The Enigma of Japanese Power (28 page)

A specialist in cross-cultural comparisons of police methods has concluded that Japan is a paradise for the cops because Japanese society polices itself.
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One might add that it is also a paradise, comparatively speaking, for those caught by the police, since few of them are actually punished. In the treatment of offenders the nursemaid function is clearly demonstrated. Occasionally the police will be strict, for the sake of setting an example; but generally, if people committing misdemeanours are sufficiently apologetic and promise to improve their behaviour, they have a very good chance of being let off the hook after a perfunctory lecture.
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Even where, with more serious offences, the police pursue the matter, the public prosecutor, or procurator as he is called in Japan, has nearly unlimited power to let the culprit go. The code of criminal procedure permits dropping a case in consideration of the suspect’s character, age and circumstances, or the development of events
following
the offence. This allows the prosecutor to act as ‘the interpreter of public morality in that he decides who shall be made an example of, who shall be given another chance, and what is most required by the public interest’.
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In recent decades just under half of all cases of serious violations of the criminal code were dropped for reasons unrelated to lack of evidence. Older people and first offenders tend to be treated with great leniency. This is, of course, not unusual elsewhere, but the Japanese prosecutor has considerably greater discretion than his Western counterpart.

Even if suspects are indicted and convicted, they are often not given prison sentences. In 1986 only 3.2 per cent of all prosecution cases, including traffic violations, received such sentences, and 57.4 per cent of these were suspended.
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Suspended prison sentences of two to three years for rapists are fairly common. As a result, this country of 120 million inhabitants has only about 50,000 people behind bars.
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One reason is the low budget for penal facilities, the Ministry of Justice being notoriously weak in negotiating with the Ministry of Finance. But there is more to it than that. The enormous discretionary autonomy of the Japanese law-enforcement authorities enables them to shift emphasis from punishing the misdemeanour or crime to ‘converting’ the offender to the side of society.

In practically all instances the most important factor determining the choice made by the public prosecutor is the extent to which the suspect makes a display of remorse. Police and prosecutors love apologies. Not the simple one-time kind, which rarely suffice even in normal Japanese social intercourse. What is expected from suspects is a continuous stream of apology, the intensity and profusion of which must indicate the degree of their ‘sincerity’. Some suspects may, in fact, go down on their knees. Thus the Japanese law-enforcement system does not apply punishment to fit the crime, but rather to fit the demeanour of the culprit after the crime. We must not mistake this for ‘compassion’. Japanese bureaucratic organisations are not so disposed. The decision of what to do with suspects entails a symbolic determination as to whether they are still fit for society. And the overriding criterion for this is each suspect’s thorough understanding of, and readiness to go through, the required redemption ritual. The unspoken rationale behind this is that co-operative citizens are preferable to costly prisoners whose imprisonment may teach them only to become worse criminals.

Japanese can be apologetic in a general way. They sometimes give the impression of thinking that their mere presence is a nuisance to others. Generalised apologies demonstrate ‘sincerity’. But the really solid apologies that the nurses of the people expect must be related directly to the misdemeanour or crime. Thus a major task for the police is to make a suspect confess. In this context the legal rights of the individual are as good as irrelevant. Police and prosecutors place a tremendous emphasis on admission of guilt, regardless of the constitutional guarantee that citizens are not obliged to testify against themselves. Confession is still considered the necessary first step for a return to normal society.

The hankering after confessions by Japan’s law-enforcement officers has led to excesses that received considerable attention in the serious monthly magazines in 1983. A committee formed by the three bar associations in Tokyo uncovered a pattern of forced confessions and false convictions that was verified by a meeting of falsely accused people in May of that year and by the private testimony of legal specialists.
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Thirty cases of officially acknowledged false confessions were investigated, leading to the conclusion that harassment without regard for a suspect’s rights is common, and that
de facto
torture is occasionally practised in Japanese police detention cells.
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The public was further made aware of the possibility of systematic injustice when, in July 1983, Menda Sakae, a convict who had spent thirty-one years waiting to be executed, was found not guilty by the Supreme Court after re-examination of his case, and when two more convicted murderers were found innocent and released shortly afterwards.

Even without much overt coercion, the police are at an advantage in extracting confessions. Only a small proportion of suspects are actually detained, but if the police choose they may keep a suspect in custody upon issue of a warrant, without access to counsel or bail, for a period that can be extended up to twenty-three days.
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In order to permit this, legislation passed in the occupation period was rescinded.
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Another advantage for the police is that Japanese society heartily approves of apologies where a non-Japanese observer would see absolutely no need for them. Thus a Japanese will sometimes ask forgiveness for an imaginary transgression simply in order to appear ‘sincere’. Being picked up by the police is, in any event, shameful, and there is comfort in converting an overwhelming sense of shame into an admission of guilt, since guilt can more easily be coped with; unlike shame, it can be expiated.
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Cut off from everyone except their interrogators, and with no reminder given them that they have rights even in custody, suspects become psychologically malleable in the hands of the police. Many will confess to crimes they have not committed – an even more tempting course when they are told that it will result in the charges being dropped, whereas non-co-operation will land them in prison on even weightier charges.

If suspects do not co-operate and the police have decided that a confession is absolutely necessary, subtle forms of blackmail may be brought into play. Much can be expected of the threat that the suspect’s family will become involved. In a fair number of recorded instances, relatively simple-minded suspects were told that their father and mother would also be arrested if they did not confess. To imagine the strength of this threat it is necessary to realise that the mere prospect that the family will be told of the police investigation has in itself a horrifying effect. A vague belief in collective guilt still survives from centuries of military government, so that even today the family of a criminal suspect may be ostracised by the community.

For those particularly reluctant to confess, there are early-morning-to-midnight interrogations for days on end. In total contravention of the intent of the post-war legal codes, nine out of ten detainees are brought back to one of 1,236 police detention centres after the police have passed their cases on to the prosecutors. A police law dating from 1908 allows these police jails to be used temporarily when there is insufficient space in the Ministry of Justice detention centres, of which today there are only 153, and the judiciary bureaucrats have been pressing for legislation that would fully endorse this practice.
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Suspects who, in the view of the prosecutors, need not be investigated further are sent directly to the ministry’s detention centre, which indicates that the use of the ‘substitute prison’ system is primarily for extracting confessions.
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The aforementioned 1983 investigation by Tokyo lawyers revealed that, in the police detention facilities used as substitute prisons, suspects are under 24-hour surveillance, either directly or via closed-circuit television. They are forced to sleep under glaring fluorescent lights and are not allowed to pull their blankets over their faces.
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Many suspects are so shocked by these conditions that their bodily functions are impaired and they have great difficulty sleeping and eating. The food is minimal and of dismal quality. The investigators use the expression ‘confession for a bowl of
domburi
’, referring to the dish of meat or vegetables with rice that suspects may order (and pay for themselves) as a reward for confessing. In some cases suspects are forced to sit in one position on the concrete floor all day and are not allowed to move around, stand up or even lean against the wall.

In 21 of the 30 investigated cases the suspects became ill.
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Some became too weak even to climb stairs. Here is an important weapon for the interrogators, since many suspects in such circumstances begin to fear that if they do not confess they will not be allowed home alive. They also tend to become disoriented and, without clocks and windows, lose their sense of time. In the tiny interrogation rooms, desks are sometimes used as instruments of torture by pushing them hard against the suspect’s chest. In 25 of the 30 cases suspects were continuously shouted at by a number of policemen; 20 said that physical violence was used against them; 23 were forced to continue answering questions though half asleep from exhaustion; one suspect was questioned for 327 days.
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In 23 of the investigated cases suspects ‘confessed’ in order to be delivered from the long interrogation sessions, during which mealtimes are ignored and no water is provided. Permission to use the toilet was given only on condition that they confess.

There is no reliable way of ascertaining whether such excesses are rare or not. The authorities are not interested in a formal investigation. What emerges very clearly from the accounts of the victims is the great deficiencies in the position and attitude of defence attorneys. In many cases their participation in the process is virtually irrelevant. Some clients were actually advised by their lawyers to grin and bear it. Criminal lawyers regularly complain that the police consistently obstruct the lawyer’s visits that suspects are entitled to.
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In a 1981 questionnaire sent to all Japan’s attorneys by the human rights protection committee of the Japanese federation of bar associations, Nichibenren, the answers indicated that, contrary to popular belief, mistaken verdicts based on false confessions are not just a phenomenon of the chaotic immediate post-war years, but have been increasing.
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Forced confessions, in the lawyers’ estimate, were responsible for 60 per cent of all such verdicts.

Two things are clear. First, there are no institutional guarantees against a recurrence of the documented excesses. Second, regardless of the manner in which it is extracted from the suspect, the confession, in violation of constitutional guarantees, remains an important, if not the most important, aim of police and prosecutor methods.

Lest the impression be given that the nurses of the people are in fact a collection of ogres, I must emphasise that the behaviour of the police footsoldiers in the local
koban
is, by and large, exemplary. Their general helpfulness, their willingness to listen while neighbourhood people unburden themselves and their friendly efforts to mediate in quarrels are all the more remarkable when one considers their fatiguing (18–20-hour) shifts. The hierarchical divide between the career officer and the ordinary policeman is exceptionally great, even for a Japanese institution.
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And pressure from above makes itself felt via an efficiency rating system under which, in many parts of the country, the police in the street are expected to meet fixed quotas in turning up misdemeanours, motoring offences, and so on.
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In the standard relationship between police and suspect, confession followed by a profuse apology will open the sluices of the System’s benevolence. Once suspects are ‘won over’, they are kindly treated. Foreign researchers have been struck by the jovial familiarity shown by police officers and co-operative suspects handcuffed to them or held by a rope tied around their waist.

Only from those sentenced to the ultimate penalty is the benevolence of society withdrawn. Much secrecy surrounds the death sentence, and it has provoked no debate of the kind seen in the West. A meeting held in 1981 by two hundred intellectuals, artists and entertainers failed in an attempt to launch a national anti-death-penalty campaign. The penalty is controversial only among a group of jurists who argue that its application is much too arbitrary. The Ministry of Justice does its utmost to keep everything connected with the death penalty out of the newspapers. An investigation team of Amnesty International was unable to ascertain whether any executions had taken place in the year prior to its visit. Very few Japanese have any idea about the number of convicts executed since the war; most guesses put it at a few dozen, whereas the actual figure, as of 1987, is 570. The family of the convict is in most cases notified only after the sentence has been carried out. It is left to the warden to decide whether or not to tell the condemned man when he will be taken to the gallows. Thus many prisoners on death row who are not in the process of appeal live in continual dread that the next morning may be their last.
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Such prisoners are poorly fed and may not smoke. About the only people who show any regular concern for them are Christian missionaries.
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Death row, in fact, is one of the few areas of Japanese society where these missionaries have made genuine converts.