The Limits of Change in Japanese Criminal Justice

Abstract

In recent years several new forms of lay participation have been introduced in Japanese criminal justice, including a lay judge trial system, a victim participation system, and mandatory prosecution through the review of non-charge decisions by citizens serving on Prosecution Review Commissions. This article focuses on the effects of these reforms. We argue that while many things have been modified in Japanese criminal procedure, there is more continuity than change with respect to criminal justice substance (who has control) and outcome (who gets what). This argument proceeds in four parts. Part one summarizes some of the positive changes in Japan’s criminal process that have resulted from recent lay participation reforms.

Part two – the heart of this article – describes ten ways in which Japan’s reforms are limited and problematic: (1) lay judge trials constitute only a small fraction of all Japanese criminal trials; (2) the police have largely been omitted from Japanese criminal justice reform; (3) prosecutors’ increased caution about charging cases has resulted in far fewer cases being tried by lay judge panels than reformers anticipated; (4) conviction rates in lay judge trials remain very high; (5) Prosecution Review Commissions seldom challenge or change prosecutors’ non-charge decisions; (6) with few exceptions, criminal sentencing in lay judge trials closely resembles the criminal sentencing decisions that were made by professional judges in the preexisting system; (7) the advent of lay judge trials has resulted in prosecutors seeking fewer sentences of death, but when a death sentence is sought, lay judge panels are more likely to impose one than professional judges were in the pre-lay judge period; (8) the victim participation system has not had clear or strong effects on criminal court outcomes; (9) many citizens called to serve as lay judges refuse to serve, and those who do serve are bound by a duty of confidentiality to keep secret most aspects of their experience; and (10) there is no credible evidence that lay participation reforms in Japanese criminal justice are invigorating Japanese democracy.

Part three of this article suggests that the limits of lay participation in Japanese criminal justice can be seen in some other countries’ criminal justice systems. And part four states our conclusion, that changes on the surface of Japanese criminal justice have affected reality on a deeper level mainly by cementing the status quo.