1. INTRODUCTION: LAY PARTICIPATION IN JAPANESE CRIMINAL JUSTICE
This article highlights reliance on lay participation as a mechanism for solving perceived problems in Japanese criminal justice and argues that lay participation plays an important role in legitimizing the current system. The article examines three reforms aimed at increasing lay participation over the last decade: the mandatory prosecution power given to Kensatsu Shinsakai (Prosecution Review Commissions, or “PRCs”), the advent of the saiban’in system (lay-judge system), and the Keiji Shisetsu Shisatsu I’inkai (Penal Institution Visiting Committees, or “Visiting Committees”).Footnote 1 These reforms took effect at approximately the same time over a decade ago and each involves some element of the general public in different stages of the criminal justice process. PRC members review non-charge decisions by Japanese prosecutors. Reforms in 2004 made a PRC decision legally binding if the PRC recommends prosecution twice, effective from 2009.Footnote 2 The lay-judge system involves citizen participation in serious criminal trials and also was introduced in 2004, with the first such trial occurring in 2009.Footnote 3 Visiting Committees commenced full operations in 2006 after eight corrections officers at Nagoya Prison were charged with criminal offences in 2002–03 in connection with the deaths of two inmates and the injury of a third.Footnote 4 These reforms coincided with a broad spectrum of other legal reforms introduced in Japan throughout the 1990s and 2000s, and their content was influenced by that timing.Footnote 5
By juxtaposing the much-studied lay-judge system with PRCs and Visiting Committees, this article analyses the diversity of meanings ascribed to “lay” and “participation” in Japan. There is no prescribed definition for either term in Japan. Lay participation, broadly defined, may refer to any method that provides an avenue for citizen involvement in any part of the criminal process.Footnote 6 In some cases, such as the Visiting Committees and PRCs, participation institutions are arguably designed to provide for lay oversight of professionals. The adoption of lay participation in so many new forms in recent years, despite significant economic costs and potential challenges to incumbent stakeholders, is a significant policy trend.Footnote 7 In the 1980s, one of Japan’s leading criminal-procedure scholars criticized the criminal justice system for being indifferent to society’s needs.Footnote 8 To deal with this and other concerns discussed in this article, the concept of lay participation was rhetorically appealing to many in Japan in the 1990s and 2000s.Footnote 9 However, each reform has also helped legitimize parts of Japanese criminal justice. The content, quality, and consequences of participation can be difficult to gauge, but the new lay participation mechanisms reflect policies of innovation in the “service of stability” and not immediate, substantive change.Footnote 10 The article’s focus on the different meanings ascribed to “lay” and “participation” that are reflected in the reforms highlights the problem of finding reliable ways to assess the reforms. This article is not an attempt to assess the success or failure of these reforms, however, for that is the focus of other research.Footnote 11 Rather, it concludes by analyzing some challenges for the future of lay participation, including reform fatigue, the demographic crisis, the impact of geography, and technological developments.
2. OVERVIEW OF THE REFORMS
This section provides an outline of the PRC, lay-judge system, and Visiting Committee reforms. The reforms are presented in the order in which they interact with Japanese criminal justice. PRCs involve lay participation at the commencement of proceedings when prosecutors are making charging decisions. Saiban’in are involved during the criminal-trial process. Visiting Committees primarily interact with the process after the accused is found guilty and sentenced to prison, although they also oversee detention houses, where detainees await trial or sentencing. Visiting Committees are dealt with in more detail because of the relative lack of information available in English.
2.1 Prosecution Review Commissions
The revised Kensatsu shinsakai hō (Prosecution Review Commission Act) (“PRC Act”)Footnote 12 amended the PRC Act of 1948 to make it possible for a PRC to require prosecutors to file criminal charges. Until this revision in 2004, a PRC could only make a non-binding recommendation that prosecutors bring charges, which was often ignored.Footnote 13 In many respects, Japanese prosecutors exercise their discretion cautiously, by following a conservative charging policy which mandates that they only file charges in cases that will end in conviction (a “trial sufficiency policy”).Footnote 14 The new PRC Act means that Japanese prosecutors no longer possess a monopoly over criminal-charge decisions. PRCs cannot review prosecutors’ decisions to indict, but they can review and overrule prosecutors’ decisions not to indict. As of 2018, there were a total of 165 PRCs in Japan’s district-court jurisdictions.Footnote 15 Each PRC is composed of 11 citizens who are authorized to review prosecutors’ decisions not to indict.Footnote 16 Citizens are chosen randomly from Japan’s electoral roll.Footnote 17 Each member is paid a daily amount decided by the chair of the PRC of up to JPY 8,000 (approximately USD 73).Footnote 18
If prosecutors decide not to indict, they must notify the alleged victims or parties who filed a complaint. A PRC begins a review of such a decision in one of two ways. First, a PRC may establish a review in response to a claim made by an alleged victim or victim’s proxy. Alternatively, based on a majority vote, a PRC may carry out a review on its own initiative.Footnote 19 A PRC reviews the case in private,Footnote 20 by questioning prosecutors,Footnote 21 summoning witnesses,Footnote 22 and asking for expert advice.Footnote 23 Ultimately, a PRC arrives at one of three decisions, which is presented to prosecutors in writing: (1) non-indictment is proper (i.e. essentially agreeing with prosecutors that the case should not proceed), (2) non-indictment is improper (i.e. suggesting prosecutors reconsider), or (3) indictment is proper (i.e. disagreeing with prosecutors and telling them they should prosecute). For the first two of these outcomes, a majority vote is required (six to five) and a super-majority of eight or more is necessary for the third outcome.Footnote 24 If prosecutors decide not to indict and then the PRC decides that indictment is proper, prosecutors must reconsider their non-charge decision.Footnote 25 If prosecutors decide for a second time not to indict or if they do not indict within three months, they must explain their decision to the PRC.Footnote 26 The PRC then reconsiders the case and, if it still thinks that indictment is proper, its decision becomes legally binding.Footnote 27 Indictments that result from this two-step process are called cases of “mandatory prosecution” (kyōsei kiso). Since the reforms to the PRC Act became effective in May 2009, nine criminal cases have resulted in mandatory prosecution, involving a total of 13 defendants.Footnote 28
Mandatory prosecutions are led by a “designated attorney” (shitei bengoshi) appointed by the court.Footnote 29 The designated attorneys prosecute the case and have powers similar to those of public prosecutors. However, attorneys are not permitted to discontinue the mandatory indictment unless “litigation conditions are lacking” and, whilst they may conduct supplementary investigations, they are not permitted to direct the police or public prosecutors.Footnote 30 Some local bar associations maintain a list of attorneys willing to act as designated attorneys in PRC matters for the courts to draw on. Those lists include leading attorneys in each bar association who typically belong to the Japanese Federation of Bar Associations (JFBA) working group on PRCs.Footnote 31 Local bar associations may ask attorneys participating in local study groups on PRCs to put their names forward for the local list.Footnote 32
2.2 Lay-Judge System
The lay-judge system was also legislated in 2004 and came into effect in 2009. The system involves six lay judges chosen at random from the electoral roll joining three professional judges to decide criminal guilt in serious criminal trials.Footnote 33 The lay judges participate in fact-finding, decisions on law, and sentencing at the district-court level.Footnote 34 District courts are Japan’s courts of first instance for most criminal cases. There is a single district court in each of the 47 prefectures, except Hokkaido, where there are four district courts. The district courts have branch offices in a total of 203 locations. Lay judges sit on the bench with professional judges and may ask questions during the trial before deliberating with professional judges. Lay judges are paid a stipend of up to JPY 10,000 (approximately USD 91) per day.Footnote 35 A trial involving lay and professional judges requires a majority of at least nine people and at least one of those nine people in the majority must be a professional judge. As such, a trial involving lay judges still needs the support of a professional judge for a defendant to be found guilty. The support of a professional judge is not required for an acquittal and a majority of lay judges may decide to acquit a defendant.
Between May 2009 and October 2018, 11,564 trials involving saiban’in occurred and 65,243 Japanese citizens have served as saiban’in.Footnote 36 Commentators have been watching to see whether there have been significant impacts on Japan’s historically high conviction rates.Footnote 37 A comparison of acquittal rates pre and post reform suggests that the lay-judge system has made little difference to overall conviction rates, which remain high. In trials involving lay judges, the accused was acquitted in 0.8% of cases to October 2018,Footnote 38 while, in pre-reform cases involving only professional judges, the accused was acquitted in 0.6% of cases between 2006 and 2008.Footnote 39 But there are some significant differences, depending on the type of case. For example, post-reform acquittal rates for drug-related cases (3.9%) are higher than the average post-reform acquittal rates (0.8%).Footnote 40 Moreover, the participation of saiban’in in trials has seen little impact on sentencing trends overall to date, in part because professional judges use sentencing precedents from the pre-lay-judge period to guide sentencing deliberations in lay-judge cases.Footnote 41
Although the new system has not yet significantly changed conviction rates or sentencing patterns, its impacts may be seen in many other ways.Footnote 42 Judges, prosecutors, and defence counsel, for example, now meet before the so-called continuous trial and agree to a plan for the trial.Footnote 43 Further, since 1 June 2019, police and prosecutors are required to record suspect interviews in their entirety where the case will be heard by saiban’in.Footnote 44 Moreover, defence lawyers have seen an increase in the amount of information disclosed by the prosecution before trial.Footnote 45 At the same time, the number of bengoshi (qualified attorneys) has increased due to reforms to legal education, creating a larger pool of potential defence lawyers.
2.3 Penal Institution Visiting Committees
Japan’s prison reforms were passed in two Bills. The first legislation, which introduced Visiting Committees to prisons holding sentenced inmates, was passed in May 2005 and came into force in May 2006. The legislation was amended in June 2006 to extend its coverage to unsentenced inmates and death-row inmates held in detention houses.Footnote 46 These amendments came into force in June 2007. The final regime is known as the Act on Penal Detention Facilities and Treatment of Inmates and Detainees Act 2005 (“Act on Penal Detention”).Footnote 47
Under Article 7(1) of the Act on Penal Detention, Visiting Committees are established in each of Japan’s main prisons and detention houses, which currently number 76. Visiting Committees are to also visit local branch penal institutions “if possible.” These currently number 108. Article 7(2) prescribes the Visiting Committee’s duties: to “inspect” the prison and provide oral and written “opinions” (iken) to the warden regarding an abstract remit: the “administration of the penal institution.” Article 8(1) provides for a maximum of ten members. In practice, the minimum membership is four. Article 8(2) stipulates that members should be “persons of advanced integrity and insight with enthusiasm for the improvement of the administration of the penal institution.” Articles 8(3) and (4) prescribe a one-year renewable term. A stipend is paid for up to six half-day meetings at the prison each year.Footnote 48 Under Article 9(1), the warden is expected to brief the Visiting Committee on “the state of the prison’s administration,” either regularly or as required. Under Article 9(2) and (3), Visiting Committees are permitted to inspect (shisatsu suru) the secure area of the prison and to seek the warden’s permission to interview inmates. The warden is obliged to “co-operate as necessary.”
Two unprecedented features of the system surrounding Visiting Committees appear only in the Ministry of Justice Correction Bureau administrative documents issued to the corrections officers and Visiting Committee members. These documents are a 2006 Ministry of Justice stipulation to wardens, hōmusho kyōsō dai-3255 go (Directive to Wardens), and the “administrative guidance” (gyōsei shidō) provided to new Committee members, keiji shisetsu shisatsu i’inkai katsudō no tebiki (Ministry Guide).Footnote 49 The first feature is the establishment of numerous locked suggestion boxes (teianbako) inside each prison, which are how inmates primarily contact the Committee. These boxes allow inmates to write the first uncensored letters ever permitted.Footnote 50 The second feature is the option for Visiting Committees to conduct unmonitored inmate interviews, which are held in ordinary rooms. The combination of these two privileges during interviews is without precedent. The Committee holds the only keys to the suggestion boxes and interviews are in private, across an ordinary table. Even after the 2006 reforms, corrections officers attend and take notes at personal inmate visits, which are almost invariably “boxed,” meaning in a secure cubicle through a transparent panel. While not closely monitored, attorney visits are still “boxed.”
Visiting Committees provide a steady rotation of carefully vetted local leaders who spend regular time immersed in prison conditions and operational issues that were, until mid-2005, subject to multiple layers of secrecy.Footnote 51 Whilst the Visiting Committee role is limited by design, making it difficult for them to instigate systemic reform, their administrative work in summarizing and reporting trends in inmate complaints around Japan is a useful data source for the Correction Bureau. Further, although Visiting Committees may not issue press releases or official reports in their own right,Footnote 52 some legally trained Visiting Committee members do author or contribute to scholarly articles and publications by civil-society groups lobbying for reform.Footnote 53 Moreover, the Visiting Committees may act as a brake on rogue corrections officers, as a result of the potential for complaints to be lodged in the locked suggestion boxes, which are placed in numerous locations around the prison and emptied six times a year.Footnote 54 However, the rigid expectations of Japanese corrections officers, who must maintain perfect safety and order through a system of micro-management known as kanri gyōkei (“controlled corrections”), have not changed dramatically. First used in Osaka Prison in 1973, kanri gyōkei is reminiscent of the strict prison-management techniques popularized in Western jurisdictions in the early nineteenth century: the Auburn silent system and the Pennsylvania separate system.Footnote 55 It involves restrictions on speaking and toileting for most of the day; voice control of prisoners’ bodily position, gestures, and gaze; and militaristic marching and chanting for prisoner movements around the prison.Footnote 56
Despite persistently austere, disciplinarian conditions,Footnote 57 “big picture” improvements in prison administration in recent years include enhanced diversion and rehabilitative reintegration measures, particularly for elderly and disabled offenders,Footnote 58 that have contributed to rapid decarceration. Japan’s prison population dropped by more than 38% from 81,255 at end calendar 2006 to 49,896 at end April 2019.Footnote 59 The incarceration rate per 100,000 head of population declined sharply from 63.5 to 41.0 to July 2018.Footnote 60 This decarceration progress has been aided by the decrease in Japanese crime rates for the past 15 years.Footnote 61 The steady series of reforms has been organized, not as prison reform, but as support (shien) for offenders at the prosecution or entry (iriguchi) and probation or exit (deguchi) stages of the criminal justice process. Specific measures include the horizontal integration of the criminal justice and welfare systems, allowing enhanced diversionary efforts by prosecutors and defence attorneys, and innovative partnerships with public and private probation and reintegration service providers.Footnote 62 Further, new legislation now allows judges innovative “prison plus rehabilitative probation” sentencing options.Footnote 63 The overall recidivism rate, meaning readmission to prison within two years of release, declined even faster than hoped from 2006 to 2016, from 20.9% to 17.3%.Footnote 64
3. CAUSES AND CONTEXTS OF REFORM
The coalescence of these reforms in criminal justice in the mid-2000s was not a coincidence and reflects historical calls to increase lay participation in Japanese criminal justice. The Japanese criminal justice system has been criticized by historical and contemporary commentators for being too favourable to police and prosecutors and captured by the state and its bureaucracy.Footnote 65 These arguments become particularly compelling when Japanese criminal justice is compared to that of other industrialized states, such as the US.Footnote 66 Reformers in Japan considered increasing lay participation in criminal justice as one solution to these criticisms. Lay participation in the Japanese legal system is not new, however. Foundational mechanisms such as the Volunteer Probation Officer and Human Rights Commissioner systems have been in place across the postwar era.Footnote 67 Moreover, the original version of PRCs was established in 1948.Footnote 68
Calls for reform gained traction as Japan’s elites searched for answers to perceived failings in economic, political, and social structures after the Bubble economy burst.Footnote 69 The 1990s saw many other drivers for socio-legal reforms, including the Kobe earthquake, sarin gas attack, and horrific murders of children by children. For many, nothing felt safe or secure any more. In 1999, the national government, led by Prime Minister Keizo Obuchi, established the influential ad hoc law-reform body known as the Shihō Seido Kaikaku Shingikai (Justice System Reform Council) (“Council”). Whilst Japanese governments often consult shingikai (legislative councils) on law-reform issues, this council was more broadly formulated than typical departmentally focused shingikai. The Council’s participants were nominated by the prime minister with the consent of both the Upper and Lower Houses of the Diet, and its terms of reference were extremely broad.Footnote 70 The Council reflected a desire to use legal and regulatory reform to help Japan overcome its perceived economic and social malaise, and followed changes to other aspects of Japan’s economic structural framework including “big bang” financial reforms, and consumer- and insolvency-law reforms.
The Council called for Japanese people “to break out of the excessive dependency on the state that accompanies the traditional consciousness of being governed objects, develop public consciousness within themselves, and become more actively involved in public affairs.”Footnote 71 The Council “expected” people “to participate broadly in the entire range of administration in various ways, while maintaining autonomy and a sense of responsibility.”Footnote 72 The Council’s comments suggested that the members were conscious of the potential for legitimation of the criminal justice system through participation by laypeople, although restoring faith in the justice system was not a stated goal. The Council argued that, when
people become more widely involved in the administration of justice together with legal professionals, the interface between the justice system and the people will become broader in scale and deeper, public understanding of the justice system will rise, and the justice system and trial process will become easier for the public to understand.
The Council’s goal came from a domestic, indigenous reform agenda—to establish “a much firmer popular base of the justice system” which has “broad support from the people.” The Council’s lay-judge and PRC reforms did not result from “popular calls for reform or foreign pressure.”Footnote 73 In conclusion, the Council claimed that “the establishment of a popular base through increased popular involvement in the justice system thus constitutes one of the three pillars of this reform of the justice system.”Footnote 74 The Council recommended the establishment of the lay-judge system and the system of mandatory prosecution described in Section 2.1 of this article.
Article 1 of the Act on Criminal Trials with the Participation of saiban’in provides that the establishment of the lay-judge system was done “with the view that the involvement of saiban’in appointed from among the citizens in criminal procedures alongside [professional] judges helps to promote the citizens’ understanding of and enhance trust in the judicial system.” The Council’s concept of building trust (and therefore legitimation) was reflected in the legislation’s stated purpose, although media interpretations of the reforms emphasized lay judges bringing the common sense of the citizenry to Japanese criminal trials.Footnote 75
Providing a mechanism for citizen involvement was relevant to establishing the original PRCs after World War II. In the 1930s, when Japan’s government became militaristic and fascistic, prosecutors abused their power by prosecuting political enemies and protecting political friends.Footnote 76 Following Japan’s defeat in World War II, the American-led occupation authorities prompted the Diet to pass the original PRC Act in July 1948.Footnote 77 The broadest aim of the occupation was the “democratization” of Japan. Article 1 of the PRC Act states that its main purpose is to guarantee “proper and fair execution of the right of public action by reflecting the popular will” and the Supreme Commander for the Allied Powers (“SCAP”) described PRCs as a “safeguard against procurators who fail to prosecute cases.”Footnote 78 Even today, Japanese prosecutors have a high level of discretion in prosecution decisions, depending on a suspect’s personality, age, living environment, gravity of crime, mitigating factors, and the circumstances after the crime.Footnote 79 In 2016, 64.3% of all referred cases were subject to kiso yūyo, which means that the indictments were suspended at the discretion of the prosecution even though prosecutors believed there was enough evidence to charge and convict.Footnote 80 Moreover, only 8.3% of all referred cases were indicted for trial at a district court.Footnote 81
Today, there are still relatively few trials in Japan where guilt is contested and citizens can be educated about law, government, and the duties of citizenship.Footnote 82 Professional prosecutors have been careful to adhere to the traditional requirement of a high probability of conviction before indictment (yūzai hanketsu o erareru kōdo no mikomi). Accordingly, Japanese prosecutors typically do not prosecute an accused person unless they are very confident of a conviction. PRCs are not bound by the same institutional standards. Examples of mandatory prosecution cases suggest that complainants and PRCs expect this mechanism to bring members of elites to trial, thus realizing justice (seigi no jitsugen) and democracy. According to this line of thinking, criminal trials are a place to find the truth. In practice, less aggressive charging policies in a system dominated by prosecutors mean that the Japanese public loses the perceived benefit of the general deterrence that more aggressive charging policies may generate, and the supply of skilled and vigorous defence lawyering is also suppressed. Moreover, it may be difficult for judges to remain neutral when a contested trial does occur because they believe prosecutors are cautious about charging,Footnote 83 thus heightening the risk of false confessions and wrongful convictions.Footnote 84 Conversely, many victims of crime feel abandoned or betrayed by prosecutors who do not indict, particularly in a system such as Japan’s where prosecutors are typically cautious about charging.Footnote 85 Some commentators see lay participation mechanisms in Japan as a means of checking Japanese legal professionals who, they argue, represent elites.Footnote 86
Despite earlier calls for PRC decisions to be binding on prosecutors, these reforms were not possible until the period following the turbulent decade of the 1990s and the complex debates leading to the Council and its recommendations.Footnote 87 Prosecutors are unlikely to welcome oversight of their non-indictment decisions, but the indirect interaction between the prosecutors and PRCs may help to validate and legitimate prosecutors’ decisions. If few cases are brought to PRCs, prosecutors may argue that this means their decisions are proper. Even if the number of cases brought to the PRCs increases but the PRCs decide “non-indictment is proper,” then the PRC’s decisions may still be interpreted as supporting the prosecutors’ approach. Alternatively, if more mandatory prosecution decisions are made by PRCs but the accused is found not guilty, then these verdicts also suggest that the prosecutors were correct in deciding not to indict.
The reasons for establishing Visiting Committees were more immediately dramatic than the stated reasons for the lay-judge system and PRC reforms, and were not directly associated with the Council’s recommendations. Japanese elites had long benefitted from the “soft power” generated from an exemplary reputation in the criminal justice sphere, including for apparently extraordinarily safe, orderly prisons.Footnote 88 This tended to keep them in stasis and, in any event, a prolonged deadlock over the content of reforms to the Prison Act (Act No. 28 of 1908) made changes difficult. The JFBA demanded the abolition of daiyō kangoku (substitute prison) police detention of arrestees, while the National Police Agency insisted on retention.Footnote 89 The deadlock continued even as popular punitivism contributed to overcrowding from 1996, peaking at 106.5% of capacity in 2002.Footnote 90 The year 2003 marked a turning point. First, as the Nagoya Prison Scandal worsened early in the year, Japan’s reputation for success in the criminal justice domain suffered significant damage at home and abroad.Footnote 91 What had been occasional activist reports of the harshness of Japanese prisons became global condemnation.Footnote 92 Second, in December 2003, former Diet Member Jōji Yamamoto published Gokusōki, a prize-winning exposé of the over-representation of vulnerable persons with physical, mental, or intellectual disabilities in Japan’s prisons, based on his own 14-month stint in prison for fraud.Footnote 93
The events of 2002–03 forced warring stakeholders to finally revisit the 1908 Prison Act.Footnote 94 The Correctional Administration Reform Council (Gyōkei Kaikaku Kaigi) (“CARC”) was given just eight months in 2003 to create a vision for Japan’s new prisons legislation. Notions of transparency and legitimacy were important in the design of the Visiting Committees. The 2003 Gyōkei Kaikaku Kaigi Teigen (CARC Proposal) formulated the official vision for inclusion of civil oversight in the new prisons legislation by stating that prisons “cannot be independent of society” but must “earn their understanding,” and in turn “reflect society’s common sense” and “reflect the people’s will.” Visiting Committees were seen as “deepening ties between prisons and their local communities.”Footnote 95 The CARC Proposal argued that civil participation would “open prisons up” so that “inmate complaints reach the ears of those outside” and “lower the prison walls,” while ensuring prison officials would hear the “the people’s voice.”Footnote 96 These rationales are reinforced at the start of the Ministry Guide given to all new Visiting Committee members.Footnote 97 Concepts such as “earning understanding” are reminiscent of statements in the 2001 Recommendations of the Justice System Reform Council, but the CARC Proposal also expanded the rationales for the Visiting Committees to transparency and prisoner welfare. These differences may be reflected in the type of person permitted to participate in the frameworks.
4. WHO IS A “LAY” PERSON?
The scope for including ordinary people in criminal justice processes in a given jurisdiction may take many forms, as Japan’s PRCs, lay-judge system, and Visiting Committees demonstrate. The PRCs and saiban’in suggest representative models, but the Visiting Committees might be described as more akin to a community-service model of participation, where civil participants do not report externally—to the public or the Diet—but internally, to the ministry that they are overseeing.Footnote 98 Further, lay participation does not automatically exclude citizens who are legally trained or formally related to the parts of the criminal justice system they are tasked with overseeing, as demonstrated by the analysis of Japan’s Visiting Committees in this section. Moreover, citizen involvement may be paid or unpaid.Footnote 99 Participation may be voluntary or involuntary, including in the sense of being ex officio, which means that a formal or informal obligation to participate may arise because a person is appointed to another office or status.
Only a small minority of criminal justice system participation schemes in Japan involve random selection. Saiban’in and PRC members are chosen at random from the electoral roll and must be over 20 years old.Footnote 100 Systematic screening and exclusion of saiban’in and PRC members seem difficult. The list of expected saiban’in candidates, for example, is created from the electoral roll by the electoral administrative commission of municipalities. Each candidate will receive a notification that the candidate has been included in the list and a survey to ask whether there is a reason that the candidate should be excluded from the list, including due to the candidate’s occupation, long-term sickness, or having served as a saiban’in in the past five years.Footnote 101 If the reason is considered valid, that person will be excluded from being called to attend on the selection date. For each case, a number of saiban’in candidates are selected randomly from the list; the people selected will receive a notice to attend the selection proceedings and a further questionnaire that asks whether there is any reason that the person should be excused from participating at this time, including sickness, caring for others, or work or other important commitment for the duration of the trial.Footnote 102 If the reason for being excused is considered valid by the court, then the person will receive a notice that they are not required to attend on the selection date. Otherwise, the selected candidates must attend on the selection date and will be interviewed by judges, the prosecutor, and the defence lawyer. The process does not, however, allow extensive questioning or exclusion of candidates. Six saiban’in, and sometimes additional alternate saiban’in, are selected.
Despite the open nature of the selection process, a key problem for administrators is the high rate of self-exclusion, which occurs because candidates either ask to be excluded on grounds established by the legislation or simply do not show up at all.Footnote 103 According to statistics collated by the Supreme Court of Japan, for the period between January and October 2018, out of 99,805 persons selected as potential saiban’in, 30,572 people (30.63%) were excluded from being called to attend on the selection date and 35,207 people (35.27%) were excused from attending on the selection date after receiving their notice to attend, leaving 34,026 people (34.09%) who had been requested to attend on the selection date.Footnote 104 However, of the people requested to attend, only 23,096 people (67.9%) actually attended on the selection date.Footnote 105 These statistics have commentators concerned that interest and support for the lay-judge system may be declining in Japan, despite initial enthusiasm from the general public.Footnote 106 In 2017, 36% of people failed to attend when asked, but the authors are not aware of anyone receiving a penalty for failing to attend.Footnote 107 The Supreme Court itself noted that the falling attendance rate has not yet reached a level that is likely to threaten the “stable operation” of the system, but it is necessary to monitor these trends and, if necessary, take measures to address the situation.Footnote 108
Willingness to serve skews the pool of people who participate in PRCs as well.Footnote 109 There is no voir dire for selecting PRC members, although some persons are excluded from participating, including almost all those who have served time in prison (kinko ijō no kei ni shoserareta mono) and serving ministers of religion.Footnote 110 Eleven people are randomly selected from the electoral roll to serve for six months. PRC members may consult amongst themselves without the involvement of any legally trained professionals during a first review and must obtain legal advice during a second review. A foreperson is selected from the citizens to lead each PRC, whereas the members of a saiban’in panel are typically led by a judge on the panel.Footnote 111 PRC decisions are based on a majority vote and a successful mandatory prosecution vote requires at least eight people. In 2017, 2,162 suspects were subject to requests for review of a prosecutorial decision not to indict.Footnote 112 The authors are not aware of publicly available statistics on the number of people who fail to attend when asked to participate in a PRC.
Membership of a Visiting Committee is not determined by random selection from the electoral roll. Rather, Visiting Committees involve a narrow class of well-respected local citizens and appointments are governed by an ex officio (ateshoku) process. The size of each Visiting Committee is determined centrally by the Correction Bureau according to the size of the prison’s population, on a scale ranging from four to ten members. The Directive to Wardens and Ministry Guide outline the eligibility and selection criteria. Members cannot apply for the role directly. Wardens are instructed to prevent the Committee skewing in terms of gender, age, occupation, or other attributes; to approach local bodies that are appropriate in light of local circumstances; and to ensure candidates meet generic National Public Service ActFootnote 113 criteria. Wardens formally request recommendations from at least the three predetermined local institutional sources explained below, which give an implied warranty that their candidate meets the “integrity … insight and enthusiasm” eligibility criteria. The warden controls appointments to the Visiting Committee in two ways. First, the warden can decide which local bodies to approach beyond the three core sources. Second, the warden can decline to forward a recommendation to the Minister of Justice and ask for a new name.
Members of Visiting Committees commonly have little or no prior knowledge of prisons, although the JFBA offers half-day training twice annually for the local criminal defence attorneys who usually chair each Committee. These local criminal defence attorneys are likely to at least have experienced “boxed” attorney visits, but are unlikely to have been inside the secure area of the prison or have any expertise or experience in prison operations. Members are typically over 55 years of age and overwhelmingly male.Footnote 114 The majority of members are recommended by the three sources the warden is obliged to approach: the local Bar and Medical Associations, and local public bodies. Local welfare and educational bodies supply some members. Accordingly, Visiting Committees are typically made up of older men of high status or educational attainment.Footnote 115 A majority serve for two years to five years and a small but significant group serves for six years or more.Footnote 116 These periods of service are much longer than the period of service for saiban’in who attend a one-off trial and PRC members who serve for a period of six months, suggesting that members could build up expertise in their roles in ways in which it is not possible to do for saiban’in or PRC members.
The selection and eligibility for membership on Visiting Committees sidestep the assumptions of independence and authority typical of the European-origin human rights-based template for civil prison oversight found in other liberal democracies.Footnote 117 Rather than the state being made subject to the opinions of ordinary citizens, a select group of predominately older and male citizens of relatively high status in the particular locality has been harnessed in the service of the state.Footnote 118 However, Visiting Committees, like other lay participation mechanisms, have features designed to prevent domination by a single profession. No more than one member of a Visiting Committee, for example, may be a bengoshi (licensed attorney) and the minimum Visiting Committee size is four members. These rules allow criminal defence attorneys—who are often human rights advocates in Japan—inside the participatory body, but in a minority.Footnote 119
By including laypeople perceived to be respectable and competent based on their other professional or community activities, the Visiting Committees give the perception that the prison system is being overseen by independent and reliable third parties. The system has thus performed a role in legitimizing the prison system after the Nagoya Prison Scandal.Footnote 120 It contributes to re-establishing trust, buying time and space in which the Correction Bureau can get on with its own reform agenda. Similar criticisms have been made historically in relation to other socio-legal spheres in Japan.Footnote 121 For example, involving laypeople in death-penalty trials may legitimate Japan’s continued use of this sentence, although there were hopes that the lay-judge system would advance the movement to abolish the death penalty in Japan.Footnote 122 Experience suggests that this result is unlikely.Footnote 123 The small number of mandatory prosecution decisions from PRCs may also play a role in legitimizing prosecutorial decisions, as demonstrated by the TEPCO Case and examined in the next section in the context of participation.
5. WHAT DOES “PARTICIPATION” MEAN?
The scope and content of “participation” in Japanese criminal justice are more difficult to benchmark than the meaning of “lay,” which is generally defined by the relevant framework. The perceived quality and impact of participation, which help to shape the perceived legitimacy that the reforms bring to Japanese criminal justice, are difficult to quantify. Participation may refer, for example, to the interaction between the criminal justice system and lay participants, or the level and nature of oversight that laypeople have over professionals. The reforms to the PRCs demonstrate that the meaning and conceptualization of participation may also vary across time. Mandatory compliance with PRC recommendations has only been a feature after the reforms, while lay participation in the form of PRCs has been possible since 1948.
The lay-judge system offers laypeople a one-off engagement in a court context, although the interaction is quite intimate in terms of associating together in closed-door deliberations. Some lay judges come back to give feedback in discussion groups organized by the courts and more than 90% report to the Supreme Court via questionnaires that the overall experience was positive.Footnote 124 Behavioural scientists have attempted to assess the extent of interaction between professional judges and lay judges by looking at transcripts of mock trials and the results of surveys and minutes of feedback sessions held at district courts administered by the Supreme Court.Footnote 125 But the quality and level of interaction in actual deliberations are difficult to document and assess. Although lay judges are sometimes invited to participate in post-trial press conferences to express their feelings and general observations, lay judges are not permitted to divulge details of deliberations.Footnote 126 Moreover, the participation of lay judges is limited to serious criminal cases and does not extend across the full spectrum of criminal justice in Japan. Approximately 97% of criminal trials in Japan are not lay-judge trials.Footnote 127
PRC members are also prohibited from divulging details of a Commission’s deliberations and the authors are not aware of any press conference involving PRC members. The voting record (giketsusho) is publicly available and reveals the rationale behind the votes for mandatory prosecution, but it does not set out the evidence or witnesses on which the PRC relied to come to its decision.Footnote 128 Moreover, there is no regular interaction between prosecutors and members of PRCs, although the prosecutor may be asked to explain the decision not to indict to the PRC.Footnote 129 The PRC system is administered by a government office known as the Prosecution Review Commission Office, or PRCO, which is located within the Supreme Court of Japan.Footnote 130 The PRCO controls budgets, communications, and administration of the PRCs. The location of the PRCO within the court gives the court potential influence over how PRCs are run. Moreover, PRC members may be influenced by the legal adviser tasked with providing advice on law and legal processes.Footnote 131
In contrast to the limited and formal interaction between lay judges and PRC members, and judges and prosecutors, respectively, it appears that some corrections officers engage in social events out of hours, which involve members of Visiting Committees.Footnote 132 There is no prohibition on this out-of-hours interaction and it does not in itself suggest impropriety. The Ministry of Justice strongly encourages corrections officers and their families to be active in local community organizations and events to build local goodwill.Footnote 133 This lack of prohibition suggests that strict independence and separation were not expected when the oversight system was designed. In contrast, socializing between other criminal justice system actors is frowned upon. Serving judges, for example, do not typically socialize with defence attorneys or prosecutors out of hours.
Visiting Committees are almost solely reliant on wardens for information and facilitation of their activities. Article 9(1) of the of the Act on Penal Detention obliges wardens to “furnish the Committee on a regular or as-needed basis” with the information on the administration of the penal institution prescribed by ministerial ordinance, while Article 9(2) allows—but does not oblige—the Visiting Committee to “conduct a visit to the penal institution”. The same vague aim is given “in order to grasp the circumstances of the administration of the penal institution.” This provision permits, but does not oblige, the Committee to seek the warden’s co-operation to interview inmates. Article 9(3) requires the warden to co-operate with Committee visits and inmate interviews. Moreover, the Ordinance for Penal Institutions and Treatment of Inmates 2006, Article 5 stipulates that the penal institution’s General Processes Section (shomuka) will handle each Visiting Committee’s administrative work. Accordingly, there is scope for the institution’s administrative section to influence the Visiting Committee’s work.
The legitimizing role of participation is being tested by the results of the PRC’s nine mandatory prosecution cases. Of the eight cases already finalized, six resulted in dismissal of the indictment or acquittal and two resulted in criminal conviction and punishment: a JPY 9,000 (approximately USD 82) petty fine and a one-year suspended prison term.Footnote 134 As of June 2019, only two of the ten defendants charged in these cases had been convicted at trial. Though it is difficult to make confident conclusions from so few cases, this conviction rate is vastly lower than the conviction rates that result when Japanese prosecutors control the charging process. In a statement published in 2016, the JFBA suggested that the lower conviction rate does not mean that PRCs are not performing an important check on public prosecutors in Japan and not-guilty verdicts should be expected given that the public prosecutors had decided not to indict in the first place.Footnote 135 The JFBA argued that, where PRCs have requested prosecutors to reinvestigate a case, however, 18% of those cases between 2013 and 2015 were eventually indicted by the prosecutors themselves.Footnote 136 The substantially lower conviction rate in cases charged through mandatory prosecution could be interpreted as a “we told you so” by prosecutors, however, and seems to suggest the “appropriateness” of their initial decision not to indict.
This lower rate highlights the higher risk of acquittal associated with a bolder approach to prosecution. The court is still required to apply a “beyond a reasonable doubt” standard. The cases reviewed by the PRC are cases dropped by prosecutors because they believed, for example, that the case did not meet that standard. However, the reasons why particular cases are not pursued by prosecutors vary and may include a delay in bringing a claim forward or insufficient evidence. Interestingly, none of the first nine mandatory prosecution cases was tried under the lay-judge system. A mandatory prosecution case for a serious criminal offence such as murder, attempted murder, arson, or rape causing injury would be required to be tried before a panel including lay judges. It remains to be seen whether lay judges will react differently in these so-called double-lay participation cases where the indictment was instituted by lay participants.Footnote 137
Yang argues that the “PRC’s impact on the daily work of the prosecutor is minimal.”Footnote 138 High-profile and controversial cases, however, emphasize the possibility of the PRCs representing community responses to key contemporary events. Fukurai argues that PRCs are “now the single-most important institution of civil oversight over the allegation of corporate predation and governmental abuse of power.”Footnote 139 From this perspective, the ninth case of mandatory prosecution, involving Tokyo Electric Power Company (“TEPCO”) and the nuclear meltdowns at Fukushima following the Great East Japan Earthquake (Higashi Nihon Daishinsai) and tsunami of 11 March 2011, raises some interesting issues for PRCs. In June 2012, a citizen group consisting of victims of Fukushima (Fukushima genpatsu kokuso dan) filed criminal complaints against 42 TEPCO executives and government officers for “professional negligence resulting in death and injury” (gyōmujō kashitsu shishō) with the Fukushima Prosecutor’s Office.Footnote 140 The case was referred to the Tokyo Prosecutor’s Office ostensibly because of the size and complexity of the case, although some commentators allege political motivations.Footnote 141 In September 2012, the Tokyo Prosecutors Office decided not to indict any of the executives or officers on the basis of “insufficient suspicion” (kengi fujūbun), because there was not enough evidence to show that they should have been able to predict that a tsunami might damage the nuclear-power plant.Footnote 142 When the Fukushima victims group requested a review by the Tokyo PRC No. 5, the PRC voted that “indictment is proper” for three of the TEPCO executives on 31 July 2014.Footnote 143 The Tokyo Prosecutors Office again decided not to indict the case based on “insufficient suspicion.”Footnote 144 The Tokyo PRC No. 5 voted for “indictment” (kiso giketsu) on 31 July 2015. On 29 February 2016, three TEPCO executives (a former chairman and two vice-presidents) were mandatorily prosecuted for professional negligence resulting in death and injury.Footnote 145 The formal pre-trial process (kōhan mae seiri tetsuzuki) started on 29 March 2017 and verdicts for the three defendants are scheduled to be announced on 19 September 2019.
A key question in the TEPCO Case is whether the legal trajectory would have been different if a prosecutor’s office closer to the incident had initially reviewed the case, rather than the Tokyo Prosecutor’s Office. Legally, the prosecution needs to prove that each defendant had a concrete concern that a nuclear accident could happen, which is difficult. There may be a gap between legal professionals and laypeople in their respective interpretations of “prediction” and “efforts to avoid the outcome.” One conservative newspaper criticized the decisions to indict, stating that they put pressure on society to become a “zero-risk society.”Footnote 146 Other commentators support the PRC’s decisions,Footnote 147 while still others recognize how difficult it is to reach a clear normative conclusion about the propriety of the PRC’s actions.Footnote 148
As this analysis demonstrates, none of these lay participation reforms is functionally independent of the criminal justice institutions within which they operate, although the levels of dependence and transparency differ. Lay judges are involved, for example, in an open court process initially, but their deliberations with professional judges are not public and lay judges are prohibited from speaking to the media. Moreover, although the final outcome is reflected in the judgment, the final written document is typically finished by the professional judge after the lay judges have gone back to their ordinary lives. Similarly, Article 10 of the Act on Penal Detention requires the Minister of Justice (not the Visiting Committees) to “compile the opinions expressed by the Committee to the warden,” and the warden’s measures in response, by publishing an annual summary online.Footnote 149 The Ministry Guide adds that Visiting Committees may send reports directly to the Minister of Justice, who need not respond.Footnote 150 Visiting Committees may not publish their findings.Footnote 151 Despite these and other limitations, most Japanese scholars and attorneys writing on Visiting Committees acknowledge and welcome the unprecedented opportunities for dialogue they represent.Footnote 152 One commentator argues that civil oversight by a select group of ordinary citizens, screened for capability and led by a local attorney in thoughtful interactions with prisons, is consistent with democratic theory and a sign of progress given the traditional antagonism between the JFBA and the Ministry of Justice.Footnote 153
6. CHALLENGES AHEAD
Looking ahead, the future holds numerous challenges for lay participation, with implications for the role it may play in further legitimizing Japanese criminal justice. Serious concerns exist about the limits of the population’s patience for lay participation.Footnote 154 Some of these concerns relate to personal costs. One former lay judge attempted to sue the government for anxiety after participating in a robbery and murder trial in 2013.Footnote 155 Almost half of respondents to a survey conducted in early 2017 stated that they would not want to participate in the lay-judge system even if they were legally required to do so (if it were “a duty”).Footnote 156 Reforms to the lay-judge system introduced in 2015 reflect feedback from lay participants themselves that the experience was burdensome.Footnote 157 The amendments revised the jurisdictional limits for lay-judge trials to exclude cases where the inconvenience to lay judges is perceived to be high. The jurisdiction now excludes cases where the expected period required for the proceeding is extremely long or where the trial is expected to require an extremely large number of trial dates or preparation. A prosecutor or lawyer may apply for a trial to be handled by a panel of judges only or the court may decide to handle a trial by a panel of judges only where it is anticipated that it will run for an excessively long period.Footnote 158 The period is not defined but it was suggested that one year will be used as the benchmark.Footnote 159 The authors are not aware, however, of a trial involving lay judges taking more than a year and the Supreme Court’s own statistics to April 2019 show that the longest trial involving lay judges lasted 207 days.Footnote 160 Thus, it seems unlikely that a case will be excluded on this basis.
Burdens placed on lay participants are also evident in Visiting Committee workloads. Members can face a large amount of paperwork, including reading, analyzing, and discussing letters from inmates and writing opinions to the warden.Footnote 161 Furthermore, Visiting Committees need to confront the changes being wrought by prison reform. As the vulnerable, needy, and first-time offenders are increasingly managed with non-custodial, diversionary, and welfare measures, the prison population is inevitably skewing towards repeat and serious offenders.Footnote 162 Prison staffing and programmes are becoming increasingly diversified and sophisticated to meet the complex needs of this prison population. Prisons are now hiring social workers as well as aged care workers and providing cognitive behaviour therapy-based substance-addiction and sex-offender programmes. The tension will increase between the specialized knowledge required to deal with such needs and the desire to include genuine participation by ordinary laypeople.
Other concerns about lay participation are linked to institutional and external contexts. Ageing, for example, was noted by the Justice System Reform Council in its Recommendations in 2001. The Council suggested that it was becoming increasingly difficult to find people to act as volunteer probation officers due to “the aging of the existing volunteer probation officers” and recommended considering measures to secure “suitable persons from a broad spectrum of the people to serve as volunteer probation officers, including the possibility of payment of expenses.”Footnote 163 According to a survey conducted by the Supreme Court, the age of lay judges was spread evenly between people in their twenties and sixties, and the number of people over 70 decreased between the introduction of the lay-judge system and 31 May 2012.Footnote 164 More people will need to be found to fill new positions as lay participation is expanded even further in Japan. Visiting Committees have been replicated, for example, for immigration detention centres and juvenile-training schools. Moreover, prison reforms themselves are now being driven by an ageing prison population. The number of vulnerable, isolated elderly in Japanese prisons who in effect “self-incarcerate” to receive a basic level of care and companionship has risen dramatically, turning some prisons into de facto nursing homes.Footnote 165 This ageing prison population suggests that the older demographic profile of Visiting Committees is not necessarily out of place, if it is assumed that people of a similar age may have a better understanding of the needs of older prisoners than younger people.
The uneven impact of geography on a person’s experience of lay participation is often overlooked by researchers in the context of Japan’s unified and national approach under legislation such as the Penal Code (Act No. 45 of 1907) and the Code of Criminal Procedure (Act No. 131 of 1948).Footnote 166 The potential impact of regional and metropolitan dynamics on mandatory prosecution cases, with only one case each from metropolitan Tokyo and Osaka, is interesting.Footnote 167 A request for a review is also not limited by geography, as illustrated by the mandatory prosecution in the TEPCO Case (2011–ongoing) and the Senkaku Islands Ship Collision Case (2010–12). In the Ship Collision Case, a Tokyo-based group requested a review by the Naha PRC.Footnote 168 In that case, a patrol ship of the Maritime Safety Agency found a Chinese ship in the Senkaku Islands Area on 7 September 2010. The Chinese ship was warned to depart Japan’s territorial waters, but collided with Japanese patrol ships. The agency arrested the captain of the Chinese ship, who was referred to the Naha District Prosecutors Office Ishigaki Branch and detained for indictment, but the prosecutors concluded that the captain had not intended to collide with the Japanese ships. After footage of the collision was posted on YouTube anonymously on 4 November 2010,Footnote 169 the citizen group in Tokyo, which included journalists, requested a review. After two votes in favour of indictment by the Naha PRC, the captain was mandatorily prosecuted on 15 March 2012. By then, however, the captain had returned to China and the document of indictment could not be delivered within the required two-month period.Footnote 170 The indictment was dismissed.
Geography also affects the operation of the lay-judge system. Chiba District Court, for example, has a high number of lay-judge trials for a regional centre.Footnote 171 The court is close to Tokyo and the key international airport, Narita, and therefore the international drug trade. Turning to Visiting Committees, the prisons in heavily populated urban areas around the Kanto, Kansai, and Kyushu regions and major regional cities such as Sapporo and Nagoya draw on much deeper pools of local professionals eligible to serve on the Visiting Committee, while prisons in small or remote areas may struggle to find appointees.Footnote 172
The relationships between lay and professional participants involved in these reforms introduce new complexities and possible conflicts of interest that still need to be studied and addressed. Recent appellate court decisions have overruled outlier sentences by panels involving lay judges, offering a controversial example of monitoring lay-judge decisions.Footnote 173 Visiting Committees are, at least nominally, tasked with influencing in a “closed environment”—that is, Japan’s prison system.Footnote 174 However, there are no external evaluative or audit processes to guarantee the quality or effectiveness of their work. This situation may be contrasted with Europe, where designing external audits that “inspect the inspectorates” is a growth industry in both the governance and scholarly contexts.Footnote 175 Moreover, while Japanese prisons policy is now slowly moving towards contemporary rather than nineteenth-century practices,Footnote 176 the design of the new lay participation system indicates that its primary role is likely to be to enhance public trust, facilitating this modernization. It is not designed as a key driver for reforming prison conditions.Footnote 177
Lay participation may increase the possibility that prosecutorial and court decisions will be driven by emotion and public perceptions of morality. PRCs have been criticized as part of a general move in Japanese criminal justice towards “punitiveness.”Footnote 178 The idea that “indictment by a PRC should equal conviction” ignores the procedural and public standards involved in a trial. More prosecutions also have cost and efficiency implications for the criminal justice system that need to be thought through. Defendants are already at a great disadvantage in Japan and the PRCs may be used to pursue innocent people with lifelong consequences.Footnote 179 Other reforms to include victims more in the criminal justice system have added to the potential for trials to be more emotive.Footnote 180 A similar concern about potential punitiveness is associated with the introduction of the lay-judge system, but any punitive tendencies appear to be tempered by the use of sentencing precedents by professional judges in the deliberations and by the Supreme Court’s willingness to overturn “outlier” sentences.Footnote 181
Finally, as new technologies emerge, the fascination with lay participation in Japanese criminal justice may seem old-fashioned and quaint. Courts globally are experimenting with artificial intelligence to help with sentencing and consistency; evidence collected through electronic devices, cameras, and DNA, for example, may make it easier for prosecutors to prove their cases and thus increase decisions to prosecute or lead to confessions. Moreover, Japan’s new plea-bargaining rules have given prosecutors more power, potentially changing the rules for corporate Japan. It is not yet clear how these developments will impact lay participation.
7. CONCLUSION
Lay participation continues to be a preferred solution to many perceived problems in Japanese criminal justice, but it also legitimates existing practices and processes. Japan’s apparently extraordinary achievements in order inside prisons have been maintained,Footnote 182 but the heavily anachronistic “controlled-corrections” (kanri gyōkei) approach has also been preserved. Citizens may be comforted that the system now has oversight by Visiting Committees. PRCs, the lay-judge system, and Visiting Committees also reveal a diversity of approaches to lay participation. The PRCs and lay-judge system represent a more open approach to eligibility and selection than Visiting Committees, but they may be subject to influence from existing stakeholders because of their administrative structures and the involvement of professional judges. Controversial cases such as the TEPCO indictment test popular perceptions of lay participation by PRCs. Ageing, geography, a prison population increasingly made up of repeat offenders, and new technology may also impact the scope and willingness of laypeople to participate in such institutions and thereby shape their legitimation roles. The capacity of the current versions of PRCs, the lay-judge system, and Visiting Committees to respond to these challenges raises key questions for future research.
