At the Mercy of the System: Criminal Justice and Capital Punishment in Japan

Public support for capital punishment remains high even while Japan’s criminal justice system comes under increasing scrutiny for practices, like long-term detention of suspects, that critics say violate basic human rights. Two legal experts examine core challenges to the way Japan metes out justice.

Presumed Guilty 

INTERVIEWER  Japan has been criticized for holding suspects for long periods, a practice some call “hostage justice.” Is this an apt description?

MURAOKA KEIICHI  It’s a common practice to arrest people and keep them in custody for long stretches in a bid to get them to confess. Critics have described it as ”hostage justice” since authorities essentially hold a suspect’s freedom for ransom, with the price of release being an admission of guilt.

It’s a deeply entrenched aspect of the criminal justice system, but there are signs that the situation is changing. Defense attorneys are starting to fight harder to get their clients released, and judges are beginning to show less inclination to rubber stamp requests from the prosecution to keep defendants in custody. However, change is slow and courts still grant detention requests in most cases.

Detention Requests and Rejections

MURAI TOSHIKUNI  The law clearly states that a person can’t be imprisoned unless found guilty of a crime. However, authorities are able to arrest a suspect and hold them for up to twenty-three days for questioning without formally filing charges. This is a long time, but the problem is that under Japan’s criminal justice system prosecutors can restart the clock over and over by tacking on additional charges. Sadly, such lengthy pretrial detentions are the norm. They are a serious breach of civil liberties, amounting to punitive incarceration without proof of guilt.

Police and prosecutors like to argue that there is a risk a suspect will tamper with evidence when requesting to remand a prisoner. This is quite dubious, though, since Japan’s Code of Criminal Procedure specifically states there must be clear and probable cause that a suspect may conceal or destroy evidence if freed, not merely the “possibility” of it.

Detention Requests Rarely Denied 

MURAOKA  In principle, suspects in criminal cases are presumed innocent until proven guilty. The burden of proof rests clearly with the prosecution, but the readiness of authorities to keep a person in custody and the willingness of the court to sign off on detention requests gives the strong impression that the state assumes a suspect to be guilty from the start.

MURAI  The concept of presumed innocence can be tricky enough for laymen to understand. However, the real problem is that many judges wholly disregard the legal principle. They fail to give a suspect the benefit of the doubt, relying instead on the misguided belief that they only need to review the written indictment to determine a person’s guilt. Such instances of implicit bias are all too common.

MURAOKA  The situation in Japan is better compared to countries where authorities can arbitrarily jail citizens. Police must first obtain a warrant before detaining a suspect, and only a third of cases ever result in a suspect being taken into custody. The problem is that once the police have suspects in custody, they are loath to release them.

Forced Confessions

INTERVIEWER  In Japan it can be hard for suspects to make bail without making a signed confession. What pressure is put on detainees while they are held?

MURAI  While in custody, it is vital that a suspect be allowed to speak freely and in private with a lawyer. This is a legally guaranteed right. But in reality, authorities tightly control access to prisoners to the point that detainees can find it difficult to even exchange letters with legal counsel. This isolation makes it extremely hard for an individual to fight the charges.

MURAOKA  There’s a persistent belief that if a person admits to a crime he must be guilty, but this is not the case. Living condition inside jail are tough enough, but add in relentless grilling by prosecutors and even the toughest person will eventually break. If the courts grant a request for detention, a suspect can wind up spending weeks in lockup under harsh conditions without formally being charged. Such long periods of incarceration are why we end up with forced confessions. Legal professionals overseas are right to strongly criticize Japan for this practice.