Myths of restorative features in the Japanese justice system and society: the role of apology, compensation and confession, and application of reintegrative shaming

ABSTRACT

Restorative justice (RJ) has experienced rapid growth. Along with its development, myths about RJ have emerged. Although several scholars have challenged these, two myths about restorative features in the Japanese justice system and society—(1) the role of apology, compensation and confession; and (2) the application of reintegrative shaming—arguably remain pervasive. In this paper, we aim to advance a critical analysis of these two ostensibly restorative features of the Japanese justice system and society. We argue that the reality is more nuanced. We conclude by analysing why these myths have emerged and what functions they have performed.

KEYWORDS:

• Restorative justice
• Japan
• criminal justice
• apology
• reintegrative shaming

Acknowledgements

We would like to thank Professor Kathleen Daly and Navin Kumar for their valuable comments and suggestions on the early draft of this paper.

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Masahiro Suzuki http://orcid.org/0000-0002-7925-2141

Notes

1 The mainstream victim movement in Japan, supported by scholars who advocate victims’ rights and support such as Morosawa (1976, 2012), conservative politicians and judges, and justice agencies such as the Ministry of Justice and the National Police Agency, is arguably punitive and retributive. For example, it does not only not allow proposals to promote offender rehabilitation but also opposes the RJ movement. However, it is important to mention that other victims, such as Katayama (2003, 2014), feel the potential of RJ as one of criminal resolutions for victim healing, though such an opinion is in the minority in Japan and less likely to be reflected in the actual policy.

2 The first track is the formal criminal justice procedure where law enforcement authorities, such as police and a prosecutor, play main roles as in the West; the second track is also a part of this formal process, but it becomes more informal in that offenders and victims can play more active roles and criminal cases can be resolved between them. According to Haley (1989: 195), ‘there is no Western analogue’ to this second track in Japan.

3 Removing such a condition is currently subject to legislative debate.

4 To address the problem during interrogations, video recording of suspect interviews has been partially tested in practice (Wachi, Watanabe, Yokota, Otsuka & Lamb, 2016).

5 Braithwaite later developed his original theory into a theory of shame management that incorporates individual differences in response to shame (Ahmed, Harris, Braithwaite & Braithwaite, 2001). However, scholars continue to relate reintegrative shaming to Japan (Condon, 2010; Five et al., 2013; Kim & Gerber, 2010; Sakiyama et al., 2011). In this section, we therefore focus on his original theory of reintegrative shaming.

6 To be fair, Braithwaite (2012: 309) also noted that ‘there may be other reasons as well, as argued elsewhere’.

7 These newspaper articles (in Japanese) can be accessed at http://database.Asahi.com/ (accessed 16 June 2016).

8 Another evidence for non-restorative attitudes in the Japanese public might be the small case number of RJ practices operated by a NPO. Perhaps the most famous RJ implementation in Japan is the one by one NPO, Taiwa no Kai (http://www.taiwanokai.org/index.html, in Japanese). This NPO has been providing RJ services outside the formal criminal justice system for victims and offenders who demand an RJ process. However, while this NPO has been practising RJ for over a decade, the total case number that finally reached face-to-face dialogue between victims and offenders is still quite small (n = 31) thus far (Yamada, 2016). While this small case number can be attributed to a low level of awareness in the public, it can also mean that the Japanese public may not be as restorative as argued in the literature because they may be reluctant to participate in RJ given the fact that this NPO has been struggling to attract cases.

9 Hamai and Ellis (2006, 2008b) argued that since the public punitive attitude is now reflected in sentencing trends, it raises doubt about the applicability of reintegrative shaming in Japan. However, Herber (2014) argued the opposite in terms of punitiveness in sentencing, because there has been no significant change in the diversionary practices. As Hamai and Ellis (2006) admitted, punitiveness in sentencing can be affected by various factors including the practices of law enforcement authorities (at the institutional level), such as how police deal with crimes and how prosecutors and judges handle criminal justice procedures. Since our focus here is to discuss the applicability of reintegrative shaming at the societal level, we do not go into the discussion about punitiveness in sentencing (for further discussions on this topic, see also Ishizuka, 2014; Miyazawa, 2008).