When it comes to crime and punishment, Japan is a conundrum for progressives. It has low crime rates and small prison populations, but it is also one of the few developed countries that still enforces capital punishment, and its criminal justice system is often criticized for giving too much power to prosecutors.
These issues will surely be discussed at the next U.N.-sponsored Crime Congress, which will take place in Japan in 2020. The Japan Federation of Bar Associations (JFBA) has said it will make greater efforts toward abolishing the death penalty and instituting life sentences without parole as a possible replacement before the conference takes place, but it is looking at other aspects of the Criminal Code, which hasn’t changed since 1907.
The media lately has taken note of the aging population of Japanese prisons. Usually, their interest in criminal justice extends only until a suspect in a particular case has been tried and sentenced, but with more than 20 percent of prison inmates now over 60 years old, they’ve started paying attention to the prison system itself.
One reason for the large number of old people in jail is recidivism. Many ex-cons can’t adjust to life outside and so purposely get arrested in order to be sent back to the only home they know. What the media doesn’t explain is that recidivism itself is a function of the justice system’s lack of will when it comes to rehabilitation. Prison in Japan is about punishment, which is why the LFBA has demanded revisions to the parole system.
Last November, the Asahi Shimbun reported that for the past decade, less than 10 prisoners who had been sentenced to indefinite prison terms (mukichōeki) had been released on parole each year. In the 1970s, the average number of prisoners granted parole each year was 70.
According to the JFBA, the problem has to do with sentencing. The longest definite prison term is 20 years. The only longer options are indefinite sentences and capital punishment. When foreign media report on trials in Japan they tend to translate “mukichōeki” as “life sentence,” and during a recent discussion on TBS Radio, professor Koichi Hamai of Ryukoku University said this interpretation is not far off the mark, though it would be more accurate to call it “life without parole,” because that’s what an indefinite sentence almost always turns into.
Technically, a prisoner with an indefinite sentence can apply for parole after serving 10 years, but Hamai said this has never happened. Because the longest definite sentence is 20 years, practically speaking no one with an indefinite sentence will receive a hearing until he has served at least that long. And since 1998, when changes were made so that definite sentences could be “augmented” if there were aggravating circumstances — for instance, a murder happened during the commission of a robbery — almost no one with an indefinite sentence has received a parole hearing until he’s served at least 30 years. Moreover, if a hearing is allowed but the parole is denied, the prisoner has to wait another 10 years to apply again, and the number of applications is limited to three during an individual’s incarceration.
In 2010, the JFBA said that indefinite sentences in most cases had become de facto life sentences, regardless of the crime committed. As of the end of 2015 there were 1,835 prisoners serving indefinite sentences, 45 percent of whom were over 60. Twelve had been in prison for more than 50 years.
“More people serving indefinite sentences die in prison than get paroled,” Hamai said.
And yet the public thinks the opposite — that mukichōeki inmates tend to go free after 10 years or so. Hamai’s interviewer, critic Chiki Ogiue, said this is the fault of the media, which, when covering sensational murder trials, imply that anything less than a death penalty could result in a convicted killer going free after a certain period of time, since criminals with indefinite sentences can apply for parole. But they never report how that never happens. This myth partly explains why the Japanese public supports capital punishment.
One reason so few paroles are granted is structural. The JFBA insists that there are not enough qualified officers to supervise parolees and ex-convicts, and 80 percent of the existing officers are already over 60. This shortage of human resources puts back pressure on the system. Last year, only 31 parole cases were heard.
Shinichi Ishizuka, a law professor, told the Asahi that the number of indefinite sentences has increased in the past two decades and placed a substantial burden on Japan’s prison system. He says the government has a responsibility to “create an environment where (ex-convicts) can return to society.”
Right now, the government is discussing a new bill that will allow individuals to be tried as adults at age 18 instead of 20. The policy for juvenile offenders is to rehabilitate them. That’s why they are sent to “correction facilities” and not prisons, which are places of punishment.
Another Asahi report, published Jan. 23, says that the Justice Ministry responded to criticism of the bill by opening up possibilities for new forms of sentencing that will incorporate rehabilitation. Judges may be required to postpone sentencing for certain nonviolent crimes so that they can determine whether or not a convicted criminal “is capable of being rehabilitated.” Another change would be to offer educational opportunities to inmates who are now required to perform labor — printing, woodworking — that is skilled but not necessarily in demand on the outside.
The Justice Ministry says it will form an advisory panel next month to study these changes, any of which would be monumental given that the Criminal Code hasn’t been amended for more than a century. The media’s focus on the aging prison population could help make such progress possible by also showing the public how inmates have human rights and prisons in their current capacity are simply dumping grounds for society’s losers.