Last July, a lay judge panel in Osaka handed down a 20-year prison sentence to a man convicted of killing his sister after the prosecution had only asked for 16 years. Earlier this month the Osaka High Court reduced that sentence to 14 years, because the defendant had been diagnosed with Asperger’s syndrome, a developmental disorder. In the original ruling, the judges cited Asperger’s as one of the reasons for giving the man the maximum sentence, saying that there was little hope of such a person being rehabilitated. The high court, on the other hand, concluded that the defendant did not fully understand the gravity of his crime because of the disorder, and thus it was unfair to increase his sentence simply because he “could not show sufficient remorse.”

As reported in this column at the time, the media reacted with shock after the original trial, saying that lay judges obviously didn’t comprehend the term “developmentally disabled.” In fact, as long ago as 2010, or only a year after the lay judge system went into effect, it was being reported that the new system was delivering harsher sentences than professional judges had in the past for equivalent crimes. According to experts, lay judges identify more readily with victims.

But another factor that contributes to longer sentences is the popular misconception that crime is getting worse. According to a government white paper published last fall, the number of inmates in Japanese prisons peaked in 2006, and has been decreasing ever since. There was a slight rise between 2000 and 2006 but that was only because sentences had been made harsher by law, again as a response to a perceived increase in criminal behavior, and as a result people who were sent to jail stayed there longer, a situation that has resulted in prison overcrowding and a general sense that Japan is sinking into barbarism.

According to criminologist Koichi Hamai, the truth is more complicated. In a recent interview with the Asahi Shimbun, Hamai said his own research shows that the violent crime rate in Japan has dropped continually since the end of World War II, but as the media has refined its mission of giving the public what it purportedly wants, it has intensified the lurid aspects of crime without mentioning that, on the whole, crime is becoming statistically rarer. What isn’t becoming statistically rarer is the chance that a person who lives on society’s margins will go to jail.

Hamai pointed out that not only is the prison population getting older, just as the general population is, but that the portion which is handicapped, either physically or mentally, is getting larger. The average prisoner is also poorer. The system tends to be lenient toward first-time offenders, who are kept out of jail with the idea that they should be given a chance to prove they aren’t a danger to society. People who are socially vulnerable, however — those without steady jobs or strong family ties — are more likely to be repeat offenders, and courts are obligated to send repeat offenders to jail. Moreover, such people usually lack the education, social skills and economic wherewithal to navigate the criminal justice system as well as people who don’t. As Hamai points out, most repeat offenders with developmental disorders commit shoplifting and vandalism, petty crimes that can be forgiven if the offender offers compensation or even just a heartfelt apology.

The absence of a social safety net means that people who don’t belong anywhere end up in prison. So even as the inmate population shrinks, the number who die in prison increases. Counter to the common belief that jails are filled with burly brutes sporting tattoos and scars, most of the prisoners Hamai said he sees are “weak and helpless.” He reported that the factories attached to Japanese prisons are understaffed because an increasing portion of their labor pool is unable to work due to the infirmity of age or a disability. Apparently, prisons are competing with one another for able-bodied convicts so that their manufacturing functions remain viable.

Hamai blamed the media and the political establishment for making up a “story” that lets them off the hook for this loss of compassion. At the end of the 1990s the government talked about the deterioration of “personal responsibility” (jiko sekinin), a term that distracted attention from its disinclination to address poverty, suicide and crime, all of which are linked at the bottom. The Liberal Democratic Party, which came up with this line of thought, has recently revived it by pushing “moral education.” The LDP says parents and schools are to blame for the loss of “peace and order,” when, in fact, Japan is safer than it’s ever been. What’s changed is that the atomization accompanying the economic changes of the past 20 years has exposed the more vulnerable members of society to greater hardship.

If the media were less focused on crime as a phenomenon and more actively concerned with how social misfits have been institutionally cut adrift then maybe the sort of communal care Japan was famous for would reassert itself. There are individuals and organizations who are working hard to ensure that the developmentally disabled receive proper attention. Starting in 2011 the Nakasaki Shimbun ran a series of features, recently compiled in the award-winning book, “Ibasho wo Sagashite” (“Looking for a Place”), on programs designed to keep the developmentally disabled out of prison by lending them support, not only after they are released (“exit strategies”) but before and during their trials (“entrance strategies”).

The purpose is to make judges and lawyers understand these defendants’ circumstances and create a new criminal justice system that doesn’t perpetuate the vicious cycle of recidivism. They also want to make the defendants themselves understand, since many, even those already in prison, don’t always know what they did wrong. What does “punishment” mean to such a “criminal”?

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