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date: 26 March 2019

Youth Justice in Japan

Abstract and Keywords

This chapter provides the first comprehensive overview of Japanese youth justice, locating it within wider conceptual considerations of youth justice, such as welfare versus justice and penal populism, before outlining its historical development and questioning its uniqueness. It discusses the contested notion pre-delinquency and its net widening potential and its place in the wider trends in Japanese youth crime. The study critically assesses the overall organization, administration, and impact of the Family Court (equivalent to youth or juvenile courts) and summarizes recent developments in youth crime policy. Although the Family Court is at the center of youth justice, it involves many social welfare elements. Despite the increasingly punitive rhetoric, policy, and legislation for juveniles in Japan, there is no evidence that more juvenile offenders are being committed to the adult courts. Overall, we found a clear precedence of social welfare over criminal policy considerations.

Keywords: Japan, youth justice, juvenile justice, welfare, pre-delinquency, police guidance, youth crime, sentencing, penal populism

Youth justice1 in Japan is complex. As Yoshinaka (2010, p. 27) notes: “Despite a plethora of discourses upon youth justice among legal practitioners and academics in Japan, very few attempts have been made thus far at giving observers in other jurisdictions a better understanding of Japan’s system of dealing with children and youths that are in conflict with the law.” This chapter therefore draws together many disparate strands of information in order to provide an overview of the main issues in current Japanese Youth Justice.2 Wherever possible, English language sources have been used to maximize accessibility, although some sources are only available in Japanese. The chapter builds, to some extent, on Lewis, Brooks, Ellis, and Hamai’s (2009) comparison of Japanese and English youth justice, but as will become apparent, there are historical reasons for also focusing on parallels with US juvenile justice.

We begin by locating Japanese juvenile justice within more general conceptual arguments about youth justice, before outlining the historical development of Japanese juvenile justice and the arguments as to its uniqueness. Next, we provide an extensive discussion about pre-delinquency and its contested impact on Japanese youth justice. This involves a consideration of net widening, the involvement of the police and social agencies, and the outcomes for those given police guidance. We then provide an overview of the key characteristics of trends in Japanese youth crime.

Having established the overall context of juvenile justice, we move on to outline and critique its organization and administration. We first examine the extent to which juveniles (essentially those aged 14–19 in Japan) can be tried and sentenced in the adult courts. We then analyze the Family Court (equivalent to youth or juvenile courts in other countries), including its rationale and sentencing practices. We offer an overview of recent developments in youth crime and look at major policy developments, including those under consideration. We end with an evaluation of the main conceptual strands developed throughout the chapter, including the balance among welfare, justice, penal populism, and policy and practice. We feel it is important to stress the cross-national collaborative approach taken here, ensuring a high level of knowledge and understanding of the Japanese youth justice system, both from the inside and from a comparative perspective. We hope that this makes the chapter informative to both Japanese and non-Japanese readers alike.

Questions of Uniqueness: Locating Japanese Youth Justice within Existing Frameworks

Modern Japan faces pressures similar to those faced by other advanced, modern democracies; for example, globalization, new technologies, mass consumption, mass media, drug and alcohol consumption, organized crime, and trafficking. The way in which Japanese criminal justice deals with these pressures has generally been regarded as unique (Schwertfeger and Zimring, 2013; Johnson, 2008; 2006; Komiya, 1999; Foote, 1992; Bayley, 1991; Braithwaite, 1989; Berezin, 1982). However, others have argued that this uniqueness, and, in particular, the role of Japanese culture are overstated (Ellis, Lewis, and Sato, 2011; Yoder, 2011; Leonardsen, 2010; Ellis, Lewis, Hamai, and Williamson, 2008; Hamai and Ellis, 2008a, b; Sugimoto, 2003; Aldous and Leishman, 2000; Leishman, 1999). The likelihood is that these two arguments, resulting from polarized methodological and epistemological approaches, need reexamining to form a more realistic understanding of Japanese youth justice.

These tropes are repeated in different analyses of Japanese youth justice. Authors such as Morita (2002, p. 360) argue that Japanese juvenile justice retains traditional cultural elements, especially maternal protectionism, and has resisted more punitive legal reforms. Schwertfeger and Zimring (2013, p. 4) argue that these characteristics are related to the broader Japanese socialization processes within the family and in schooling that inculcate “internalized forces restraining people from committing crime.” Similarly, Foljanty-Jost and Metzler (2003) have argued that a strong central policy in Japan is complemented by effective visible local law enforcement and crime prevention and that the average Japanese young person grows up to recognize and accept the different roles of family, school, and police in their upbringing. Lewis et al. (2009) have also argued that, unlike the dominant societies in English speaking criminology, Japanese society is more likely to recognize that all agencies, formal and informal, share the responsibility of bringing up children, rather than having an option that children can accept or reject as they choose. On the other hand, Yoder (2011, p. 1, 7) warns that contemporary developments in Japanese youth justice simply reproduce the Japanese dominant class ideology, or myth, of nihonjinron (Japanese uniqueness) and therefore ignore a very long history of class conflict in Japan, especially between lower class youth and the state.

Paradoxically, despite the contemporary emphasis on Japanese uniqueness in official policy and practice, the youth justice themes developed in English-speaking environments and literature can also be found very early on in Japanese juvenile justice discourse and policy. For instance, Yoder suggests that the modern, individual life course is now less predictable in Japan (Giddens, 1991, 2001) and that the development of a “risk society” (Beck, 1992, 1999, 2006) has impacted negatively on the young, who are so often seen as either at risk or as posing a risk (Armstrong, 2004, 2006). Similar to those who are critical of the risk prevention approach to youth justice policy in other countries, Yoder argues that in Japan, the bulk of the focus of youth justice activities is geared towards the problematization of youth (Kelly, 2001) or that young people are simply demonized (Armstrong, 2004) such that the young are seen as a prism through which all social ills can be viewed (Brown, 2005).

Most examinations of youth justice focus on a continuum between welfare-based processes at one end, and justice solutions at the other. In examining any country, it is usually a question of shifting emphases over time in response to events, media pressure, political imperatives, and so forth, so legislation, policy, and practice often contain varying elements of both ends of the continuum (Muncie, 1999, p. 260). This type of distinction becomes crucial when discussing the role of policing pre-delinquency and its outcomes in Japanese youth justice. Indeed, Schwertfeger and Zimring (2013, p. 4) have argued that despite official Japanese moves toward more more overtly punitive youth justice policies, in practice it is still largely focused on rehabilitation and reintegration. In contrast, they argue that the United States has developed a stronger restorative justice policy discourse yet continues to be punitive in practice. This contrast is crucial because, as Schwertfeger and Zimring (2013) point out, the Japanese juvenile justice system was not a unique, autochthonous development but was based explicitly on the original American model from the early 1900s.

In determining the welfare/justice response, many countries increasingly view young people as responsible for the choices they make “according to calculations of risk and opportunity (Petersen, 1996, p. 47). Young people are often, therefore, characterized as imprudent and irrational in relation to decisions about alcohol consumption, substance abuse, crime, and so forth (Kemshall, 2008: 22) and are blamed and punished accordingly. Many have argued that this “responsibilization” discourse has ensured that collective/social risks (e.g., youth unemployment) are transformed into individual choices (lack of enterprise/skills deficit; Kemshall, 2008, p. 23; Rose, 1996, 2000; Squires and Stephen, 2005). There is, therefore, little policy concern with the structural context and life experiences of young offenders (Scraton and Haydon, 2002, p. 325), yet these are key to understanding the world of risk inhabited by young people (Furlong and Cartmel, 2006) and cannot be ignored. Media portrayals also play a familiar role here. Johnson (2006, p. 80) argues that, if viewed empirically, Japanese juveniles should be celebrated for their low level of offending, rather than being subject to unjustified media and governmental concern (see also Schwertfeger and Zimring, 2013; Hamai and Ellis, 2008a, b; Maeda, 2003).

Yoder (2011, pp. 16–17) also uses empirical evidence to argue that Japan is not “unique or that different from other modern democratic capitalistic societies” in that it channels juvenile justice and wider social agencies towards the control and punishment of disadvantaged youth. He is critical of the type of argument that Schwertfeger and Zimring (2013) have made because they uncritically accept the centrality of wa (harmony) and cultural homogeneity in reducing the level of conflict and deviant behavior in Japan to a much lower level than in Western countries. Some Japanese authors, such as Sugimoto (2003, p. 2), agree and argue that Japanese citizens are only unusual in believing that their nation is so unique.

This serves to flag the importance of the critical approach to the use of empirical evidence in this chapter, where we have striven to utilize new data and analyses to support our arguments. We therefore focus on the overlap between social and criminal justice policy toward young people and how they relate to explaining Japanese youth justice. There is no attempt to argue that Japan is not unique, but this is a simple truism for any nation. What we do argue is that many of the themes discussed are also easily identifiable in Japanese youth justice.

Japanese Youth Justice in Context

There is a long and verifiable history of repression of working-class youth by the Japanese state (Ambaras, 2005). However, the introduction of the Juvenile Reformatory Law (JRL) in 1900 was the precedent for the modern Japanese juvenile justice system. JRL was a response to the pressures of rapid urbanization and modernization and the growth in poverty-related crimes such as theft and extortion for boys and unlicensed prostitution for girls, but also in the more nebulous “lower-class moral impropriety” (Yoder, 2011, p. 41). Perhaps more surprising is that this rapidly modernizing nation also adopted and adapted the world’s first and only juvenile justice system, introduced in the United States in 1899. In doing so, the concept of parens patriae was gradually incorporated as a key social work component of Japanese juvenile justice (Hirose et al. 2009, p. 16; Schwertfeger and Zimring, 2013), although the period before WWII also saw the development of a totalitarian philosophy of education in schools (Yoder, 2011).

The early US and Japanese juvenile justice systems’ discourse was of state intervention to protect neglected and abandoned youth (Schwertfeger and Zimring, 2013 p. 10). The approach ensured that juvenile justice encompassed both children who committed crimes and, importantly in the modern Japanese context, children who were vulnerable or at risk. Over time, this inevitably caused tension as at-risk children remained within a justice jurisdiction (Vito, 2011, p. 19). Initially, in both Japan and the United States, juvenile justice systems led to the creation of status offenses for those merely at-risk juveniles, which in turn codified a tranche of relatively trivial offences applicable only to juveniles; for example, truancy or running away from home (Schwertfeger and Zimring, 2013, p. 10). While the emphasis was on the juvenile courts “protecting these ‘at risk’ children and preventing future criminal offenses” (Schwertfeger and Zimring, 2013, p. 11), it could also be regarded as net-widening, drawing vulnerable juveniles into the justice process rather than dealing with them directly through social work agencies.

As with Japanese policing (Ellis et al., 2008; Aldous and Leishman, 2000; Leishman, 1999), what appears to be uniquely “oriental” autochthonous development of juvenile justice was actually a conscious importation in the Meiji, or “enlightenment” period (1868–1912), of what was seen as the most promising system from among the most advanced countries in that period (see Dale, 1988). Equally consciously though, the imported models were adapted to the Japanese context. In the Japanese version of the US model of juvenile justice, Schwertfeger and Zimring (2013, pp. 17–18) argue that rehabilitation was seen as more central than protection and that a later Taisho Juvenile Law (1922) limited jurisdiction to “criminal and semi-criminal offenders” only. However, the term “semi-criminal” is vague and, as Yoder notes, protective measures were still used that placed poor youths in reformatories for pre-delinquent offences such as “living in improper homes,” vagrancy, idleness, or even “hanging around with the wrong people” (Yoder, 2011, p. 41). This, therefore, presages a central examination in this chapter about the modern Japanese juvenile justice system’s use of, and approach to, what is termed pre-delinquency and the use of police and volunteers (in the broadest sense) to address it.

There was also heavy involvement of volunteer reformers with what they perceived as the new delinquency-prone working class youth. The Japanese probation service was introduced in the early 20th century and is still staffed largely by middle-class, relatively old, volunteer probation officers whose caseloads are mainly made up of juvenile offenders (Ellis et al., 2011). The probation service, and new reformatories introduced alongside them, became the engine of youth protective measures. At the same time, there was a growth in the institutionalized use of police surveillance for both apprehending and punishing pre-delinquent youth. Yoder (2011, p. 42) argues that this was, in effect, an enormous labelling operation that still, today, ensures that working-class youth are continually recycled through the youth justice system in the same way, it has been argued, as in many Western countries, where working class youth were seen as “police property” (Lee, 1981; Reiner, 1985; Choongh, 1997, 1998).

Yoder (2011, p. 42) argues that this well-intentioned delinquency prevention reform produced a net-widening social control effect so that, from the 1920s until WWII, juvenile justice had incorporated other social agencies, such as teachers, social workers, and child protection commissioners. However, from Schwertfeger and Zimring’s (2013, p. 6) perspective, this is seen as a way to remove some personal blame from juveniles and ensure societal intervention and reintegration so that raising the child is a collective responsibility at the core of Japanese culture. This might be seen as akin to Braithwaite’s (1989) idea of re-integrative shaming, but equally might be seen, as Yoder (2011, p. 42) argues, as a way of establishing middle class norms through agents of social control, so that working class youths’ behavior was measured in terms of not having both parents, being in an abnormal home environment, having poor education/school attendance, and so on. Perhaps the main point to be made here, however, is that these contrasting views about the state’s overall approach to juveniles are by no means unique to Japan.

Ironically, the US occupation after WWII strengthened the centrality of parens patriae under Article 1 of the Juvenile Act of 1948, which marked the birth of the current Japanese juvenile system. This was based on “protective measures relating to the character, correction, and environmental adjustment of delinquent juveniles” (Fenwick, 2006, p. 148).

This was essentially a mirror of the US juvenile system of the day. However, in 1967, parens patriae was challenged in the United States and was rejected as a sound doctrine on which to base youth justice (NCJRS, 1999, p. 90). US juveniles were no longer protected wards of the state, but were “responsibilized” to prove their innocence (Schwertfeger and Zimring, 2013, p. 12). There was no parallel process in Japan, so that in a key sense, Japan’s juvenile justice system still reflects the original protective intentions of the founders of the US juvenile justice system. It is therefore crucial to examine where the operation of youth justice in Japan lies along the diversionary-interventionist continuum.

There is no doubt that multi-agency forms of control are manifold and have endured over time in Japan. However, while Yoder (2011, p. 20) tends to argue that all such activities are on a single continuum of oppression and control of youth, there is also an empirical question about where the line lies between what might be regarded as prevention and diversion on the one hand, and formal punishment on the other. Some community and agencies’ activities might be considered as crime prevention or diversion within a welfarist approach, as Lewis et al. (2009) suggest, of local surveillance, apprehension, and police issuing guidance, for example. Or they might be considered as enforcing conformity, as Yoder (2011) suggests, through net-widening, where minor infractions are pushed into more formal criminal justice processes, such as arrests, disposition, adjudication, and punishment. The tension between these two extremes is a major theme in this chapter. First, however, it is important to provide an overview of the juvenile justice process and the numbers involved at each stage.

Three Levels of Youth Justice

As in many countries, Japanese juvenile justice has developed relatively independently of adult justice. The annual English language versions of White Papers on Crime (Hanzai Hakusho) outline of the structure of juvenile justice (although the Japanese language versions are more complete). Much of the following section has been contextualized from the Japanese Ministry of Justice’s 2011 White Paper on Crime (part 3, Chapter 1) and Yoshinaka’s (2010) review. However, as there is no complete overview of Japanese juvenile justice’s complex set of processes, we shall set out a more inclusive template.

The basic structure of youth justice in Japan is established according to the Juvenile Act 1948 (Act No. 168 of July 15, 1948, introduced as the Juvenile Law of 1949; Yoshinaka, 2010, p. 27). It is centered around the Family Court.

While Japanese commentators have noted that Japanese youth justice has been subject to the same increase in punitivity as other developed countries (for example, amendments to the Juvenile Act in 2000, 2007, 2008, and 2014; Yoshinaka, 2010, p. 27), we will argue that the retention of the Family Court, and importantly, the primacy of the Child Welfare Act (1947) and the role of child guidance centers helps maintain a more explicitly welfarist model of intervention than in most advanced democracies, including the United States and the United Kingdom.

Yoder (2011) makes much of Japanese youth being subject to the same national penal code as adults, but also to special penal code offences, which he feels enormously expand the range of violations possible for juveniles. However, juveniles in most countries are subject to additional, age-related, legal controls. The question, then, is whether these issues are used to criminalize “responsibilized” young people, or whether there is an attempt to protect and/or divert them from the youth justice system. We will argue here that in Japan, this is not dependent on whether criminal justice agencies are involved or not.

There are three key justice agencies potentially involved in any juvenile justice event: the police who encounter and process young people; the Family (juvenile) Court; and the (adult) Public Prosecutor’s Office. The complex relationship between these and other agencies is outlined in detail later, but first we focus on the under-researched pre-court processes that mainly involve the police.

Youth justice intervention and, we argue, diversion from formal justice approaches can occur at three interconnected levels in Japan and stretch way beyond the formal juvenile justice system: (1) delinquency prevention through community crime prevention organizations and schools; (2) police action and guidance for pre-delinquent activities; and (3) police referral to the family (youth or juvenile) court. Only the last of these tends to be covered in most outlines of Japanese juvenile justice, statistical collections, and discussions. However, the first two elements occur at a broad, societal level and involve far larger numbers than recorded crime figures, so it is important to outline these first.

Delinquency Prevention

Most Japanese neighborhoods have a community association (chonai kai) and, within this, a bohan kai (crime prevention unit). Bohan kai members patrol their neighborhoods with an interest, inter alia, in detecting perceived deviant youth behavior such as underage drinking and smoking (Yoder, 2011, p. 22). As with probation volunteer adults, these are mostly older people who have spare time (Ellis et al., 2011). They can offer juveniles uninvited advice but have no powers of arrest. If their advice is ignored, they can report this to police through bohan renrakusho, or volunteer households.

Additionally, there are school-police coordinating councils (see Yoder, 1986; Foljanty-Jost, 2000) where police inform schools of pre-delinquency or crimes by pupils. Schools (mainly post-elementary) can also inform police of pupil incidents. Teachers and police also carry joint patrols to “catch young people who are misbehaving” (Yoder, 2011, p. 22).

Yoder (2011, p. 22) also notes a plethora of complementary delinquency organizations in addition to the probation service, including the Youth League, Volunteers of the Police, Juvenile Guidance Centers, and local youth development assemblies. Organizations such as the YWCA, the Scouts, and Parent Teacher Associations are also involved, as well as Big Brother and Big Sister organizations (see Ames, 1981; Yoder, 1986; Foljanty-Jost, 2000; Minei, 2003). Seen from this perspective, it does seem as though the delinquency net is cast very wide, and it is easy for young people to be drawn into the juvenile justice system. Research also seems to support Yoder’s (2011, pp. 37–28, 48) focus on controlling working class youth (Rohlen, 1989; de Vos and Wagatsuma, 1984; Okano and Tsuchiya, 1999; Dubro and Kaplan, 2003; Yonekawa, 2003; Yoder, 2004).

Another way of interpreting the extensive Japanese approach to delinquency prevention is that in developing its response to new challenges, Japan has placed the emphasis on maintaining the more informal aspects of social control alongside the development of the criminal justice aspects, which overall, as Lewis et al. (2009) have argued, leads to a predominantly welfare-based approach for young people. Yoder (2011, p. 22) does concede that adult intervention and guidance in delinquency prevention is neither necessarily coercive nor ineffective. Studies have found both positive and negative accounts of adults’ interventions (see Ames, 1981; Kiyonaga, 1982; Wagatsuma and De Vos, 1984; Foljanty-Jost and Metzler, 2003; Yoder, 2004). However, there is no hard evidence on impact (Yoder, 2011, p. 22) and no known figures on the number of cases where advice is given by other agencies or, therefore, on the proportion of these that are referred to police. Despite this, Yoder (2011, p. 22) argues that these processes are based on inequality between youths and adults in a one-sided and un-trusting relationship, which is also mapped onto existing class inequalities. Mizushima (1973) and Yoder (2004) did find that delinquency prevention is focused more on working class or entertainment districts within cities, but overpolicing of such areas and lack of youth agency in organizations set up to manage them are hardly unique to Japan. The question that is perhaps more pertinent is that of what happens to those youths who are referred to, or are stopped by police, in this pervasive system.

Police Guidance

Leaving aside the potentially vast but unknown number of minor interventions or advisements from other agencies, juvenile pre-delinquency violations referred to the police can be recorded according to guidance in police circulars. The police use their discretion to divide the offending youths into guhan shonen (crime-prone juveniles) and furyo koi shonen (unwholesome activity juveniles or, simply, misbehaving juveniles; see Ames, 1981, p. 77).

Using 2008 statistics, Yoder highlighted that the 1,361,769 recorded youth pre-delinquency status offences far outnumbered the 134,415 penal code offences by young people (Yoder, 2011, p. 37; Hanzai Hakusho, 2009; Seishonen Hakusho3, 2009). Yoder (2011, p. 37) also showed that pre-delinquency rates more than doubled between 1972 and 1983 and that curfew violation, smoking, drinking alcohol, unsound activity, and gang activity ranked as the most common categories. Yoder’s (2011, p. 20) and Ames’s, (1981, pp. 83–84) argument implies that all 1,361,769 pre-delinquency cases would result in a juvenile police record. Taken at face value, this does seem to represent a high level of justice net–widening for young people where the discretional justice-without-trial (Skolnick, 1966) element of police practice has been formalized.

However, this picture needs some careful deconstruction. First, the number of pre-delinquency cases is volatile over time and clear trends are hard to discern. Figure 1 shows the variation in the numbers of pre-delinquency offences from 1975 to 2014, and Figure 2 shows the rate per 1,0004 youth population. As can be seen, absolute numbers and rates vary considerably over a longer period than Yoder used. Indeed, as Figures 1 and 2 show, 2008 represented a high point for both the number and rate of pre-delinquent recorded offences, but these have dropped considerably since, so that by 2014 the numbers had almost halved to 731,174, bringing them down to a level not seen since the 1990s. This is also true of the respective rates of pre-delinquency per 1,000, reducing from 207.8 in 2008 to the 2014 level of 112.5 (although the latter is still roughly double the 1990s rate). These variations are hard to explain over time and will be affected by policy and practice changes, but they do serve to illustrate that there is no inexorable rise in pre-delinquency offences by young people or police pursuit of them.

Youth Justice in JapanClick to view larger

Figure 1: Number of juveniles issued with police guidance for pre-delinquency status offences, 1975–2014

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Figure 2: Juvenile pre-delinquency offending rate, 1975–2014

National Police Agency, “Overview of the State of Juvenile Guidance and Protection” and “State of Juvenile Delinquency,” (with excel file) https://www.npa.go.jp/toukei/index.htm [available in Japanese only].

Before 2008, Nawa (2006) argued that the status of police guidance was “‘tenuous” under Article 3 of Juvenile Law, with only some police standards applicable (see National Police Agency (NPA), 2002, Rules of Police Activity against Juveniles). However, this has been clarified to some extent by the introduction of the National Police Agency (NPA, 2008, section 4) police circular. No report is now required if guidance is given, but contacting parents or school is not considered necessary. If further action is taken, then a report is required, but this will not be identified in searches by schools or employers, as it is not a criminal record, though it can be considered by the Family Court in investigating and sentencing for later offences. Section 5-2 [2] of the NPA 2008 police circular also requires links to the guidance record to be deleted when the offender reaches 20 years of age (adulthood). This suggests that recorded pre-delinquency should not result in a police or criminal record.

Second, it is important to examine the extent to which pre-delinquency offences can be categorized as “additional” to adult code offences only in Japan, and which are typical of breaches of lower age limits in most jurisdictions. We therefore grouped the pre-delinquency offences recorded in 2013 into three categories:5

  • Status offences for relatively vague or trivial actions— running away from home; staying out overnight without parental permission; late night loitering; and association with bad peers

  • Underage offences common in most jurisdictions—drinking alcohol; smoking; truancy; sexual relations; and gambling

  • Offences that overlap with adult criminal offences—minor assault and reckless driving

Including a small number of other offences, Figure 3 shows that 37 percent of pre-delinquency offences would constitute grounds for criminal justice attention in most jurisdictions, albeit with varying degrees of discretion and application by the police.

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Figure 3: Main categories of pre-delinquent offences, 2013

Third, Figure 4,6 shows that no further action was taken beyond police advice in 2013 in 809,652 pre-delinquency cases, and this is where most furyo koi shonen cases are processed. The more serious guhan shonen cases are referred directly to the Family Court, but their number is tiny, just 343 in 2013. This perhaps puts some perspective on the extent to which pre-delinquency represents net widening into the justice system or multi-agency diversion away from it. Indeed, this still overrepresents the extent of the use of justice-only solutions, as the next section shows.

Pre-delinquency in the Family Court

Figure 4 outlines the results of the 343 guhan shonen pre-delinquency cases that were dealt with by the Family Court in 2013.

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Figure 4: Process and outcomes for pre-delinquency cases through the Family Court, 2013

National Police Agency, White Paper on Police, 2014. https://www.npa.go.jp/hakusyo/h26/honbun/index.html [available in Japanese only] Ministry of Justice, White Paper on Crime, 2014. http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html [available in Japanese only].

Of the 343 most serious guhan shonen pre-delinquency cases referred to the Family Court, 30 were accepted as requiring no court hearing; 28 cases were heard but no action beyond police and Family Court advice was deemed necessary; and 27 cases were referred to a prefectural governor or child consultation center (essentially a non-justice/social work disposal). This means that 25 percent of the 343 pre-delinquency cases that made it to the Family Court did not require a hearing or a justice disposal.

So far, due to its sheer volume and general lack of coverage, the pre-delinquency issue has necessarily dominated the discussion. Having established that only a tiny proportion of pre-delinquency guhan shonen cases result in a justice disposal, it is now important to look at the full profile of the much smaller number of recorded juvenile crimes and how these are processed in juvenile justice and the disposals made. In order to do this, it is first necessary to look at the level and trends of penal code offences. The picture here is much simpler than with pre-delinquency: recorded youth crime in Japan has plummeted!

Real Crime? Recorded Juvenile Offences

While the overall number of cleared offences committed in Japan has been reduced from 330,126 in 2000, to 301,331 in 2012, the trends in the juvenile and adult contributions to this are very different. As Figure 5 shows, while juvenile offending dropped from 152,813 in 2000 to a new low of only 79,430 in 2012, adult offending actually rose, from 177,313 to 221,901 over the same period. Moreover, adult offending had peaked higher than this in the middle of the first decade of the 2000s, pushing up the overall recorded crime (Ministry of Justice, 2014a).

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Figure 5: Number of juveniles cleared for penal code offences (non-traffic), 2000–2012

See Ministry of Justice (2013). White paper on crime Part 3/Chapter 1/Section 1/1 http://hakusyo1.moj.go.jp/en/62/nfm/n_62_2_3_1_1_1.html

These raw figures show that between 2000 and 2012, the 9 percent drop in cleared penal code offences overall has been entirely due to the 48 percent drop in juvenile offending, which was offset somewhat by the 25 percent increase (to 221,901) in adult offences.

Of course, as Shikita and Tsuchiya (1992), and the White Papers on Crime, point out, the youth offending rate has been much higher than the adult rate. However, this is partly determined by the juvenile population being much smaller, producing much higher rates of offending (6.7 per 1,000 in 2012) than for the much larger adult population (2.1 per 1,000 in 2012). Despite this, however, Figure 6 demonstrates that the juvenile rate of offending has also fallen sharply up to 2012, while the adult rate of offending has remained relatively flat, peaking at 2.6 in per 1,000 in 2006. The current rate of juvenile offending is the lowest recorded since 1966.

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Figure 6: Juvenile and adult population rates (per 1,000) of cleared penal code offences (non-traffic), 2000–2012

See Ministry of Justice (2013). White paper on crime Part 3/Chapter 1/Section 1/1 http://hakusyo1.moj.go.jp/en/62/nfm/n_62_2_3_1_1_1.html

It is worth noting that the number of homicides by juveniles in Japan has also plummeted and is historically low, with only around 5 percent of all homicides now committed by those under 20, with older age groups now increasingly equally responsible (Ellis and Hamai, 2017).

This pattern is repeated across most juvenile offence categories. Serious offences, which might indicate displacement of homicides, either behaviorally or as a recording artefact, have also declined. Robberies resulting in death reduced from 96 in 2001 to 31 in 2013, and equivalent figures for injuries resulting in death were down from 202 in 2001 to only 11 in 20137 (Ellis and Hamai, 2017).

Further, Ellis and Hamai (2017) show that if juvenile violent crime is examined as a proportion of each type of violent and serious crime over time (White Paper on Crime, 2013, Figure 1-1-2-3),8 there has been a sustained reduction in youth involvement (Figure 7).

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Figure 7: Proportion (%) of serious/violent crimes committed by juveniles, 1982–2012

Johnson (2006, p. 80) argues that this Japanese profile of homicides challenges the seemingly positivistic universal notion that crime declines with age (Gottfredson and Hirschi, 1990, p. 124). Ellis and Hamai’s (2017) later analysis supports this view and also evidences this trend in other advanced South East Asian countries.

Topical Developments in Juvenile Crime in Japan

In addition to the profile of juvenile recorded crime just described, there are currently some developments in juvenile offending that appear specifically Japanese. Ore ore sagi is a relatively new crime that has dramatically increased. The official term used by Japanese Police is furikome sagi (bank transfer fraud). Ore ore is a phrase that can only be used by young males in Japanese. It means “It’s me, it’s me!” Ore ore fraud is committed by juveniles, sometimes instigated by adults, by phoning elderly people and pretending to be a child or grandchild of theirs who is living in another town or city, pleading with the elderly person to transfer money to a bank account in order to help them out of an emergency situation (typically claimed to be a fine or car accident). Transfers can be made easily through ATMs in Japan. Despite a decrease in juvenile fraud overall, ore ore fraud has increased from 33 cases in 2009 (when the police started recording) to 262 in 2013 (Figure 1). A recent arrest of a 17-year-old juvenile for ¥1,000,000 (approximately £6,000) furikome fraud revealed that he was the leader of a group of other teenagers benefiting from this type of fraud. Five further gang members were arrested. They had netted an estimated ¥400,000,000 (£2.3 million; Japan Times, 2014a).

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Figure 8: Increase in furikome fraud, 2004–2013

National Police Agency (2014). State of Juvenile Delinquency in 2013 https://www.npa.go.jp/toukei/index.htm [available in Japanese only]

Other phenomena apparently specific to Japan were brought to the fore in 2000, when a 17-year-old boy hijacked a bus, killing one and injuring two passengers (Katsunori, 2009). The offender’s profile highlighted the problems that he, his family, and to some extent youth in general were facing, including school bullying (see Yoder, 2011), domestic violence against parents, and hikikomori. The latter refers to (mostly) juveniles who are unable to leave their homes, or even their rooms, to cope with daily life, and are therefore dependent on their family members (Saito, 2013). The White Paper on Children and Juveniles (Cabinet Office, 2013) estimated around 696,000 people in Japan between the ages of 15 and 39 were likely to be hikikomori, brought on by problems at school, illness, work problems, or unsuccessful job hunting.

However, perhaps the biggest question in Japan, as in many other countries, is not so much about crime but the decline of it. There are attempts to explain the drop in offending generally (see, for instance, Levitt, 2004) and youth crime in Japan in particular (Ellis and Hamai, 2017). Here, perhaps, there are two specifically Japanese factors to be explored. First, hikikomori may have more of a general incapacitating effect than it does on increasing domestic abuse against parents and family. Second, there is also the possibility that aggressive video gaming might have a pro-social or cathartic effect (Cunningham, Engelstätter, and Ward, 2013) and an incapacitating effect, removing potential offenders from public venues “where they might have otherwise committed a violent act” (Markey et al., 2014, p. 15). Certainly, violent gaming in Japan tends to take place in a more social/family setting and is more role-play (JRPG) oriented (Anderson et al, 2010) than Western’ “hack and slash” gaming (Navarro-Remesal and Loriguillo-López, 2015, pp. 9–10). Markey et al. (2014, p. 15) admit that JRPG is only a single factor, but with Japan’s high level of gaming involvement,9 it certainly warrants further investigation.

The Administration of Juvenile Justice in Japan: A Complex Set of Processes

The complex structure of Japanese Youth Justice (see Figure 9) essentially revolves around the function of the Family Court. Most criminal cases (as opposed to pre-delinquency and/or kanisohchi summary cases) must initially be referred to the Public Prosecutor’s Office, which is the most powerful agency in the adult justice process (see Hamai and Ellis, 2006, 2008a, 2008b), but they are mostly referred on to the Family Court to process.

Family Courts are located within a broader social framework where a justice approach is not always the desired outcome. Under Article 3 of the Juvenile Act of 1948, there are three categories of juveniles who can be dealt with by the Family Court, only one of which would technically qualify as offenders if adult penal code jurisdiction were applied, echoing Yoder’s concern around net-widening and social control. The first two categories are simply classified according to whether the juveniles are under 14 years of age or are 14 to under 20 years of age. However, as outlined earlier, under the Juvenile Act of 1948 (paragraph 1, Article 3), an overlapping third category, pre-delinquents, exists. This can make the age of criminal responsibility seem rather fluid.

The Japanese adult and youth justice system effectively defines the current age of criminal responsibility (sekinin) as 14 years of age (Article 41 of the Criminal Law of 1907). Sekinin can be variously translated into English as “responsibility, liability, duty, or obligation” (Kai, 2010, p. 4). At the other end of the youth justice age range, the adult court jurisdiction normally starts at 20 (although amendments to this are outlined later in the chapter). In another challenge to Japanese exceptionalism, it is worth noting here that Kai (2010) argues that the age of criminal responsibility was derived directly from 19th century German/Prussian criminal law’s Shuldprizip (nulla poena sine culpa, or “no penalty without the ability to be responsible”). We will therefore outline the complex arrangements for the 14–19 age range for juveniles in the justice system.

Despite the possibility of labelling those younger than 14 as either juvenile offenders or pre-delinquents, the referral process can be complex and involves the Child Welfare Act10 (No. 164 of December 12, 1947) taking precedence over the 1948 Juvenile Act. Indeed, there is clear evidence of a broader governmental approach. This is typified in the annual White Paper on Children and Young People, which is submitted to the National Assembly in accordance with Article 6 of the Act on Promotion of Development and Support for Children and Young People (Act No.71 of 2009). Admittedly, the 2012 White Paper is only the third such report, but if it is considered as the continuation of the previous White Papers on youth (not then required by law), the reports date back to 1956.

The 2012 White Paper on Children and Young People focuses on safety and problematic behavior (victimization and offending) as the third key element in a more holistic approach to social policy for young people. The other two elements are the rearing environment and social life. This approach was referred to as the Vision for Children and Young People in 2011, with the aim of promoting “policies on development and support for children and young people in a comprehensive and systematic manner.” Seen in this light, Japanese youth justice can be seen as continuing to be influenced by parens patrie, as discussed earlier, and very much within an overarching support system for healthy development of all young people, and their families, so that they are supported by society as a whole. But the issue is then whether the empirical evidence supports this (Cabinet Office, 2012).

If there is evidence of an offence, police (or guardians) should refer juvenile offenders under 14 to the director of their local child guidance center (essentially under a social welfare remit). The director of a center, or prefectural governor, must then decide whether to refer the case to the Family Court. Discretion is applied in balancing welfare and justice, and empirically, the Child Welfare Act prevails, although this has been restricted in serious cases by the 2007 revision of the Juvenile Act. As Figure 9 shows, there were over 12,000 police referrals to social welfare agencies in 2013, but only around 400 (3 percent ) of these were referred on to the Family Court. Even then, a justice outcome is still not a certainty. A Family Court research investigation officer11 investigates and a decision is then made on whether to proceed with a formal Family Court hearing (as opposed to a trial in the adult court) or to refer back to a prefectural governor. In 2013, 161, or 39 percent of the referrals from social welfare agencies were referred back to them (see Ministry of Justice, 2014b).

If juveniles are over 14 and the maximum sanction for the offence is a fine, the police can refer them directly to the Family Court (Article 41 of Juvenile Act 1948), nearly 8,000 cases in 2013 (Figure 9). However, most cases (105,000 in 2013) therefore have to be referred initially to the (adult justice system) Public Prosecutors Office, which in turn refers almost all of them back to the Family Court (Article 42 of Juvenile Act 1948).

The Family Court must then assess all cases involving a serious offence committed by a juvenile aged 16 or older, or any case where an offence is punishable by the death penalty or imprisonment. These cases must be referred back to the Public Prosecutor, but only if a criminal sanction is deemed as appropriate based on what, in many jurisdictions, would be referred to as aggravating and mitigating circumstances. It is worth noting, however, that the Family Court’s discretion not to refer back to the Public Prosecutor in serious cases was restricted in the revision of Juvenile Act in 2000.

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Figure 9: The basic organization of Japanese juvenile justice (2013 figures)

It is important to point out that these figures have to be compiled from a number of databases that are not usually integrated. Ministry of Justice, White Paper on Crime (2014). http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html: Figures 3-1-1-1, 3-2-1-1, 3-2-2-1, 3-3-2-1 and 3-3-2-2, Tables 3-1, 3-2 and 3-10 [available only in Japanese]. Supreme Court of Japan, Judicial Statistics on 2013 fiscal year http://www.courts.go.jp/app/files/toukei/187/007187.pdf & http://www.courts.go.jp/app/files/toukei/193/007193.pdf [available only in Japanese]. For instance, figures for annual recorded crime will be lower than those processed by the courts system, which deal with a greater number of cases within the course of that same year. However, it does give the best approximation of the relative volumes of cases dealt with by the three key agencies: the Family Court; the Prosecutor’s Office and associated adult courts; and Social Welfare agencies.

There is an additional complication to the picture in Figure 9. Within these figures, there are also hidden kanisochi or formal summary juvenile cases12 that are directly referred by the police (or in some cases via the Public Prosecutors through Article 42 of the Juvenile Act 1948) to the Family Court, amounting to 22,565 in 2013. From Yoder’s perspective, these cases might appear to have the further potential for net-widening in a similar, though more formal, way to the pre-delinquency cases discussed earlier, but from a Japanese perspective (Hirose et al., 2009, p. 419; Hirose, 2013, p. 53; Kawaide, 2015) they might also be considered diversion. We have therefore examined these outcomes too. We found the vast majority (22,128, or 98 percent ) were simply those where the Family Court decided that no hearing was necessary and that the original police guidance was sufficient. For a further 283 (1.3 percent ) of these 22,565 cases there was a Family Court hearing, but again no further measures beyond police and Family Court advice were seen as necessary, Three cases were also referred out to a prefectural governor or child consultation center (non-justice) disposal, leaving just 165 (0.7 percent ) kanisochi summary offence cases referred directly by the police to the Family Courts that proceeded to a Family Court hearing and a justice-based disposal. Most of these (112; 68 percent ) were given a probation disposal. Six (4 percent ) were sent to a Self-Reliance Support Center or foster home, and 7 were sentenced to Juvenile Training School, leaving 40 (24 percent ) to be sent to the adult court, where we can see from Figure 9 that they would receive a maximum sentence of a fine. It would seem, then, that while some juveniles are caught in this net, the mesh is extremely wide.

Juveniles Dealt with in the Adult Court

As Figure 9 above shows, 4,916 juveniles (4 percent of all 121,284 juveniles referred to the Family Court) were returned by the Family Court to the Public Prosecutor in 2013. Of these, 1,845 (37.5 percent ) had reached adult age (over 19) and would be classed as adults in the sentencing system. This left 3,071 (62 percent ) cases that were still classed as juveniles but were assessed by the (adult) public prosecutors; 481 (16 percent ) of these cases were not sent directly for trial in the adult courts. The majority (400; 83 percent ) were mostly still under investigation or technically reclassified as adults through exceeding the age of 19 after referral from the Family Court. The others were either referred back to the Family Court for sentencing (47; 10 percent ) or were settled through prosecutor’s wide discretionary powers (38; 8 percent; see Hamai and Ellis, 2008b for an account of how this works).

Of the 2,590 (84 percent ) who were sent for trial and sentencing in the adult courts, most (2,314, 89 percent ) were tried in the lowest tier (Summary) adult court and received a fine. The remaining 276 (most serious) cases were tried in the District Criminal Court, which has full sentencing powers up to and including the death penalty. As can be seen, in most of these District Court cases (178; 64 percent ) the trial had not been completed. Of those that had, 64 (23 percent ) were given a suspended prison sentence (up to 3 years) and 31 (11 percent ) were given full prison sentences. Two cases were referred back to the Family Court for sentencing and one was fined. Overall, then, in this complex process it is possible for juveniles to be tried and sentenced in the adult system, but only after a complex welfare-based assessment has been made through the Family Court and the numbers remain small so that the vast majority of juvenile offenders are dealt with by the Family Court (Hirose, 2009; Kawaide, 2015).

While youth justice disposals have been halved from 231,973 in 2004 to 104,892 in 2013, the small proportion of those referred to the Public Prosecutors has remained remarkably stable at 4 to 5 percent since 2004. Further, the relative balance between those referred due to the seriousness of the offence (3 percent ) and those referred due to passing the age of majority (1.5 percent ) has also remained constant. This would indicate that there has been no hardening of sentencing in the Family Court over this period (Ministry of Justice, White Paper on Crime, 2005–2014).

It is clear for 2013 in Table 1 that the majority of juvenile offence disposals in the adult courts were for serious traffic offences (57 percent ), followed by those causing serious injury (29 percent ). Only one fine was issued (for a traffic offense), leaving two-thirds of juvenile cases receiving a suspended prison sentence and the remaining third receiving more punitive custodial sentences. No death sentences were passed, despite two offences of homicide. Traffic offences were most likely (77 percent ) to receive suspended sentences. Unsurprisingly, custodial sentences were reserved for the most serious offences, those causing serious injury (74 percent ), robbery (100 percent ), homicide (100 percent ), and rape and/or sexual offences (67 percent).

Table 1 Juvenile offences by disposals, as sentenced in the adult (district) courts

Suspended Sentence

Custodial Sentence

Fine

TOTAL

n

%

n

%

n

Traffic offences

49

87.5

6

10.7

1

56

Injury

5

26.3

14

73.7

0

19

Theft

6

85.7

1

14.3

0

7

Fraud

1

25.0

3

75.0

0

4

Rape, sexual offences

2

50.0

4

100.0

0

4

Robbery

0

0.0

4

100.0

0

4

Homicide

0

0.0

2

100.0

0

2

Other

2

100.0

0

0.0

0

2

Drugs

1

100.0

0

0.0

0

1

TOTAL

64

64.6

34

34.3

1

99

White Paper on Crime (2014). http://hakusyo1.moj.go.jp/jp/61/nfm/n61_2_3_3_2_2.html [available in Japanese only].

Although use of full custody has not increased over time, changes in the length of custodial sentences is another potential indicator of changes in punitiveness. Figure 10 shows that the majority of custodial sentences is for terms of over 3 years, with the lowest proportion (66 percent ) in 2010 and the highest (84 percent ) in 2011, but with no clear trend. The limited use of sentences under 1 year has tailed off since 2002, but there is no consistent rise in the small number of life sentences passed in this period and none have been made since 2010.

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Figure 10: Length of custodial sentences for newly sentenced juveniles in the adults courts 2000 to 2013

Table 3–15 number of new juvenile inmates (1966–2013). http://hakusyo1.moj.go.jp/jp/61/nfm/n61_2_3_3_3_0.html [available in Japanese only]

No juveniles below the age of 16 have entered the prison system since 2000. As Figure 11 shows, most juveniles actually imprisoned through adult courts have been in the 18 to 19 age group, varying from 78 percent in 2000 to 98 percent in 2011, with a much smaller number in the 16 to 17 age group. The trend for juveniles aged 20 is a little misleading, in that counting rules were changed in 2003 such that juvenile prisoners who were under 20 when sentenced but reached 20 before being imprisoned were counted as 19-year-olds, but still the numbers involved are small.13

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Figure 11: Newly sentenced juveniles in adult courts by age groups, 2000 to 2013

Table 3–15 number of new juvenile inmates (1966–2013). http://hakusyo1.moj.go.jp/jp/61/nfm/n61_2_3_3_3_0.html [available in Japanese only]

Certainly, there are no grounds for the idea of increasing punitivity in sentencing the decreasing numbers of juvenile offenders in the adult courts in Japan. However, this trend might potentially be affected by the recent changes that have been imposed from outside youth justice, lowering the voting age from 20 to 18. Before discussing this further, however, it is important to examine how the bulk of juvenile offenders are processed.

The Operation and Jurisdiction of the Family Court

As in many jurisdictions, Family Court hearings are closed to the public. They typically involve a single Family Court judge, although three judges can be involved in more demanding cases (Hirose et al., 2009, p. 74). Juveniles themselves, or their parents/guardians, can assign an attendant at the hearing. This is often a lawyer, but if not, the Family Court must give them permission to attend (Art. 10, Juvenile Act, 1948). Victims in serious cases can also apply to attend, but judges must be satisfied that it would be appropriate and not likely to disrupt the healthy development of the juvenile, indicating a positive bias toward the primacy of welfarist considerations (Art. 22-4, Juvenile Act, 1948). Further, in serious cases, the Family Court can also require public prosecutors to attend the Family Court hearing for adjudication (Art. 22-2, Juvenile Act, 1948). In this case, the Family Court must assign a lawyer as an attendant if the juvenile does not already have one (Art. 22-2, Juvenile Act, 1948). The extent of attendance of both public prosecutors and lawyers was extended by the 2014 revision of Juvenile Act (Kawaide, 2015, p. 374).

In the Family Court, there must be a consideration of whether the case can be dismissed if it finds it impossible or unnecessary to place the juvenile under Family Court protective measures. This is a very common result. As Figure 12 shows, in 2014 just over half (54,331; 52 percent ) of cases referred to the Family Court were dismissed without a hearing and no further criminal justice action was taken. At the investigation stage, distinctly non-justice options are considered.

This can involve referral to one of the 50 nationwide juvenile classification homes (Art. 17, Juvenile Act, 1948). Here, under protective detention, juveniles are assessed from a range of potential perspectives; for example, “interviews, psychological tests, behavioural observations, and medical diagnosis, as well as other external information” (Ministry of Justice, 2012). These assessments are used to decide whether a Family Court hearing is appropriate, and even if appropriate, whether outcome options other than criminal justice options are appropriate.

Of the remaining 50,561 cases that proceeded to a hearing (whether through protective detention or not), 21,349 (42 percent ) were deemed to require no further action, and a small number (161) were referred to non-justice social welfare agencies. In the remaining 29,051cases (57 percent of all Family Court hearings) that were not settled by one of the processes described, as summarized in Figure 12, the Family Court was required to assign juveniles to one of the following protective measures: commitment to a children’s self-reliance support facility or foster home (social welfare institutions in Figure 12, limited to juveniles younger than 18); probation or commitment to a Juvenile Training School (generally limited to juveniles aged 12 or older).

The first of these measures, children’s self-reliance support facilities (CSRSs) and foster homes, is effectively a mandated social welfare disposal and is managed by the Ministry of Health, Labor, and Welfare, and again it is difficult to apply a strict “justice” label to this disposal. CSRSs and foster homes have a legal basis under Articles 44 and 41 of the Child Welfare Act (no. 164, 1947).14 Social welfare agencies can also refer juveniles directly to CSRSs, with parental permission, under Articles 26 and 27 under the Child Welfare Act without recourse to the Family Court.

This disposal, which is limited to juveniles younger than 18 and accounts for less than 1 percent of hearing disposals, is most likely to be ordered for those at risk of delinquency or involved in delinquency due to family circumstances, for example neglect. Juveniles are required to live in the centers and are cared for by qualified social workers (these used to be mainly married couples, but increasingly are conventional shift workers). Rooms can be locked only through permission from the Family Court. CSRSs and foster homes have similar functions for juveniles with no guardian, or where abuse is apparent: to ensure a stable living environment and help with developing self-reliance.

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Figure 12: Family Court Disposals, 2014

White Paper on Crime (2014). Table 3-10 http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html

The second disposal, probation, is a more recognizable justice disposal in its own right and accounts for 41 percent of hearing disposals, or in fact, the bulk (71 percent ) of Family Court hearings where further action was decided upon. However, some authors (e.g., Kai, 2010; Lewis et al., 2009) tend to regard probation as diversion from a criminal justice sanction, which reflects that Japanese probation was founded on volunteering and that most interventions are still carried out by volunteer probation officers supervising juvenile offenders from their own homes (Lewis et al., 2009). Indeed, there is no equivalent probation disposal in adult justice, only supervision related to custodial sentences, mostly related to parole and a small proportion of suspended prison sentences (Lewis et al., 2009). In fact, the majority of the probation service’s supervision (54 percent ) is spent on juvenile probation disposals, and another 8 percent on juvenile parole following release from Juvenile Training Schools (JTSs) (Lewis et al., 2009).

If juvenile probation is considered as diversion, then only a very small proportion of Family Court hearings result in a criminal, that is custodial, sanction, mostly through JTSs, which are run independently to the adult prison system. JTSs account for only 6 percent of Family Court hearing disposals, which means that 3,119 juvenile offenders were subject to some type of juvenile incarceration through the family court, in addition to the 31 sentenced to adult prison as identified earlier. In short, there is relatively light use of incarceration for juvenile offenders in Japan.

Although JTSs are secure buildings, juveniles are not locked into their rooms, which is an explicit commitment to maintaining a distinction between juvenile and adult custody. Similarly, the program of activities is not punishment-based but instead consists of typical Japanese school elements such as life and vocational guidance, academic studies, health and physical education, and so forth. There are four types juvenile incarceration centers, and juveniles are sentenced according to age, level of assessed criminal tendency, and physical and mental condition at the time of admission.15

The most recent available figures (2013) show that the bulk of the 3,193 JTS occupants were in ‘middle’ JTSs (78 percent; 2,502), which cater to 16–-19-year-olds with no serious physical or mental health problems. Most of the rest (18 percent; 574) were 12–15–year-olds who were sent to ‘primary’ JTSs. The remainder were 16–22-year-olds with strong criminal tendencies (1 percent; 44) or 12–25-year-olds with serious physical/mental disabilities (2 percent; 73), who were sent to in ‘special’ JTSs,16

Although the number of cases dealt with by the Family Court has gone down from 233,000 in 2004 to 105,000 (including kanisochi) in 2013, as figure 12 shows, in line with the rapid decrease in juvenile crime, the relative distribution of the disposals has changed very little over that time (see Ministry of Justice, White Paper on Crime, 2005–2014).

In some cases,17 before the disposal stage, there is a further overtly welfarist element to the Family Court processes. Tentative supervision (Art. 25 Juvenile Act, 1948) can be ordered by a Family Court Judge and is usually used as an intermediate step between the hearing and disposal (Hirose et al., 2009, p. 324). Here, if the Family Court research law clerks’ assessment is that the young person requires protective measures, they will assume responsibility for a specific period and recommend to the judge which disposals are required. Again, this may involve non-criminal justice professionals’ opinions, but the latest evidence available shows that most juveniles on tentative supervision (1,316; 83 percent in 2009)18 are eventually given a probation disposal.

It is also worth noting that use of community service has been piloted at the tentative supervision stage, but only in a limited way. It was introduced in the Tokyo Family Court in 1989, but only 132 juveniles experienced this between 1989 and 1993 (Hayashi, Igarashi, Kikuchi, and Sasaki, 1994). It has been extended since, including Kyoto and Nagoya (Yanagishita, 2014), but the numbers are small: for instance only 203 juveniles between June 2012 and December 2013 in the Koyoto Family Court participated (Yanagishita, 2014).

In a comparative context then, Japan, perhaps not surprisingly, has a complex set of jurisdictions over juveniles and outcomes for young people. This draws to some extent on the wider arena of prevention of delinquency, but also on social services and other non-justice agencies, thus often making youth justice difficult to locate along the welfare/justice continuum in a comparative sense. On the one hand, the tendency toward a welfare model that involves non-criminal justice agencies means that there is a level of net-widening that draws in pre-delinquents who technically would not be offenders in many jurisdictions. On the other hand, there are those who technically would be dealt with as offenders within a youth justice process in most countries, but who are instead diverted under child welfare provisions.

Recent Major Policy Developments

When considering recent policy developments in Japanese juvenile justice, it is important to recognize the role of public opinion, and especially the victims’ lobby, on increased punitivism. Hamai and Ellis (2008a) have argued that penal populism (genbatsuka) has affected both adult and youth justice in Japan in ways that might seem very familiar to those in the United States, England and Wales, New Zealand, and many other countries. Indeed, a study conducted by the Supreme Court’s Legal Training and Research Institute of Japan (2006), using a scenario-based sentencing exercise, showed a strong public desire to sentence juvenile offenders in the same way as adults (50 percent ) or even more harshly (25 percent).

Since then, Honjo (2014) has highlighted the increasing public willingness to sentence juvenile offenders with harsher punishments, including the death penalty. He uses the example of the 2010 Ishinomaki case, in which an 18-year-old juvenile injured his ex-girlfriend and a man also present, but killed her elder sister and her friend. A death sentence had seemed unlikely, since the offender was 18 years and 7 months old when he committed the crimes, but the district court passed the death sentence, arguing that the defendant’s age “cannot be seen as a decisive reason for avoiding punishment by death, and should be regarded as just one factor to consider in judging the overall situation” (Inagaki and Tanaka, 2010).

Such death sentences for juveniles are rare, and appeals take a very long time. An earlier death sentence was passed in 2006 on a juvenile who had killed a mother and her 11-month-old daughter in April 1999. Here, the Supreme Court overturned two previous life sentences in the lower courts and returned the case to the Hiroshima High Court to pass the death sentence. Before that, there had been only two such cases since 1980: an appeal denied by the Supreme Court in 1990 for Norio Nagayama, who shot dead four people in 1968; and in 1992 for a 19-year-old who killed four family members in Ichikawa (Inagaki and Tanaka, 2010). Much has therefore been made of the 2010 Inshinomaki case because it was the first juvenile homicide trial to involve the saiban-in (裁判員) or ‘lay judge’ system (introduced into the adult courts in May 2009) to pass a death sentence on a juvenile. Saiban-in is effectively a hybrid lay judge/jury system, which requires ordinary citizens, drawn by lot, to participate in criminal trials for the most serious of adult court criminal cases. Given the evidence of public punitivity, there are justifiable concerns that sentencing for juveniles will take a harsher turn if they are tried in the adult court. Indeed, a judge commented: “Professional judges share the view that minors can often be rehabilitated, but lay judges don’t necessarily share that view” (Inagaki and Tanaka, 2010).

It is important to bear in mind, however, that in all cases in the district courts, the saiban-in powers are limited and in all cases are led by a professional judge. Further, if an appeal is made, the higher courts have no saiban-in. Hamai and Ellis (2008b) are skeptical of the likely impact of saiban-in and stress that the power of the public prosecutors in the adult court is unlikely to be reduced. It is perhaps significant that the Supreme Court’s Legal Training and Research Institute of Japan (2006) also found that 90 percent of judges tended to prefer a more cautious approach to juvenile cases, viewing age as a mitigating factor, compared to the more punitive public view (Inagaki and Tanaka, 2010). There are simply too few cases at present on which to judge this.

There is no doubt that successive revisions to the Juvenile Law have become punitive for young offenders at the same time that their offending has plummeted. Yoshinaka (2010) argues that amendments to the Juvenile Law since 2000 have seen a greater emphasis on placing criminal responsibility on older juveniles in serious cases. The revisions in 2000 lowered the age limit for transfer from the Family Court to the adult court from 16 to 14 years of age for serious cases (Kai, 2010, p. 4), although as the analysis we have presented shows, this has, so far, had no effect on the proportion of juveniles transferred. The same revisions made it easier for juveniles aged 16 and over at the time of the offence to be tried in an adult court if the offence involved the intentional killing of a person (Yoshinaka, 2010). The remaining two key revisions in 2000 were provisions to allow (adult court) public prosecutors to be present and take part in adjudication at Family Court hearings for more serious cases and contested cases and victim statements to be included in juvenile cases (Hirose et al., 2009; Kawaide, 2015). The latter was further strengthened with a 2008 revision. Hamai and Ellis (2008b) and Katsunori (2009) have argued that the revisions were to some extent provoked by media coverage of high-profile cases such as the Sakakibara case in 1997, where a 14-year-old boy killed two school children and injured three, and a case in 2000 where a 17-year-old boy high-jacked a bus and injured passengers, killing one of them. These changes have been opposed by many Japanese academics (Saeki, 2008; Murayama, 2008; Konishi, 2010a, b; Konishi, 2011), some of whom argue instead for the involvement of psychiatrists in order to establish the maturity of young offenders in serious cases, while Kai (2010, p. 6) has argued for a French system of favoring educational over criminal proceedings.

The most recent revisions to the Juvenile Law, in April 2014, were strongly supported by victims’ groups and resulted in the raised upper limit for custodial sentences for juveniles in (adult) District Courts from 15 to 20 years (Japan Times, 2014b; Nikkei Newspaper, 2014). This revision is applicable to juveniles who commit crimes that would have attracted a life sentence had they been adults. However, it is important to note that the 2000, 2007, and 2014 revisions successively also strengthened due process by improving access for juveniles’ lawyers to Family Court hearings.

Policy Changes under Consideration

Since adult courts are open to the public, the small number of trials that has involved juveniles in the (adult) district courts has also generated a level of publicity that would not have been possible for Family Court hearings. While this might have been anticipated, there is now a strong argument to restrict attendance and publicity in adult courts if the trial involves a juvenile (Hirose, 2013, p. 130). The Japan Federation of Bar Associations (JFBA, 2012) has also called for new provisions to be added, to the existing Code of Criminal Procedure,19 “to ensure the philosophies of the Juvenile Act and the provisions particular to juvenile cases” will be maintained in open (adult) court, especially the right to privacy.

In June 2015, the Japanese parliament (Diet) lowered the voting age to 18 from 20 (it was last changed from 25 to 20 in 1945). Within the supplementary provisions of this revised Public Offices Election Law is a consideration to also lower the upper age for juvenile justice in the future from 19 to 18 (Japan Times, 2015). Should this be enacted, it will have a profound change on the picture of juvenile justice we have presented here. Not surprisingly, it is vigorously opposed by the Japan Bar Association, but also by some politicians, academics, and Family Court practitioners. Certainly, Japan would lose its hitherto relatively unique inclusion of young adults within the scope of juvenile justice, just as Europe, and especially Germany, is moving in the opposite direction (Dünkel, 2015). This would go against international trends and, indeed, against new evidence in neurosciences about the maturation processes of young people (Dünkel and Pruin, 2012).

Conclusions

The focus here has been on examining the Japanese approach to youth justice in its broadest sense and to evaluate where it lies along the justice/welfare continuum. It is clear that Japanese juvenile justice, as with much of Japanese criminal justice system, is not a uniquely autochthonous development and has borrowed and adapted from systems developed by other advanced economies, especially the United States, during its history. It is also fearsomely complex due to its long period of evolution. While the Family Court is the fulcrum on which youth justice turns, it also involves many social welfare elements, the police, and the adult courts.

The contemporary picture that emerges is of a hardening of rhetoric, policy, and legislation for juveniles in Japan, yet over the same period youth offending has plummeted and adult offending has provided a much bigger contribution to overall recorded crime. We agree overall with Schwertfeger and Zimring (2013) that although Japan has officially moved towards more overtly punitive youth justice policies, empirically its juvenile justice practices are still largely focused on rehabilitation and reintegration.20 All but the most serious cases will continue to be heard and disposed of by the Family Court, most often with a non-justice, or diversionary, outcome. There has been no evidence of increased punitivity in the Family Court and no increase in committal of juveniles into the adult system, despite the continuous lowering of age restrictions for serious offences since 2000. However, current proposals to lower the age of majority to 18 could prove to be a more serious challenge to the current juvenile justice system and could result in an increase in serious case committals to the adult court. These would still be only a small proportion of overall juvenile crime cases and might be also be settled through prosecutor’s wide discretionary powers (Hamai and Ellis, 2008b).

Overall, there is a clear integration of criminal and social welfare policy for juveniles in Japan, with the latter still taking precedence in the majority of cases. Whether this results in net-widening, labelling, and establishing middle class norms and values for working class kids, or whether it results in creating collective responsibility for juveniles and preventing their exclusion, is a topic that will continue to be debated. However, our analysis suggests that the Japanese juvenile justice, unlike Japanese adult justice, favors welfare over justice outcomes.

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Notes:

(1) The terms ‘youth justice’ and ‘juvenile justice’ are used in different jurisdictions. While Japan uses the latter term in most official and academic literature, we have used both terms interchangeably.

(2) Thanks are due to Professor Kenji Hirose, Rikkyo University, Tokyo, former Family Court and High Court judge, and author of the key ‘Japanese Juvenile Law’ text; Atsushi Nishida (Ministry of Justice; Tokyo, Japan); Mai Sato (University of Reading, UK); Professor Chris Lewis and Jo Fairwood (University of Portsmouth); and Isaac Ellis-Nee (Havant College).

(3) White Paper on Youth.

(4) The standard rate used in Japanese criminal justice statistics.

(6) 2014 White Paper on Crime. http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html [available in Japanese only] and the 2014 National Police Agency, White Paper on Police https://www.npa.go.jp/hakusyo/h26/honbun/index.html [available in Japanese only].We have used 2013 figures as it is possible to break them down further than for 2014.

(7) The White Paper on Crime (2014) does not include injury resulting in death, meaning police statistics for each year must be cited:

Heisei 24 nen no Hanzai (2012) National Police Agency, Page, page 176, Table 7.

Heisei 23 nen no Hanzai (2011) National Police Agency, Page, page 176, Table 7.

Heisei 22 nen no Hanzai (2010) National Police Agency, Page, Page 174, Table 7, et seq.

(9) At an estimate of $22.29 billion for 2013, Japan’s game industry revenues are higher than those for the whole of Europe ($20 billion) or for the United States and Canada combined ($19.69 billion). Video Game Sales Wiki: Video game industry (n.d.). Regional video game industry revenues http://vgsales.wikia.com/wiki/Video_game_industry

(11) Often referred to as “Family Court research law clerk” in official Japanese documents in English.

(12) At this point, it is very important to be aware that Japanese criminal justice statistics in the annual White Papers are compiled in an esoteric way, which can easily lead to miscalculations. This is generally because the published column totals are often higher than the sum of the individual subtotals in those columns. The reason for this is difficult to find, but is due to the kanisochi figures. One place this is clarified is in Appendix 3-10 “Number of juveniles conclusively disposed in family courts for juvenile protection cases by type of delinquency and type of disposition (2013)” of the White Paper on Crime (2014). http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html [available only in Japanese]. Here, it states that the differences between such totals are due to the exclusion of cases from the subtotals that involve juveniles for penal code offenses, special act offenses, and pre-delinquency offences referred directly to family courts by police. However, they are included in the final totals of the tables. The upshot of this arcane procedure is that once aware of it, it allows the reader to calculate just how many of these cases there are, which is how we derived our figure of 22,565. To complicate matters further, another set of figures is commonly referenced from judicial statistics http://www.courts.go.jp/app/files/toukei/193/007193.pdf [available only in Japanese], which have a slightly different total of 22,649 (i.e., 84 more). We have used only the White Paper (2014) figures throughout to maintain consistency.

(13) See Note 2 of Table 3-15 referred to earlier.

(17) 1,582 in 2009 Judicial Statistics, which are the last published figures http://www.courts.go.jp/app/files/toukei/945/004945.pdf [available in Japanese only].

(18) See source in note 19.

(19) And also the Saiban-in Act (2009).

(20) This phenomenon is also noted by Dünkel (2015, pp. 21–24) in relation to German juvenile justice and by Bala (2014) for Canadian youth justice.