Arresting possibilities: a primer on who can lock you up in Japan

Depending on what you get up to in Japan, you may lie awake at night pondering important questions like “Who can arrest me, and why?”

Perhaps not; maybe you don’t run a Bitcoin exchange or have Oxycontin delivered by international post. Still, you might want to know anyway, just in case.

The answer to “Who can arrest me?” is, actually, “anyone.” Japan’s Code of Criminal Procedure (CCP) allows for what in some countries are called “citizen’s arrests” of offenders for crimes in progress. You don’t even have to be a citizen.

The most common scenario where this takes place may be when men suspected of groping women on trains are grabbed by their victim or other passengers and marched to the station office to await the police. In the 2007 movie “I Just Didn’t Do It,” director Masayuki Suo’s stark portrayal of the Japanese criminal justice system, the protagonist is grabbed by a girl who mistakenly believes him to be the man who had been fondling her from behind on a packed train. This is the initial “arrest” (she doesn’t actually use the word) that takes him into a Kafkaesque system of prolonged detention and presumed guilt. Suo based the movie on a real-life case.

Before you don a costume and start grappling mashers and mobsters, just remember that you don’t enjoy the same immunities that the guys with badges who arrest people professionally do. So, if you get it wrong, you could be liable for damages or even end up arrested yourself.

Another difference between you and those guys with government-issue handcuffs is that they are also empowered to investigate possible crimes, and can arrest you on the suspicion that you are a criminal. This generally requires an arrest warrant issued by a judge, which in turn requires some sort of probable cause and evidence. However, of the roughly 100,000 applications for arrest warrants made in the 2013 fiscal year, judges rejected less than 60. Another 1,300 were withdrawn, but that’s still pretty good odds.

For a nation of 125 million people and about 260,000 cops, 100,000 doesn’t seem like a lot of warrants. In 2014, courts in Connecticut issued about 40,000 arrest warrants for failure to appear in court and parole violations alone.

You might also expect more arrest warrants given that the Japanese Constitution only permits arrests with a warrant or for crimes in progress. Actually, around 10 percent of the warrants that are issued are done post-facto, as “emergency warrants.” The CCP allows these to be issued after arresting someone suspected of a serious offense. This might seem constitutionally suspect, but hey, you don’t want the (allegedly) bad guys to get away, right?

The CCP also expands the Constitution to allow for “quasi-in-process” arrests of people who have clearly just committed crimes, as, for example, evidenced by them holding weapons, wearing blood-stained clothes or running away at the sight of cops. The Police Duties Execution Act also allows police to take people into “protective custody” if they seem drunk, deranged or dangerous.

I haven’t found statistics, but it seems to be fairly common for arrest warrants to be issued for individuals already in police custody. Cops can request a suspect or “person of interest” to accompany them to the station, and can keep them there on a “voluntary” basis. In practice they may be subject to harsh, coercive questioning.

Supposedly one is free to leave at any time, but in practice, it is probably difficult to do so. In 2012 a suspected train perv who “voluntarily” accompanied a cop to a police box for questioning reportedly “escaped” out of the unlocked back door. This news circulated as an amusing tale of police incompetence; nobody bothered to point out that as a constitutional matter, having not been formally arrested, the man was presumably free to leave anyway (in theory).

After a formal arrest, you can be detained for questioning for just over three weeks. This also requires a judicial warrant, but rejection rates for these are also very low (about 2 percent).

Once arrested, the Constitution gives you a right to see a lawyer. In practice, this may only be allowed when you aren’t busy being interrogated (without your lawyer present).

The ability of police to formally or informally detain and isolate suspects for a prolonged period of time creates a highly coercive system that facilitates confessions, sometimes false ones. How long could you suddenly disappear from your job, your family, your daily life before you started to want to believe the police when they say, “If you just confess, you will probably just get a fine and be free to go”?

Confessions can then be used as the basis for subsequent arrests. If you watch the news, most murder investigations result in someone being arrested on suspicion of “wrongful disposal of a corpse.” Once in custody, suspects generally confess to the murder and are re-arrested for that.

So who are the public officials that investigate crimes and make arrests? One of the good things about Japan is that the so-called structural violence — the coercive powers of the state — are kept well in the background. Just about every three-letter American government agency has a unit equipped with badges, guns and police powers (the Environmental Protection Agency, the National Institutes of Health, the Hoover Dam Police — even the Mint Police!). Add state, municipal and military law enforcement and you have a lot of people keeping the peace.

By contrast, the list of Japanese law enforcement authorities is short and not all of them even get guns. Moreover, unlike in the U.S., where every branch of government seems to have its own police force, in Japan, police powers are limited to the executive.

The most common of those vested with police powers are, of course, the police. Organized on a prefectural level, with a small, highly elite national organization providing oversight, the police are the face of the law to most Japanese people.

But there are other faces as well. The Ministry of Health, Labor and Welfare has a few hundred narcotics control officers who play a role in Japan’s own war (whoops, “self-defense”) on drugs. By statute they are able to conduct sting operations and use other investigative tactics that are generally forbidden to regular cops.

The Self-Defense Forces have their own police, though of course not being in the “military,” they probably can’t be called “military police.” The Japan Coast Guard polices the seas, and some of their vessels are equipped with rotary cannons, just in case they come across a large ship resisting arrest.

The Imperial Guards protect the Imperial family and have a history going back to 1886. Once under the Imperial Household Agency, they are now a part of the national police system, though they have their own police academy, band and hiring process. They are also the only police unit whose mandate includes firefighting. You are most likely to see them in Kyoto, guarding the Imperial palaces.

You probably won’t be seeing any mine safety officers, who have the power to investigate and request arrest warrants for mine safety violations. It may sound like a dark and dirty job but, according to the Ministry of Economy, Trade and Industry (which oversees mining), part of their mandate is to constantly watch TV and scour magazines and newspapers in search of cases to investigate, so maybe they just spend a lot of time in coffee shops. Oddly, there appear to be no TV dramas featuring perky starlets or even comic books about them, so there may be a rich untapped vein of popular culture here (sorry…).

Unless your yacht has a hold full of contraband mackerel, you aren’t likely to see a fisheries supervision officer either. They serve in the Fisheries Agency, which has its own fleet of enforcement vessels. The only guns they have are loaded with paint, for marking illegal foreign trawlers that don’t stop when hailed. (Forced boardings are left to the Coast Guard.) These officers do get stun grenades and truncheons, and can make arrests for fisheries violations. (They may need to request warrants by radio.)

If you run a business in Japan — badly — you might see a labor standards inspector. They aren’t armed, but they do have statutory powers to investigate violations of Japan’s extensive employment laws, and handcuffs for the rare occasion when they actually arrest evil bosses. They are also firmly part of popular culture thanks to “Dandarin 101,” a comic about them that was recently adapted into a TV drama. A related species of law enforcement officer performs a similar role in terms of maritime employment conditions.

In addition to these, the universe of police-like officials includes some prison officers, game wardens, forestry officers and an odd mixture of other obscure officials. Some are specified in a still-valid Imperial decree dating back to the Taisho Period (1912-26) (which, among other things, is the source of the police powers vested in the captains and other officers of Japanese ocean-going vessels).

Arriving at Japanese airports involves running a gauntlet of people in uniform. Immigration control officers usually aren’t the people stamping your passport, but they do run the nation’s immigration detention facilities, and conduct investigations that help keep them populated. While not technically “police” under the CCP, the Immigration Control Act gives them interestingly euphemistic, similar powers: They can get “permission,” not warrants, from judges to conduct searches, and “commit” immigration scofflaws to “Immigration Centers” rather than “arrest” or “detain” them. The degree to which foreigners in Japan illegally are entitled to constitutional protections is more than a bit fuzzy, so perhaps the semantics don’t matter anyway.

The agriculture ministry people handling the beef-jerky detection dogs do not have police powers, and the same is true for customs officers. The latter are empowered to investigate customs violations and, of course, if you are in the process of smuggling something, it is probably a “crime in process.” Interestingly, by law, customs officers are allowed to bear weapons but apparently don’t. (Not carrying guns despite legally being able to do so is probably a strange, alien notion for some American readers.)

Customs officers are a subset of Ministry of Finance employee, and cousins to investigators at the Tax Agency, as well as a few other agencies (like the Fair Trade Commission), who have powers to investigate criminal activity but must turn cases over to prosecutors for arrests.

If law enforcement were an ecosystem, prosecutors would be the top predators. Able to conduct their own independent investigations, make arrests and request various types of warrants, they also have a virtual monopoly over decisions on whether to prosecute suspects arrested by everyone else.

Being able to single-handedly take someone from the status of suspect to detainee then defendant is a tremendous power. They are the gatekeepers of the criminal courts, who expect them to exercise a degree of quality control.

Japan has fewer than 2,000 full-fledged prosecutors. Given their powers, perhaps that’s a good thing.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Your comments:

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