The criminal justice system in Japan has for decades been characterized by an aura of infallibility supported by an extremely low crime rate. Miscarriages of justice were hardly an issue in the wake of the high degree of professionalism and the rigorous approach of prosecutors and judges alike in what is known as “seimitsu shihō” (precise justice), the long and detailed examination of suspects. Yet the myth of infallibility suffered a severe blow in the 1980s. Flaws were being exposed. New science, for example, made it undeniable that four convicts who had confessed and awaiting execution for several decades, could not have committed the murders that had led to their convictions. One of the foremost experts on criminal procedure in Japan, University of Tokyo professor Ryūichi Hirano (Reference Hirano1985, 129), famously assessed in 1985 that the Japanese criminal justice system was “rather abnormal, even diseased (byōteki),” as the criminal court is “simply an institution to check the prosecutors’ determination of guilt ‘for good measure’” (131). Hirano concluded that only the adoption of a lay judge or jury system could bring a way out of the traditional scripts of these “hopeless” criminal trials (142).
In the second half of the 1980s, the media also began paying attention to the unwillingness of judges to recognize fallacies and weaknesses in the system in a more general societal mood for change driven by a discourse that Japan needed to move away from state-led paternalistic protection to promote a more individual and critical mindset. All these changes, together with an initiative begun at the end of the 1980s by Kōichi Yaguchi, chief justice of the Supreme Court of Japan, to investigate trials by jury in other countries, has steered the discourse on reforms in a direction that is more transparent and is involving the participation of lay people in criminal trials.
Gradually, the challenges to the criminal justice system, in particular, and to the legal system, in general, has resulted in a build up toward a window of opportunity for drastic changes in Japan’s judicial system (Vanoverbeke Reference Vanoverbeke2015). The socioeconomic crisis of the 1990s—the so-called lost decade—added to the momentum, and the outcome was written down in a final report drafted by thirteen members of a policy council and handed to the government in June 2001. The government decided to implement all the recommendations and follow the title of the report—namely, “Justice to Support Japan in the 2lst Century.” Some of the content was quite spectacular. The traditional training of professionals (lawyers, prosecutors, and judges), which was until then very much controlled by the Supreme Court and monopolized by the Legal Research and Training Institute (LRTI) in Tokyo, was decentralized in 2004 in American-style law schools all over Japan. Another spectacular reform that was suggested in the report and implemented in May 2009 was the introduction of a mixed jury system. This mixed jury trial has been in operation for about twelve years, and the question is whether it has changed the script of criminal trials in Japan.
This question has been central to many recent publications on law and society in Japan (Foote Reference Foote2014; Wilson Reference Wilson, Ageishi, Ōtsuka, Musashi and Hirayama2017; Johnson and Vanoverbeke Reference Johnson and Vanoverbeke2020; Vanoverbeke and Fukurai Reference Vanoverbeke, Fukurai, Sanja Kutnjak Ivković, Hans and Marder2021). Fortunately, the book under review is not just another take on how the lay judge system operates. The lay judge system has attracted most of the scholarly (and non-scholarly) attention, while the role of other non-legal professionals, though they have played an important role in the script of criminal trials in Japan, has been neglected. Erik Herber’s (2019)Footnote 1 book explains the lesser-known reforms related to the role of a diverse group of “outsiders” in Japan’s criminal process—notably, forensic psychiatrists, social workers, victims, forensic scientists, and lay judges. Herber explains the path to these reforms – history matters – and he focuses on their content before turning to how these non-professionals of law actually operate based on sound empirical work and a thorough review of primary sources. “How and why do outsiders’ contributions affect, or fail to affect, the legal decisions ultimately taken?” is the specific question that he tackles in this fascinating book (1).
Herber’s book is theoretically sophisticated in that it analyzes the contributions of outsiders in terms of tensions and balances between Michel Foucault’s (Reference Foucault and Sheridan1978) perspective on the need for constant reinscription in non-juridical systems in the criminal justice system, and Nicolas Luhmann’s (Reference Luhmann and Teubner1987) perspective on the autonomy of legal systems. His nuanced application of Japan’s reforms in the criminal justice system in a larger socio-legal framework is novel and refreshing. The book is also empirically well researched, including the results of many interviews with stakeholders over a seven-year period. He also carefully reviewed the transcripts of 363 meetings to uncover the exchange opinions between lay judges and judges in Japan’s district courts as well as in many meetings between legal professionals and representatives of victim groups. Furthermore, Herber carefully reviewed the meeting records of the Justice System Reform Council and consulted many primary materials, which shows not only his expertise on the topic of research but also his high level of proficiency in Japanese. Overall, this book is innovative, rigorous, balanced, and provides a unique insight into the dynamics of the criminal justice system in Japan.
THE COMPLEXITY OF THE CRIMINAL PROCESS: PUNITIVENESS AND REHABILITATION
The analysis of the role of outsiders in Japan’s criminal procedure has led to “a collaged picture” that does not necessarily result in one coherent trend (Herber Reference Herber2019, 31). The roles of forensic psychiatrists, social workers, victims, forensic scientists, and lay judges have their own dynamics. Nevertheless, they operate in a common domain that is mainly concerned with the preservation of social order and safety and informed by social forces such as public discourse. In Japan in the 1990s, for example, the public asked for harsher sanctions for convicted criminals as a result of a growing common perspective that society was no longer safe. On the other hand, around the turn of the century, concern with the rapidly climbing rate of recidivism resulted in more attention for effective avenues to rehabilitate offenders in society. This combined focus in Japan’s criminal justice policy is in line with Marc Ancel’s (Reference Ancel and Wise1987) famous concept of defense sociale. Tensions arose between these various streams of ideas. They impacted the policies and practices that were mediated by non-legal professionals cooperating with insiders in Japan’s criminal process.
Forensic Psychiatry
Criminal responsibility for people suffering from mental illness is one of the complex issues that has been impacted by a process of change well before the judicial reforms that were introduced at the beginning of the twenty-first century. Recently, only between one and ten defendants are found not guilty by reason of insanity each year out of more than fifty thousand people adjudicated in court (Herber Reference Herber2019, 36). Where has the mentally disturbed offender gone? Before the Second World War, a forensic psychiatrist decided whether the suspect was criminally accountable or not. Once the psychiatrist labeled the suspect mentally disturbed, the prosecutor and judge would accept this diagnosis almost automatically. This process changed after the war with the 1950 Act on Mental Health and Welfare for the Mentally Disabled.Footnote 2 The criteria that judges used in this respect were elaborated in a 1984 decision by the Supreme Court in a case involving a former naval officer who had murdered five people and who was diagnosed separately by five psychiatrists as suffering from schizophrenia. The Supreme Court ruled that “[p]sychiatrist diagnosis does not automatically translate into a finding of diminished or no criminal responsibility” (qtd. in Herber Reference Herber2019, 46).
In this important decision, the Supreme Court provided criteria for judges to assess whether the defendant was able to distinguish right from wrong and implicitly consolidated the principle that judges can legally assess criminal responsibility. The development of penal populism in the 1990s with an outcry for harsher punishments accelerated the trend to recognize criminal responsibility of people diagnosed with some form of mental illness. The advent of the lay judge system also added to the societal attention for severe sanctioning and contributed to the virtual disappearance of mentally disturbed offenders (Herber Reference Herber2019, 35). Do lay judges contest professional judges in their assessment of criminal responsibility of people diagnosed with a metal illness? The answer is no. Most lay judges find that an understanding of expert medical knowledge (diagnosis) and of expert legal knowledge (criminal responsibility) is above their heads. As a result, lay judges often take a rather defensive position in order to avoid disrupting continuity with past trends, and this observation has also occurred with respect to mentally disturbed accused. The off-stage or pre-trial stage, however, offers a different picture. In their investigations, prosecutors will more often accept the diagnosis of forensic psychiatrists in a closed setting away from public scrutiny.
Social Workers
The fact that outsiders have a more important impact on Japan’s criminal justice system when they are not that visible also becomes clear from the role that is played by social workers. Reforms to the role that social workers can play in the criminal justice system have not often been the focus of attention by scholars of law and society in Japan. Nevertheless, it is key in understanding the government’s concern since the beginning of the century to “restore Japan’s status as the safest country in the world,” as Prime Minister Junichiro Koizumi announced in 2003 following the creation of the Cabinet Crime Committee. Direct concern lay with the high rate of repeat offenders, who are responsible for more than half of all crimes committed each year in Japan. Structural problems, the absence of a safety net, and the high number of mentally disabled offenders are at the core of the problem.
In recent years, prosecutors have been increasingly requesting advice from social workers for their decision whether to indict or not. These prosecutors have taken a more rehabilitation-oriented approach, which was also mandated in 2011 in the new version of the Principles of Prosecution.Footnote 3 As a result, prosecutors increasingly divert suspects from criminal trials and focus on rehabilitation in collaboration with social workers. Herber (Reference Herber2019, 147) correctly points at the complex and dual role played by prosecutors. On the one hand, they are one of the parties in the adversarial procedure, but, on the other hand, they play a magistrate-like role. Once the trial stage is reached, social workers contribute to the decision-making process by, for example, submitting a rehabilitation support plan that is used for a decision on how to sentence. Crime prevention and support at this stage often relies on volunteers, notably volunteer social workers and volunteer probation officers who are members of local communities. Herber rightly questions the sustainability of this approach as the average age of volunteer probation officers is now sixty-five, and funds to support this approach are depleted (95).
Victims’ Representatives
While rehabilitation is increasingly given priority in the criminal justice system, the punitive approach remains dominant. One of the reasons for this situation is the impact that this approach has on the criminal procedure of victims. This procedure is the outcome of a gradual process, beginning with the growing international attention for the rights of victims and their compensation and including important domestic incidents with a high number of victims like the sarin gas attack on the Tokyo subway in 1995. As a result, in 1998, the National Network of Victim Support was established, followed in 2000 by the National Association of Crime Victims and Surviving Families. Pressure increased on the Japanese government to initiate reforms to develop care for the victims in a new approach directed at “therapeutic jurisprudence” (Herber Reference Herber2019, 115). In 2004, the Basic Act on Crime Victims emphasized the role of criminal justice for the recovery of victims, giving victims the opportunity to make a statement in court.Footnote 4 Then, in 2008, the government established the “victim participation system” for serious offences, providing the victims with extensive opportunities to participate in fact finding as well as in sentencing, including the possibility to question witnesses in court. In practice, while prosecutors try to keep tight control on the process, for example, by organizing frequent meetings with the victims or their representatives to rehearse their intervention in court, the trial stage can get quite emotional. Victims can demand a punishment that is different from what the prosecutor demands, sometimes resulting in a demand for very severe sentences including the death penalty (Johnson and Vanoverbeke Reference Johnson and Vanoverbeke2020). The Japan Federation of Bar Associations is worried that these increasingly emotional courts will make it very difficult for attorneys to defend their clients properly. Victim participation reinforces the traditional courtroom script with an extremely high conviction rate of more than 99 percent. Herber notes that “court proceedings can for practical purposes be said to be about deciding on the right sentence rather than deciding innocence or guilt. Within these procedures defendants are expected to play the role of the remorseful criminal who, based on a full acknowledgement of the error of his or her ways, might still be rehabilitated” (Herber Reference Herber2019, 125; emphasis added).
Forensic Scientists
Expressing remorse comes hand in hand with confessions—the “king of evidence” and an essential part of the script of the Japanese criminal procedure. Yet another non-legal professional’s advent was likely to change the prominent position of this important ingredient in the recipe of the Japanese criminal justice system. The “hard scientist” entered Japan’s criminal courts in the same way that scientists analyzing DNA evidence in laboratories provide “reliable” scientific evidence. Could they make the need for confessions obsolete? They certainly raised hope for changes at the core of the traditional script of the criminal process in Japan, but a LRTI document with instructions to future judges offers a more complex picture of this “hard science” provided by scientists. With the progress of science, “it is impossible to categorically deny the possibility that … the conclusion regarding scientific evidence that was up until then thought of as ‘true’, will be regarded as ‘false’” (Herber Reference Herber2019, 137). The instructions to future legal professionals promote what Herber calls a “self-legitimizing discourse”—that is, the legitimacy of the trial is not compromised as long as the judges “carefully assess evidence on the basis of knowledge and insights available at the time” (144, 145). In other words, even if new scientific evidence proves that the outcome of a criminal trial was wrong, the judges are not to be blamed. Questions have been raised about the reliability of scientific evidence, and it is clearly the responsibility of judges to decide on the reliability of the evidence. As a result, no break with the past regarding confessions can be seen. Still, more than 90 percent of the cases tried before district courts in 2016 involved a full confession (155).
Lay Judges
The highest expectations in “outsiders” for changing the script of Japan’s criminal law was with lay citizens who, since May 2009, have judged alongside professional judges when people are accused of the most serious crimes. Six randomly selected citizens and three professional judges decide on guilt and, then, if guilty, they decide on the sanctions. Do these lay judges’ sentences deviate from those reached by professional judges? How do they reach a decision? The hope to bring radical change to the criminal court that Ryūichi Hirano (Reference Hirano1989) called hopeless soon appeared to be unrealistic. Herber (Reference Herber2019) compares sentencing in similar cases between May 2009 and May 2012 when only lay judge trials and trials by professional judges were held (the latter were held in cases where the trial started before the implementation of the lay judge system). In some cases, such as for attempted murder and arson, sentences were slightly more lenient, and, in cases involving sexual offences, sentences were somewhat more severe, but, in general, no significant deviation can be seen. Why? Judges have kept tight control of ‘their’ courts. A database of previous sentences is used as a base for the deliberations by the mixed jury panel. The professional judges use this database to “kindly” explain the going rate to the lay judges who sometimes even question what they actually can contribute to the criminal trials when the script is so tightly protected by the judges, and, aside from consistency with past practices, their main concern is with “client satisfaction” (175, 181). The way that the judges protect the script of their courts is indeed an important limit to change (Johnson and Vanoverbeke Reference Johnson and Vanoverbeke2020).
CONCLUSION: GUARDIANS OF CONTINUITY
Courtrooms remain places where guilt is confirmed. Sentences are meted out in accordance with legal precedent, allowing for only incremental change. Neither penal populism driven criminal justice policies and reforms nor legal outsiders’ roles have done much to change that. (Herber Reference Herber2019, 189)
Eric Herber’s (2019) book offers a nuanced picture of the impact of some outsiders on the traditional script of the criminal justice system. He shows that little has changed in practice despite the various policy changes that provide outsiders with more presence in the criminal justice system and that “trend breaking change in substantive decision making, or in courtroom scripts, for that matter, are unlikely” (194). Yet sometimes change is not sudden or spectacular, and the continuous engagement of professionals with outsiders results in an accumulative effect that gradually changes the criminal justice system. This kind of change is more similar to what can be observed in the Japanese criminal justice system (Vanoverbeke et al Reference Vanoverbeke, Maesschalck, Nelken and Parmentier2014). It is not different in the case of the impact of non-legal professionals in their interaction with judges, prosecutors, and lawyers and in the operation of a dynamic social context. Despite the judges’ and prosecutors’ penchant for continuity, “Japanese criminal justice will never be the same” (194).
