Reassessing Juvenile Justice in Japan: Net widening or diversion? - The Asia-Pacific Journal: Japan Focus (2024)

This article provides a summary of the first comprehensive overview of Japanese youth justice, locating it within wider conceptual considerations of youth justice before outlining its historical development and questioning its uniqueness. It discusses the contested notion of pre-delinquency, 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. The Family Court is the fulcrum of youth justice, but 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; juvenile justice; youth justice; welfare; pre-delinquency; police guidance; youth crime; sentencing; penal populism

Introduction

“Despite a plethora of discourses on youth justice1 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” (Yoshinaka, 2010, p. 27) . Taking a cross-national, collaborative approach, this chapter therefore draws together many disparate strands of information in order to provide a coherent overview of Japanese juvenile justice.2

We first locate Japanese juvenile justice within general conceptual arguments about youth justice, before outlining its historical development with respect to Japanese juvenile justice and the arguments concerning its uniqueness. Next, we discuss the contested area of pre-delinquency, including a consideration of net widening, police and social agencies’ relative involvement , and the outcomes for those given police guidance. We then provide an overview of the key characteristics of the decline in Japanese youth crime.

These conceptual and contextual themes are then examined empirically through outlining and critiquing the organization and administration of juvenile justice in Japan, focusing on the extent to which juveniles (those aged 14–19) can be tried and sentenced in the adult courts and the extent to which sentencing rationales and practices in the Family Court have been affected by recent policy developments. We end with an evaluation of the main conceptual strands developed throughout the article, including the balance of: welfare; justice; penal populism; and policy and practice.

Locating Japanese Juvenile Justice within Existing Frameworks

Many authors have argued that Japanese criminal justice is a relatively unique phenomenon (eg, Schwertfeger and Zimring, 2013; Komiya, 1999; Bayley, 1991; Braithwaite, 1989;). 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) Indeed, Sugimoto (2003, p. 2), argues that Japanese citizens are only unusual in believing that their nation is so unique. We have attempted to balance these two polarized methodological and epistemological approaches to provide a more realistic understanding of Japanese juvenile juctice.

Youth justice themes developed in predominantly English-speaking literature are also found very early on in Japanese juvenile justice discourse and policy, e.g.: the continuum from welfare-based processes to justice solutions and the shifting emphases over time in response to events, media pressure, political imperatives, etc.. In this context, Schwertfeger and Zimring (2013) note that the Japanese juvenile justice system was not a unique, autochthonous development, but was based explicitly on the original American model from the early 1900s. Ironically, they argue that while official Japanese juvenile justice policy has become more overtly punitive, in practice it continues to focus on the original US emphasis on rehabilitation and reintegration even as the United States has developed a stronger restorative juvenile justice policy discourse, yet remains punitive in practice.

As in many other countries, the Japanese media increasingly holds young people responsible for the choices they make and they are often characterized as imprudent and irrational. The media suggests that they should be blamed and punished accordingly, whilst ignoring structural context and life experiences of young offenders. However, Johnson (2006, p. 80) argues that Japanese juveniles should in fact be celebrated for their low level of offending (see also Schwertfeger and Zimring, 2013; Hamai and Ellis, 2008a, b; Maeda, 2003). We have, therefore, incorporated the use of empirical evidence, and new analyses, to support our critical approach.

Japanese Youth Justice in Context

In Yoder’s (2011 pp. 16–17) wide-ranging study, he argues that Japan is not “unique or that different from other modern democratic capitalistic societies” in channelling juvenile justice and wider social agencies towards the control and punishment of disadvantaged youth. He also argues against the uncritical acceptance of wa (harmony) and cultural hom*ogeneity in reducing the level of conflict and deviant behavior in Japan. Instead, he focuses on a history of repression of working-class youth by the Japanese state and locates the introduction of the modern Japanese juvenile justice system, from 1900, as part of this process during a period of rapid urbanization and growth in poverty-related crimes (Yoder, 2011, p. 41).

As with Japanese policing (Ellis et al., 2008), what appears to be a uniquely Japanese 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). Japan therefore adopted and adapted the world’s first and (then) only juvenile justice system from the US. The central social work component of parens patriae was gradually incorporated (Hirose et al. 2009, p. 16)

The legacy of this system is more apparent in Japan than in the present-day US. In both the US and Japan, juvenile justice was introduced through state intervention to protect neglected and abandoned youth.However, there was always a tension (Vito, 2011, p. 19) between managing children who had committed crimes, but also those who were merely vulnerable, within a justice jurisdiction. In the guise of “protecting ‘at risk’ children and preventing future criminal offenses” status offences were created for a range of relatively trivial offences applicable only to juveniles (eg: truancy or running away from home).

While Schwertfeger and Zimring (2013, pp. 17–18) argue that rehabilitation was seen as more central than protection juvenile justice, Yoder (2011, p. 41) argues that protective measures 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” were the precursors to the present day netwidening of youth offending (e.g., running away from home; staying out overnight without parental permission; late night loitering), along with the institutionalized use of police surveillance for both apprehending and punishing pre-delinquent youth (Yoder, 2011, p. 42). It is worth noting that parens patriae was successfully challenged in 1967 in the USA but there was no parallel process in Japan. In this sense, Japan’s juvenile justice system still reflects the original protective intentions , with reintegrative adaptations, of the founders of the US juvenile justice system.

The differences in discourse boil down to whether well-intentioned delinquency prevention reform produced a net-widening social control effect (Yoder), or whether the incorporation of social agencies, such as education and social work are seen as ways to remove some personal blame from juveniles and ensure collective responsibility for rehabilitation and reintegration (Schwertfeger and Zimring, 2013)). These differences raise an empirical question about where the line lies in Japanese juvenile justice, but before tackling this, it is important to provide an overview of the juvenile justice process.

The organsation of Japanese juvenile justice

The current structure of juvenile justice in Japan was established by the Juvenile Act of 1948, which also underlined the primacy of the Child Welfare Act (1947). Our research suggests that this helps maintain a more explicitly welfarist model than that of most other advanced democracies (eg, USA and UK).

Juveniles in most countries are subject to additional, age-related, legal controls. The question is whether these are used to criminalize targeted young people, or to protect and/or divert them from the justice system.

The key justice agencies potentially involved in any juvenile justice event are: the police; the Family (juvenile) Court; and the (adult) Public Prosecutor’s Office. The pre-court processes mainly involve the police and often involve diversion from formal justice approaches at 3 levels in Japan: delinquency prevention through community crime prevention organizations and schools; police guidance for pre-delinquent activities; and police referral to the family court. Most studies of Japanese juvenile justice focus only on the final level, but the first two elements occur at the societal level and involve far larger numbers.

Delinquency Prevention

Most Japanese neighborhoods have a community association (chonai kai) that includes a bohan kai (crime prevention unit) who organize patrols that may detect underage drinking, smoking , etc. If their advice is ignored, they can report this to police. Police can inform school-police coordinating councils of pre-delinquency acts or crimes by pupils and schools can inform police of pupil incidents. Teachers and police also conduct joint patrols to “catch young people who are misbehaving” (Yoder, 2011, p. 22). In addition, Yoder (2011)lists many complementary organizations that have some level of involvement in managing juvenile delinquency, including: the probation service; local youth development assemblies; the Scouts; and Parent Teacher Associations.

It seems that the delinquency net is cast very wide, and Yoder presents this as evidence of targeting working class youth. However, there is no hard evidence of impact, no known figures on the number of cases where advice is given, or the proportion referred to police. The question that is perhaps more pertinent, therefore, is what happens to those youths who are referred to, or are stopped by police, in this pervasive system?

Police Guidance

Juvenile pre-delinquency violations referred to the police are recorded. Yoder therefore used 2008 statistics and noted 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) and that pre-delinquency rates more than doubled between 1972 and 1983. The implication here is that all 1,361,769 pre-delinquency cases would result in a juvenile police record. If taken at face value, this does seem to represent a high level of justice net–widening for young people.

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 number of pre-delinquency offences vary considerably over a longer period than Yoder used, and that 2008 represented a high point. By 2014 the numbers had almost halved to 731,174, indicating that there was no inexorable rise in pre-delinquency offences by young people or police pursuit of them. Importantly, recorded pre-delinquency should not result in a police or criminal record (Nawa, 2006).

Second, police officers use their discretion to divide the offending youths into less serious furyo koi shonen (unwholesome/misbehaving juveniles) and more serios guhan shonen (crime-prone juveniles). As Figure 2 shows, no further action was taken beyond police advice in 2013 in 809,652 (most furyo koi shonen cases) pre-delinquency cases. 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, even this overrepresents the extent of the use of justice-only solutions, as the next section shows.

Pre-delinquency in the Family Court

Figure 2 also outlines the outcomes of the 343 guhan shonen pre-delinquency cases dealt with by the Family Court in 2013, showing that 25% of them did not require a hearing or a justice disposal.

Overall, while the police are very active in focusing on young people, and this is likely to be disproportionately the case in poorer areas as in most countries, the evidence suggests that net-widening into the justice system appears overstated in previous research. It is now important to look at trends in the much smaller number of recorded juvenile crimes, how these are processed, and the disposals made.

Real Crime? Recorded Juvenile Offences

Overall, recorded youth crime in Japan has plummeted!

As Figure 3 shows, cleared offences in Japan decreased 9% overall from 330,126 in 2000, to 301,331 in 2012. This reduction was entirely due to the 48% drop in juvenile offending and was offset somewhat by the 25% increase (to 221,901) in adult offences (Ministry of Justice, 2014a).

Of course, the youth offending rate (6.7 per 1,000 in 2012) is much higher than the adult rate (2.1 per 1,000 in 2012), but it has fallen sharply while the adult rate has remained relatively flat, peaking at 2.6 per 1,000 in 2006. The current rate of juvenile offending is the lowest recorded since 1966.

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 responsible (Ellis and Hamai, 2017). There is also no evidence of potential displacement of homicides, either behaviorally or as a recording artefact, into other serious offending (i.e., robberies resulting in death) (Ellis and Hamai, 2017). We therefore agree with Johnson’s (2006, p. 80) argument that this challenges the seemingly positivistic universal notion that crime declines with age (Gottfredson and Hirschi, 1990, p. 124). Ellis and Hamai’s (2017) emprirical analysis also documents this trend in other advanced South East Asian countries, casting further doubt on Japanese uniqueness.

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

As Figure 4 shows, the structure and processes of Japanese juveniles justice is complex, and revolves around the Family Court. As in many juvenile justice 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, most often a lawyer, at the hearing. Victims in serious cases can apply to attend, but judges use discretion over whether this would disrupt the youth’s healthy development, indicating a positive bias toward the primacy of welfarist considerations (Art. 22-4, Juvenile Act, 1948).

Most criminal cases (as opposed to pre-delinquency and/or kanisochi summary cases) must initially be referred to the (adult) Public Prosecutor’s Office, which is the most powerful agency in the justice process (see Hamai and Ellis, 2006, 2008a, 2008b), but they are mostly referred on to the Family Court to process.

Crucially, 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, 3 categories of juveniles are dealt with by the Family Court, only one of which would technically qualify as offenders in the adult penal code, echoing Yoder’s concern around net-widening and social control. The first two categories are simply classified according to whether offending juveniles are under 14 years of age, or are 14 to under 20 years of age. The third cateogory are the pre-delinquents covered above (under the Juvenile Act of 1948, paragraph 1, Article 3). Although 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) (Kai, 2010, p. 4), and adult court jurisdiction normally starts at 20, the inclusion of those under 14 muddies tha waters.

Offending juveniles under 14 years of age

If there is evidence of an offence, police (or guardians) 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 use their discretion to decide whether to refer the case to the Family Court. In practice, this requires balancing welfare and justice considerations. Empirically, the Child Welfare Act4 prevails, despite the 2007 revisions for serious cases. As Figure 4 shows, there were over 12,000 police referrals to social welfare agencies in 2013, but only around 400 (3%) of these were referred on to the Family Court. Even then, a justice outcome is still not a certainty. A Family Court research investigation officer5 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 (39%) of the referrals from social welfare agencies were referred back to them (see Ministry of Justice, 2014b).

Thus, despite the possibility of labelling children under 14 as offenders, the empirical evidence confirms the precedence of the Child Welfare Act over the Juvenile Act ensures a broader governmental approach. The 2012 White Paper on Children and Young People, under the Promotion of Development and Support for Children and Young People Act (2009) balances consideration of ‘safety and problematic behavior’ as the third key element in a more holistic approach to social policy for young people which also includes the ‘rearing environment’ and ‘social life’. This can be seen as the continuing influence of parens patrie, as discussed earlier, and is very much within an overarching societal support system.

Juvenile offenders aged 14 to 19

For juveniles over 14 where the maximum sanction for the offence is a fine, the police can refer them directly to the Family Court, but most cases (105,000 in 2013 – see Figure 4) have to be referred initially to the (adult justice system) Public Prosecutors Office. However, almost all of them are referred 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, including those punishable by custody or the death penalty. If a criminal sanction is deemed appropriate by the Family Court, the case must be referred back again to the Public Prosecutor, and discretion not to do so was restricted in the revision of Juvenile Act in 2000.

The complexity deepens with the inclusion of kanisochi or formal summary juvenile cases6 (usually directly referred by the police to the Family Court, 22,565 in 2013). From Yoder’s perspective, these cases appear to have the further potential for net-widening in a similar, though more formal, way than the pre-delinquency cases discussed earlier. However, from a Japanese perspective (Hirose et al., 2009, p. 419; Hirose, 2013, p. 53; Kawaide, 2015) they might also be considered a diversion.

We found that in the vast majority (98%, 22,128) of kanisochi cases, the Family Court decided that no hearing was necessary and the original police guidance was sufficient. In fact, only 165 (0.7% ) of kanisochi cases referred directly by the police proceeded to a Family Court hearing and a justice-based disposal. Most of these (112; 68%) were given probation while 40 (24%) were sent to the adult court, where they would receive a maximum sentence of a fine (see Figure 4). 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

Figure 4 shows that 4,916 juveniles (4% 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% ) had reached adult age (over 19) and would be classified as adults in the sentencing system, leaving 3,071 (62% ) cases that were still classed as juveniles but were assessed by the (adult) public prosecutors. Of these, 2,590 were sent for trial and sentencing in the adult courts. Most of these (2,314, 89 percent ) were tried in the lowest tier (Summary) adult court and received a fine. Overall, then it is possible for juveniles to be tried and sentenced in the adult system, but only after a complex welfare-based assessment by the Family Court and the vast majority of juvenile offenders are dealt with by the Family Court (Hirose, 2009; Kawaide, 2015).

Importantly, while youth justice disposals halved from 231,973 in 2004 to 104,892 in 2013, the proportion referred to the Public Prosecutors has remained remarkably stable at 4-5% (see Ministry of Justice, White Paper on Crime, 2005–2014). This indicates that there has been no hardening of sentencing in the Family Court over this period. Further, no juveniles under 16 have entered the prison system since 2000. Most juveniles imprisoned through adult courts have been in the 18 or 19 age group.7

Certainly, there are no grounds for the view that there has been increasing punitivity in sentencing the decreasing numbers of juvenile offenders in Japan’s adult courts. However, this trend might be affected by the June 2015 changes imposed from outside youth justice by the revised Public Offices Election Law, i.e., lowering the voting age to 18 from 20, with supplementary provisions to also lower the upper age for juvenile justice in the future from 19 to 18 (Japan Times, 2015). This was vigorously opposed by the Japan Bar Association, some politicians, academics, and Family Court practitioners. Certainly, Japan may 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). But what of the majority of juvenile referrals processed in the Family Court?

Outcomes in the Family Court

Echoing back to the original US origins of the concept, the first consideration of the Family Court is whether it is necessary to place the juvenile under protective measures. Figure 5 shows that, in 2014, 52% referred cases were dismissed without a hearing and no further criminal justice action was taken. At the investigation stage, distinctly non-justice options are considered. Under protective detention, juveniles are assessed through “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 if so, whether non-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, leaving 29,051cases to receive Family Court protective measures (see Figure 5).

Less than 1% of Family court disposals are mandated social welfare based provisions for juveniles younger than 18 and are managed by qualified social workers through the Ministry of Health, Labor, and Welfare. This disposal, which is limited to 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 circ*mstances.

Probation, is an ostensibly more recognizable justice disposal and accounts for 41% of Family court hearing disposals. However, some authors (e.g., Kai, 2010; Lewis et al., 2009) regard probation as diversion from a criminal justice sanction. It is carried out by volunteer probation officers, often supervising juvenile offenders from their own homes (Lewis et al., 2009). Indeed, there is no equivalent probation disposal in adult justice, where probation supervision is limited to parole and a small number of suspended prison sentences (Lewis et al., 2009).

This leaves only a very small proportion (6%) of Family Court hearings that technically result in a criminal sanction, mostly through Juvenile Training Schools (JTS), which are run independently of the adult prison system. In short, there is relatively light use of incarceration for juvenile offenders in Japan. The relative distribution of the disposals has also changed very little over time (see Ministry of Justice, White Paper on Crime, 2005–2014).

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, Honjo (2014) has highlighted the increasing public willingness to sentence juvenile offenders with harsher punishments, including the death penalty. Successive revisions to the Juvenile Law have become punitive for young offenders at the same time as their offending has plummeted. While these changes have been opposed by many Japanese academics (eg, Saeki, 2008; Maruyama, 2008; Konishi, 2010 a, b; Konishi, 2011), our analysis shows no effect on the proportion of juveniles transferred to the adult courts for trial and sentencing. It is important to note that the 2000, 2007, and 2014 revisions also strengthened due process by improving access for juveniles’ lawyers to Family Court hearings.

Conclusions

Overall, our findings suggest that, empricially, Japanese juvenile justice gives clear precedence of social welfare over criminal policy considerations. Whilst there is increasingly punitive rhetoric, policy and legislation for juveniles in Japan, it is not based on any empirical evidence of increased criminal activity, indeed, the record shows a dramatic reduction in youth crime. More encouragingly, Family Court sentencers have not changed their generally rehabilitative behaviour and there is no evidence that more juvenile offenders are being committed to adult courts, despite the continuous lowering of age restrictions for serious offences since 2000. All but the most serious cases continue to be heard and disposed of by the Family Court, most often with a non-justice, or diversionary, outcome. However, whether this results in net widening, labelling and applying middle class values to working class kids, or in ensuring collective responsibility for juveniles and preventing exclusion, will continue to be debated. Our analysis suggests that the Japanese juvenile justice, unlike Japanese adult justice, favors welfare over justice outcomes.

This article is based on an open access chapter by the same authors:

Ellis, T. & Kyo, A. (2017).Youth Justice in Japan. In M. Tonry (Ed.),Oxford handbook of crime and criminal justice online Oxford University Press. DOI:10.1093/oxfordhb/9780199935383.013.65

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