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The Diet is now debating a bill that would create a system whereby medical doctors and judges would decide together whether someone with a psychiatric disorder who commits a serious crime should be hospitalized.

Although the Justice Ministry in the 1970s and 1980s tried to introduce a system to allow courts to order the hospitalization of mentally ill people who commit crimes, mainly for the sake of public safety, strong human rights concerns forced it to abandon the idea.

But the latest bill appears to have won relatively broad public support, in part due to the outcry over the slaying of eight children at an Osaka elementary school June 8, 2001, by a man with a history of psychiatric treatment.

The bill’s main feature is the involvement of the judiciary in the decision to hospitalize someone with a mental disorder if the person is considered likely to commit further crimes.

“(In Japan), in the interest of society, the difficult role of looking after mental patients who commit crimes has long been forced upon the shoulders of psychiatrists,” said Tsuneo Senba, chairman of the Japanese Association of Psychiatric Hospitals. The group, which counts 90 percent of the mental institutions in Japan as members, supports the bill.

The bill targets people accused of grave crimes such as murder, robbery or assault who were not indicted or had charges dropped due to mental illness after psychiatric evaluation during the prosecutors’ investigation. Those whose disorders led to acquittals or suspended sentences would also be targeted.

Article 39 of the Criminal Code stipulates that people judged incapable of telling right from wrong due to mental illness are exempt from criminally liability. It says criminal responsibility should be reduced for people who are determined as having extreme difficulty in making this distinction due to illness.

From 1995 to 2000, 3,157 people were either not indicted or had their charges dropped after it was judged that their mental illness made them unable to assume any or diminished criminal responsibility. This includes 1,761 cases of serious crimes, 576 of them murders.

There were eight acquittals, and in 375 cases, terms were suspended or reduced when courts took into account the mental state of the offenders.

The system envisaged in the bill now in the Diet would set up special bodies at district courts where a judge and a court-appointed psychiatrist would jointly determine whether defendants who are acquitted or receive suspended prison terms are likely to be repeat offenders.

While the decision on whether to hospitalize an offender is pending, the accused would be held at a mental institution designated by the health minister, and if judged to still be dangerous, would remain there.

During hospitalization, which would have no designated limit, offenders would receive treatment and training to help them return to society, while courts would review their cases every six months. Offenders not committed to hospitals may be ordered to periodically visit a designated mental hospital for up to five years. The Justice Ministry believes that this would apply to between 300 and 400 people a year.

According to the ministry, out of 671 criminal suspects who were not punished due to their mental illness in 2000, 436 were sent to mental hospitals under the Mental Health and Welfare Law, which allows prefectural governors to order offenders hospitalized with the consent of two doctors. Another 139 entered mental hospitals after they were released at their own or the family’s behest.

Senba of the psychiatric hospital group said that around 1,000 people with psychological disorders who were accused of committing serious crimes are now staying in mental hospitals. Japan’s mental hospitals have a capacity of around 340,000 patients.

“Treating such patients at regular mental hospitals does not benefit them, because an important part of their treatment entails having them face up to their past conduct, but their criminal records are usually kept secret from other patients,” Senba said.

Judicial involvement, for the sake of public safety, in the decision to hospitalize people with psychological disorders who are accused of committing crimes has been the norm in other developed countries for the past 20 years, he said.

“Such a practice can also reduce the prevailing prejudice of viewing all mental patients as potential criminals, because it provides the assurance that patients outside designated institutions pose little danger to society,” Senba said.

But more than 20 organizations, including the Japan Association of Psychiatry and Neurology, the National Federation of Families with Mentally Ill in Japan and the Japan Federation of Bar Associations, oppose the bill.

They argue that current medical science dictates it is impossible to predict if a person might commit another offense, even in the near future.

“A patient’s mental disease and criminal tendency are essentially different, and it is impossible for medical science to tell whether someone has a high potential to repeat an offense,” said Kimio Moriyama, vice president of the psychiatrists’ association.

“The bill seems to be based on the premise that negative conduct by the mentally ill is very predictable, but that supposition is nothing more than prejudice.”

While Moriyama agrees that the courts need to play a larger role in deciding the fate of mentally ill people who commit crimes, he maintains this can be achieved under the current legal framework.

“Instead of attempting to predict the impossible, such as whether someone may commit a crime in the future, judicial authorities should fully examine each case and determine the best treatment for the sake of both the patient’s welfare and the safety of society,” Moriyama said.

A major obstacle keeping the present system from working at its optimal level is the hesitancy by prosecutors to charge mentally ill people with crimes due to the parameters of the Criminal Code.

The Tokyo District Public Prosecutor’s Office, for instance, indicted 45.8 percent of the 926 suspects judged as having mental problems in the five years to 2000. The figure is more than 10 percentage points lower than the national indictment average of 57.6 percent for all criminal suspects during the same period.

Hajime Oketani, director of the secretariat of the National Federation of Families with Mentally Ill in Japan, said efforts to prevent mentally ill people who commit crimes from being repeat offenders must first include improving the welfare system.

Japan has lagged behind other nations in creating facilities to help the mentally ill return to society once their hospital treatment ends, according to numerous experts.

As a result, the nation has around 330,000 such patients in hospitals — a figure they say is the largest in the world on a per capita basis. Oketani said the lack of such facilities has also unnecessarily increased the number of mental patients who cannot fit into society and commit crimes.

“Despite the slow progress in the improvement of overall welfare services for mental patients, moves to form policies targeted at them are often swift when the issue is discussed from the standpoint of public safety,” he said.

“There is at least the sense (among the group’s member families) that the bill and the debate surrounding the issue has a tinge of unfairness.”

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