The Asia-Pacific Journal | Japan Focus Volume 15 | Issue 9 | Number 2 | Article ID 5030 | Apr 27, 2017

1

Reassessing Juvenile Justice in Japan: Net widening ordiversion?

Tom Ellis, Akira Kyo

This article provides a summary of the firstcomprehensive overview of Japanese youthjustice, locating it within wider conceptualconsiderations of youth justice before outliningits historical development and questioning itsuniqueness. It discusses the contested notion ofpre-delinquency, its net widening potential, andits place in the wider trends in Japanese youthcrime. The study critically assesses the overallorganization, administration, and impact of theFamily Court (equivalent to youth or juvenilecourts) and summarizes recent developments inyouth crime policy. The Family Court is thefulcrum of youth justice, but involves manysocial welfare elements. Despite theincreasingly punitive rhetoric, policy, andlegislation for juveniles in Japan, there is noevidence that more juvenile offenders are beingcommitted to the adult courts. Overall, wefound a clear precedence of social welfare overcriminal 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 youthjustice1 (https://apjjf.org/#_edn1) among legalpractitioners and academics in Japan, very fewattempts have been made thus far at givingobservers in other jurisdictions a betterunderstanding of Japan’s system” (Yoshinaka,2010, p. 27) . Taking a cross-national,collaborative approach, this chapter thereforedraws together many disparate strands ofinformation in order to provide a coherentoverview of Japanese juvenile justice.2

(https://apjjf.org/#_edn2)

We first locate Japanese juvenile justice withingeneral conceptual arguments about youthjustice, before outlining its historicaldevelopment with respect to Japanese juvenilejustice and the arguments concerning itsuniqueness. Next, we discuss the contestedarea of pre-del inquency, including aconsideration of net widening, police and socialagencies’ relative involvement , and theoutcomes for those given police guidance. Wethen prov ide an overv iew of the keycharacteristics of the decline in Japanese youthcrime.

These conceptual and contextual themes arethen examined empirically through outliningand cr i t iquing the organizat ion andadministration of juvenile justice in Japan,focusing on the extent to which juveniles (thoseaged 14–19) can be tried and sentenced in theadult courts and the extent to which sentencingrationales and practices in the Family Courthave been af fected by recent pol icydevelopments. We end with an evaluation of themain conceptual strands developed throughoutthe article, including the balance of: welfare;justice; penal populism; and policy andpractice.

Locating Japanese Juvenile Justice withinExisting Frameworks

Many authors have argued that Japanesecriminal justice is a relatively uniquephenomenon (eg, Schwertfeger and Zimring,2013; Komiya, 1999; Bayley, 1991; Braithwaite,1989;). However, others have argued that this

APJ | JF 15 | 9 | 2

2

uniqueness, and, in particular, the role ofJapanese 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 Japanesecitizens are only unusual in believing that theirnation is so unique. We have attempted tobalance these two polarized methodologicaland epistemological approaches to provide amore realistic understanding of Japanesejuvenile juctice.

Youth jus t i ce themes deve loped inpredominantly English-speaking literature arealso found very early on in Japanese juvenilejustice discourse and policy, e.g.: thecontinuum from welfare-based processes tojustice solutions and the shifting emphasesover time in response to events, mediapressure, political imperatives, etc.. In thiscontext, Schwertfeger and Zimring (2013) notethat the Japanese juvenile justice system wasnot a unique, autochthonous development, butwas based explicitly on the original Americanmodel from the early 1900s. Ironically, theyargue that while official Japanese juvenilejustice policy has become more overtlypunitive, in practice it continues to focus on theoriginal US emphasis on rehabilitation andreintegration even as the United States hasdeveloped a stronger restorative juvenilejustice policy discourse, yet remains punitive inpractice.

As in many other countries, the Japanese mediaincreasingly holds young people responsible forthe choices they make and they are oftencharacterized as imprudent and irrational. Themedia suggests that they should be blamed andpunished accordingly, whilst ignoringstructural context and life experiences of youngoffenders. However, Johnson (2006, p. 80)argues that Japanese juveniles should in fact becelebrated for their low level of offending (seealso Schwertfeger and Zimring, 2013; Hamaiand Ellis, 2008a, b; Maeda, 2003). We have,

therefore, incorporated the use of empiricalevidence, and new analyses, to support ourcritical approach.

Japanese Youth Justice in Context

In Yoder’s (2011 pp. 16–17) wide-rangingstudy, he argues that Japan is not “unique orthat different from other modern democraticcapitalistic societies” in channelling juvenilejustice and wider social agencies towards thecontrol and punishment of disadvantagedyouth. He also argues against the uncriticalacceptance of wa (harmony) and culturalhomogeneity in reducing the level of conflictand deviant behavior in Japan. Instead, hefocuses on a history of repression of working-class youth by the Japanese state and locatesthe introduction of the modern Japanesejuvenile justice system, from 1900, as part ofthis process during a period of rapidurbanization and growth in poverty-relatedcrimes (Yoder, 2011, p. 41).

As with Japanese policing (Ellis et al., 2008),what appears to be a uniquely Japanesedevelopment of juvenile justice was actually aconscious importation in the Meiji, or“enlightenment” period (1868–1912), of whatwas seen as the most promising system fromamong the most advanced countries in thatperiod (see Dale, 1988). Japan thereforeadopted and adapted the world’s first and(then) only juvenile justice system from the US.The central social work component of parenspatriae was gradually incorporated (Hirose etal. 2009, p. 16)

The legacy of this system is more apparent inJapan than in the present-day US. In both theUS and Japan, juvenile justice was introducedthrough state intervention to protect neglectedand abandoned youth.However, there wasalways a tension (Vito, 2011, p. 19) betweenmanaging 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

APJ | JF 15 | 9 | 2

3

future criminal offenses” status offences werecreated for a range of relatively trivial offencesapplicable only to juveniles (eg: truancy orrunning away from home).

While Schwertfeger and Zimring (2013, pp.17–18) argue that rehabilitation was seen asmore central than protection juvenile justice,Yoder (2011, p. 41) argues that protectivemeasures that placed poor youths inreformatories for pre-delinquent offences suchas “living in improper homes,” vagrancy,idleness, or even “hanging around with thewrong people” were the precursors to thepresent day netwidening of youth offending(e.g., running away from home; staying outovernight without parental permission; latenight loitering), along with the institutionalizeduse o f po l i ce surve i l l ance fo r bo thapprehending and punishing pre-delinquentyouth (Yoder, 2011, p. 42). It is worth notingthat parens patriae was successfully challengedin 1967 in the USA but there was no parallelprocess in Japan. In this sense, Japan’s juvenilejustice system still reflects the originalprotective intentions , with reintegrativeadaptations, of the founders of the US juvenilejustice system.

The differences in discourse boil down towhether well-intentioned delinquencyprevention reform produced a net-wideningsocial control effect (Yoder), or whether theincorporation of social agencies, such aseducation and social work are seen as ways toremove some personal blame from juvenilesand ensure collective responsibility forrehabilitation and reintegration (Schwertfegerand Zimring, 2013)). These differences raise anempirical question about where the line lies inJapanese juvenile justice, but before tacklingthis, it is important to provide an overview ofthe juvenile justice process.

The organsation of Japanese juvenile justice

The current structure of juvenile justice inJapan was established by the Juvenile Act of

1948, which also underlined the primacy of theChild Welfare Act (1947). Our researchsuggests that this helps maintain a moreexplicitly welfarist model than that of mostother advanced democracies (eg, USA and UK).

Juveniles in most countries are subject toadditional, age-related, legal controls. Thequestion is whether these are used tocriminalize targeted young people, or to protectand/or divert them from the justice system.

The key justice agencies potentially involved inany juvenile justice event are: the police; theFamily (juvenile) Court; and the (adult) PublicProsecutor’s Office. The pre-court processesmainly involve the police and often involvediversion from formal justice approaches at 3levels in Japan: delinquency prevention throughcommunity crime prevention organizations andschools; police guidance for pre-delinquentactivities; and police referral to the familycourt. Most studies of Japanese juvenile justicefocus only on the final level, but the first twoelements occur at the societal level and involvefar larger numbers.

Delinquency Prevention

Most Japanese neighborhoods have acommunity association (chonai kai) thatincludes a bohan kai (crime prevention unit)who organize patrols that may detect underagedrinking, smoking , etc. If their advice isignored, they can report this to police. Policecan inform school-police coordinating councilsof pre-delinquency acts or crimes by pupils andschools can inform police of pupil incidents.Teachers and police also conduct joint patrolsto “catch young people who are misbehaving”(Yoder, 2011, p. 22). In addition, Yoder(2011)lists many complementary organizationsthat have some level of involvement inmanaging juvenile delinquency, including: theprobation service; local youth developmentassemblies; the Scouts; and Parent TeacherAssociations.

APJ | JF 15 | 9 | 2

4

It seems that the delinquency net is cast verywide, and Yoder presents this as evidence oftargeting working class youth. However, thereis no hard evidence of impact, no known figureson the number of cases where advice is given,or the proportion referred to police. Thequestion that is perhaps more pertinent,therefore, is what happens to those youths whoare referred to, or are stopped by police, in thispervasive system?

Police Guidance

Juvenile pre-delinquency violations referred tothe police are recorded. Yoder therefore used2008 statistics and noted that the 1,361,769recorded youth pre-delinquency status offencesfar outnumbered the 134,415 penal codeoffences by young people (Yoder, 2011, p. 37;Hanzai Hakusho, 2009; Seishonen Hakusho3

(https://apjjf.org/#_edn3), 2009) and that pre-delinquency rates more than doubled between1972 and 1983. The implication here is that all1,361,769 pre-delinquency cases would resultin a juvenile police record. If taken at facevalue, this does seem to represent a high levelof justice net–widening for young people.

However, this picture needs some carefuldeconstruction. First, the number of pre-delinquency cases is volatile over time andclear trends are hard to discern. Figure 1shows the number of pre-delinquency offencesvary considerably over a longer period thanYoder used, and that 2008 represented a highpoint. By 2014 the numbers had almost halvedto 731,174, indicating that there was noinexorable rise in pre-delinquency offences byyoung people or police pursuit of them.Importantly, recorded pre-delinquency shouldnot result in a police or criminal record (Nawa,2006).

Figure 1: Number of juveniles issued withpolice guidance for pre-delinquency status

offences, 1975-2014

Second, police officers use their discretion todivide the offending youths into less seriousfuryo koi shonen (unwholesome/misbehavingjuveniles) and more serios guhan shonen(crime-prone juveniles). As Figure 2 shows, nofurther action was taken beyond police advicein 2013 in 809,652 (most furyo koi shonencases) pre-delinquency cases. The more seriousguhan shonen cases are referred directly to theFamily Court, but their number is tiny, just 343in 2013. This perhaps puts some perspective onthe extent to which pre-delinquency representsnet widening into the justice system or multi-agency diversion away from it. Indeed, eventhis overrepresents the extent of the use ofjustice-only solutions, as the next sectionshows.

APJ | JF 15 | 9 | 2

5

Figure 2: process and outcomes for pre-delinquency cases through the FamilyCourt, 2013

1

(https://apjjf.org/#_ftn1)

Pre-delinquency in the Family Court

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

Overall, while the police are very active infocusing on young people, and this is likely tobe disproportionately the case in poorer areasas in most countries, the evidence suggeststhat net-widening into the justice systemappears overstated in previous research. It isnow important to look at trends in the muchsmaller number of recorded juvenile crimes,how these are processed, and the disposalsmade.

Real Crime? Recorded Juvenile Offences

Overall, recorded youth crime in Japan hasplummeted!

As Figure 3 shows, cleared offences in Japandecreased 9% overall from 330,126 in 2000, to301,331 in 2012. This reduction was entirely

due to the 48% drop in juvenile offending andwas offset somewhat by the 25% increase (to221,901) in adult offences (Ministry of Justice,2014a).

Of course, the youth offending rate (6.7 per1,000 in 2012) is much higher than the adultrate (2.1 per 1,000 in 2012), but it has fallensharply while the adult rate has remainedrelatively flat, peaking at 2.6 per 1,000 in 2006.The current rate of juvenile offending is thelowest recorded since 1966.

It is worth noting that the number of homicidesby juveniles in Japan has also plummeted and ishistorically low, with only around 5 percent ofall homicides now committed by those under20, with older age groups now increasinglyresponsible (Ellis and Hamai, 2017). There isalso no evidence of potential displacement ofhomicides, either behaviorally or as a recordingartefact, 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 theseemingly positivistic universal notion thatcrime declines with age (Gottfredson andHirschi, 1990, p. 124). Ellis and Hamai’s (2017)emprirical analysis also documents this trend inother advanced South East Asian countries,casting further doubt on Japanese uniqueness.

Figure 3: Number of juveniles cleared forpenal code offences (non-traffic)

2000-20122

(https://apjjf.org/#_ftn2)

APJ | JF 15 | 9 | 2

6

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

As Figure 4 shows, the structure and processesof Japanese juveniles justice is complex, andrevolves around the Family Court. As in manyjuvenile justice jurisdictions, Family Courthearings are closed to the public. They typicallyinvolve a single Family Court judge, althoughthree judges can be involved in moredemanding cases (Hirose et al., 2009, p. 74).J u v e n i l e s t h e m s e l v e s , o r t h e i rparents/guardians, can assign an attendant,most often a lawyer, at the hearing. Victims inserious cases can apply to attend, but judgesuse discretion over whether this would disruptthe youth’s healthy development, indicating apositive bias toward the primacy of welfaristconsiderations (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) PublicProsecutor’s Office, which is the most powerfulagency in the justice process (see Hamai andEllis, 2006, 2008a, 2008b), but they are mostlyreferred on to the Family Court to process.

Figure 4: The basic organisation ofJapanese juvenile justice (2013 figures3

(https://apjjf.org/#_ftn3))

Crucially, Family Courts are located within abroader social framework where a justiceapproach is not always the desired outcome.Under Article 3 of the Juvenile Act of 1948, 3categories of juveniles are dealt with by theFamily Court, only one of which wouldtechnically qualify as offenders in the adultpenal code, echoing Yoder’s concern aroundnet-widening and social control. The first twocategories are simply classified according towhether offending juveniles are under 14 yearsof age, or are 14 to under 20 years of age. Thethird cateogory are the pre-delinquents coveredabove (under the Juvenile Act of 1948,paragraph 1, Article 3). Although The Japaneseadult and youth justice system effectivelydef ines the current age o f cr imina lresponsibility (sekinin) as 14 years of age(Article 41 of the Criminal Law of 1907) (Kai,2010, p. 4), and adult court jurisdictionnormally starts at 20, the inclusion of thoseunder 14 muddies tha waters.

Offending juveniles under 14 years of age

If there is evidence of an offence, police (orguardians) refer juvenile offenders under 14 tothe director of their local child guidance center(essentially under a social welfare remit). Thedirector of a center, or prefectural governor,must then use their discretion to decidewhether to refer the case to the Family Court.In practice, this requires balancing welfare andjustice considerations. Empirically, the ChildWelfare Act4 (https://apjjf.org/#_edn4) prevails,despite the 2007 revisions for serious cases. AsFigure 4 shows, there were over 12,000 policereferrals to social welfare agencies in 2013, butonly around 400 (3%) of these were referred onto the Family Court. Even then, a justiceoutcome is still not a certainty. A Family Courtr e s e a r c h i n v e s t i g a t i o n o f f i c e r 5

(https://apjjf.org/#_edn5) investigates and adecision is then made on whether to proceedwith a formal Family Court hearing (as opposed

APJ | JF 15 | 9 | 2

7

to a trial in the adult court) or to refer back to aprefectural governor. In 2013, 161 (39%) of thereferrals from social welfare agencies werereferred back to them (see Ministry of Justice,2014b).

Thus, despite the possibility of labellingchildren under 14 as offenders, the empiricalevidence confirms the precedence of the ChildWelfare Act over the Juvenile Act ensures abroader governmental approach. The 2012White Paper on Children and Young People,under the Promotion of Development andSupport for Children and Young People Act(2009) balances consideration of ‘safety andproblematic behavior’ as the third key elementin a more holistic approach to social policy foryoung people which also includes the ‘rearingenvironment’ and ‘social life’. This can be seenas the continuing influence of parens patrie, asdiscussed earlier, and is very much within anoverarching societal support system.

Juvenile offenders aged 14 to 19

For juveniles over 14 where the maximumsanction for the offence is a fine, the police canrefer them directly to the Family Court, butmost cases (105,000 in 2013 – see Figure 4)have to be referred initially to the (adult justicesystem) Public Prosecutors Office. However,almost all of them are referred back to theFamily Court (Article 42 of Juvenile Act 1948).The Family Court must then assess all casesinvolving a serious offence committed by ajuvenile aged 16 or older, including thosepunishable by custody or the death penalty. If acriminal sanction is deemed appropriate by theFamily Court, the case must be referred backagain to the Public Prosecutor, and discretionnot to do so was restricted in the revision ofJuvenile Act in 2000.

The complexity deepens with the inclusion ofkanisochi or formal summary juvenile cases6

(https://apjjf.org/#_edn6) (usually directlyreferred by the police to the Family Court,22,565 in 2013). From Yoder’s perspective,

these cases appear to have the furtherpotential for net-widening in a similar, thoughmore formal, way than the pre-delinquencycases discussed earlier. However, from aJapanese perspective (Hirose et al., 2009, p.419; Hirose, 2013, p. 53; Kawaide, 2015) theymight also be considered a diversion.

We found that in the vast majority (98%,22,128) of kanisochi cases, the Family Courtdecided that no hearing was necessary and theoriginal police guidance was sufficient. In fact,only 165 (0.7% ) of kanisochi cases referreddirectly by the police proceeded to a FamilyCourt hearing and a justice-based disposal.Most of these (112; 68%) were given probationwhile 40 (24%) were sent to the adult court,where they would receive a maximum sentenceof 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 all121,284 juveniles referred to the Family Court)were returned by the Family Court to thePublic Prosecutor in 2013. Of these, 1,845(37.5% ) had reached adult age (over 19) andwould be classified as adults in the sentencingsystem, leaving 3,071 (62% ) cases that werestill classed as juveniles but were assessed bythe (adult) public prosecutors. Of these, 2,590were sent for trial and sentencing in the adultcourts. Most of these (2,314, 89 percent ) weretried in the lowest tier (Summary) adult courtand received a fine. Overall, then it is possiblefor juveniles to be tried and sentenced in theadult system, but only after a complex welfare-based assessment by the Family Court and thevast majority of juvenile offenders are dealtwith by the Family Court (Hirose, 2009;Kawaide, 2015).

Importantly, while youth justice disposalshalved from 231,973 in 2004 to 104,892 in2013, the proportion referred to the PublicProsecutors has remained remarkably stable at

APJ | JF 15 | 9 | 2

8

4-5% (see Ministry of Justice, White Paper onCrime, 2005–2014). This indicates that therehas been no hardening of sentencing in theFamily Court over this period. Further, nojuveniles under 16 have entered the prisonsystem since 2000. Most juveniles imprisonedthrough adult courts have been in the 18 or 19age group.7 (https://apjjf.org/#_edn7)

Certainly, there are no grounds for the viewthat there has been increasing punitivity insentencing the decreasing numbers of juvenileoffenders in Japan’s adult courts. However, thistrend might be affected by the June 2015changes imposed from outside youth justice bythe revised Public Offices Election Law, i.e.,lowering the voting age to 18 from 20, withsupplementary provisions to also lower theupper age for juvenile justice in the future from19 to 18 (Japan Times, 2015). This wasvigorously opposed by the Japan BarAssociation, some politicians, academics, andFamily Court practitioners. Certainly, Japanmay lose its hitherto relatively unique inclusionof young adults within the scope of juvenilejustice, just as Europe, and especially Germany,is moving in the opposite direction (Dünkel,2015). This would go against internationaltrends and, indeed, against new evidence inneurosciences about the maturation processesof young people (Dünkel and Pruin, 2012). Butwhat of the majority of juvenile referralsprocessed in the Family Court?

Outcomes in the Family Court

Echoing back to the original US origins of theconcept, the first consideration of the FamilyCourt is whether it is necessary to place thejuvenile under protective measures. Figure 5shows that, in 2014, 52% referred cases weredismissed without a hearing and no furthercriminal justice action was taken. At theinvestigation stage, distinctly non-justiceoptions are considered. Under protectivedetention, juveniles are assessed through“interviews, psychological tests, behavioural

observations, and medical diagnosis, as well asother external information” (Ministry of Justice,2012). These assessments are used to decidewhether a Family Court hearing is appropriate,and if so, whether non-justice options areappropriate.

Of the remaining 50,561 cases that proceededto a hearing (whether through protectivedetention or not), 21,349 (42 percent ) weredeemed to require no further action, leaving29,051cases to receive Family Court protectivemeasures (see Figure 5).

Less than 1% of Family court disposals aremandated social welfare based provisions forjuveniles younger than 18 and are managed byqualified social workers through the Ministry ofHealth, Labor, and Welfare. This disposal,which is limited to and accounts for less than 1percent of hearing disposals, is most likely tobe ordered for those at risk of delinquency orinvolved in delinquency due to familycircumstances.

Probation, is an ostensibly more recognizablejustice disposal and accounts for 41% of Familycourt hearing disposals. However, someauthors (e.g., Kai, 2010; Lewis et al., 2009)regard probation as diversion from a criminaljustice sanction. It is carried out by volunteerprobation officers, often supervising juvenileoffenders from their own homes (Lewis et al.,2009). Indeed, there is no equivalent probationdisposal in adult justice, where probationsupervision is limited to parole and a smallnumber of suspended prison sentences (Lewiset al., 2009).

This leaves only a very small proportion (6%) ofFamily Court hearings that technically result ina criminal sanction, mostly through JuvenileTraining Schools (JTS), which are runindependently of the adult prison system. Inshort, there is relat ively l ight use ofincarceration for juvenile offenders in Japan.The relative distribution of the disposals hasalso changed very little over time (see Ministry

APJ | JF 15 | 9 | 2

9

of Justice, White Paper on Crime, 2005–2014).

In a comparative context then, Japan, perhapsnot surprisingly, has a complex set ofjurisdictions over juveniles and outcomes foryoung people. This draws to some extent on thewider arena of prevention of delinquency, butalso on social services and other non-justiceagencies, thus often making youth justicedifficult to locate along the welfare/justicecontinuum in a comparative sense. On the onehand, the tendency toward a welfare modelthat involves non-criminal justice agenciesmeans that there is a level of net-widening thatdraws in pre-delinquents who technically wouldnot be offenders in many jurisdictions. On theother hand, there are those who technicallywould be dealt with as offenders within a youthjustice process in most countries, but who areinstead diverted under child welfare provisions.

Recent Major Policy Developments

When considering recent policy developmentsin Japanese juvenile justice, it is important torecognize the role of public opinion, andespecially the victims’ lobby, on increasedpunitivism. Hamai and Ellis (2008a) haveargued that penal populism (genbatsuka) hasaffected both adult and youth justice in Japan inways that might seem very familiar to those inthe United States, England and Wales, NewZealand, and many other countries. Indeed,Honjo (2014) has highlighted the increasingpublic willingness to sentence juvenileoffenders with harsher punishments, includingthe death penalty. Successive revisions to theJuvenile Law have become punitive for youngoffenders at the same time as their offendinghas plummeted. While these changes have beenopposed by many Japanese academics (eg,Saeki, 2008; Maruyama, 2008; Konishi, 2010 a,b; Konishi, 2011), our analysis shows no effecton the proportion of juveniles transferred to theadult courts for trial and sentencing. It isimportant to note that the 2000, 2007, and2014 revisions also strengthened due process

by improving access for juveniles’ lawyers toFamily Court hearings.

Conclusions

Overall, our findings suggest that, empricially,Japanese juvenile justice gives clearprecedence of social welfare over criminalpolicy considerations. Whilst there isincreasingly punitive rhetoric, policy andlegislation for juveniles in Japan, it is not basedon any empirical evidence of increased criminalactivity, indeed, the record shows a dramaticreduction in youth crime. More encouragingly,Family Court sentencers have not changedtheir generally rehabilitative behaviour andthere is no evidence that more juvenileoffenders are being committed to adult courts,despite the continuous lowering of agerestrictions for serious offences since 2000. Allbut the most serious cases continue to be heardand disposed of by the Family Court, most oftenwith a non-justice, or diversionary, outcome.However, whether this results in net widening,labelling and applying middle class values toworking class kids, or in ensuring collectiveresponsibility for juveniles and preventingexclusion, will continue to be debated. Ouranalysis suggests that the Japanese juvenilejustice, unlike Japanese adult justice, favorswelfare over justice outcomes.

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

E l l i s , T .(https://researchportal.port.ac.uk/portal/en/pers o n s / t o m - e l l i s ( 5 3 8 3 5 1 6 1 - 4 4 4 3 - 4 8 d 4 -b44c-85ebb5550e1e).html) & Kyo, A.(2017).Youth Justice in Japan. In M. Tonry(Ed.),Oxford handbook of crime and criminaljustice online Oxford University Press.DOI:10.1093/oxfordhb/9780199935383.013.65(http://dx.doi.org/10.1093/oxfordhb/9780199935383.013.65)

Related articles

APJ | JF 15 | 9 | 2

10

Matthew Carney and David T. Johnson,Will Wrongful Convictions Be a Catalystfor Change in Japanese Criminal Justice?(https://apjjf.org/2015/13/6/David-T.-Johnson/4271.html)

• David T. Johnson, Wrongful Convictions andthe Culture of Denial in Japanese CriminalJ u s t i c e(https://apjjf.org/2015/13/6/David-T.-Johnson/4273.html)

•David T. Johnson, Killing Asahara: What JapanCan Learn about Vict ims and CapitalPunishment from the Execution of an AmericanT e r r o r i s t(https://apjjf.org/-David_T_-Johnson/3832)

Philip Brasor, Lay Judge System and theK a n a e K i j i m a T r i a l(https://apjjf.org/-Philip-Brasor/3757)David T. Johnson, War in a Season ofSlow Revolution: Defense Lawyers andLay Judges in Japanese Criminal Justice(https://apjjf.org/-David_T_-Johnson/3554)David T. Johnson, Capital Punishmentwithout Capital Trials in Japan's LayJ u d g e S y s t e m(https://apjjf.org/-David_T_-Johnson/3461)Lawrence Repeta, Transfer of Power atJ a p a n ' s J u s t i c e M i n i s t r y(https://apjjf.org/-Lawrence-Repeta/3244)David T. Johnson and Franklin E.Zimring, Death Penalty Lessons fromA s i a(https://apjjf.org/-Franklin_E_-Zimring/3228)Mark Levin and Virginia Tice, Japan'sNew Citizen Judges: How SecrecyI m p e r i l s J u d i c i a l R e f o r m(https://apjjf.org/-Virginia-Tice/3141)

References

Aldous, C., and Leishman, F. (2000). EnigmaVariations: Reassessing the Koban. NissanOccasional Paper No. 31. Oxford: NissanInstitute of Japanese Studies.

Bayley, D. H. (1991). Forces of Order: PolicingModern Japan. Berkeley, CA: University ofCalifornia Press.

Braithwaite, J. (1989). Crime, Shame, andReintegration. Cambridge: CambridgeUniversity Press.

Cabinet Office. (2013). White Paper onC h i l d r e n a n d J u v e n i l e s(http://www8.cao.go.jp/youth/whitepaper/h25honpen/b1_04_02.html).

内閣府『平成24年版子ども・若者白書』(2012).(Cabinet Office. (2012). The 2012 White Papero n C h i l d r e n a n d Y o u n g P e o p l e(http://www8.cao.go.jp/youth/english/whitepaper/pdf/2012abridged.pdf)—abridged edition onlyavailable in English.)

Dale, P. (1988). “The Myth of JapaneseUniqueness Revisited.” Nissan OccasionalPaper Series, No. 9. Oxford: Nissan Institute ofJapanese Studies.

Dünkel, F. (2015). “Juvenile Justice and CrimePolicy in Europe”. In Juvenile Justice in GlobalPerspective, edited by F. E. Zimring, M.Langer, and D. S. Tanenhaus (pp. 9–62). NewYork: New York University Press.

Dünkel, F., and Pruin, I. (2012). “Young AdultOffenders in Juvenile and Criminal Justice inEurope.” In Young Adult Offenders: Lost inTransition? edited by F. Lösel, A. Bottoms, andD. Farrington (pp. 11–38). Milton Park,Abington, New York: Routledge.

Ellis, T., and Hamai, K. (2017). Homicide inJapan. In Handbook on Homicide, edited by F.Brookman, E. R. Maguire and M. Maguire.Hoboken, NJ/Oxford: Wiley-Blackwell. pp.388-411.

Ellis, T., Lewis, C., and Sato M. (2011). “TheJapanese Probation Service: A Third SectorTemplate?” Probation Journal 58(4): 333–344.

APJ | JF 15 | 9 | 2

11

Ellis, T., Lewis, C., Hamai, K., and WilliamsonT. (2008). “Japanese Community Policing underthe Microscope.” In The Handbook ofKnowledge Based Pol ic ing: CurrentConceptions and Future Directions, edited byT. Williamson. Chichester, England: Wiley.

Gottfredson, M. R., and Hirschi, T. (1990). AGeneral Theory of Crime. Palo Alto, CA:Stanford University Press.

Hamai, K., and T. Ellis (2006). “Crime andCriminal Justice in Modern Japan: FromReintegrative Shaming to Popular Punitivism”International Journal of the Sociology of Law34(3): 157–178.

Hamai, K., and Ellis, T. (2008a). “JapaneseCriminal Justice: Was Re-integrative Shaming aChimera?” Punishment and Society 10: 25–46.

Hamai, K., and Ellis, T. (2008b). “Genbatsuka:Growing Penal Populism and the Changing Roleof Public Prosecutors in Japan.” JapaneseJournal of Sociological Criminology. 33: 67–91.

Hanzai Kakusho (2009). Hesei 21 ban HanzaiHakusho (Heisei 21, White Papers on Crime)Tokyo: zaimusho insatsu hakko.

廣瀬健二『子どもの法律入門〔改訂版〕：臨床実務家のための少年法手引き』（金剛出版，2013年） (Hirose, K. (2013). Introduction toYouth Justice (revised ed.). Tokyo: KongoPublications.)

田宮裕・廣瀬健二（編）『注釈少年法〔第3版〕』（有斐閣，2009年） (Hirose, K. and Tamiya H.(eds.) (2009). Juvenile Law Annotated (3rd ed.).Tokyo: Yuhikaku).

Japan Times. (2015). Diet Enacts Law LoweringVoting Age to 18 from 20. June 17, 2015.http://www.japantimes.co.jp/news/2015/06/17/national/politics-

Johnson, D. T. (2006). “The Vanishing Killer:Japan’s Postwar Homicide Decline.” SocialScience Japan Journal 9(1): 73–90.

Kai, K. (2010). “Juvenile Criminal Responsibilityand Punishment in Japan. First Workshop onContemporary Aspects of Youth Criminality(Summary).” Fukuoka, Seinangakuin UniversityApril 18–19, 2009. Waseda Bulletin ofComparative Law 29: 1–6.

川出敏裕『少年法』（有斐閣，2 0 1 5年）(Kawaide, T. (2015). Juvenile Law. Tokyo:Yuhikaku).

Komiya, N. (1999). “A Cultural Study of theLow Crime Rate in Japan.” British Journal ofCriminology 39: 369–390.

小西暁和「『非行少年』と責任能力（１）」早稲田法学85巻2号（2010）51頁 (Konishi, T.(2010a) ‘“Juvenile Delinquent” and CriminalResponsibility (1)’, Waseda Law Review 85 (2)[in Japanese] [pp. 51–68]).

小西暁和「『非行少年』と責任能力（２）」早稲田法学85巻4号（2010）1頁 (Konishi, T.(2010b) ‘“Juvenile Delinquent” and CriminalResponsibility (2)’, Waseda Law Review 85 (4)[in Japanese] [pp. 1–28]).

小西暁和「『非行少年』と責任能力（３）」早稲田法学86巻4号（2011）99頁 (Konishi, T.(2011) ‘“Juvenile Delinquent” and CriminalResponsibility (3)’, Waseda Law Review 86 (4)[in Japanese] [pp. 99–125]).

Leishman, F. (1999). “Policing in Japan: EastAsian Archetype?” In R. I. Mawby, PolicingAcross the World: Issues for the Twenty-firstCentury (pp. 109–125). London: UCL Press.

Leonardsen, D. (2010). Crime in Japan:Paradise Lost? Basingstoke: PalgraveMacmillan.

Maeda, M. (2003). Nihon no Chian wa SaiseiDekiru ka (Can Japan Revive Public Order?).Tokyo: Chikuma Shinsho.

法務省法務総合研究所編『犯罪白書』平成17年～26年版の資料「少年保護事件 家庭裁判所終局処理人員」による . (Min is t ry o f Jus t ice .

APJ | JF 15 | 9 | 2

12

(2005–2014). White Paper on Crime, compiledf r o m e a c h y e a r(http://hakusyo1.moj.go.jp/jp/nendo_nfm.html).Appendix (Table), Number of juvenilesconclusively disposed in family courts forjuveni le protect ion cases by type ofdelinquency and type of disposition.)

法務省法務総合研究所編『平成23年版犯罪白書』(2011). (Ministry of Justice, (2011). WhiteP a p e r o n C r i m e , P a r t 3 , C h a p t e r 1(http://hakusyo1.moj.go.jp/en/60/nfm/mokuji.html).)

法務省法務総合研究所編『平成24年版犯罪白書』(2012). (Ministry of Justice, (2012). WhitePaper on Crime, Part 3, Chapter 2, Section, 3/2(http://hakusyo1.moj.go.jp/en/61/nfm/n_61_2_3_2_3_2.html).)

法務省法務総合研究所編『平成25年版犯罪白書』(2013). (Ministry of Justice, (2013). WhitePaper on Crime, Part 1, Chapter 1, Section 2/2,F i g u r e 1 - 1 - 2 - 3(http://hakusyo1.moj.go.jp/en/62/nfm/n_62_2_1_1_2_2.html#fig_1_1_2_3))

法務省法務総合研究所編『平成26年版犯罪白書』(2014a). 資料3-7 家庭裁判所終局処理人員（ぐ犯の態様別） (Ministry of Justice. (2014a).White Paper on Crime, Appendix (Table) 3-7(http://hakusyo1.moj.go.jp/jp/61/nfm/mokuji.html). Number of pre-delinquents conclusivelydisposed in family courts by type of pre-delinquency)

法務省法務総合研究所編『平成26年版犯罪白書』(2014b). 第3編第2章第1節2「家庭裁判所における手続の流れ」 (Ministry of Justice. (2014b).White Paper on Crime, Part 3/Chapter2/Section 1/2: Procedure in family courts.)

丸山雅夫「少年法における保護処分と責任要件」中谷陽二ほか（編）『精神科医療と法』（弘文堂，2008年）85頁 (Maruyama, M. (2008)‘Family Court Disposition and Requirement ofResponsibility in Juvenile Law.’ In Y. Nakatani(Ed) Psychiatry and Law [in Japanese only]

Tokyo: Kobundo Press: pp. 85–103).

少年警察活動規則 (平成14年9月27日国家公安委員会規則第20号） (National Police Agency.(2002). Rules of Police Activity againstJ u v e n i l e s(http://law.e-gov.go.jp/htmldata/H14/H14F30301000020.html). Tokyo: National Police Agency[available only in Japanese].)

警察庁「不良行為少年の補導について」（警察庁丙少発第33号, 平成20年10月17日） (NationalPolice Agency. (2008). On the Police Guidancefor Pre-Delinquency Status Offences(https://www.npa.go.jp/pdc/notification/seian/shounen/shounen20081017.pdf). Tokyo: NationalPolice Agency [available only in Japanese])

警察庁（2015年）少年非行情勢（平成26年1～12月） (National Police Agency. (2015). State ofJ u v e n i l e D e l i n q u e n c y i n 2 0 1 4(https://www.npa.go.jp/safetylife/syonen/hikoujousei/H26.pdf). [available in Japanese only,accessed 21/03/2016]).

Nawa, S. (2006). “Postwar Fourth Wave ofJuvenile Delinquency and Task of JuvenileP o l i c e .(http://www.npa.go.jp/english/seisaku3/20060424.pdf)” Journal of Police Science 58(1).Reproduced in Current Juvenile Police Policy inJapan, edited by Police Policy Research CenterNational Police Academy of Japan. Tokyo:Research Foundation for Safe Society.

佐伯仁志「少年法における責任能力」中谷陽二ほか（編）『精神科医療と法』（弘文堂，2008年）63頁 (Saeki , H. (2008) ‘Cr iminalResponsibility in Juvenile Law.’ In Y. Nakatani(Ed) Psychiatry and Law [in Japanese only]Tokyo: Kobundo Press: pp. 63–83).

Schwertfeger, A., and Zimring, F. (2013). “‘TheKid Is a Criminal’ v. ‘The Criminal Is a Kid’:Cultural Impacts on Juvenile Justice in theU n i t e d S t a t e s a n d J a p a n .(http://legalstudies.berkeley.edu/files/2013/07/Alexandra-Schwertfeger-Sp13.pdf)” University

APJ | JF 15 | 9 | 2

13

of California, Berkeley Department of LegalStudies Honors Thesis, Spring 2013.

Seishonen Hakusho (2009). Heisei 21 nen banSeishonen Hakusho (Heisei 21, White Paperson Youth) Tokyo: zaimusho insatsu kyko hakko.

Sugimoto, Y. (2003). An Introduction toJapanese Society (2nd ed.). Cambridge:Cambridge University Press.

Vito, G. F., and Kunselman, J. C. (2011).Juvenile Justice Today. Upper Saddle River, NJ:Prentice Hall.

Yoder, R. S. (2011). Deviance and Inequality inJapan: Japanese Youth and Foreign Migrants.Bristol: Policy Press.

Yoshinaka, N. (2010). “Recent Changes inYouth Justice in Japan.” Hiroshima Hongaku33(4): 27–32

(http://www.port.ac.uk/institute-of-criminal-justice-studies/staff/mr-tom-ellis.html)Tom Ellis(http://www.port.ac.uk/institute-of-criminal-justice-studies/staff/mr-tom-ellis.html) isPrincipal lecturer and researcher in the Institute of Criminal Justice Studies, University ofPortsmouth, UK. He is an editor of the journal Crime Prevention and Community Safety and ofthe Internet Journal of Criminology. He has published extensively on all aspects of Japanesecriminal justice and recently on agroterrorism in S. Korea. He can be reached ontom.ellis@port.ac.uk (https://apjjf.org/mailto:tom.ellis@port.ac.uk)

Akira Kyo is professor of Criminal Justice at Kwansei Gakuin University, Nishinomiya, Japan.He publications include research on vulnerable witnesses and offenders. He can be reachedon akira.kyo@kwansei.ac.jp (https://apjjf.org/mailto:akira.kyo@kwansei.ac.jp)

Notes1 Sources: National Police Agency, White Paper on Police, 2014(https://www.npa.go.jp/hakusyo/h26/honbun/index.html) [available in Japanese only] Ministryof Justice, White Paper on Crime, 2014 (http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html)[available in Japanese only].2 See Ministry of Justice (2013) White paper on crime Part3/Chapter1/Section1/1(http://hakusyo1.moj.go.jp/en/62/nfm/n_62_2_3_1_1_1.html)3 White Paper on Youth.4 See here(http://www.japaneselawtranslation.go.jp/law/detail/?id=11&vm=04&re=01&new=1)5 Often referred to as “Family Court research law clerk” in official Japanese documents inEnglish.6 At this point, it is very important to be aware that Japanese criminal justice statistics in theannual White Papers are compiled in an esoteric way, which can easily lead tomiscalculations. This is generally because the published column totals are often higher thanthe sum of the individual subtotals in those columns. The reason for this is difficult to find, butis due to the kanisochi figures. One place this is clarified is in Appendix 3-10 “Number of

APJ | JF 15 | 9 | 2

14

juveniles conclusively disposed in family courts for juvenile protection cases by type ofdelinquency and type of disposition (2013)(http://hakusyo1.moj.go.jp/jp/61/nfm/gmokuji.html)” of the White Paper on Crime (2014).[available only in Japanese]. Here, it states that the differences between such totals are due tothe exclusion of cases from the subtotals that involve juveniles for penal code offenses,special act offenses, and pre-delinquency offences referred directly to family courts by police.However, they are included in the final totals of the tables. The upshot of this arcaneprocedure is that once aware of it, it allows the reader to calculate just how many of thesecases there are, which is how we derived our figure of 22,565. To complicate matters further,another set of figures is commonly referenced from judicial statistics(http://www.courts.go.jp/app/files/toukei/193/007193.pdf) [available only in Japanese], whichhave a slightly different total of 22,649 (i.e., 84 more). We have used only the White Paper(2014) figures throughout to maintain consistency.7 See Note 2 of Table 3-15 referred to earlier.