If I had to identify one event in the Carlos Ghosn case indicative of concern for foreign perceptions of Japan’s criminal justice system, it would be the decision to grant him bail. Since that has been demonstrated a terrible mistake, everyone in the Japanese government will likely double down on ignoring criticism from abroad as far as the justice system is concerned. This is a shame because some of the critiques might merit attention.
In humiliating his highly respected legal team by skipping bail, Ghosn may have even accomplished the impressive feat of alienating the Japanese defense bar, usually avid consumers of foreign criticism of the system they labor within. Or perhaps not: Takashi Takano, one of his lawyers, recounted in a Jan. 4 blog post that he told his client that defendants could not expect a fair trial in Japan. He also admitted to, at one point, feeling despair over the Japanese criminal justice system, perceiving in it something close to a “homicidal” intent. Takano was betrayed, he wrote, but not by Ghosn.
It is common to cite Japan’s 99.9 percent conviction rate as self-evident that something is wrong with its justice system. Yet when compared to other countries the difference is not so stark: Canada boasts a 97 percent conviction rate (99 percent if you remove Quebec), and U.S. state and federal courts achieve similar levels of certainty. Ghosn was subject to harsh detention conditions in Japan, but jails are unpleasant everywhere else in the world, and most people in them can’t afford to post — let alone forfeit — $14 million in bail.
Trying to remove uncertainty from the result of a known process by controlling the inputs is what rational-thinking people do. In the United States this is accomplished through plea bargains, but in Japan it is accomplished by legislation and court practices that give prosecutors enough control over inputs to ensure a conviction. Decisions with regard to guilt are made by Japanese prosecutors at the time they decide to prosecute, and judges are merely engaged in quality control and sentencing. Apple’s iPhone X reportedly had a failure rate of 3 percent, so at 0.01 percent Japan’s prosecutors would be doing a very good job if they were running a factory, which they sort of are.
This excessive control over the input is arguably more problematic than the conviction rate. Prosecutors can detain suspects in harsh conditions with limited access to counsel or contact with family for weeks or months before even deciding to press charges, even for seemingly minor offenses such as the reporting violation that served as the initial pretext for Ghosn’s arrest. Such detentions must be approved by judges, who did so for 95 percent of requests in 2018, a great improvement over two decades ago when the rate was 99.8 percent (I expect this trend will stop or reverse thanks to Ghosn). Prolonged coercive detentions help generate the confessions (even from the innocent) that virtually guarantee a conviction or at least testimony useful for convicting other targets.
The system enables prosecutors to inflict severe de facto punishments on suspects before they are even prosecuted, let alone convicted, punishment that may be more severe than the sentence received by submitting and confessing, particularly in the case of corporate or regulatory offenses where remorseful defendants can often expect a fine or a suspended prison sentence. This de facto punishment is harsher and lasts longer for those who assert their innocence. Ghosn had reportedly been told he might have to wait until 2021 for one of his trials to start, a delay doubtless due in part to his stubborn insistence in not helping prosecutors prove their case by confessing.
Nonetheless, had they gone to trial prosecutors would have had a great advantage in the form of a vast trove of evidence to choose from — selectively if necessary — in building a narrative of guilt, evidence his defense would not have full access to, even if it were exculpatory. While American defense lawyers may hope to get some clients off by having evidence excluded on procedural grounds, Japanese lawyers must struggle to find out what evidence there actually is. Needless to say, dismissals on evidentiary grounds are rare.
From bench to ministry
Institutional dynamics are also a factor. Japanese judges and prosecutors are cut from the same cloth, specialized categories of elite bureaucrat who pass the same exam as lawyers but follow a separate path. Despite constitutional separation of powers, the judiciary and the Justice Ministry (which is run by prosecutors) exchange personnel: At any given time more than 100 judges are on secondment to the executive branch as temporary prosecutors, and at least one bureau at the Justice Ministry is usually headed by a judge.
Meanwhile, Japanese judges are subject to frequent transfers and annual personnel reviews by judicial administrators (judges themselves), the results of which can affect the timing of their next pay raise and whether their next post will be a good one or not. Not annoying judicial administrators is a factor in a successful judicial career, and judicial administrators have an institutional interest in maintaining good relationships with the Justice Ministry, which, among other things, reportedly represents the judiciary’s interests in the Cabinet.
Unsurprisingly, by all accounts judges who end up being posted to criminal courts are usually pro-prosecutor. While Japan’s 99.9 percent conviction rate can be attributed in part to de facto plea bargains — just as in countries like the United States — the prospects for those asserting their innocence are almost as dismal. In Japan, conviction rates for those defendants are still more than 97 percent, compared to the United States, where the rate for acquittal at trial is over 15 percent.
Not only that, but in the unlikely event a defendant is acquitted, prosecutors can appeal and expect to win. That’s right, not even being found not guilty by a trial court is enough to establish a “reasonable doubt.” You may even be kept in detention while the mistake is remedied by a higher court.
In some high courts the rate of acquittals being overturned by a conviction is said to be close to 100 percent. Acquittals on appeal are a rarity but prosecutorial appeals mean that any acquittal can take a lifetime to be confirmed. Nursery school teacher Etsuko Yamada was arrested in 1974 for the murder of two children under her care. It took 21 years for her acquittal to become final. In 2014, banker Takashi Hatta, slightly famous for being the first person in history to be acquitted in a tax prosecution case, launched a civil damage suit against the prosecutors for filing an abusive appeal. Needless to say, he lost.
A bad look
While the Ghosn drama was playing out, Japanese lawyers were seeking a retrial for convicted murderer Hiromu Sakahara, in part on the grounds that the police had withheld exculpatory evidence from his defense lawyers. He was convicted in 1995 and died in 2011, but lawyers seeking to exculpate geriatric or deceased prisoners convicted decades ago based on coerced confessions or thin evidence is a recurring theme in Japan.
Suppose just for the sake of argument that Ghosn is innocent of the charges brought against him in Japan. His flight from the country would not be commendable and might itself be illegal. Nonetheless, it would still be hard to accuse him of acting irrationally.
In fleeing, Ghosn has doubtless validated every suspicion and rumor about him (and his wife) believed by Japanese politicians and officials. This is a shame. While I have no insights into his guilt or innocence, having a justice system that even the innocent might quite rationally want to flee from seems like an issue that deserves more debate.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.