Economist, 00130613, 3/29/2008, Vol.

386, Issue 8573

Section: Asia
Criminal justice in Japan
Japan's Supreme Court misses a chance to right a 42-year-old wrong
Dateline: TOKYO

IN 1966 Iwao Hakamada was accused of killing a family and setting fire to its house during a robbery. He
denied it. But after 19 days of 12-hour interrogations by police and prosecutors, he confessed. He saw a lawyer
just three times for a total of 37 minutes. At his trial he said the "confession" had been coerced: the police had
beaten and threatened to kill him. Judges noticed discrepancies in the confession, and demanded he redo it--
45 times--until they were satisfied.

Mr Hakamada was found guilty in a 2-1 decision. The dissenting magistrate, Norimichi Kumamoto, quit the
bench in silent protest. Last year he broke 39 years of silence to denounce the verdict. Requests for retrials
and appeals had been denied from the 1970s onwards. But armed with the former magistrate's words,
supporters of Mr Hakamada, who has come to symbolise the rot in Japan's criminal-justice system, felt their
case was strong.

Yet on March 24th the Supreme Court turned down a retrial plea, citing a lack of "reasonable doubt" about the
verdict. His lawyers plan to appeal against the decision. As for Mr Hakamada, now 72, he is losing his mind as
he languishes in solitary confinement on death row.

Article 34 of the Japanese Constitution guarantees the right to counsel and habeas corpus, but is
systematically ignored. Police and prosecutors can detain suspects for 23 days. Interrogations are relentless
and sometimes abusive. Prosecutors are reluctant to bring cases to trial without a confession. Indeed, it is
considered a first step in a criminal's rehabilitation. When asked about the country's 99% conviction rate,
Japan's justice minister, Kunio Hatoyama, corrected your correspondent to state that it was actually 99.9%,
because prosecutors only present cases that are watertight.

Slow reform is coming. First, to tackle an acute shortage, the government is to let more people pass the bar
exam and become lawyers: at present Japan has a mere 24,000, ten times fewer per head than Britain. Only
7% of students pass the bar exam. Second, a jury system will be brought in next year for serious cases. This
will open the judiciary to greater public scrutiny. Third, the police are to introduce procedures for monitoring
interrogations (though they rejected proposals to videotape them). All too late for Mr Hakamada.

Just plead guilty and die

Section: Asia
The death penalty in Japan
The wheels start to wobble on Japan's judicial juggernaut
Dateline: TOKYO

IT WAS a rarity for Japan: two notable acquittals within a month. On March 5th Mitsuko Katagishi, a 60-year-
old from southern Kyushu island, was acquitted of charges that she had killed her brother and set fire to his
house. The case against her rested on prosecution claims that she had confessed her crime to a cellmate
during months in police detention. The presiding judge chided the police for planting the cellmate and
dismissed the evidence as not credible. In a country with a conviction rate of over 99%--and where even
defence lawyers urge clients to plead guilty--this was a deep embarrassment.

It follows a farcical trial in February of 11 mainly elderly defendants accused of vote-buying in Kagoshima, also
on Kyushu. The trial collapsed when it became plain that the police had fabricated the evidence--though not
before one defendant had died and another been subjected to over 700 hours of interrogation and 400 days in
detention. All the accused had been ground down until they signed confessions of guilt.

In response to these problems, the authorities have closed ranks. Japan's justice minister, Kunio Hatoyama,
argues with casuistic skill that the vote-buying case cannot be described as a false prosecution: that would
imply the real culprits are still at large when, happily for all, there are no culprits at all. But such complacency is
wearing thin. Two changes are afoot in Japan's criminal-justice system. One is the introduction next year of
trials in which a lay jury of six will join three judges to adjudicate in criminal cases, with convictions secured by
majority vote. This may encourage more popular involvement in the criminal-justice system. The other is the
emergence of establishment figures prepared to question the shortcomings of that system, and especially of
the death penalty, which means victims pay an irreversible price for miscarriages of justice.

Shizuka Kamei, a former chief in the National Police Agency and now a member of the Diet (parliament),
describes Japan's high conviction rate as "abnormal". The police, he says, are under more pressure to find any
culprit for a crime than to find the real one. To save face, senior officers are reluctant to highlight mistakes
made by subordinates. Worse, prosecutors are not bound to disclose material that they choose not to use in
court. Many false prosecutions never come to light.

The notion of being innocent until proven guilty is not strong in Japan. Mr Hatoyama calls it "an idea which I
want to constrain". But confessions are important and the courts rely heavily upon them. Apart from helping
secure convictions, they are widely interpreted as expressions of remorse. A defendant not only risks a longer
sentence if he insists he is innocent, he is also much less likely to be granted bail before trial--often remaining
isolated in police custody, without access to counsel, for long enough to confess. Toshiko Terada, a private
lawyer, calls this hitojichi shiho--hostage justice. Perversely, where little supporting evidence exists, the system
helps hardened criminals, who know that if they do not confess they are unlikely to be indicted. Innocents, on
the other hand, may crack--as in the Kagoshima case, or in a notorious 2002 rape case when the accused
confessed under pressure but was released last October after the real culprit came forward.

Growing concerns about such miscarriages have helped forge an unlikely parliamentary alliance between
politicians of the left pushing to abolish the death penalty, Mr Kamei (who in other areas is an arch-
conservative) and Koichi Kato, a former secretary-general of the ruling Liberal Democratic Party. Last year
Japan executed nine people, compared with America's 42; it also has 106 people on death row. But its murder
rate is only one-fifth that of America so its execution rate is roughly comparable. Some of Mr Hatoyama's
predecessors have been unwilling to sign death warrants, but in the past 18 months executions have leapt (see
chart on previous page), including several accused who were elderly and infirm.

Executions take place in extreme secrecy under the auspices of the Justice Ministry. Prisoners are kept in
near-isolation and are not usually informed that their time is up until less than an hour before the sentence is
carried out--often after waiting for decades. The names of those executed were made public for the first time
only in December. Not even Diet members may inspect a working gallows, and many people do not know that
hanging is Japan's method of execution. Bureaucratic secrecy has served to suppress debate about the death
penalty--and give ordinary people a sense that justice is something best left to the authorities.