Probation and lowering the age of Criminal Majority in Japan
Volume 18, Issue 3 (Article 10 in 2018). First published in ejcjs on 16 December 2018.
It is widely expected that the government will reduce soon the age of criminal majority in Japan from 20 to 18, amounting to the most significant alteration in juvenile criminal justice since 1948. After sketching what existed previously this article aims to describe the current system of juvenile justice in Japan and explain the drivers for altering the age of criminal majority—a continuing concern about fear of juvenile crime, although in reality it has dropped steeply over the last decade—and the effects of lowering the voting age to 18 in 2015. It reports on opinions expressed about the proposed change, which has generated controversy, and examines the consequences of making it, particularly for the Probation Service, organised by the Ministry of Justice, composed of Professional Probation Officers and the far more numerous Volunteer Probation Officers, and Family Court Probation Officers employed by the Supreme Court.
Keywords: Japan, criminal justice, legal system, age of majority.
Practitioners, policymakers and researchers from many countries gathered in Tokyo during September, 2017 for the Third World Probation Conference, the main themes of which were the role of the community and of effective research in the development of probation. Within Japan discussion is taking place about reducing the age of criminal majority from 20 to 18.Probation officers play a key role in the Japanese juvenile justice system and will be much affected if, as seems very likely, this change takes place.
Criminal majority is defined as the ageat which the criminal justice system regards offenders as adults, when they cease to have protections of process under the juvenile system, no longer receive different types of sentences from adults, and serve any sentences with adults (Hazel, 2008: 34). Interestingly, discussion about lowering the age of criminal majority in Japan comes at a time when there is a growing international body of criminological, neurological, and psychological research evidence supporting the view that the characteristics and needs of young adults between 18 and 25 should differentiate their treatment in the criminal justice system from those who are older (Justice Committee, 20167). On this basis it is variously argued the age reach of youth justice should be extended, rather than limited, a transitionary period of young adulthood recognised, and that levels of maturity should be carefully taken into account in sentencing in adult courts.
This article intends: briefly to set out the history of treating young people differently than adults in Japanese criminal law and procedure; to outline the current system of juvenile justice in Japan; and explain the drivers for altering the age of criminal majority. This includes a continuing concern about fear of juvenile crime, although in reality it has dropped remarkably over the last decade, and the effects of lowering the voting age to 18 in 2015. It reports on opinions expressed about the proposed change which has generated controversy; and examines the consequences of making it, not least on the Probation Service.
It is also an aim to update with fresh developments a key article written by Ellis, Lewis and Sato, published inProbation Journal seven years ago, which examined probation within the wider Japanese criminal justice system, presented thoughts on its future direction, and asked whether there were lessons for, or links with, England and Wales (Ellis, Lewis, Sato 2011).
The aim of this research is to gain and analyse information about the debate in Japan whether the age of criminal majority should be lowered from 20 to 18 and the consequences of doing so, especially for probation. To this end a literature review principally of works in English, set out under References, was conducted. Discussions and semi-structured interviews, assisted by a standard form of mainly open ended questions, usually sent beforehand, were carried out in July, August and September 2017, with probation officers in Osaka and Tokyo (and one who was a visiting scholar at Portsmouth University), university academics in Osaka, Kyoto and Tokyo, students in Osaka and Kyoto, representatives of the Ministry of Justice in Tokyo, and two members of the Ministry of Justice Advisory Committee, both academics respectively from Kyoto and Tokyo. The pool of interviewees widened as those initially interviewed suggested others who might usefully be approached. All who generously gave their time consented to participate in the research in full knowledge of the interviewer’s purpose to submit an article for publication and that their views would be represented.
Treating Juveniles in Criminal Justice differently than Adults A Brief Historical Context.
Largely imported at the beginning of the 8thCentury from China, Japan’s pre-modern criminal justice system subsequently developed alongside laws made by samurai regimes (Yoshinaka,1997: 30). Although frequently marked by arbitrariness and cruel punishment, provisions existed to exempt very young juveniles from criminal responsibility and to reduce penalties for those who were older, an example of the latter being the Code of One Hundred Articles (Kujikata Osadamegaki), introduced in 1742 by the central government as a re-codification of existing law, which allowed reduction of punishment for those under 15. Shortly after the Meiji Restoration 1868 Prison Rules were instituted in 1871 to create reformatory prisons modelled on the style instituted by the British in Hong Kong and Singapore. However insufficient allocation of resources hampered achieving the objective of educating their young inmates. The Rules also introduced indefinite further confinement of juveniles who had served the sentence of imprisonment imposed on them but were not yet considered rehabilitated.
The Penal Code of 1880, the first criminal code influenced by European Law (Croydon, 2018), drafted by Professor Gustave Boissionade who drew heavily on French Law, contained several provisions for juvenile offenders who were divided into three types. Those under 12 were held unable to be criminally responsible, as were those 12 to 15 who were unable to distinguish between right and wrong. Offenders 16 to 19 were subject to a one grade lower penalty than adults.
Information about reformatory schools for delinquent juveniles in the United States and Europe reached Japan in the 1880s leading to the foundation in Osaka of the first school of this type in 1883 by a female Shinto priest, beginning the tradition of volunteers in Japanese juvenile justice. Buddhist and Shinto priests played an important part in establishing others throughout the country. Christians too started to open reformatory schools towards the end of the century (Yokoyama, 2002). Persuaded by considerable support for the reformatory schools and aware of more progressive ideas of juvenile protection in Europe and the United States, the government endorsed their activities and made funds available in the Reformatory Law of 1907 for Prefectures to found public reformatory schools, although they were slow to do so. This law enabled courts to send delinquents to reformatory schools instead of prison if it was considered necessary for their protection and education. The 1880 Penal Code was replaced in 1907 by the Penal Code, shaped much by German law, that remains in force today. Article 41 of the Code increased the age of criminal responsibility from 12 to 14.
Convinced by observation of policies and practices in Europe and the United States, calls were made in the period of Taisho democracy (1912-26) for a special law to deal more humanely and effectively with offending by juveniles, which increased sharply after the First World War, and “pre-delinquents,” those at risk of committing crime. After a decade of discussion and research the Juvenile Law and the House of Corrections Law, further developing and governing reformatories, were passed in 1922 and put into force the following year.
The Juvenile Law was regarded as a watershed, and, because of its enlightened nature, was even described as the ”Law of Love” (Yoshinaka, 1997). It may be seen as in keeping with other liberal law reforming measures of the Taisho period, such as suffrage for males above 25 and legislation for a criminal jury system. The Juvenile Law, intended to cover both offenders and those at risk of offending, introduced special procedures for juveniles, separating them in court from adults, and restricted use of penalties including the death penalty and life imprisonment. Thorough investigation of a juvenile’s individual circumstances before a court dealt with him or her was required. Very significantly the Law created Juvenile Adjudicators (Shonen Shimpan-kan) appointed from the ranks of public prosecutors and judges and employed by a Juvenile Inquiry and Determination Office (Shonen Shimpansho) set up within the Ministry of Justice. Juvenile Adjudicators were handed cases from either public prosecutors or courts when punishing a juvenile was thought unnecessary. However they could not receive cases involving a juvenile aged 16 or over, or where offences were punishable by death, life imprisonment with or without forced labour, and imprisonment with or without forced labour with a minimum of three years. Juvenile Adjudicators had responsibility to decide on measures in the best interest of the juvenile. In order to assist them the Juvenile Law appointed juvenile probation officers (Shonen Hogo-Shi) to research his or her history, family life, environment and character. Disposals available to Juvenile Adjudicators included putting a juvenile on probation supervised by juvenile probation officers. In this they were assisted heavily by volunteer probation officers, often with middle class backgrounds—extending beyond reformatories the involvement of volunteers in Japanese juvenile criminal justice.
The Juvenile Law and the House of Correction Law were expressions of parens patriae, a similar principle to that which had emerged in the United States, in which the state and volunteers undertook paternalistic responsibility for the nation’s abandoned and vulnerable youth (Ellis and Kyo, 2017a: 5).
Because of financial considerations, especially acute between 1922 and 1934, the Juvenile Law was only implemented in major cities. During the 1930s in the Showaera the paternalism it contained was increasingly seen at odds with totalitarian philosophy that pervaded education and was prevalent in society generally. The extent of non-application of the Juvenile Law 1922 and reasons why appear historically under-researched.
The Present Structure of Japanese Juvenile Justice
The present structure of juvenile justice in Japan was established by the Juvenile Act 1948 during the Allied occupation and is built around the Family Court. Family Courts exist in 50 locations nationwide. Additionally there are 77 local offices at the same location as Summary Courts. As well as hearing cases of juvenile delinquency, Family Courts hear civil cases involving domestic relations and disputes over child custody. Because domestic stability and sound development of children were seen as closely related the two jurisdictions were placed under the Family Court (Guide to the Family Court, 2013: 5).
Described as “essentially a mirror of the US Juvenile system of the day” (Ellis and Kyo, 2017a 5), in which principles of parens patriaewere firmly embedded, the Juvenile Act was substantially influenced by American social work welfare approaches to juvenile delinquency and based on the principle that education and rehabilitation were preferable to criminal punishment. In this regard the Act raised the age of criminal majority from 18 to 20, although 14 was retained as the age of criminal responsibility. Despite a number of amendments to the Act since 2000, reflecting more overtly punitive youth policies, responding to rising concern about juvenile delinquency, there is little evidence of greater harshness in the Family Court, and it remains focused on rehabilitation and re-integration (Ellis and Kyo, 2017a 26-27).
On a cross-national continuum of juvenile justice with a welfare model at one end and a justice model at the other (Hazel, 2008 23 24) Japan still most closely resembles the former. Indeed the overall rate of juvenile incarceration is low and stood in 2015 at 38 per 100,000 for youths aged 14-19, down from 68 in 2000. This did not take into account thirty six youths held in adult prisons, reduced from 50 in 2000, showing a rate held in prisons of 0.5 per 100,000 (Ellis, Kyo, O’Neill, 2018: Chapter 8). By contrast, although more than halving since 1997, the rate of juveniles under 18 incarcerated during the same year in the United States was 152 per 100,000 (US Department of Justice, 2017). The primacy of social welfare over criminal justice considerations in Japan may however be seriously disturbed if proposals are adopted to reduce the age at which the Juvenile Act applies from 20 to 18, especially as 18 and 19 year olds commit nearly half of all juvenile offences.1
Investigation by Family Court Probation Officers
Cases sent by the police and public prosecutors to the Family Court are thoroughly investigated by Family Court Probation Officers (FCPO) who enquire about the character, personal and family background and environment of the juvenile and the facts of the case. Approximately 1,600 FCPOs are employed by the Supreme Court of Japan in Family Courts across the country. In addition to juvenile delinquency, they investigate and prepare reports for the Family Court in domestic matters including disputes about divorce, custody, and inheritance. Mainly because Family Court proceedings are closed, and despite recent steps to publicise it, including advertising student internships in the press, the FCPO’s job is not particularly well known to the public. However many more candidates, 768 in 2016 (Japan Times,1stSeptember, 2016), take the exam, which principally tests knowledge of social sciences, for 60 training places available annually. Those who are successful attend the Training and Research Institute for Court Officials in Wako-shi, Saitama, neighbouring Tokyo, for two years. As well as clinical psychology, development psychology, family sociology, criminal sociology, pedagogy, social welfare studies, and psychiatric medicine, trainees receive instruction in relevant legal subjects, including the Constitution, the Civil Code, the Penal Code, the Family Case Proceedings Act, and the Juvenile Act. They are also taught specific practical skills necessary for serving as FCPOs including interview techniques, conducting investigations, and psychological testing techniques. In connection with learning these subjects time is spent observing and assisting in Family Courts. Trainees who complete the course are then appointed as FCPOs. About 55 percent of FCPOs are female (Guide to the Family Court, 2013: 6-7). Reports produced by FCPOs carry great weight in decisions of the Family Court whether to dismiss a case without hearing, dismiss it after a hearing, send the case back to prosecutors for trial in the adult court, refer the case to a child guidance centre (rare), or place the juvenile under protective measures. If the court is unsure it may order “Tentative Probation” to obtain more information. In essence this involves an even more thorough investigation than that of the FCPO over a longer time. It may also assist in rehabilitation. The method of tentative probation is not fixed by law and is decided in on a case-by-case basis. However in many cases a FCPO monitors over a period a juvenile’s domestic circumstances, conducts interviews with him or her and seeks information from relatives, or custodians, school teachers and employers. Guidance about leading a stable life is given by FCPOs. Additionally over weeks, or possibly months, juveniles may receive assistance from specially recruited volunteers, drawn from a wide variety of backgrounds, who act as role-models and also help to compile information on the juvenile. Further material obtained through tentative probation assists the Family Court in deciding what order to make. If reports are sufficiently positive it may decide to make no further order and discharge the juvenile(Guide to the Family Court, 2015, 10). Most juveniles on tentative probation, however, are given probation.
If the court deems them necessary protective measures may be imposed on juveniles. In 2015 the Family Court found protective measures were required in approximately 30 percent (20,897) of cases referred to the Family Court that year (White Paper on Crime 2016, Part 3, Chapter 2, Section 2/2).
The main protective measures are juvenile probation and committal to a Juvenile Training School. Probation officers are involved in both.
Unlike probation for adults, which may be attached to a suspended sentence, or form part of a partly suspended sentence, juvenile probation is a sentence in its own right. The maximum period of supervision is until the probationer’s twentieth birthday or at least two years whichever is longer.
In 2015, 18,203 juvenile probation orders were made and 3,460 adult probation orders. During that year 2,871 juveniles (and 13,570 adults) were put on supervised parole. Related to reduction of reported crime, now at a post-war low, the number of newly placed supervisees has steadily decreased since 2009 when it stood at 48,488. However, by far the biggest fall, close to eight thousand (from 26,094 to 18,203), has been in juveniles on probation. The numbers of juvenile parolees reduced by nearly one thousand, from 3,869 to 2,871 (White Paper on Crime, 2016: Chapter 5, Section 2/1). In 2016 the overall number of persons supervised by the probation service was 71,441 comprising 18,444 adult parolees, 6,820 juvenile parolees, 13,764 adult probationers and 32,413 juvenile probationers.2 As can readily be seen young peopleplaced on probation by the Family Court are the largest group supervised by the probation officers, amounting to nearly 45.5 percent of the probation service’s caseload.
Upon recommendation of the Family Court, juvenile offenders considered to have low criminal tendencies may be placed on “Short-term Traffic Probation” (imposed for driving offence cases) or “Short-term Juvenile Probation.” While legally the duration of supervision is no different from ordinary probation, they operate on the assumption probation will terminate early if certain requirements are fulfilled. Short-term Traffic Probation requires juvenile probationers to attend group lectures and discussions, often about driving, and to submit monthly reports on their daily lives. Those who satisfy these requirements are usually discharged from probation after three to four months. Juveniles placed on Short-term Juvenile Probation are also obliged to present monthly reports of their activities and to complete certain tasks individually assigned to them including social contribution activities such as helping in neighbourhood cleaning and tidying and assisting in homes for the elderly.
A Volunteer Probation Officer (VPO), hogo-shi, is allocated as the juvenile’s day-to-day supervisor. Regular meetings, two or three times a month, take place with the VPO usually at his or her home, but visits to juveniles’ homes are sometimes made. In accordance with the treatment plan, the VPO visits and works with the supervisee’s family and provides guidance and practical support, often helping to find employment. The VPO submits a monthly progress report to a Professional Probation Officer (PPO), hogo kensatu kan, who, if necessary, intervenes with the offender and can begin procedures to revoke probation. If thought unsuitable, because of complexity of their circumstances, to be assigned to a VPO, juveniles may be supervised directly by a PPO. In certain circumstances a juvenile can be allocated to more than one VPO. A striking feature of the Japanese system of probation is the small number of Professional Probation Officers (“PPOs”), approximately 1,000 (plus over 110 working for Regional Parole Boards) compared to the large number of Voluntary Probation Officers (“VPOs”), 47,909 in 2017 (Ministry of Justice, 2017).
Attendance at a Juvenile Training School
In 2015 2,743 juveniles entered 52 Juvenile Training Schools (JTS), of whom 205 were female. Corresponding with the decreasing crime rate in Japan the number of JTS inmates has been dropping since 2005. Most minors were detained because they had committed theft, fraud or assault. Smaller numbers were committed for robbery, sexual offences, homicide, causing death by dangerous or reckless driving, other serious driving offences, and drugs offences. In 2015 approximately 41 percent of those sent to JTS were “senior juveniles” 18 and 19 years old (White Paper on Crime 2016, Part 3, Chapter 2, Section 4/1 and Ministry of Justice, 2017, 18). Juvenile Training Schools take a very different approach than prisons, where the prime purpose is punishment through forced labour. Individual treatment plans are drawn up on admission. Corrective education consists of: “living guidance” programmes, including much individual counselling, to address offending behaviour; vocational training; academic education; health and physical education; and “special activities,” including voluntary work and club activities (Justice in Japan, 2014: 43 -45). A widespread belief exists amongst probation officers and university academics interviewed that juvenile probation and juvenile training schools are effective in achieving rehabilitation. A further view exists that even if they were not it is still morally right to make every effort to bring about a young person’s rehabilitation.
Statistics were not publically available on the rate of re-admission to JTS or prison; however the Ministry of Justice has recently released some which show that after five years 22.4 percent of the 3,3440 juveniles who left JTS in 2012 either re-entered JTS or, as adults, had been sentenced to prison.3
Background to the proposals to lower the age of criminal majority
Two principal drivers account for proposals for reform. The first is continuing concern about juvenile crime.According to a Cabinet Office Survey in 2015, 78.6 percent of respondents believed the number of young offenders was increasing. Only 2.5 percent answered correctly that it was falling. A newspaper poll also in that year showed 80 percent support for tougher penalties for juvenile offenders (Ito, 2015).
Exceptional cases occurring sporadically over the last twenty years made headlines for days, sometimes weeks, horrifying the country with the brutality of the killings and triggering public outrage over the protection youths were thought to receive under the Juvenile Act. A powerful victims’ movement developed and propelled a series of earlier revisions to the Juvenile Law. It was supported by a more general punitive feeling towards young offenders, genbatsuka (becoming punitive), which a professor of criminal procedure interviewed described as a “moral panic” created by the media, especially television talk shows, the number of which has grown over the last two decades.4 Some commentators have argued that genbatsukaresembles penal populism in England and Wales, New Zealand, the United States, and many other countries (Hamai and Ellis, 2008). However unlike those countries, genbatsuka has not yet in practice resulted in a more punitive juvenile law, notwithstanding revisions to the Juvenile Act, some reports that Family Court proceedings concentrate more on criminal acts committed and less on considerations of welfare, toughening political and official rhetoric, and apparently less public toleration of young people. Empirical research undertaken by criminologists indicates diversion, rehabilitation and reintegration still take clear precedence over punishment in decisions of the Family Court (Ellis and Kyo, 2017: 24 25). Professors of Criminology and Criminal Procedure interviewed agreed there had not been a radical shift in juvenile justice in Japan. Other than giving victims and their families more information about court proceedings and granting them qualified rights to make representations, one professor described the legislative changes as largely symbolic and a consolation for victims.5
The second driver for reducing the age of criminal adulthood is the amendment of the election law in 2015 which lessened the voting age from 20 to 18(Iyanagi, 2017). Also lowering of the age of majority from 20 to 18 in the Civil Code is expected to be passed in the next session of the Diet, resulting in 18 year olds having the ability to enter contracts on adult terms.In 2015 a special panel of the ruling Liberal Democratic Party, established to discuss juvenile crime, concluded if youths can vote they should bear corresponding social obligations and therefore 17 should be the maximum age the Juvenile Act applied. In some quarters this was criticised as an attempt to seek favour with voters, much influenced by sensationalist media reporting of exceptional gruesome crimes, and convinced Japan is experiencing an epidemic of juvenile delinquency, when the opposite is true (Brassor, 2015).
At the end of 2016, a Ministry of Justice study group set out arguments for and against lowering the age of criminal majority and how anticipated problems could be dealt with if it was. The report will help form the basis of discussion for the Ministry of Justice Legislative Council, an advisory body to the Minister of Justice, charged with considering the issue, which held its first meeting in February, 2017.
Opinions on reducing the age of criminal adulthood
A variety of views, expressed in the Ministry of Justice study6 and elsewhere, exist about when criminal adulthood should begin and measures to be taken if it is reduced to 18.
Falling crime and the influence of the Juvenile Act
While heinous crimes committed by juveniles occupy much attention there has been a steep decline in juvenile offending since 2003, as there has been in many other countries (Berghuis and De Waard, 2017; McAra, 2017: 958-959; Economist, 2017). According to the National Police Agency the annual number of minors treated as criminal suspects by the police decreased from 123,715 in 2005 to 48,361 in 2014. The number of juveniles suspected of serious offences, murder, burglary, arson and rape fell in those years from 1,441 to 703. A variety of explanations are advanced for this huge reduction which remains an under researched area. They include the falling birthrate (Economist, 2015);effective policing deterring offending less thorough investigation of minor shoplifting offences, and greater use by police of warnings and consultations with parents under the pre-delinquency procedure (Steele and Ohmachi, 2016: 3, Ellis and Kyo, 2017b 7-9). Another reason put forward is the phenomenon ofhikikomori, (literally pulling inward, being confined). Brought on by problems at school or work, illness, and unemployment it affects, according to government figures, up to 700,000 adolescents and adults under 31 who seldom, if ever, leave home and withdraw from outside life, thus lessening the possibility of them committing crime, except in the family (Teo, 2014). Computer gaming, which may have a psychologically cathartic effect reducing violence and also removes potential offenders from public places (Ellis and Kyo, 2017a: 13), may lessen offending, as may long periods of time spent on mobile phones, and in some cases taking part time jobs to pay for it, thus filling time which might have been occupied in deviant activity. Although there is no concensus, and indeed much debate, on the main drivers behind the spectacular decrease in recorded juvenile crime internationally, (Maguire and McVie, 2017: 169-70), smartphones and computer gaming have been identified as significant contributors (Berghuis and De Waard, 2017: 7-8). The moral sense of young people, who if anything should be celebrated, not criticised, for their behaviour (Steele and Ohmachi, 2016 5) and the influence of local and national delinquency prevention campaigns mounted by the probation service and organisations like the voluntary Women’s Association for Rehabilitation Aid (“WARA”) have also been considered significant reasons for the steep decline in juvenile offending. Opponents of the proposal to reduce the age of criminal adulthood to 18 maintain the Juvenile Act, particularly protective measures concentrating on corrective education, is also an important factor (Ueno, 2016: 4).
Due punishment and deterrence
The Ministry of Justice report displayed some opinions that argued it was unacceptable for minors to escape criminal punishments seen as due to them irrespective of their youth for serious offences, and a wider view that some minors commit offences fully aware they will not be held criminally responsible and instead will be protected by the Juvenile Act. Opponents, skeptical many juveniles make such a calculation, doubted the deterrent effect of lowering the age of criminal adulthood. On the contrary, they argued that crime may rise if protective measures become unavailable for persons 18 and 19. Some of those who had committed serious offences would be sentenced to prison, where they would mainly receive punishment through work. Those not convicted of serious offences, the great majority, would be dealt with by suspended prosecution, suspended sentences, fines, and the police minor offence procedure. Because they would not receive the educative and rehabilitative benefits of Juvenile Training School and probation, it is argued they would be more likely to re-offend, leading to an overall increase in crime. One interviewed professor of criminal procedure, a former public prosecutor, emphasised that the push to alter the Juvenile Act was entirely external to those working in criminal justice, few of whom thought it was necessary. In his view the present system could deal adequately with cases where punishment, rather than rehabilitation, was required through “reverse referral,” the Family Court’s power to send cases back to the Public Prosecutor for trial in the adult District Court which has extensive powers of punishment, even the death penalty for those over 17, although this is rarely passed.7
Protective measures as more challenging and onerous than Penal Code punishment for offenders
Some against reducing criminal adulthood to 18 maintain probation and particularly attendance at Juvenile Training School, as well as forcing deeper reflection on the consequences of their criminality, may represent a greater restriction on offenders’ liberty than punishment under the Penal Code. In an article a former judge who had until recently sat in both the adult and Family Court wroteusually a first time adult stimulant drug offender would receive a suspended sentence of imprisonment, whereas most juveniles in similar circumstances would be sent to Juvenile Training Schools. He continued “ I think correctional education is much more severe and harder than continuing with prison work matter of factly while in prison. In fact, I saw some defendants who had committed a crime again in order to be sent back to prison after becoming accustomed to life there, but I never met a juvenile who wanted to return to a Juvenile Training School. (Ueno, 2017 1.) Commenting on the proposal to reduce the age at which the Juvenile Act ceases to apply to 18, the former prosecutor, now a professor of criminal procedure, considered it strange that a movement to increase punishment in society may actually achieve less limitation on juveniles and modification of their behaviour than at present.8
Development and consequences of adult trial and punishment
It was argued that reduction of the age of criminal adulthood to 18 would run counter to new neuro-scientific evidence that mental development of young people is not complete until their mid-twenties (Blakemore, 2012), as well as international trends of including young adults in the scope of juvenile justice, of which an example is Germany, where adult courts may transfer offenders aged up to 21 back down to the juvenile courts (Dunkel, 2015: 9-62). An interviewed opponent, a professor of criminology, considered that disqualifying 18 and 19 year olds from protective measures would be to infringe their right to develop positively.9 While not entirely convinced by neuroscientific evidence, members of the Ministry of Justice study group affirmed their belief in the value of education to promote change in the behaviour of immature juveniles.
Strong opposition to criminalising young people comes from the Japan Association of Bar Associations (“JFBA”), Nichibenren, and some academics who maintain the experience of being tried in an adult court could hinder their development and expose them to damaging publicity. Concern was also registered about the stigma of prison, which may have long-term consequences, not least for employment, and the higher rate of re-offending amongst those who have been incarcerated.
A uniform age of adulthood
Reducing the age when the Juvenile Act ceases to apply to 18 is supported by those who believe that there should be consistency with when people are deemed responsible to vote and have adult capacity under the Civil Code. Opponents maintain that there is no over-riding or compelling argument why the Juvenile Law age should change in tandem with other laws and point to the fact that after adulthood has been altered to 18 for the Civil Code, prohibitions under separate laws against drinking alcohol and smoking tobacco and gambling will remain for good reasons of health and social policy. Some 18 and 19 year old students interviewed saw nothing objectionable about differential age qualifications for voting, the Civil Code, and assumption of criminal adulthood, but others preferred a single age as more logical and understandable.10
Preserving the Juvenile Act’s spirit of corrective education and welfare
A number of experts who contributed to the Ministry of Justice study report were persuaded by arguments to harmonise the law on when adulthood commences, or at least accepted this as inevitable. Nonetheless they urged preserving the welfare spirit behind preventative measures because of what they saw as their effectiveness. Accordingly the Ministry of Justice study group report recommended that investigations of comparable depth to those undertaken by Family Court Probation Officers should take place on 18 and 19 year olds in the adult courts. It also proposed new measures be adopted including deferred sentences under which a convicted person would be allowed to spend time in the community under the supervision of a probation officer and would ultimately receive a lighter sentence if she or he had responded positively and did not reoffend.
Redefining sentence of imprisonment
The Report observed that almost all the prison sentences imposed are with labour(choeki)rather than without labour(kinko),principally reserved for negligent or political crimes, seen as lacking moral culpability, and only passed in 23 cases in 2014. Prisoners perform many hours of industrial work typically including printing, making furniture, household items, leather goods and car parts and accessories (Justice in Japan, 2014 Chapter 6.) Although basic education and rehabilitative courses, especially for drug prevention and sexual offences, have become more available over the last decade or so, only a limited time is spent on them. Fundamentally prisons remain places of punishment with forced labour eight hours each day, five days a week and strict military style discipline.11 Radically, and reaching far beyond 18 and 19 year olds, the Report recommended that a single prison sentence without the obligation to work should be introduced thereby allowing more time for rehabilitative activities based on an assessment of the characteristics and needs of each prisoner. Whilst the number of persons arrested for criminal offences has declined since 2005 and that of repeat offenders is also gradually falling, the ratio of repeat offenders to all persons apprehended has risen and stood at 46.4 percent in 2015 (White Paper on Crime, 2016 Part 5, Chapter 3,Section 1), prompting intense discussion how to lessen recidivism and prison occupancy, especially of drug offenders, shoplifters and people over 65 who now form almost 20 percent of the prison population, up from 5.8 percent in 2000, according to the National Police Agency. Eliminating obligatory labour from prison sentences to some extent would be a recognition that an increasing number of older offenders are incapable of physical work and many require nursing care.
Regarding 18 and 19 year olds, taking away the requirement to work from prison sentences would allow the importation into prison of much of the Juvenile Training School curriculum and even possibly the use of their premises, re-designated as prisons.
Other alternatives to protective measures
Introducing probation as an independent adult sentence for 18 and 19 year olds, and possibly for those who are some years older, has been suggested. A professor of criminal procedure interviewed thought, however, in the genbatsuka climate of desire for tougher sentences, merely transferring a Family Court disposition to adult courts would be seen widely as little more than cosmetic change and would be unacceptable.12 A further idea concerns Public Prosecutors, some of whom advise those they are considering suspending prosecution to seek work and help from various sources, but have no authority to compel them. It has been proposed that they be given statutory powers to order them to do so. A more far-reaching suggestion is linking suspended prosecution with accepting and complying with supervision from the probation service. This would entail Prosecutors assessing if a person would be suitable for supervision and for how long and on what terms. It would also involve deciding whether to prosecute or take action short of this when there is a failure to comply with its terms. Lacking experience or training in these areas the assistance of the probation service would be necessary in providing information to make these judgements, at least until sufficient expertise had been acquired.
Amongst other possible alternative measures for 18 and 19 year olds known to be under consideration by the Ministry of Justice are forms of community service. Under a revision of the Offenders Rehabilitation Act in 2007 it became possible to require those on probation and parole to take part in social contribution activities, such as assisting clearing up local areas and helping in homes for old people. This has been used principally as a means to help raise participants’ self-esteem. It is presently debated whether community service should be developed as an independent sentence, perhaps under supervision of the probation service.
The Rehabilitation Bureau of the Ministry of Justice is studying sentences and facilities in foreign countries.13 Amongst those under examination are Deferred Sentences, Senior Attendance Centres, Approved Premises in England and Wales and Deferred Prosecution, being piloted in the Midlands and commended in the Lammy Report, 2017.
The Legislative Council
On February 9th2017 the Minister of Justice, Kaneda Katsutoshi, formally consulted the Ministry of Justice Legislative Council, an advisory body, on lowering the age of criminal adulthood to 18 and also more generally about rehabilitation of offenders, including whether forced labour should cease to form part of prison sentences. This council is composed of 10 academics, 2 judges, 2 attorneys, 1 public prosecutor, 1 person from a victims’ group, 1 representative from the National Police Agency, and 1 civil servant. This body is expected to submit a report in late 2018, following which the Ministry intends to submit amendments of the Juvenile and Penal Law in the Diet. In the light of reduction in age to 18 for voting, and widely expected lowering under the Civil Code, the Council has already accepted that maintaining the current age of criminal majority would be anomalous. It considers that the Juvenile Act is adequately fulfilling its function, but if the age of criminal adulthood is reduced juveniles who are 18 and 19, despite the fact their personalities are not yet fully developed, will not be treated by protective and educative measures. Accordingly if the age cap is altered a similar level of protection and education should be extended to them. At its fourth monthly meeting in July the Council formed three sub-committees to study how this could be achieved. To assist in this the Legislative Council is researching sentencing of young adults overseas; a sub-committee sent a delegation to London in November 2017 to study the youth justice system in England and Wales, particularly deferred sentences passed there.
It is widely considered that after receiving the Legislative Council’s report, the government will legislate to reduce the age of criminal majority to 18, representing the most significant alteration in the way juvenile delinquency is dealt with in Japan since 1948, and also to introduce new sentences which preserve the educative and rehabilitative spirit of the Juvenile Act. The desire to do so in the Ministry of Justice, the Legislative Council, and amongst most who work in criminal justice, contrasts strongly with popular calls for greater punishment, not dissimilar to those in other countries. This resistance to penal popularism is built upon a firm conviction that education and rehabilitation are more effective in reducing recidivism. Although they would be dealt with in adult courts, new sentences specifically for 18 and 19 year olds would recognise young adults as a separate category in their development from those who are older. This acknowledgement is relevant to the current international discussion about maturity and transition to adulthood (Judging Maturity, 2017 12).
Conclusion: Can probation cope?
Exactly what their roles will be after these anticipated changes is uncertain, but it is likely Family Court Probation Officers, Professional Probation Officers, and the far more numerous Volunteer Probation Officers will acquire important new responsibilities administering new sentences for 18 and 19 year olds which preserve the educative and rehabilitative spirit of the Juvenile Act.
The majority of probationers are juveniles and of them the greatest number are 18 and 19. Clearly most would be lost if the age cap for adulthood was 18, because with the exception of suspended sentences, and newly introduced partly suspended sentences (Watson, 2017), probation is not available for adults. Supervision of 18 and 19 year olds on parole from Juvenile Training Schools would also disappear, but there would be a new requirement to supervise a smaller number paroled from prison.
As explained earlier, there is discussion about new sentences with rehabilitative and educative elements for 18 and 19 year olds. This has included: making probation available to that age group as an independent sentence in an adult court, although this might be rejected for being too superficial a change. Introduction of deferred sentences under which an offender would be supervised by a probation officer in the period before final court sentence has been discussed. Also under consideration are residence in premises in the community, but whilst living there subject to supervision, monitoring, restrictions on movement, and attendance at centres at the weekend, or in the evening, for activities intended to reduce reoffending. Furthermore, use of suspended sentences of imprisonment coupled with probation is being examined. Before passing any of these sentences a court would need detailed information about a young offender’s background and attitude towards his or her offences. At present in adult courts information about an offender is provided only by prosecutors and his or her attorney (Watson, 2017). It is unlikely that this would be regarded as sufficient and an investigation of similar depth to that carried out in the Family Court required. It is uncertain who would undertake these enquiries. A PPO interviewed14 underlined that currently the duties of PPOs do not include producing reports for the courts to assist sentencing, nor do they receive training in investigative and writing skills comparable to Family Court Probation Officers. In her opinion requiring PPOs to conduct investigations on young offenders would require extensive retraining and be a substantial demand on their time. Their workload would also increase if suspended prosecution coupled with probation supervision were to be introduced as prosecutors would require thorough reports on young offenders to assist them in determining whether or not to suspend prosecution and on what terms. If no longer providing them to the Family Court, and consequently with some spare capacity, it has been suggested that Family Court Probation Officers be deployed to produce reports on 18 and 19 year olds in the adult courts. Such a move would represent a major change in their employment previously solely with juveniles in the Family Court and may not be entirely welcome. Producing reports for prosecutors to assist them in deciding whether to suspend prosecution would not, for constitutional reasons, seem possible because Family Court Probation Officers are officers of the Supreme Court, and not civil servants employed by the Ministry of Justice, unlike PPOs and VPOs.
Deferred sentences with supervision, greater use of suspended sentences with probation, residence at premises with supervision and monitoring, attendance at centres at weekends or evenings for activities, and suspended prosecution linked to supervision would involve much input from the probation service with overall responsibility and allocation of cases by Professional Probation Officers and day to day work by Voluntary Probation Officers.
As numbers on probation and parole have declined, especially over the last decade, and because time would no longer be spent supervising probation and parole for 18 and 19 year olds, the probation service overall may have sufficient resources to manage the new sentences that have been suggested, although comprehensive training would be necessary before they were introduced and special attention would be necessary in some urban areas with existing pressures on caseloads and recruitment of VPOs (Morikawa, 2015). This at least was the view of an interviewed professor of criminal procedure and a member of the Legislative Council.15 This calculation, however, could well be upset and more resources required if the government was to redefine sentence of imprisonment to end obligatory work and introduce greater rehabilitation in prison, a landmark in penal reform that is now at least contemplated, in which it could be reasonably expected the probation service would play an important part.
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 Figures kindly supplied by the Japan Federation of Bar Associations, Nichibenren. In 2015 47 percent of offences were carried out by 18 and 19 year olds, 30 percent by 16 and 17 year olds and 20 percent by 15 year olds and below.
 Figures kindly supplied by the Ministry of Justice on 25thJanuary, 2018.
 Figures kindly supplied by the Ministry of Justice (Mr T. Morikawa) on 21stMarch, 2018.
 Interview at Doshisha University, Faculty of Law, 4th July, 2017.
 Interview at Doshisha University, School of Law, 14thJuly, 2017.
 Interview at Doshisha University, School of Law, 17thJuly, 2017.
 Interview at Doshisha University, School of Law, 17thJuly, 2017.
 Interview at Ritsumeikan University School of Law,18thJuly, 2017.
 Interviews at Osaka City University on 6thand 9thJuly, 2017.
 For an overview of prisons in Japan, descriptions of their regime and topical articles see World Prison Brief, Institute for Criminal Policy Research, University of London. (Last visited on 27thAugust, 2017).
 Interview at Doshisha University, School of Law on 11thJuly, 2017
 Interviews with members of the Rehabilitation Bureau, Ministry of Justice, Kasumigaseki, Tokyo on 26thJuly, 2017.
 Interview in London on 14thAugust, 2017.
 Interview at Chuo Law School on 25thJuly, 2017.
Article copyright Andrew Watson.