1.1 The recent tendency toward harsher criminal policy in the world and Japan

The purpose of this study is to show how the Japanese government has made laws with harsher punishment since the 1990s through a quantitative analysis of the legislative process.

Some studies point out that Japan started pursuing a severe criminal justice policy after the late 1990s.Footnote ¹ Some notable examples that are familiar to researchers of Japanese criminal justice policy include the act enacted in 2004 for extending the maximum length of imprisonment for atrocious and serious crimes; the three acts enacted in 2000, 2007, and 2014 to revise the Juvenile Law to practically make the deal for juvenile delinquents more severe; and the act enacted in 2001 to revise the Criminal Law to treat the offence of causing injury by drunk driving, which was treated as a crime of negligence earlier, as an intentional crime. Consider an example involving a business. If a retired employee used or disclosed business or trade secrets that she/he had obtained during their former employment with the enterprise, then she/he would have faced only civil liability before the revision of the Law against Unfair Competition in 2005. Under the revision, the offender would face criminal punishment, with the maximum length of imprisonment and the fine amount doubled in 2006. Let us take a case that is close to our daily life. The 2009 act to revise the Copyright Law introduced an article under which downloading a pirated file with the knowledge that it is pirated will be considered copyright infringement, while a 2012 revision introduced criminal punishment for such downloads with a maximum of two years’ imprisonment.

The inclination toward harsher punishment is common in Western countries, especially in the US and the UK. There is also a tendency toward harsher punishment in Japan, along with scholarly discussion in sociology and criminology as to whether it can be understood through the “penal-populism” framework.Footnote ² In the contexts of criminology and sociology, the global inclination toward harsher punishment can be explained by the framework of “penal populism,” which implies an increase in the influence of public opinion over criminal justice policy and a decline in the influence of criminal justice expertise,Footnote ³ which this paper discusses in detail below.

This study examines Japanese legislation with harsher punishment. According to Feeley, Japan seems to have resistance to “penal populism” compared to Western countries, especially the US and the UK, where the political institutions make it easier for criminal justice policy to be influenced by public opinion.Footnote ⁴ Nevertheless, it is argued that Japan has been tightening its criminal justice system. What prompted this change in approach? Readers may think that the policy change came in response to a deterioration of public security or strong public opinion or both. However, crime statistics indicate that the Japanese public-security conditions have not deteriorated so much as to warrant a comprehensive reform of the criminal justice system to make it more severe.Footnote ⁵ Some readers might think that a deterioration of cognitive public security, driven by a series of salient crime cases, sways public opinion in favour of a severe criminal justice policy even if public security has not deteriorated in reality. However, Japanese public opinion supporting stringent criminal policy is not directly influenced by a series of salient crime cases, but is based on people’s long-standing societal viewpoint.Footnote ⁶ Japan is a marginal case as regards the “penal-populism” theory.

A notable feature of Japan’s recent criminal justice policy is that it contains legislation with harsher punishment even for a low-salience issue, while the “penal-populism” theory assumes that there is public demand for a severe criminal justice policy and that public attention is focused on the policy.Footnote ⁷ In this paper, Japanese legislation with harsher punishment is quantitatively measured. Some of those laws regulate an industry in which the general public is not very interested. (As mentioned in the conclusion of this paper, it is a future topic of research, which can qualitatively assess the type of punishment in each piece of legislation.) Considering that only around 30% of all cases referred to the public prosecutor actually go to courts in the Japanese criminal justice system,Footnote ⁸ criminal sentences hardly refer to the stringent penalty provisions in industry-regulating laws. Consequently, such laws rarely influence the imprisonment rate or imprisonment term, which were common benchmarks in previous literature to measure the degree of severity of criminal policy. Such laws have been overlooked by previous studies on Japan’s severe criminal justice policy.

Some sceptical readers may argue that such industry-regulating laws with harsher punishment are not worth studying in the context of research on severe criminal justice policy because they are directly concerned with neither public security nor civil liberty. Although these laws might not be concerned with public security, they are probably concerned with civil liberty despite their low saliency. For example, the above-mentioned law to impose harsher punishment for the usage or disclosure of business or trade secrets might have a chilling effect on career-enhancement activities, such as making use of previous career know-how.Footnote ⁹ It also might penalize a justifiable whistle-blowing and media report on illegal corporate activities.Footnote ¹⁰ Another example is the revision of the Copyright Law to penalize the downloading of pirated files to protect the content industry, which was also discussed previously. Under the legislation, even people who just enjoy their favourite digital content through the Internet on their PC could face arrest or, in the least, have a fear of arrest. Although the legislation did not face as much public protest as the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) in the USFootnote ¹¹ or the Anti-Counterfeiting Trade Agreement (ACTA) in the EU,Footnote ¹² which contain similar provisions, the Japanese measure drew more public attention on the Internet compared to other laws concerning industry regulation and protection that imposed stringent punishment. The trend of public opinion on the Internet was, indeed, against penalizing the act of downloading pirated files, which is contrary to the prediction in the “penal-populism” theory that harsh criminal justice policy is supported by public opinion.

Thus, a majority of Japanese laws imposing harsh punishment remain to be studied, notwithstanding previous research on severe criminal justice policy. As discussed in a later section, extant literature on Japanese severe criminal justice policy looks into the possibility of applying the “penal-populism” theory to Japanese cases without systematic evidence. The author argues that it is difficult to conclude whether the “penal-populism” theory, which has been deduced from the cases in Western countries, is applicable to Japan without systematic evidence. This study quantitatively shows whether Japan has pursued a severe criminal justice policy and, if yes, since when and how. This study contributes to the development of the understanding of severe criminal justice policy in developed countries by demonstrating the limitations of the scope of the “penal-populism” theory.

1.2 Literature review on harsher punishment and penal populism in the world and Japan

The inclination toward harsher punishment is common in Western countries, especially the US and the UK. Garland argues that this has been caused by “late modernity,” which refers to the two countries’ changing social, economic, and cultural patterns in the late twentieth century, and by the policies of neoliberalism and neoconservatism, which are dominant in both countries.Footnote ¹³ However, this does not explain the wide variations in the severity of punitive actions between countries. Punishment becomes harsher especially in the US. Whitman argues that this trend originated in the American tradition of equality,Footnote ¹⁴ while Tonry argues that it originated from the Constitutions of each state that are from the eighteenth century, in which the judges and prosecutors are elected.Footnote ¹⁵ Some studies attempt to understand the differences in criminal policy between countries through frameworks of comparative politics.Footnote ¹⁶

Pratt views this inclination toward harsher punishment as the result of “penal populism.”Footnote ¹⁷ Pratt explains “penal populism” as follows:

Pratt’s definition of “penal populism” can be roughly divided into two components. The first is the increasing influence of public opinion over criminal justice policy. This is driven by growing calls for tougher sentences by victims’ associations and law-and-order lobby groups, which have a significant impact on tabloid media that tend to focus on stories about violent crime and victims’ suffering. The second is the declining influence of criminal justice experts due to a decline of trust in existing criminal justice procedures and political elites.

Recent studies on criminal justice policy in the context of criminology and sociology use “penal populism” as a clue to understand the trend of a tougher approach to crime in every country. Pratt explains that, in New Zealand, the influence of “penal populism” depends on the legitimacy of severe criminal policy.Footnote ¹⁹ Sozzo studied penal policy during the process of democratization in Argentina and found that criminal policy based on “penal populism” has been pursued by elites and social movements alternately in that country.Footnote ²⁰ Johnson and Fernquest note the similarity and differences between “penal populism” and President Duterte’s war-on-drugs policy in the Philippines.Footnote ²¹ Some studies examine whether the positions of legislators and the media on criminal justice policy are explained by the “penal-populism” framework.Footnote ²²

While this series of research mainly stems from the contexts of criminology and sociology, there is a shortage of political research into criminal justice policy.Footnote ²³ This is because criminologists and sociologists are not very interested in the political dimension, and political scientists have little interest in criminal policy except in the context of comparative political culture.Footnote ²⁴ A problem common to studies on severe criminal justice policy in the context of criminology and sociology is the relative shortage of interest in micro-level political variables that directly influence micro-level policy. Collective micro-level policy leads to macro-level harsher punishment. Therefore, those studies lack the micro-level foundation required to analyze the causal mechanism of severe criminal justice policy. This is because they tend to be more interested in severe criminal justice policy itself, and in the mezzo- or macro-level social structure behind it. While Garland regards “late modernity,” which is a macro-level change in social structure, as a cause of severe criminal justice policy in the US and the UK as mentioned above,Footnote ²⁵ the American tradition of equalityFootnote ²⁶ and states’ Constitutions from the eighteenth centuryFootnote ²⁷ are considered as the origins of the present-day severe criminal justice policy in the US.

Explanations from mezzo- or macro-level viewpoints in the context of criminology and sociology are suitable for understanding macro-level differences between countries and a relatively long-term variation in a single country. However, they are not suitable for identifying a certain pattern behind the adoption of severe criminal justice policy measures or explaining a relatively short-term variation in the implementation of harsher punishment. In order to explain the criminal justice policy-making process, it is not enough to understand whether the positions of legislators and the media are explained by the “penal-populism” framework because there are other potential political variables influencing policy outcomes. In sum, if researchers ask why there are more laws with harsher punishment than before, it will be necessary to define and measure legislation with harsher punishment as a dependent variable and to explain the variance by focusing on micro-level political variables influencing the policy-making process. The proper way to infer causality in social sciences also needs to be considered.Footnote ²⁸

Although there is a shortage of political research into criminal justice policy as mentioned above, it seems that the recent increase in the incarceration rate of the US has drawn political scientists’ interest. There is a growing body of political research in which the dependent variables are the incarceration rates at the federal and state levels, and the independent variables are relatively micro-level political factors.Footnote ²⁹ There is also political research of Boushey, whose dependent variable is the legislation of state governments.Footnote ³⁰ This study is similar to Boushey’s in terms of analyzing not the incarceration rate, which is a judicial aspect of severe criminal policy, but legislation.

To fill the exiting research gap, it is necessary to explain the recent wave of severe criminal justice policy measures by focusing on micro-level political variables. This type of study needs a clear definition and measurement of legislation with harsher punishment as a policy outcome of severe criminal justice policy, which is a dependent variable to be explained by micro-level political variables. In addition to providing the definition and measurement, this paper mainly shows a time-series trend, identifies the ministries that mainly contribute to the growing trend of adopting harsher penalties for offenders, and outlines the partisan conflict in the legislative process. This study lays the foundation for the future examination of micro-level political variables influencing legislation with harsher punishment.

1.3 Three dimensions of harsher criminal policy

Harsher punishment in Japan drew sociologists’ interest in the 2000s. Harsher criminal policy is measured by three dimensions. The first is harsher punishment in sentencing. This is measured by an increase in the average degree of punishment. Some studies show the progression of harsher criminal policy in Japan by using the incarceration rate.Footnote ³¹ The second is the intolerance of crimes and criminals in public opinion. Hamai and Matsubara examine this through citizen surveys.Footnote ³²

The third is legislation with harsher punishment. This means extending the length of imprisonment, increasing the amount of a fine, or defining a new criminal act through legislation. Feeley argues that Japan is expected to resist “penal populism” because Japan is categorized as a strong state with a weak civil society in which the public rarely plays a key role in policy-making.Footnote ³³ Moreover, the Ministry of Justice (MoJ) has jurisdiction over much of criminal law and drafts Bills based on reports by the Legislative Council of the MoJ (Hōsei Shingikai), in which criminal justice experts such as judges, prosecutors, lawyers, and criminal-law professors are the majority. It is not easy for politicians to be fully involved in the process of criminal-law-making, which limits the direct influence of a public that demands harsher punishment.

Nevertheless, sociological research explains legislation with harsher punishment in Japan through the “penal-populism” theory. For example, Hamai explains the political mechanism of institutionalization based on “the myth of public security deterioration” by the concept of Best’s “iron triangle.”Footnote ³⁴ In the concept, a moral panic triggered by media coverage arouses a serious social issue by involving the media, activists, politicians, and experts. Hamai argues that the crime victims do not have more influence than the prosecutors, who are much more independent from politics or public opinion than those in the US, because the most recent legislation regarding harsher punishment does not restrict the prosecutor’s power.Footnote ³⁵ Prosecutors are political actors who actively promote harsher punishment in the context of the crime victims’ activities and public support. On the other hand, Miyazawa regards the role of the conservative politicians who supported the activities of crime victims’ groups as important.Footnote ³⁶ Prosecutors, as bureaucrats of the MoJ, resisted some demands of crime victims’ groups, which probably changed the basic structure of the Criminal Law and limited prosecutors’ power in criminal proceedings, but they were forced to accept them because of pressure from core government executives or the ruling Liberal Democratic Party (LDP) executives who specialize in judicial policy (who are referred to as “shihō-zoku”).Footnote ³⁷ Some researchers indicate that the changes in political institutions and the external environment surrounding actors are important variables, including the electoral-system reform in 1994 enlarging the scope of politicians’ interest from local to national issues and policies,Footnote ³⁸ the increase in the issue salience of criminal policy and growing distrust in governmental expertise,Footnote ³⁹ and the emergence of high-profile charismatic crime victims.Footnote ⁴⁰

A common feature among these studies on harsher punishment in Japan is focusing on several salient legislative processes, such as the revision of the Juvenile Law triggered by the Kobe murder in 1997.Footnote ⁴¹ This leads to the conclusion that the “penal-populism” theory has efficacy in explaining Japanese cases of harsher punishment. Although Asada tries to grasp harsher punishment more broadly, the research is only to enumerate 20 legislative cases regarding harsher punishment.Footnote ⁴² However, because case-studies of salient legislation have the risk of selection bias conforming to the theory, they do not sufficiently confirm the validity of the “penal-populism” theory. Kyo argues that other theoretical explanations of harsher punishment are needed because the cases that Asada enumerates include those which the “penal-populism” theory does not explain.Footnote ⁴³ Therefore, there is little systematic evidence regarding legislation with harsher punishment in Japan relative to the other two dimensions: harsher punishment in sentencing and the intolerance of crimes and criminals in public opinion. We cannot conclude whether the “penal-populism” theory explains legislation with harsher punishment in Japan.

This paper shows quantitative evidence that the Japanese government has created progressively more laws with harsher punishment, and attempts to show how and partly why this has happened through a quantitative analysis of the legislative process.

3.1 A time-series variation of legislation with harsher punishment

This section confirms the summary of the data gathered through the method above and conducts a partial quantitative analysis. Table 1 is a summary of the number of all pieces of legislation and of legislation with harsher punishment from 1990 to 2016, which is categorized as acts based on Bills introduced by the Cabinet (cabinet Bills) and legislators (legislators’ Bills). Although the number of acts with harsher punishment based on legislators’ Bills might be larger from the standpoint of the “penal-populism” theory, the percentage is smaller than those for all acts or the acts based on cabinet Bills. The percentage of acts based on legislators’ Bills is small in Japan to begin with. Thus, because the influence of the legislators’ laws on legislation with harsher punishment is sufficiently weak, this study mainly focuses on the legislation based on cabinet Bills.

Table 1.

The number of all acts and acts with harsher punishment

Source: The author.

In focusing on the acts based on cabinet Bills, it is necessary to consider the temporal accumulation of new legislation regarding the establishment of government institutions. There were many acts for reorganizing central ministries and agencies and establishing independent administrative agencies in 1999, and acts for reorganizing special public corporations in 2002. Most of the acts regarding the establishment of government institutions contain article provisions punishing employees for confidentiality breaches. As these provisions are obviously different from the harsher punishment that previous literature and this study intend to examine, this study excludes these acts from legislation with harsher punishment. More specifically, this study does not regard new (not revising) acts for establishing government institutions as legislation with harsher punishment.

Figure 1 is a line graph representing the time-series variation in the percentage of legislation with harsher punishment that compares all acts, the acts based on cabinet Bills, and the acts based on legislators’ Bills per year. Table 2 represents the average of the percentage of acts with harsher punishment during four terms (1990–99, 2000–03, 2004–07, and 2008–16) that were determined based on the trend in Figure 1. The percentage of acts with harsher punishment was only about 20% in the 1990s, increased to about 25% in the first years of the 2000s, increased to about 35% of all acts and 40% of acts based on the cabinet Bills in 2004–07, and decreased to around 25% after that. Therefore, legislation with harsher punishment quantitatively increased especially during the middle of the 2000s.

Figure 1.

Time-series variation in the percentage of legislation with harsher punishment. Source: The author.

Table 2.

The percentage of acts with harsher punishment (average for each duration)

Source: The author.

Readers may anticipate a detailed examination of the factors affecting the trend. Some readers who are familiar with Japanese politics may argue that the severe criminal justice policy approach had progressed under the neoliberal policy direction of the Junichiro Koizumi Cabinet from 2001 to 2006 and the Shinzo Abe Cabinet from 2006 to 2007, and weakened under the Cabinet of the Democratic Party of Japan (DPJ) from 2009 to 2012. If the policy preference of the Cabinet was a major influencing factor, the percentage of acts with harsher punishment should have increased under the Abe Cabinet after 2012. However, the percentage temporarily increased in 2011 under the DPJ government, but no increasing trend was observed after 2012, although only limited data are available until 2016. The question of whether the neoliberalism ideology is related to support for severe criminal justice policy in Japan needs to be empirically tested. In addition, as mentioned in the literature review, we have to infer the causality of the cases based not on mezzo-level factors like the ideology of the Cabinet, but on micro-level variables in the political process. This paper focuses on showing the trend based on the data. Pursuing the causal variables is a topic for future research.

In order to confirm the trend of legislation with harsher punishment, 737 acts with harsher punishment based on cabinet Bills comprising of 463 revising acts and 274 new acts (except for acts establishing new institutions) and 86 acts with harsher punishment based on legislators’ Bills are classified into the following three categories according to the modes of punishment. Because each category has harsher punishment concerning imprisonment and fine, each category was subdivided into two. The first category includes acts with provisions extending the length of imprisonment (chōeki or kinko) or increasing the fine; these acts constitute narrow HP. The second category includes acts with provisions defining a new criminal act that was previously legal; these acts can be considered broad HP. While these two categories are for revising acts, the third category consists of acts enacting new law with punishment corresponding to broad HP.

The total number of acts and average number of acts per year for each category are presented in Table 3. Among all the acts with harsher punishment based on cabinet Bills (737 acts), around 60% define a new criminal act with fine and around 47% define a new criminal act with imprisonment; both are broad HP. Further, acts in “extending the length of imprisonment or increasing the fine,” which constitute narrow HP, are at 22.1% with fine and only 7.6% with imprisonment. On the contrary, among acts with harsher punishment based on legislators’ Bills, most are in the “enacting new law with punishment” category while the proportion of revised acts is relatively small.

Table 3.

Categories of modes of harsher punishment

Source: The author.

Because one act contains multiple provisions, each act with harsher punishment has a minimum of one and a maximum of four modes of harsher punishment (new acts have a maximum of two modes). Table 4 is a cross tabulation of these modes of harsher punishment. The numbers and percentages in the table represent the overlap of modes of punishment in acts. For example, the first column shows that 14.5% of acts “defining a new criminal act with imprisonment” contain the modes “extending the length of imprisonment” as well. More than around 90% of acts extending the length of imprisonment contain other kinds of harsher punishment. Around 90% of acts increasing the fine also contain “defining a new criminal act with fine.” Most acts that define a new criminal act that was previously legal contain provisions with both imprisonment and fine.

Table 4.

Correlation between categories of modes of harsher punishment

Source: The author.

Figure 2 is a line graph representing the time-series variation in the number of acts with harsher punishment based on cabinet Bills in all modes of harsher punishment. The number of acts “defining a new criminal act with both imprisonment and fine” (broad HP) grew in the mid-2000s. The number of acts “extending the length of imprisonment and increasing the fine” (narrow HP) also grew during the same period. The rise in the number of acts with harsher punishment in the mid-2000s is mainly attributable to more acts with broad HP being passed. Considering that most acts with narrow HP also contain one broad HP, the growth in the number of acts with narrow HP is partially responsible for the surge in the mid-2000s.

Figure 2.

Time-series variation in the numbers of pieces of legislation with harsher punishment by categories of modes of harsher punishment. Source: The author.

3.2 Who drafts Bills with harsher punishment?

The last section confirmed the time-series variation in legislation with harsher punishment and showed an increase in this type of legislation in the middle of the 2000s. The spike is obvious in the acts based on cabinet Bills. Which ministries affected the trend through drafting Bills? The important previous literature argues that the bureaucrats of the MoJ and public prosecutors who are the legal professions possess the main law-making and law-revising powers in criminal lawsFootnote ⁴⁸ and promote legislation with harsher punishment.Footnote ⁴⁹ However, the legislative cases that previous literature upheld as concrete examples of legislation with harsher punishment are not always acts for which the MoJ is responsible, such as harsher punishment for drunk driving through the revision of the Road Traffic Law regulated by the National Public Safety Commission (NPSC); the extension of illegal acts in the Unfair Competition Law regulated by the Ministry of Economy, Trade and Industry (METI); and the establishment of a penalty for downloading pirated files by the revision of the Copyright Law regulated by the Ministry of Education, Culture, Sports, Science and Technology (MEXT).

The author specifies the ministries and agencies that draft and submit the Bills for all acts in this study in order to confirm which ministries contributed to the rising trend of legislation with harsher punishment. Because most of the standing committees of the Diet are parallel to the ministries that introduce the Bills that they deliberate on (e.g. the Committee of Economy, Trade and Industry reviews the Bills drafted by the METI), the author regards a Bill submitted to a standing committee as a Bill drafted by the parallel ministry. In the case of a committee for which the corresponding ministry that drafted the Bill is uncertain, the author determines the minister who explained the Bill in the committee and regards her/his ministry as the one drafting the Bill. This study defines the ministries as 14 government institutions (the Cabinet Office, 11 ministries, NPSC, and Reconstruction Agency), in which the cabinet ministers are the head, and uses the names of the ministries established after the reorganization in 2001.Footnote ⁵⁰

Table 5 represents the top ten ministries with the largest percentage of acts with harsher punishment among the 14 government institutions. The total number of acts (average per year) based on the Bills introduced by each ministry is in the right column. The ministries that have a larger percentage of legislation with harsher punishment are the METI; Ministry of Land, Infrastructure, Transport and Tourism (MLIT); NPSC; and Ministry of Environment (MoE) in descending order. However, because the average number of all the Bills drafted by the NPSC and MoE is only 1.9 and 3.5 each per year, respectively, which is around one-third of the Bills drafted by the other ministries, this study exempts them from the following analysis. Because the ministries that relate to industry rank more highly, it is probable that legislation with harsher punishment is quantitatively linked to acts that regulate a certain industry. The percentage of acts with harsher punishment based on Bills drafted by the MoJ, which is responsible for general criminal laws, is about 20%.

Table 5.

Ministries responsible for acts with harsher punishment based on cabinet Bills (top 10)

The upper value is the percentage whose numerator excludes acts establishing new institutions. The lower value is the percentage whose numerator includes them.

Source: The author.

Figure 3 represents a time-series variation in the percentage of acts with harsher punishment out of all acts per ministry listed in Table 5 (except for the NPSC and MoE). The graph indicates that the trend from 2000 to 2007 is different from those of all other periods. In the years other than 2000–07, the variation in the percentage of acts with harsher punishment per ministry is large. While there are ministries that have no acts with harsher punishment, there are also ministries for which 70–80% of all the acts based on their Bills are acts with harsher punishment. In contrast, from 2000 to 2007, six of eight ministries introduced Bills with harsher punishment every year, except for the Cabinet Office in 2000 and the MEXT in 2001, 2003, and 2005. Moreover, while the percentage of acts with harsher punishment per ministries concentrates around 20–40% from 2000 to 2003, the percentage increases to around 40–50% from 2004 to 2007. As the graph might be difficult to read because of its crowded lines, it may be helpful to mention the average percentage and variance figures for each period. The mean percentages and variances are 21.4% and 2.9 percentage points (pp) from 1990 to 1999; 25.7% and 1.7 pp from 2000 to 2003; 42.6% and 2.4 pp from 2004 to 2007; and 30.7% and 4.2 pp from 2008 to 2016.

Figure 3.

Time-series variation in the percentage of acts with harsher punishment out of all acts by the responsible ministries. Source: The author.

Figure 4 is a graph representing the percentage of acts based on the Bills drafted by the ministries out of all the acts with harsher punishment based on cabinet Bills. This graph also shows a unique trend in 2000 to 2007. In 2000 to 2007, the percentage of every ministry hovers at about 10%, while, in other years, the percentages of some ministries are quite higher than those of the others (only in 2004 are the MLIT and MoJ outstanding). While the average percentages were stable at around 10% in all periods, the average variances were 0.8 pp from 1990 to 1999, 0.3 pp from 2000 to 2007, and 0.7 pp from 2008 to 2016.

Figure 4.

Time-series variation in the percentage of all acts based on cabinet Bills with harsher punishment by drafting ministry. Source: The author.

The percentages of ministries responsible for acts in all modes of harsher punishment are presented in Table 6. The rightmost column shows the proportion of total acts based on cabinet Bills that each ministry was responsible for. The column before that shows the proportion of acts with harsher punishment that each ministry was responsible for. The percentages of the METI and MLIT are higher among the acts “extending the length of imprisonment and increasing the fine.” The percentages of these two ministries and the Ministry of Health, Labour and Welfare (MHLW) are higher among the acts “defining a new criminal act that was previously legal.” The growth in acts with harsher punishment was mainly caused by more acts “defining a new criminal act” being passed. Since the METI, MLIT, and MHLW, which are industrial regulatory ministries, initiated the maximum number of acts “defining a new criminal act,” it can be said that the growth in acts with harsher punishment was driven by these three ministries (despite the fact that the MHLW initiated fewer acts “extending the length of imprisonment”). Other ministries to pay attention to in this table are the MoJ and NPSC, which are responsible for acts concerning public security. Although these two ministries are responsible for fewer acts among all acts with harsher punishment based on cabinet Bills, their percentages in acts “extending the length of imprisonment” are twofold. The percentage of the MoJ is also higher in new acts with imprisonment. The MoJ is relatively important as a ministry responsible for acts with imprisonment.

Table 6.

Ministries responsible for acts with harsher punishment and categories of modes of harsher punishment

Source: The author.

Therefore, the reason why the number of acts with harsher punishment increased from the beginning to the middle of the 2000s is not because certain ministries promoted this legislation, but because every ministry increased their percentage of Bills with harsher punishment. Acts with broad HP, which make up a large portion of the total number of acts with harsher punishment, are based on Bills that regulatory ministries are responsible for. In contrast, the percentages for those of the MoJ and NPSC are relatively high in acts with narrow HP.

3.3 Legislation with harsher punishment and partisan conflict

According to the “penal-populism” theory, harsher punishment is caused by civil emotion, which demands severe counter-measures to crime. On the relationship between partisanship and the preference for harsher punishment, the customary understanding is that those with a conservative ideology prefer harsher punishment and those with a liberal ideology prefer more tolerance towards crime. However, a study by Silver and Silver introduces the possibility that this relationship is partially a spurious correlation through an experiment in the US.Footnote ⁵¹ If many citizens support harsher punishment regardless of partisanship, legislators who seek re-election may find it difficult to oppose Bills with harsher punishment regardless of the political party they belong to. Dollinger et al. adopts consensus across parties as a standard to determine whether the concept of “penal populism” is applicable to Germany through analyzing the parliamentary debates dealing with youth crime.Footnote ⁵² This study also confirms whether legislation with harsher punishment avoids partisan conflict. The standards used to measure partisan conflict in this study are twofold.

The first standard is whether a Bill is important to partisan conflict. Opposition parties would start a hard debate over a Bill that is important to partisan conflict. In the case of a Bill that opposition parties consider important, it is frequent that opposition parties require the explanation of the Bill in a plenary session before substantial debate in a committee. This study regards acts that are debated once (only to vote) in a plenary session of each house, some of which might be against the opposition parties’ request, as not important to partisan conflict and classifies them as “unimportant.”Footnote ⁵³ When opposition parties consider a Bill to be important, the number of times it is debated in the committee would increase because it becomes difficult to pass other Bills when the opposition strongly protests if the governing parties close the debate early. Thus, this study classifies acts that meet the “unimportant” classification and that are debated fewer than four times in the committee of both housesFootnote ⁵⁴ as “especially unimportant.”

The second standard is the result of the vote on a Bill in a plenary session of both houses. The adoption methods used by the HR are no-objection confirming, a standing vote, and a roll-call vote. The no-objection-confirming method is used when the Bill has been unanimously approved in advance. When the roll-call vote is used, we can see the name of the legislators who both approved and opposed the Bill. However, when the standing vote is used, the number of legislators who opposed the Bill can vary from one to nearly half of the house members. In contrast, because the House of Councilors (HC, Sangiin) has always used a push-button voting system, except for the roll-call vote, since 1998, we can see the number and the names of legislators who approved and opposed the Bill within the record of the proceedings. Therefore, this study classifies the result of the vote on a Bill using the four categories in Table 7, focusing on the result of the vote on a Bill in the HC.Footnote ⁵⁵ The reason why “almost unanimity” is based on the seats in the Japanese Communist Party (JCP) is because it seems inadequate to classify the acts that are opposed only by the JCP as “partisan conflicts” due to its party voting trend.Footnote ⁵⁶ In order for the standard to work even if some members of the JCP are absent from the vote, the author has added “less than half of the number” to the definition.

Table 7.

Four categories of the result of the vote on a Bill in the Diet

Source: The author.

Table 8 presents the relation between the importance of Bills to partisan conflict and the modes of harsher punishment. In contradiction to the “penal-populism” theory, acts with harsher punishment seem important to partisan conflict. Only a small proportion of acts with harsher punishment are in the “especially unimportant” and “unimportant” categories compared to “all acts.” The percentage of “especially unimportant” in new law with punishment is low. However, because the percentage is low in all new law based on cabinet Bills, regardless of provisions with punishment, the modes of harsher punishment are not related to the importance in partisan conflicts in this regard.

Table 8.

Importance to partisan conflict of acts with harsher punishment and categories of modes of harsher punishment

Source: The author.

Figure 5 is a graph comparing acts with harsher punishment and other acts (all acts and acts based on cabinet Bills) by the percentage of unimportant acts, which is the first standard measuring partisan conflict. The percentages in the graph sum up “unimportant” and “especially unimportant” acts. The difference between the acts with harsher punishment and the other acts was found to be statistically significant at a 1% level by an unpaired t-test. There are large differences in 1990–99 (during which previous literature argues that legislation with harsher punishment spiked), in the middle of the 2000s (i.e. 2004 and 2006 when legislation with harsher punishment had quantitatively increased, according to this study), and after 2014. During these time periods, the percentage of “unimportant” acts within acts with harsher punishment is relatively low, which is contrary to the prediction based on the “penal-populism” theory. This means that acts with harsher punishment contain relatively important acts. Thus, acts with harsher punishment received careful attention during the time periods in which previous literature and this study argue that legislation with harsher punishment had increased.

Figure 5.

Time-series variation in the percentage of unimportant acts. Source: The author.

Table 9 presents the relationship between the result of the vote on a Bill in a plenary session of both houses and the modes of harsher punishment. In contrast to the prediction based on the “penal-populism” theory, there is no quantitative evidence to suggest that there are fewer partisan conflicts when the Diet pass Bills with harsher punishment. In acts “extending the length of imprisonment or increasing the fine” and “defining a new criminal act that was previously legal,” the percentage of “weak partisan conflict” is higher than that in all acts or all acts with punishment. It is probable that the JCP is inclined to oppose cabinet Bills with harsher punishment.

Table 9.

Result of the vote on Bills with harsher punishment and categories of modes of harsher punishment

This table includes the data after 1998 when the HC adopted the push-button voting system. Please note that the percentage may not always appear to add up to 100% because there are several cases without the push-button voting system or the roll-call vote.

Source: The author.

Is there a difference between ministries responsible for acts with harsher punishment in terms of partisan conflict? Table 10 presents the relationship between the importance of Bills to partisan conflict and acts that each ministry is responsible for, which are classified as acts with harsher punishment and other acts. The ministries presented in the table are the METI, MLIT, MAFF, and MHLW whose percentages in acts “extending the length of imprisonment or increasing the fine” and “defining a new criminal act that was previously legal” are high in Table 6; in addition, two ministries (the MoJ and NPSC) in charge of public security are presented in this table. In contrast to the prediction based on the “penal-populism” theory, the percentage of “especially unimportant” among acts with harsher punishment is lower than that in the other acts among most of these ministries except for the acts that the MLIT is responsible for. Table 11 presents the relationship between the result of the vote on a Bill in a plenary session of both houses and acts that each ministry is responsible for, which are classified as acts with harsher punishment and other acts. There is no significant difference between acts with harsher punishment and the other acts that the MLIT, MAFF, and MoJ are responsible for in terms of the result of the vote on a Bill in a plenary session of both houses. However, the percentage of “unanimity” is lower and the percentage of “weak partisan conflict” is higher in acts with harsher punishment than in the other acts among the METI, MHLW, and NPSC.

Table 10.

Importance to partisan conflict of acts with harsher punishment and ministries responsible for acts with harsher punishment

Source: The author.

Table 11.

Result of the vote on Bills with harsher punishment and ministries responsible for acts with harsher punishment

Source: The author.

This analysis shows the following results. As a whole, there is no significant evidence that acts with harsher punishment are less important to partisan conflict than the other acts or that they have fewer partisan conflicts in the vote on a Bill in both houses, in contrast to the prediction based on the “penal-populism” theory. Moreover, taking ministries that are responsible for acts into consideration, the quantitative analysis shows that acts with harsher punishment, that a few ministries are responsible for, are more important to partisan conflict and that acts with harsher punishment evoke more partisan conflicts in the vote on a Bill. Future studies must explore the reason why there is such a difference between ministries.

Table 12 is the result of joining Asada’s enumeration of legislation with harsher punishmentFootnote ⁵⁷ and this study’s classification of legislation in terms of partisan conflict based only on cabinet Bills. While the averages of the percentages of both “unimportant” and “unanimous” acts within acts with harsher punishment are around 50% based on cabinet Bills, both are distinctively more than 50% in the acts enumerated by Asada. Because Asada’s study, which enumerates 20 acts with harsher punishment, is biased toward legislation with harsher punishment without partisan conflict, previous studies focusing on only a small number of acts with harsher punishment have a much stronger bias for the same. Therefore, the argument from previous studies that legislation with harsher punishment in Japan is caused by “penal populism” includes the risk of selection bias.

Table 12.

Partisan conflicts in legislation with harsher punishment enumerated by Asada (Reference Asada2008) (only acts based on cabinet Bills)

The asterisked case does not correspond to the operational definition of legislation with harsher punishment in this study.

Source: The author in referencing Asada (Reference Asada2008).