1 Introduction
Criminal justice systems typically assume a curvilinear relationship between age and crime. This is because the idea that crime is a domain dominated by the young – and male – has been axiomatic in criminological theory and practice for nearly 200 years (Quetelet, Reference Quetelet and Sylvester1831/1984). Accordingly, prisons have typically been designed to hold healthy and often defiant young men.
Japan's criminal justice system is now showing a very different kind of curve. In the thirty years to 2018, the overall percentage of those arrested aged sixty-five or older has risen by a factor of ten (from 2.1 per cent in 1989 to 21.7 per cent in 2018). The figures for women are even more staggering. Some 33.5 per cent of women arrested are sixty-five years or older, with over three-quarters of this cohort aged seventy or older (MoJ, 2018, Table 4-8-1-1.) For much of the last decade, women aged sixty-five to sixty-nine have had the highest offending rate of any female cohort in Japan (MoJ, 2018, Table 4-8-1-2). This crime wave propelled by older people is primarily property-related, with theft, robbery and shoplifting making up 52.5 per cent of the offences by men and 89.6 per cent for women in 2018 (MoJ, 2019d, Table 4-8-2-5).
Naturally, this ‘grey crime wave’ has impacted prisons: today more than 12 per cent of all admissions to prison are people who are sixty-five years or older; for women the admission rate is close to 17 per cent (MoJ, 2019d, Table 4-8-2-3).Footnote 1 Japan classifies older offenders as being sixty-five or older; in other jurisdictions, old age is recognised as beginning earlier in incarcerated cohorts, at around fifty-five, or even from fifty (e.g. Bedard et al., Reference Bedard, Metzger and Williams2016, p. 919; Grant, Reference Grant1999; Blowers, Reference Blowers2015; Baidawi et al., Reference Baidawi2011; Stavrou, Reference Stavrou2017). If those aged fifty or older are included,Footnote 2 the proportion of older women being admitted to Japanese prisons reached a startling 40.3 per cent in 2018, while the overall proportion was 37.6 per cent (MoJ, 2019d, Table 4-8-2-3). A complex web of social factors underpins both older crime and incarceration – a phenomenon that Hiroshi Nishida, former Director-General of the Correction Bureau, describes as Japan's prisons ‘turning into nursing homes’ (Nishida, Reference Nishida2018).
Japan's cohorts of ageing inmates share two common characteristics in addition to their age: a relatively high level of reoffending and imprisonment for mostly petty offences. In 2016, for example, 70.2 per cent of people imprisoned in the sixty-five or older age group had been in prison before, compared with 59.5 per cent across all offenders (MoJ, 2017a, Figures 4-8-2-2, 5-2-3-1). This phenomenon has not gone unremarked in Japan. Studies of this imprisoned cohort report that they regard acute levels of social isolation, poverty, despair and anxiety as factors contributing to their offending. Significantly, however, the same prisoner narratives also depict prison as providing shelter, sustenance, security, purposeful activity and social contact (Toyama, Reference Toyama2013; Egawa, Reference Egawa2016a; Reference Egawa2016b; Reference Egawa2016c; Fukada, Reference Fukada2018; Butler, Reference Butler2019). The high incidence of ‘revolving door’ admissions coupled with these personal accounts of relief at being imprisoned raise the possibility that some ageing Japanese are, in effect, self-incarcerating.
This paper raises the question of why older Japanese people might welcome prison time, given the heavy stigmatisation attached to it. Based on their age, this cohort arguably needs increased welfare, rather than corrective services. However, the ‘Janus-faced’ Japanese criminal justice systemFootnote 3 has consistently been willing to incarcerate them. This contrasts with the leniency of the Japanese criminal justice as a whole, which strongly favours diversionary, reintegrative strategies (e.g. Foote, Reference Foote1992; Johnson, Reference Johnson and Tonry2007; Hamai and Ellis, Reference Hamai, Ellis and Jennings2015; Suzuki and Otani, Reference Suzuki and Otani2017).
The paper begins by exploring the confluence of social disintegration and poverty – including gendered poverty – among older Japanese that are considered to be contributing factors in Japan's ‘grey crime’. This group is marginalised in multiple ways, long before they offend. At the theoretical level, I then explore ‘legal consciousness’, defined broadly by Chua and Engel (Reference Chua and Engel2019, p. 336) as ‘the ways in which people experience, understand, and act in relation to law … as they navigate their way through situations in which law could play a role’. I demonstrate the explanatory power and elastic applicability of this broad definition of the paradigm in Japan, despite the narrow, orientalist debates to date on whether Japanese people ‘lack’ legal consciousness.Footnote 4 I then turn to empirical studies of legal consciousness highlighted by Chua and Engel (Reference Chua and Engel2019). They examine marginalised groups who, in order to receive desired protections, navigate legal structures to embrace – paradoxically – not legal rights, but a ‘spoiled identity’Footnote 5 that recursively stigmatises them. The heuristic aid deployed to understand how older Japanese prisoners engage with law is Valerie Braithwaite's work on ‘motivational postures’. She defines motivational postures as ‘well-crafted signals to authority about different kinds of approval for and deference to authority’ (Braithwaite, Reference Braithwaite, Weisburd and Bruinsma2014, p. 915).Footnote 6 These postures form a heuristic framework of five possible attitudes to authority through which data on a given cohort can be assessed to gain insights into their legal consciousness. In this paper, the ‘motivational postures’ heuristic is used to gain a clearer view of older prisoners’ strategic compliance with prison authorities as part of their embrace of the ‘spoiled’ criminal identity, despite the recursive stigmatisation and barriers to reintegration caused by that choice. In other words, when people who are already socially excluded embrace a criminal identity, this further worsens their stigmatised identity due to repeated cycles of arrest, charge, conviction and punishment. Repetition makes this additional stigma more indelible and dims the prospect of societal reintegration. I analyse attitudinal data from older inmates in Japan's prisons in light of these motivational postures and the legal-consciousness literature. These recent data are drawn from a larger study that I conducted from 2016 to 2019. It consists of survey responses from nearly 1,500 Japanese inmates at forty-nine adult male prisons.
This paper develops the argument that a significant number of people in Japan in their fifties and beyond are embracing sequential waves of stigma and damaged identity – particularly criminality – in order to meet their own needs for temporary care and community. They find this protection in prison. Incidentally, their aggregated individual choices have had a powerful policy impact: the growing burden of caring for older inmates has required Japanese policy-makers to engineer a previously inconceivable integration of the welfare and criminal justice systems. This includes new pre-prison diversion programmes and post-release resettlement programmes for older offenders.
By opting for self-stigmatisation, rather than protest, Japan's older offenders have triggered major legal and policy reforms that may help to fill the void of social inclusion that propelled them to offend in the first place. The paper argues that we can read this phenomenon, at least in part, as action by citizens who are already socially excluded (Ferries, Reference Ferries, Goodman and Neary1996; Hayashi, Reference Hayashi2011; Kuzuno, Reference Kuzuno2012; Sutton et al., Reference Sutton2014; Sugie, Reference Sugie2017; Inagaki, Reference Inagaki2018) and who use the law to assert an additional risk-laden and stigmatised legal identity that will provide them with protection. The outcome is the subversion of Japan's prisons, compelling them to operate as de facto aged-care facilities for vulnerable older people.
This is no co-ordinated movement or collective mobilisation, but the aggregation of individual acts of calculation or desperation. Older people who cross the threshold of the prison elect to accept its authority and legitimacy. We will see that, in Japan, these quiet choices have challenged the criminal justice system's internal logic, social narratives and international perceptions of Japan's justice system.
2 Research access to Japan's prisons and methods
Scholarly access to Japanese prisons is extremely rare: my 2016 study is one of only two projects permitted by the Ministry of Justice (MoJ), both in the last decade, and the sole project to date by a non-Japanese researcher.Footnote 7 This paper draws on data from this larger project.Footnote 8 The ostensible focus of that project was civil oversight of Japanese prisons.Footnote 9 It used a three-phase sequential mixed-methods research design, integrating qualitative and quantitative findings (e.g. Bazeley, Reference Bazeley2018).Footnote 10 The data reported in this paper are from a survey of prisoners carried out in the main phase.Footnote 11
Surveys were administered in Japan in with the co-operation of the MoJ Correction Bureau. This included a one-month trial administration of a draft inmate survey instrument at Yokohama Prison before administering the survey to prisoners at forty-nine mainstream male prisons.Footnote 12 As the Correction Bureau was unable to offer random sampling, the survey was offered to the entire population of prisoners at each prison during the survey period and due to be released within two weeks.Footnote 13 The overall prisoner survey response rate was high, but similar to that of other participant cohorts (Table 1).Footnote 14
Japanese prisoner survey response rate
I designed the survey instrument in Japanese, drawing on insights from the pilot phase. The Correction Bureau had strict requirements for length, design, content and wording. While all questions therefore related to the separate focus of the larger project on regulating prisons, a number also spoke to the theoretical framing used in this paper. This concerns prisoners’ attitudes to compliance with the prison's authority, analysed as a heuristic for their legal consciousness, which leads them to embrace the recursively stigmatising criminal identity.Footnote 15
The prisoner survey contained a single open-ended question. This qualitative data shed light on participants’ answers to the quantitative survey questions and gave a powerful voice to prisoners’ individual experiences. The modest response rate was similar to that of other Japanese participant cohorts (Table 2).Footnote 16
Japanese prisoner survey open-ended question response rate
I consider the Japanese prisoner data extracted from my larger study below, in section 6. I identify significant age-related differences in attitudes to authority, which shed light on older prisoners’ legal consciousness and acceptance of recursive stigmatisation as the price of institutional care in prison.
3 What propels the crime wave among older Japanese?
An initial question is why ageing Japanese people are turning to crime.Footnote 17 It seems that poverty is not the main driver. Investigative reports by journalists often feature ageing inmates’ own accounts of the motivations for offending, which highlight a sense of loneliness, marginalisation and anxiety, with poverty featuring less strongly.Footnote 18 This insight is supported by inferential analysis of prefectural arrest-rate data. These data show that a loss of social integration correlates with the rise in crimes committed by older Japanese, especially alienation from family, more than financial decline (Sugie, Reference Sugie2017). The MoJ's own research also primarily attributes the rise in crime by older people to social isolation (MoJ, 2008, Part 7; 2018, Part 7).
The study of older Japanese women inmates by Hosoi and others is instructive. This survey was sent to all 542 women aged forty or older held at eight women's prisons in mid-2016, with 348 responses giving a response rate of 80.8 per cent (Hosoi et al., Reference Hosoi2016). Some 21.9 per cent were aged sixty-five or older (ninety-six participants).Footnote 19 Roughly 60 per cent were not working at the time of their offence, while around a quarter neither lived with family nor had any close relationships with family members. Divorce rates were at nearly 50 per cent for those aged sixty-five or older. Over 60 per cent of the older group had lived alone, 40 per cent of them for at least a decade (Hosoi et al., Reference Hosoi2016). On average, the older group had begun offending at 50.9 years old and had committed crime involving a custodial sentence for the first time at fifty-nine years of age. Around half the total cohort had never finished high school (Hosoi et al., Reference Hosoi2016, pp. 37–40). Around 85 per cent of all participants had been anxious at the time of their offence, mostly regarding their health, family relationships or finances (Hosoi et al., Reference Hosoi2016, pp. 2–6). Between two-thirds and three-quarters had committed shoplifting or other theft offences. Almost none aged sixty-five or older had experienced substance abuse, gambling or sex work (Hosoi et al., Reference Hosoi2016, pp. 24–25).
This brief statistical snapshot outlines a picture of social and financial deprivation in later life that leads to marginalisation and vulnerability. Media reports flesh out details. Fukada (Reference Fukada2018) quotes Mrs T, an eighty-year-old inmate convicted of petty theft for shoplifting ‘cod roe, seeds and a frying pan’ and serving her fourth term in prison:
‘[M]y husband had a stroke six years ago and has been bedridden ever since. He also has dementia and suffers from delusions and paranoia. It was a lot to take care of him physically and emotionally because of my old age. But I couldn't talk about my stress with anyone because I was ashamed. I was imprisoned for the first time when I was 70. When I shoplifted, I [didn't need to – I] had money in my wallet. Then I thought about my life. I didn't want to go home, and I had nowhere else to go. Asking for help in prison was the only way …. My life is much easier in prison. I can be myself and breathe, however temporarily.’
Mrs O was serving her third term in prison at age seventy-eight, convicted of stealing ‘energy drinks, coffee, tea, a rice ball [and] a mango’ (Fukada, Reference Fukada2018). She describes prison as a place of comfort and community, and embraces her own stigmatisation and lost liberty:
‘Prison is an oasis for me – a place for relaxation and comfort. I don't have freedom here, but I have nothing to worry about, either. There are many people to talk to. They provide us with nutritious meals three times a day. My daughter visits once a month. She says “I don't feel sorry for you. You're pathetic.” I think she's right.’
For some older offenders, being imprisoned offers the psychological comfort of handing the declining self over to a ‘total institution’ (Goffman, Reference Goffman1961). Prison offers jailhouse camaraderie – a rich temporary identity for an isolated, marginalised older person. When interviewed by Fukada (Reference Fukada2018), Ms N, aged eighty, was serving her third prison term, having stolen a paperback, croquettes and a hand fan:
‘The first time … was about 13 years ago. I wandered into a bookstore in town and stole a paperback … I was … questioned by the sweetest police officer … so kind. He listened to everything I wanted to say. I felt I was being heard for the first time in my life. In the end, he gently tapped on my shoulder and said, “I understand you were lonely, but don't do this again.” I can't tell you how much I enjoy working in the prison factory … [w]hen I was complimented on how efficient and meticulous I was, I grasped the joy of working … I enjoy my life in prison …. There are always people around, and I don't feel lonely here. When I got out the second time, I promised I wouldn't go back. But … I couldn't help feeling nostalgic.’
These inmate narratives, in which imprisonment is desirable and a price worth paying, are noteworthy given the austere Japanese prison environment, which I discuss below in section 5.
3.1 Housing and poverty stressors in a super-ageing society
It is worthwhile to also examine the contributing role of the structural and economic stressors facing older Japanese. The first such stressor concerns housing. Rapidly increasing numbers of ageing Japanese live alone, many due to limited residential aged-care options. Japan is ageing faster than any other country, with an estimated 28.6 per cent of the population aged sixty-five or older (e-Stat, 2020), slated to exceed 38 per cent by 2065 (NIPSSR, 2017).Footnote 20 The share of those aged sixty-five years or older living with their married children dropped from 46.7 per cent in 1986 to 10.4 per cent in 2018 (MHLW, 2019, p. 27). This is a precipitous decrease in a society in which multigeneration households equate to preventive care and are associated with better health and well-being for seniors (Takagi et al., Reference Takagi, Silverstein and Crimmins2007). Demand has outstripped supply in the institutional aged-care sector for at least two decades (Mitchell et al., Reference Mitchell, Shimizutani and Piggott2004, p. 13) as a critical labour shortage has limited growth. A shortfall of 377,000 workers is expected by 2025 (MHLW, 2015), seen as doubling by 2035 (METI, 2018). Most people cannot afford in-home care.
The second such stressor is poverty. While Japan has universal health insurance and age pension systems, the ‘lost decades’ of the Heisei Era (1989–2018) made the affluent postwar society a far more economically unequal one. This has led to ‘a profound sense of loss’ (Gordon, Reference Gordon, Funabashi and Kushner2015, p. 95), with older citizens prominent ‘losers’. The proportion of those who felt their savings and assets would suffice in their old age dropped from 46.7 to 38.7 per cent between 2005 and 2015, while in Germany confidence rose from 68 to 80.6 per cent (MoJ, 2018, Table 7-2-8). Poverty is an increasingly acute issue among ageing women, especially divorcees and those never married. Their pension benefit is a fraction of that for married or widowed women, and their personal contributions to the scheme have often been intermittent (Inagaki, Reference Inagaki2018, p. 6). Income support outside the public pension is meagre. While the aged comprise roughly half of recipients and this number is rising, in 2015, the population share receiving public assistance of any kind was just 2.9 per cent (Oshio, Reference Oshio and Shinbun2018). These circumstances have led to a profound social rupture, depicted in Kore-eda's globally acclaimed film, Manbiki Kazoku (Shoplifters) (Reference Kore-eda and Kore-eda2018), which portrays an elderly divorcee dealing with isolation and poverty. While depicting elderly behaviour that deviates from social norms, the film also normalises this deviance. Her skill in grift gives the protagonist considerable agency.
Taken together, what might the pattern of offending and incarceration among Japan's vulnerable aged population and older prisoners’ attitudes to prison authorities tell us about their identity, stigmatisation and legal consciousness?
4 ‘Motivational postures’ as a heuristic lens on legal consciousness
The ‘legal consciousness’ of Japanese people has long been the subject of fierce, if globally isolated and inward-looking, debates. Takeyoshi Kawashima sparked these debates in the first of his works to be published in English in 1963 – a comparative empirical work in a volume celebrating a decade of scholarly exchanges with elite US law schools. The Americans wanted to help the transplanted American legal system to take root (Cavers, Reference Cavers and von Mehren1963), but Kawashima's contribution was a subtle protest. He saw Japan's low litigation rates as rooted in a valid cultural preference for harmony which means that Japanese people ‘lack’ legal consciousness. His primarily culturalist argument remains persuasive for some, notably Tanase (Reference Tanase, Nottage and Wolff2010). However, generations of Japanese law scholars have built a voluminous literature offering alternative institutional, political, bureaucratic, economic and hybrid explanations for Japan's low litigation rates and the citizens’ ‘lack’ of legal consciousness (e.g. Haley, Reference Haley1978; Miyazawa, Reference Miyazawa1987; Upham, Reference Upham1987; Ramseyer, Reference Ramseyer1988; Oda, Reference Oda1999; Feldman, Reference Feldman2007; Murayama, Reference Murayama2013). This Orientalist idea that litigiousness is normative, and to refrain necessarily due to a deficit in legal consciousness, diagnosed by variance with American orthodoxy, has constrained inquiry into how Japanese people navigate law.
Given this background, Chua and Engel's (Reference Chua and Engel2018; Reference Chua and Engel2019) recent analysis of the directions taken by empirical work on legal consciousness is refreshing. In their 2018 work, Chua and Engel emphasise that behavioural choices that avoid mobilising legal rights do not imply a ‘lack’ of legal consciousness. A person fully aware of law's potential may reject a privileged legal identity, embrace a stigmatised legal identity or yield to an oppressive legal hegemony. Law is very much part of their decision-making landscape, even if not as a tool for enforcing rights. As this study shows, the willingness to embrace stigmatisation rather than empowerment through law can move policy mountains.
In the 2019 work, Chua and Engel highlight a series of works focusing on how some marginalised individuals demonstrate their subjective legal consciousness by claiming risky, stigmatised legal identities as a pathway to protection. Minow – while not a legal-consciousness scholar – theorises that any legal identity established to protect a socially excluded cohort also ‘may recreate and reestablish [their] difference and its negative implications … and risks a new source of stigma’ (Reference Minow1990, p. 374). Hartog's (Reference Hartog, Sarat and Kearns1995) telling of the way in which a brutalised wife in eighteenth-century America leveraged her inferior socio-legal identity as a married woman to escape intolerable circumstances demonstrates the principle that marginalised people may well activate the protection of law in counter-intuitive ways that lead to both advantages and disadvantages. Similarly, Abrego (Reference Abrego2011) interviewed fifty-six undocumented Latinos to find that they saw law as a source of fear and stigma, but also as offering a potential remedy for their dilemma. Finally, Fiala-Butora and Stein (Reference Fiala-Butora, Stein, Scior and Werner2016) consider the role of the law of guardianship in cementing the stigma of persons with intellectual disabilities, and entrenching their status as passive and dependent, despite its mandate to protect them.
Engagement with protective law by marginalised groups can reap benefits even without being formalised. Engel and Munger (Reference Engel and Munger2003) contribute an empirical study showing civil rights consciousness as having a positive long-term impact of on the lives of Americans with disabilities, even when all sixty participants had refrained from formally asserting their infringed rights. Kirkland (Reference Kirkland2008) confirms this protective effect by demonstrating the negative impact of law's refusal to protect some stigmatised identities through interviews of thirty-five American self-identified ‘fat’ individuals serving as ‘fat’-acceptance activists.Footnote 21 She notes their high level of stigmatisation and how this is exacerbated by the exclusion of this cohort from categories entitled to antidiscrimination protections, leading to uncoordinated attempts to improvise other legal rationales for protection.
Insights into how individuals view and navigate their relationship to others through legal constructs – their legal consciousness – can be gained using social psychologist Valerie Braithwaite's (Reference Braithwaite, Weisburd and Bruinsma2014) concept of ‘motivational postures’. This concept describes the attitudes, beliefs and behaviours of people in a regulated environment. Prisons generally – and Japanese prisons in particular – are a hyper-regulated environment. Braithwaite identifies five ‘postures’ from empirical analysis.Footnote 22 These postures, which can overlap and co-exist, are: ‘commitment’, ‘capitulation’, ‘resistance’, ‘disengagement’ and ‘game playing’. She describes postures as ‘signals that people send to authorities, including criminal justice authorities, to indicate their liking for that authority and their willingness to defer’ to it. She argues that paying attention to analysing the motivational postures of people engaging with authorities is a useful way to understand the relationship between the authority and those it serves, noting that ‘[a]uthorities that have good relations with the communities they serve, and are achieving valued social goals [will] attract high levels of commitment and capitulation’ (Braithwaite, Reference Braithwaite, Weisburd and Bruinsma2014, p. 918). The five postures, particularly ‘commitment’ and ‘capitulation’, are explored in more detail in section 6, where they are used as a heuristic for understanding older Japanese male prisoners’ embrace of the state's hegemonic carceral authority, despite the recursive stigmatisation that this choice entails.
5 Crossing the threshold to Japanese prison
These works suggest that individuals armed with a rich legal consciousness may take unconventional, even counter-intuitive pathways through legal landscapes, which need not involve direct assertion of legal rights or open defiance of law, and may entail claiming the protection of law. In the case of undocumented migrants (Abrego, Reference Abrego2011) or people with intellectual disabilities (Fiala-Butora and Stein, Reference Fiala-Butora, Stein, Scior and Werner2016), law's central mission is providing protection and care. Marginalised, at-risk cohorts are invited to trust the state and claim legally protected identities prepared for them. What scholars of identity and legal consciousness have pointed out in recent decades is that fresh stigma often accrues when marginalised people accept that invitation, and this phenomenon is also seen in Japan.Footnote 23
In Japan, seeking admission to a Japanese prison is a counter-intuitive pathway towards protection. From a Western perspective, they remain – for the most part – anachronistic, retaining many of the features of the Auburn and Pennsylvania systems that emerged in the US in the mid-nineteenth century.Footnote 24 Vulnerable people claiming places in Japanese prisons as de facto residential aged care is an unintended consequence of a rigid criminal justice system and a meagre last-resort welfare system, which relies on most care being provided through employment benefits and the family – structures that are in slow collapse (Kuzuno, Reference Kuzuno2012).
Japan's prisons are Spartan. There is generally no heating or cooling, and physical facilities are typically rustic (Takenaka and Umekawa, Reference Takenaka and Umekawa2018). The ethos is disciplinarian; inmates have negligible personal autonomy. Almost all are sentenced to work full-time in prison factories (MoJ, 2017a, Table 2-3-1-1). There is no age-based retirement or compassionate release from prison work, even for terminal illness, frailty or senility – which in 2018 affected nearly 17 per cent of inmates aged over sixty-five. Older inmates do light tasks for as long as they are able (Johnson, Reference Johnson1997, pp. 235–237; MoJ, 2008: 7-4-1-1; MoJ, 2018, 7-5-2-5-2-Column 9).
Every facet of an inmate's existence is restricted through a micro-management system known as kanri gyokei (controlled corrections). This practice was introduced in the 1970s to allow small numbers of corrections officers to control large numbers of defiant young males at minimal cost (Sakamoto, Reference Sakamoto1997, pp. 157–160). It relies on an intricate web of rules on matters as trivial as the placement of a toothbrush, the straightness of fingers while marching or entitlement to a single piece of paper. For most of each day, an inmate's permission to speak, the direction of their gaze, their bodily movement and posture – even while asleep – as well as their attire and ability to bathe and toilet are regulated. It involves stripping of physical autonomy (Tsuboyama, Reference Tsuboyama2009; Kikuta, Reference Kikuta2016). I observed this when visiting a Japanese prison in mid-2015, when I noticed an elderly male inmate alone on the factory floor. He stood alone, silently facing the shoe lockers, frozen in mid-stride with shoulders slumped, eyes vacant and face blank. Nearby inmates bustled about, preparing for the afternoon march back to the cell blocks. I asked the officer in charge what was wrong – to his bemusement. He had simply barked a voice command to halt because the locker area was becoming crowded. The inmate had frozen in instant submission. He remained frozen, waiting for permission to move.
Despite the militaristic atmosphere and the extraordinary control exercised within Japan prisons, prison memoirs, as well as the media-interview references above, are often nostalgic. A particularly poignant prison memoir by Kazuichi Hanawa, Keimusho no naka (Doing Time), was released as a feature-length film with English subtitles in Reference Hanawa2002. It depicts an ageing inmate's gratitude and sense of belonging during his mid-1990s prison sentence, despite conditions that reduce him to dependency.
The influx of older offenders into Japanese prisons has imposed heavy burdens on a system that was designed for young men. Prison medical costs rose by 80 per cent over the decade to 2015 (Ministry of Finance, 2015). Aged care is labour-intensive whether provided inside or outside a prison, straining overworked staff. In some cases, prisons have had to hire casual care workers and upgrade facilities to cope with older prisoners’ physical and mental deterioration (Asahi Shinbun, Reference Asahi2008; Livedoor News, 2016). Spending money on prisons is unpopular in Japan. The rise of ‘penal populism’ and vocal victim-support groups has dampened tolerance for expenditure to improve conditions for inmates and staff (Miyazawa, Reference Miyazawa2008). Prisons have often had to shoulder caring for ageing inmates from existing budgets, already lean (Lawson, Reference Lawson, Das and Birch2020).
Nonetheless, prison life can be appealing for a marginalised older Japanese person. This is because Japanese authoritarianism also has a ‘benevolent’ face (Foote, Reference Foote1992; see also De Vos, Reference De1984; Haley, Reference Haley1998; Botsman, Reference Botsman2005). The inmates in each factory live and work as a siloed unit, which provides safety and predictability. In the evenings and on weekends, inmates held in group cells may talk and play board games, and all may read and watch television. Communal bathing is scheduled twice weekly in winter, three times in summer, and there is occasional group exercise. Meals are plain and calories limited, but they are nutritious, regular and free. Medical care may be basic and slow, but is provided on-site (Kyosei Iryo no Arikata ni kansuru Yushikisha Kentokai, 2014). Depending on one's outlook and life experience, factory labour might serve as occupational therapy; it is adjusted for physical frailty, with mobility and incontinence aids provided (Onishi, Reference Onishi2007).
What is striking about the Japanese prisoner survey responses reported in section 6 is the significantly higher levels of compliance with prison authorities seen in the older prisoners’ responses. These responses are analysed in light of Valerie Braithwaite's ‘motivational postures’ heuristic, with the discussion shedding light on older prisoners’ legal consciousness.
6 Strategic compliance
As the voices of those with lived experience of prison life are generally absent from penal research and policy debates in Japan,Footnote 25 little is known about prisoners’ attitudes towards the institutions they inhabit. MoJ reports such as the annual White Paper on Crime tend to be descriptive, not evaluative.Footnote 26 Drawing on my Japanese prisoner data, we can interrogate whether age might affect inmates’ attitudes to and interactions with prison authorities, here meaning the prison as an institution, corrections officers and civil overseers, who are part-time corrections staff.Footnote 27 Examining older prisoners’ postures in relation to the authority wielded by this prison system sheds light on their legal consciousness and embrace of the stigmatised prisoner identity. The story the data tell is consistent with the anecdotal and memoir prisoner narratives described in section 3. Relative to younger inmates, older inmates refrain from potentially disruptive contact with overseers and express themselves in the language of compliance and gratitude.
This apparent submissiveness may seem ironic given older inmates’ embrace of the stigmatised (criminal) identity in order to cross the prison threshold. But, as I argue below, we should consider the possibility that even heartfelt compliance can also be strategic.
6.1 Older prisoners’ interactions with and attitudes towards prison authorities
Of the 1,401 inmates who gave their age in the survey, a quarter (24.8 per cent) were aged over fifty-five years (Over 55s) (n = 348).Footnote 28 Some sixty-eight of this older group (19.5 per cent) also answered the open-ended survey question. Older inmates were less likely to be released on parole (53.3 per cent) than those who were younger (62.4 per cent). This reflects the known inverse relationship between eligibility for parole and age discussed in section 6.3 below.
A larger share of older inmates did not know about or understand the oversight system – or their ability to access it (12.5 per cent of older inmate respondents, in comparison with 5.3 per cent of inmates aged up to fifty-five). As one older inmate commented: ‘To tell the truth, I don't fully grasp what the overseers do.’Footnote 29 Older inmates were also more likely to have refrained from contacting the overseers (19.5 against 13.4 per cent of the younger cohort) because they felt it inappropriate for prisoners to do so. Despite this, 10.0 per cent of the Over 55s had obtained an interview with the overseers, while only 6.1 per cent of younger inmates had done so. Older inmates were less likely (12.5 per cent) than younger inmates (20.8 per cent) to be worried that corrections officers would perceive them as troublemakers if they contacted the overseers or find out the details of their complaint (8.6 against 12.8 per cent). Older inmates did express the view that the system was pointless, making comments like: ‘Frankly, it's not clear why the overseers visit the prison; it seems like the oversight system is just wasted expense.’Footnote 30 However, this view was less prevalent among older inmates than among younger inmates (24.0 against 33.6 per cent). These differences all reached statistical significance (chi-squared < 0.05).
Of those who had used the oversight system, more than two-thirds (68.4 per cent) of the older inmates approached overseers about a single concern. Younger inmates were more likely to use the oversight system for multiple concerns (65.6 per cent). Older inmates were also far less likely (18.2 per cent) to have used the oversight system to advocate for other inmates than their younger counterparts (43.4 per cent). These differences reached statistical significance (chi-squared < 0.05). This reluctance to approach authorities did not mean older inmates lacked empathy. More than a dozen made comments in response to the open-ended question that expressed concern for other inmates, often regarding whether the entire inmate cohort was receiving enough information about the oversight system. One wrote about the need to improve the system to ‘better serve the needs of the more vulnerable’, mentioning non-Japanese prisoners.Footnote 31
The Over 55s were more likely to perceive a positive outcome after using the oversight system than younger inmates. On a 1-to-5 scale with 1 being Don't think so at all and 5 being Definitely think so, older inmates were significantly more likely to think that there was a ‘positive change’ afterwards (M = 3.12, SD = 1.364) than younger inmates (M = 2.14, SD = 1.434), t(114) = –3.146, p < 0.01, two-tailed). When two scales were developed to measure perceptions of oversight system benefits among inmates – a Protects Human Rights Footnote 32 and an Informs Prisoners and the Public Footnote 33 scale – the Over 55s saw more benefits.Footnote 34
As a whole, inmate comments regarding the impact of the oversight system were strongly negative, but some older inmates’ views were more sanguine or measured. One thought the oversight system ‘might be helping to improve our prison conditions’.Footnote 35 Another was reflective: ‘Given the changing times, I think it is very good for prisons to be reformed so they don't fall behind – and this will no doubt assist inmates as well.’Footnote 36 Those older inmates who were less content made respectful, constructive suggestions, for example for overseers to ‘dialogue with large numbers of inmates’,Footnote 37 ‘consider making unannounced visits’Footnote 38 or for the system to be more visible, accessible and comprehensible to prisoners.
Older inmates were much more likely to express appreciation to the prison (52.4 per cent) than the younger cohort (21.3 per cent). The difference was statistically significant, with a p-value of 0.004 (chi-squared). One older inmate even expressed gratitude towards me as a researcher. He wrote in polite, deferential terms: ‘Thank you for going to the trouble of providing good advice to inmates.’Footnote 39 Another politely apologised for ‘not having given much thought to how to reform the oversight system’.Footnote 40
How should we understand the statistically significant differences in behaviours and attitudes by age group seen above? One way of understanding this is to consider the distinctive qualities of the Over 55s’ motivational postures towards the prison authorities who regulate or control them.
6.2 Motivational postures within a marginalised group
The motivational posturesFootnote 41 that we see in the responses from the Over 55s inmate cohort above are both compliance-oriented – namely ‘commitment’ and ‘capitulation’. As Valerie Braithwaite notes, ‘commitment’ signifies ‘belief in the authority, its goals and purpose’, while ‘capitulation’ involves ‘acquiescing’ – either to minimise trouble or due to the belief that the authority ‘knows best’. Low levels of defiance are seen when a person's vision of themselves is as being inherently ‘moral’. Compliant people believe they have ‘nothing to fear from authority’, as they are inherently ‘law-abiding’ (Braithwaite, Reference Braithwaite, Weisburd and Bruinsma2014, pp. 916, 921).
There is considerable literature from other jurisdictions describing older inmatesFootnote 42 as being relatively mature, less defiant and more compliant. From as early as the 1970s (Kerbs and Jolley, Reference Kerbs and Jolley2009, p. 127), these prisoners have been reported as having a ‘settling’, ‘calming’ or ‘stabilizing’ effect on younger cohorts (Morton, Reference Morton1992, p. 11; Grant, Reference Grant1999, p. 5; Bottoms, Reference Bottoms1999, pp. 227–228, 247–248; Baidawi et al., Reference Baidawi2011, p. 6; Human Rights Watch, Reference Human2012, p. 62). The UNDOC Handbook refers to older prisoners’ ‘need for tranquility’ (2009, p. 136), while Crawley and Sparks describe this cohort as typically ‘compliant, dependent, and quiet’ (Reference Crawley, Sparks, Liebling and Maruna2005/2011, p. 358).
Until this point, we have not had a corresponding profile for Japanese inmates, as, until Japan's prison reforms of 2005–2006, the lived experience of the Japanese inmate was hidden from view. Until that time, the official policy of multilayered secrecy (mikko shugi) surrounding prisons (Lawson, Reference Lawson, Wolff, Anderson and Nottage2015) was impenetrable. Very little information about Japanese prisoners’ behaviours or attitudes was available.
What my 2016 data reported above suggest is that the Over 55s’ responses to questions about their behaviours and attitudes relating to a prison oversight system can be seen as demonstrating trust, deference and acceptance. This cohort was less likely to see the system as pointless and slightly more likely to perceive it as beneficial. They were more likely to have used the system, but, when they did, they refrained from directly challenging the prison's authority (e.g. by advocating for others or by raising multiple concerns). They were less likely to have been deterred by concerns that corrections officers would see them as troublemakers or learn the nature of their complaint. The Over 55s were also far more likely to have expressed thanks towards the prison when interacting with overseers.Footnote 43
These attitudes are consistent with Valerie Braithwaite's description of the ‘commitment’ motivational posture towards authority. In this posture, individuals are ‘open’ to an authority and see themselves as aligned in close relationship to it (Braithwaite, Reference Braithwaite, Weisburd and Bruinsma2014, p. 916). A stronger indication of this comes through in the responses to a question about whether it would be ‘inappropriate’ for them to use the oversight system. The wording of the question in Japanese carries the sense of inappropriateness due to prisoners being undeserving or unworthy, so agreement with the proposition embedded in the question could indicate a degree of self-stigmatisation that would fit with Braithwaite's ‘capitulation’ category. The strong presence of ‘commitment’ and ‘capitulation’ attitudes in the dataset is a neat fit with her prediction cited above in section 4. She notes that these attitudes will be strongly present where an authority, in this case the prison system, is delivering on ‘valued social goals’ for a community it serves (Braithwaite, Reference Braithwaite, Weisburd and Bruinsma2014, p. 918). It is clear that for some ageing Japanese, the prison system delivers valuable social protections and benefits.
One limitation of these results is that the survey instrument is not a psychometric tool and was not designed to distinguish clearly between expressions of the adjacent ‘commitment’ and ‘capitulation’ postures. There was also no designed element to screen for a ‘game playing’ motivational posture. The results reported here are drawn from data generated as part of a larger project with a defined focus on the regulatory nature and impact of an oversight system. However, even with that caveat, the fact that so many statistically significant differences are seen in behaviours and attitudes towards prison authorities when the Over 55s and younger inmates are compared is noteworthy.
6.3 Recursive stigmatisation and spoiled identity
We know from published prisoner narratives (e.g. Toyama, Reference Toyama2013; Egawa, Reference Egawa2016a; Reference Egawa2016b; Reference Egawa2016c; Fukada, Reference Fukada2018; Butler, Reference Butler2019) and the work of Hosoi et al. (Reference Hosoi2016) that older Japanese prisoners have often been marginalised prior to offending and have welcomed imprisonment. In addition, older male offenders in particular have little chance of being released on parole, despite posing a negligible risk to society. Their typically full-term sentences derive from their social isolation before entering prison (Koyanagi, Reference Koyanagi2014), which deepens recursively after each release due to their spoiled identities. Even if they had family ties before entering prison, these are often severed on admission (Kimura and Sawaki, Reference Kimura and Sawaki2013) and prisoners without outside sponsors are ineligible for parole. Accordingly, the parole rate for inmates aged over sixty-five remained at 40 per cent over the decade to 2016, while the overall rate rose to nearly 58 per cent (MoJ, 2017a, Figure 4-8-2-3).
This is devastating, as Japanese parole offers real advantages. It means access to dedicated, comprehensive reintegration support by a trained Volunteer Probation Officer for the unserved portion of the prison term (Ellis et al., Reference Ellis, Lewis and Sato2011). The only assistance for those released after serving their full term is access, upon application, to a short-term fee-based halfway house and six months’ emergency income support (Kikuta, Reference Kikuta2002, pp. 195–199; Kangoku Jinken Sentaa, Reference Kangoku2016). Not all apply.
With severed family ties, older ex-offenders also lack the officially registered current address (jumin toroku) that is needed to enter into a lease or apply for public assistance. This bureaucratic maze might be overcome with an attorney, but released inmates are often unable to access a lawyer or are considered ineligible for Ho Terasu (Japan Legal Support Center) legal aid. Accordingly, reoffending can be a rational choice for an impoverished, homeless, recursively stigmatised, ageing ex-offender (Hamai, Reference Hamai2006, pp. 160–161). Kuzuno (Reference Kuzuno2012, p. 16) describes this ‘spiral of social exclusion’ as follows:
‘the poor and socially isolated elderly … are, as a whole, individuals excluded from labor markets as temporary employees or workers in precarious employment. Despite this … the public welfare system has yet to play a significant role in countering this situation. Some from these marginalized groups [have] struggled with economic destitution and lost their positions in society, which eventually led to arrests for misdemeanors, indictments, convictions of such crimes, and, consequently, incarceration in penal institutions. They [are] released without having any place to go to and then repea[t] crimes, which further absor[bs] them into the criminal justice system.’
A lengthier return to prison is not hard to obtain. Sentences are heavier for even trivial offences committed within five years of release, and up to double that for similar first offences (Penal Code, Arts 57, 59).Footnote 44
The picture that emerges above is of a vulnerable, ageing cohort that leverages the punitive, rigid underbelly of Japan's criminal justice system to achieve temporary relief through incarceration – even though this requires embracing the criminal identity. This is a steep price for institutional protection, but it is a strategy that is consistent with that of stigmatised cohorts in the US seen in the literature in section 4. We can conclude that in Japan, as elsewhere, legal identities that provide protection with one hand can lead to recursive stigmatisation with the other.
6.4 Driving change
Japan's MoJ has watched how the influx of vulnerable ageing inmates force ad hoc institutional changes and strain prison resources. In 2015, when I asked the warden of a large prison for serious and repeat offenders what proportion of his older prisoners were ‘social admissions’, he barely missed a beat: ‘All of them!,’ he shot back. Moreover, as ageing inmate numbers rose, it became clear to policy-makers that the patchy, short-term post-release assistance offered to them did not solve their intractable reoffending and resettlement difficulties (MoJ, 2017b).
Within Japanese policy circles, the ageing recidivist population has driven bureaucratic contests.
Japanese prisons were remarkably resistant to change throughout the twentieth century, partly due to disagreement about keeping the controversial daiyo kangoku police detention practice. After the Nagoya Prison Scandal of 2002–2003, a new legislative scheme finally ended a ninety-seven-year reform hiatus (Lawson, Reference Lawson, Wolff, Anderson and Nottage2015),Footnote 45 but the issue of ageing inmates was not dealt with directly for several more years.
Instead, ad hoc accommodations had included the 1985 repurposing of a cell block at Onomichi Branch Prison near Hiroshima for ageing offenders (Johnson, Reference Johnson1997, p. 247; Lawson, Reference Lawson, Wolff, Anderson and Nottage2015). Finally, in April 2008, the MoJ announced a further 1,000 or so beds for aged inmates at new purpose-built aged-care wings at three prisons: Hiroshima, Takamatsu and Oita (Asahi Shinbun, Reference Asahi2008). However, expansionism has its limits. Recent measures have focused on legislative and policy changes to prevent older crime, divert older offenders away from prisons and increase public tolerance for their presence in the community (MoJ, 2019c).
Responsibility for the welfare of released inmates has long been considered properly shouldered by the MoJ Rehabilitation Bureau alone, not by the Ministry of Health, Labour and Welfare (MHLW). The minimalist welfare support provided by the Rehabilitation Bureau to released inmates emanated from the view that the family and employers, rather than the government, should provide a social safety net (Hayashi, Reference Hayashi2011), as well as community distaste for ex-offender participation in Japan's meagre mainstream welfare programmes (Kikuta, Reference Kikuta2002, pp. 195–199). This reluctance to provide mainstream welfare speaks clearly to older offenders’ spoiled, stigmatised identities. For aged ex-offenders, estranged from family and unemployed, it meant that the state acquiesced to or was complicit in their recursive stigmatisation and exclusion.
Recent reform efforts, however, have been facilitated by an unprecedented collaboration between the MoJ and MHLW, including the sharing of data and personnel, and birthing a new interdisciplinary sector of ‘forensic social work’ (Shimaya, Reference Shimaya2009; Nihon Shiho Fukushi Gakkai, Reference Nihon2017). There have been booms in the bureaucratic, technical, academic, business and civil society domains in theorising, evaluating and facilitating the new sector (Nichibenren Jinken Yogo Iinkai, Reference Nichibenren2013; Ishikawa, Reference Ishikawa2014; Muraki, Reference Muraki2015; Tokyo TS Netto, Reference Netto2016; Keiji Rippo Kenkyukai, Reference Keiji2018; Kakegawa, Reference Kakegawa2018; Chiryoteki Shiho Kenkyukai, Reference Chiryoteki2018.)
Two pillars of the new approach provide iriguchi shien (entry support) and deguchi shien (exit support) for ageing offenders.Footnote 46 Entry support involves prosecutors engaging with welfare agencies to develop non-custodial options. Exit support begins before release, as prisons newly equipped with social workers partner with probation offices, local governments, halfway houses, civil society groups and local employers to reintegrate vulnerable inmates (MoJ, 2019c).
Each prefecture now has a dedicated resettlement and reintegration support office known as Chiiki Teichaku Shien Sentaa (Regional Resettlement Support Centers), tasked with securing a permanent abode, and a job or ongoing public assistance for ageing and disabled ex-offenders (MoJ, 2019a). Well-known successes include a collaboration between Nagasaki Prison and a local social services provider, Nanko Airinkai, and an action research reintegration programme for homeless ageing ex-offenders supported by Niigata Prison (Matsuyama, Reference Matsuyama2015; Nichibenren Jinken Yogo Iinkai, Reference Nichibenren2013; Kamigaki and Yokotani, Reference Kamigaki and Yokotani2014). These efforts have produced a slight decline in overall two-year recidivismFootnote 47 for the those aged sixty-five to sixty-nine years, which had fallen to 11.0 per cent by 2018 – although the rate for those aged seventy or more held steady (MoJ, 2019d, Figure 4-8-2-4).
These reforms may reflect that fact that a dramatically ageing prison population fundamentally disrupts Japanese political and social narratives. It upsets pieties about societal safety and order, not to mention respect for the aged. This has also attracted thoughtful international media coverage, exemplified by a VICE News video report raising questions about Japanese welfare provision (2019). Marginalised older people are depicted as consigned to modern versions of Amsterdam's Rasphuis workhouse (1596–1815), first seen Japan in 1790 as the Edo Stockade for Labourers (Botsman, Reference Botsman2005). The aggregated choices of vulnerable older individuals risk damaging the external image that Japan has cultivated for its otherwise strikingly low crime rate and lenient criminal justice system (e.g. Foote, Reference Foote1992; Johnson, Reference Johnson and Tonry2007; Hamai and Ellis, Reference Hamai, Ellis and Jennings2015; Suzuki and Otani, Reference Suzuki and Otani2017).
7 Conclusion
Japan's older inmate influx in recent decades has been driven by vulnerable older citizens turning to petty crime. Numerous sources indicate that this older crime wave is associated with social integration losses in later life. The Japanese state initially resisted a welfare-oriented response and even now continues incarcerating ageing offenders for minor offences. Paradoxically, this rigid application of criminal law was implicitly understood by some offenders as leaving the prison system open to access as a welfare rather than corrective service. For these seniors, the recursive stigma of criminality has been a rational price to pay for material and social benefits in prison. Ironically, the analysis of recent Japanese prisoner survey data in this paper shows that these vulnerable older Japanese offenders experience prison as protective welfare through strategic compliance with prison authorities.
Specifically, this insight is supported by the data presented in this paper from male inmates in Japan aged over fifty-five, who were significantly more likely to exhibit trust, deference and acceptance in response to the prison authorities and to self-identify as unworthy or undeserving of contact with an oversight mechanism. While psychometric research would be needed to confirm and further explore these findings, these responses to authority are consistent with the ‘commitment’ or ‘capitulation’ motivational postures identified by Valerie Braithwaite as common in those who see themselves as law-abiding and well aligned with the state (Reference Braithwaite, Weisburd and Bruinsma2014).
One implication of this analysis is that incarceration is inappropriate for this aged-offender cohort. This is consistent with the view expressed by Satoru Ohashi, the current Director-General of the Correction Bureau,Footnote 48 on the plight of Japan's ageing offenders. He has described the ageing cohort as requiring welfare, not punishment, as many have simply ‘fallen through the cracks’ for want of public assistance (Matsuyama, Reference Matsuyama2015). The analysis also accords with recommendations in the UNDOC Handbook on Inmates with Special Needs stating that ageing offenders with compliant attitudes, who present little risk to society and burden criminal justice institutions, should not be incarcerated (2009, pp. 126–127).
The case-study presented in this paper aligns with Chua and Engel's (Reference Chua and Engel2018; Reference Chua and Engel2019) observations about the myriad ways in which citizens can navigate law to achieve a desired end, without asserting legal rights, empowerment or privileges. Law that protects frequently demands a stiff price through additional layers of stigmatisation. The distinctive contribution of this study is to demonstrate how in Japan as elsewhere,Footnote 49 marginalised individuals have achieved their goals by embracing a risky, stigmatised identity and strategic compliance with the authorities associated with that stigmatisation.
As an aside, the result of those aggregated choices by apparently marginal individuals has been that, for the first time in Japanese policy history, older vulnerable people have been officially recognised as clients in need of a raft of services rather than as legitimate targets of state wrath. This policy change has come from individuals mobilising the stigmatising power of law, rather than claiming their entitlements through its empowerment function. Ageing offenders in Japan still pay a heavy personal price, both in prison and after their release into recursive stigmatisation, exclusion and poverty. The flurry of welfare service add-ons that the MoJ and the MHLW have now crafted are restricted to the small cohort of marginalised older people who offend repeatedly, so primarily protect prisons. These services redistribute the burden for offenders’ aged care onto networks of public and private actors. Policies of this kind do not address the root causes of social marginalisation and poverty among older Japanese. This matters because Japan remains the front runner in East Asian demographic decline. Neighbouring countries with their own marginalised, greying populationsFootnote 50 may wish to consider how to adjust their own welfare and criminal justice policy responses to prevent a similar trend in revolving-door prison admissions among the vulnerable elderly.
Conflicts of Interest
None
Acknowledgements
An earlier draft of this paper was presented at the ‘Stigmatization, Identities and the Law: Asian and Comparative Perspectives’ virtual workshop held across 22–25 June 2020, which was supported by Academic Research Fund Tier II (MOE2018-T2-1–101) and hosted by the Centre for Asian Legal Studies at the National University of Singapore Faculty of Law. The original research was supported by Australian Government Endeavor Fellowship No 5546/2016.
