to negotiate with North Korea on it. Clinton asserted again in May 1999 that: “If you believe that there are Japanese people who were abducted and taken to North Korea, I think you should keep working on it and looking until you find them alive or you know where they’re buried. And I will support that very, very strongly.”

Niksch, L. A. (2002). North Korea and Terrorism: The Yokota Megumi Factor. Korean Journal of Defense Analysis , 14 (1), 7-23: pp. 12-13

The position expressed by Clinton has stuck to this day. As a staff member of the US Embassy in London once told me in early 2007, Japan is America’s chief ally in the Asia-Pacific and the US supports its position on the abduction issue, however the issue is Japan’s not America’s, the US has its own interests to pursue. It’s a diplomatic stance, but in practice the US has sought to minimise the effect of Japanese stubbornness on the abduction issue.

Following the 1999 Perry Initiative, which “outlined a US strategy to negotiate a series of agreements with North Korea to reduce its missile and nuclear programs and eventually eliminate them” (Niksch, 2002, p. 13), the US attempted to secure a Japanese financial agreement to compensation (compared to money transferred during the South Korea-Japan normalisation of relations) without allowing them a negotiating role, presumably because of fears of derailment.

North Korea, at this point, presumably saw a diplomatic opening and entered into direct negotiations with the Japanese. North Korea has never been shy of playing powers off one another and with a possible agreement arising out of the Perry Initiative, North Korea possibly saw a chance to boost their ‘compensation’. However, this was not to be: “Kim Yong-sun’s offer created a situation in which Japan’s role in the Perry Initiative became dependent on direct Japan–North Korean negotiations in which Japan was determined to give priority to the kidnapping issue.” (Niksch, 2002, p. 16)

As the Japanese found their opening to directly negotiate on the abduction issue, the North Korean’s attempted to convince the US to remove it from the list of state sponsors of terrorism, an action that the Clinton administration seemed to seriously consider. As part of the diplomacy, the North Koreans would have to ‘address issues of past support of terrorism’ which, despite the abduction issue not being the reason for North Korea’s inclusion on the list, would have to include consultations with Japan regarding North Korea’s support for the Japanese Red Army. (Niksch, 2002, p. 17)

All the while, the Japanese campaigned to have the US include the abductions in North Korea’s listing, and threatened to undermine US attempts to separate the rational efforts to resolve the missile and nuclear issues from the emotive abduction issue.

Prime Minister Mori reportedly secured President Clinton’s agreement at the G-8 meeting on Okinawa in July 2000 for US diplomats to raise the kidnapping issue with North Korea. Japanese diplomats urged the Clinton administration to raise the issue directly with the visiting North Korean envoy, who arrived in Washington in October 2000. The Japanese renewed pressure for Secretary of State Madeleine Albright to place the issue on her agenda with North Korean officials when she visited Pyongyang in late October. The Japanese apparently used strong words with US officials, indicating that the Japan-US alliance would be damaged if the Clinton administration refused to raise the kidnapping issue. The Japanese daily Asahi Shimbun reported on October 8, 2000, that “Japan views that if the United States removes the DPRK from the [terrorism] list without paying attention to the abduction issue, it would mean the United States is taking Japan lightly.”

Niksch, 2002, p. 20

Albright did bring up the issue in her visit and in doing so helped solidify Japanese expectations that the US would support its position in the future. This perception was undoubtedly strengthened under the Bush administration. In February 2001, Deputy Assistant Secretary of State Thomas Hubbard met with the Kazokukai and pledged continuing US support for their cause. This meeting sidestepped the Japanese Mori government, whom the Kazokukai felt had betrayed by after a 500,000 tonnes rice aid deal despite Mori Yoshiro’s personal promise that progress towards normalisation would not occur without progress on the abduction issue. Nakayama Masaaki, leader of Nitcho giren (Dietmen’s League for the Promotion of Japan-North Korea Friendship) and of a parliamentary group on the abduction issue, was furious at the Kazokukai’s independent move. (Johnson, E. (June 2004). The North Korea Abduction Issue and Its Effect on Japanese Domestic Politics. Japan Policy Research Institute) However, it was the start of a strong relationship between the Bush administration and the actors in the abduction issue, benefiting strongly from the close interpersonal relationship between Bush and Koizumi Jun’ichiro.

Japan’s involvement in post-war Iraq was inherently tied to both the strength of this personal relationship and Japan’s concerns over North Korea. ‘In February 2004, [Koizumi] declared that it was of overwhelming importance for Japan to show that it was a “trustworthy ally,” because (as he put it) if ever Japan were to come under attack it would be the US, not the UN or any other country, that would come to its aid’. (McCormack, G. (November 8 2004). Koizumi’s Japan in Bush’s World: After 9/11. Japan Focus) If any state was about to attack North Korea, it was North Korea. One Cabinet Office survey showed that 80% felt war with North Korea was likely. Japan was clearly frightened of abandonment by the US over North Korea. (Yakushiji, K. (April 5 2003). Japanese Foreign Policy in Light of the Iraq War. Japan Focus) However, Koizumi’s gamble appeared to pay off: “Bush declared his own “unconditional” support for the Japanese position on the families of the North Korean abductees. […] It was, as a senior [LDP] official admitted, a deal: Japanese forces to Iraq in exchange for US support for Japan’s position on North Korean issues. (McCormack, 2004)

For the US, the abduction issue offered yet more ammunition to pressure North Korea on its human rights issue. In 2006, Abe Shinzo helped tighten the US interest in the abduction issue (beneficially coinciding with a major documentary into the human drama of the issue: Abduction – The Megumi Yokota Story). (Hughes, C. W. (2006). The Political Economy of Japanese Sanctions towards North Korea: Domestic Coalitions and International Systemic Pressures. Pacific Affairs , 79 (3), 455-481: p. 473) In March, Ambassador Schieffer visited Niigata to be given a tour of Yokota Megumi’s final walk home. In a press conference after the tour, he stated ‘the United States would always raise the abduction issue whenever it talked to North Korea about anything’, and ‘that there can be no comprehensive resolution with North Korea without a solution to the abduction issue’. In April , Yokota Sakie (mother of Yokota Megumi and representative of the Kazokukai) and Shimada Yoichi (representative of the Sukuukai) travelled to the US to testify to Congress ahead of the North Korean Human Rights Act. Yokota also met with President Bush who called it ‘one of the most moving meetings’ of his presidency, an impression that has lasted.

Following North Korea’s July Taepodong-2 test, Abe’s rise to office, and the October nuclear test, the US appeared prepared to reaffirm its priorities: missiles and nukes first, everything else later. However, the US were still willing to allow Japan to pressure North Korea on the issue, as Japan was adopting an increasingly hardline under Abe. The human rights issue was a legitimate concern for the world and any pressure was good pressure. With this in mind, the EU submitted a draft resolution on North Korea’s human rights record to the UN General Assembly, co-sponsored by Japan and the US, the latter of whom had received some pressure to work to push the bill through by the Kazokukai in the form of a personal visit to Ambassador to the UN, John Bolton. Yet with the release of the 13 February 2007 Joint Statement, which offered a great deal of optimism in the Six-Party Talks, the US sought to pressure Abe to be more specific about just what progress entailed.

Japan’s stubbornness on the abduction issue threatens the worth of its role in the Six-Party Talks. After the negotiations on the release of funds from the Banco Delta Asia finally came to fruition, the US clearly didn’t want to squander this new found energy. Japan’s refusal to allow for bargaining room in the SPT has meant that it is inflexible. To their minds, the North Koreans have been rewarded enough for their bad behaviour. However, now “under the terms of the six-party deal on North Korea’s nuclear programs, the U.S. is committed to beginning the process of delisting the country [from the list of state sponsors of terrorism] as Pyongyang moves ahead with its denuclearization obligations“.

What does this mean? It means that Japan is facing the possibility of being abandoned and essentially betrayed by the US due to a disconnect in their national interests. It means that when push comes to shove, the US cannot be trusted to support Japan. While Bush deals with the question of his legacy, he seems willing to burn his bridges with those that he had seemed so supportive of before. A storm is brewing, and how much damage will occur is anybody’s guess. It may be the clearest test of the popular and political importance of the abduction issue in Japan we can ever see.

Burakumin

This post will be a reader on the Burakumin, the underclass of Japanese society. It unfolds a lot like the Wikipedia article on the subject, but I assure you, I came to it independently! I will begin by discussing who and what are the Burakumin. I will then examine the discrimination against them, past and present. I will end by discussing the traps of the modern society in which they find themselves, and then discuss the hopes for the future. A lot is written about the Japanese and their attitudes towards foreigners and their claims to homogeneity. However, we often forget to consider that there are even those ethnically, politically and culturally Japanese who are discriminated because of their birth. Like returnees, the Burakumin are from the inside, looking in (to steal Fukumimi‘s by-line).

Japan’s Other Abduction Issue

When one looks into the abduction issue between North Korea and Japan, one cannot help but come across the campaigns by the Children’s Rights Network of Japan. Japan has not ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Furthermore, it has little domestic legal infrastructure to make up for this.

The problem is a serious one. Child born of international marriages can be abducted by their Japanese parent to Japan and their foreign parent has no means to fight for custody (as joint custody is not permitted in Japan). The Japanese courts do not uphold foreign court orders in such cases either. In addition, in the event of a divorce, the foreign spouse loses his rights to a spouse visa and is thus forced to leave the country, with little chance of seeing his child again.