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Restorative justice in japan

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For more of my thoughts on RJ, please visit
https://sites.google.com/site/shirokashimura/Home/rj
(Containing notes and bibliographies of RJ, focusing on its roots in the period of 1940-60 and on developments/introduction of it in Japan since 1970s.)

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Restorative justice in japan

  1. 1. Current States of Restorative Justice in Japan Shiro Kashimura (Kobe University, Japan) 16th World Cngress of International Society for Criminology August 7, 2011 Kobe, Japan
  2. 2. IntroductionThis paper has three aims:(1) to briefly describe the process of the introduction of restorativejustice into Japan in the last 20 years, that is 1990 - 2010.(2) to briefly describe 2 cases of the deliberate introduction ofrestorative justice into Japanese criminal justicesystem, and(3) to briefly discuss the relationship among traditional practice ofprivate compensation/apology (called “jidan”), the "culture ofrestoration," and the theory and practice of restorative justice inJapan. 1/15
  3. 3. The Introduction of RJ Theories to Japan: The BeginningSeveral articles began to discuss the idea that restoration oughtto be one of the purposes of the criminal justice system in1990’s (Yoshida 1995, Takahashi 1992). These represent thefirst scholarly discussions about RJ in Japan.Yoshida (1995) , the second of a series of some 30 articles, thatwas completed in 2005, was inspired by his attending aconference on restitution in criminal justice in Germany, and byhis involvement in victimology. 2/15
  4. 4. The Introduction of RJ Theories to Japan: (1) Special Issues of JournalsIt was after the year of 2000 that a large number of articlesdiscussing Restorative Justice began to appear in Japan. -Major journals in the relevant fields have published special issues on the subject. Ho to Minshushugi (Law and Democracy)(2000 ) Keiho Zasshi (Journal of Criminal Law) (2001, 2002) Gendai Keijiho (Modern Criminal Law) (2002) Jiyu to Seigi (Freedom and Justice) (2002) Shiho Hukushigaku Kenkyu (Journal for the Study of Legal Welfare) (2006) Jiyu to Seigi (2010) 3/15
  5. 5. The Introduction of RJ Theories to Japan (2) Scholary ArticlesTable 1 shows that major increase of scholary interests in RJ happenedaround 2000. The discussion on juvenile justice reform that waseffected in 2001 was a mjor stimulus for the rise in interest: RJ wasexpected to suggest an alternative to "zero-tolerance" policy in thelegislative debate. Table 1: Number of Articles on Restorative Justice* 1990- 1996- 2001- 2005- Years 1995 2000 2004 2010 Number of 1 23 145 115 Articles * Articles whose title includes “restoratiive justice”,or some other related words are counted. (Source: National Diet Library) 4/15
  6. 6. The Introduction of RJ Theories to Japan: (3) Books on RJSome fundamental RJ books are translated and punlished after 2000,Please look at this paper’s Appendix: A Selective Chronological List ofBooks on RJ Published in Japan, for details.They include,- a Report of practices in New Zealand, Consedine & Bowen (1999 ),- Howard Zehrs "Changing Lenses (2nd edition)" in 2003,- A collection of John Braithwaites articles on RJ (Braithwaite 2008).and more. 5/15
  7. 7. The Introduction of RJ Theories to Japan: (4) CriticismsThere are some critics of RJ. Nagai (2004: 282-283) argues that thecircumstances of victims are not properly understood and thattherefore it is premature to introduce RJ into the Japanese CJ system.Segawa (2005) argues that there is a lack of evidence to demonstratethat RJ is effective and harmless to the participants.Also, for developments of RJ in Japan in a more general of history of RJ,please take a look at another handout: A Brief History of RJ: Focucing onDevelopment of Theory and Practice in Japan, compiled by professorHaruo Nishimura in collaboration with Shiro Kashimura. 6/15
  8. 8. RJ Practices in Japan: Case #1--- Judge Igaki of Kobe Family CourtIn 1997, Yasuhiro Igaki, a judge of the Kobe Family Court who had30 years of experience by that time in the criminal, civil, and familycases, initiated a new procedure which was at least partly based onrestorative ideas (Igaki 2006a, 2006b). His effort focused onoffenders compensating victims for their loss as well as apologizingsincerely.One reason for the judge’s decision to mediate the process ofcompensation and apology was that the offenders who were sent tohis court did not have the opportunity to offer a “jidan” (to apologizeand to compensate their victims for the harm), whereas the offendersin adult cases or in minor juvenile offenses had the opportunity:where, it is worth noting, the possibility of “jidan” exists inconnection with the prosecutor’s or the police’s discretion not toprosecute.) 7/15
  9. 9. RJ Practices in Japan: Case #1--- Judge Igaki of Kobe Family CourtJudge Igaki asked the Family Court Investigator to encourage theoffender and his/her parents to offer compensation and apology to thevictim, and, in some cases, the judge himself made the request incourt.Judge Igaki handled 6,000 cases in this way during his stay in office(1997 to 2005--until his retirement.) In 2001 the judge made thevictim’s father attend the trial and state his views on the case for thefirst time in Japan.He claims to have observed positive effects on all of the participants:“the offender, the victim and the parents on both sides”.After his retirement, however, the practice he initiated was mostlydiscontinued. 8/15
  10. 10. RJ Practices in Japan: Case #2 --- Dr. Ibusuki of Kyoto Medical Reform SchoolIn 2000, Dr. Teruhisa Ibusuki, the director of Kyoto Medical ReformSchool since 1996, made an inmate-offender go and meet andapologize to the relatives of the victim, whom he and his 6 co-offenders had beaten to death. The victim and offenders weremembers of the same motocycle gang at the time of offense (Ibusuki2001, 2006).In that case the offenders family and the victims family had reached acompensation agreement (jidan), the provisions of which included theoffender is obliged to pay a visit the victim’s grave at least once ayear. Dr.Ibusuki learned that and saw a possibility for direct apology:For that “jidan” was reached supposedly mean that (1) there remainedno usolved civil dispute, and (2) the victims side may tolerate theoffender tovisit their home to pray and apologize for the victim. 9/15
  11. 11. RJ Practices in Japan: Case #2 --- Dr. Ibusuki of Kyoto Medical Reform SchoolDr. Ibusuki asked the offenders father to obtain the permission, so avisit was made by the offender, his father, the rehabilitation worker,and Dr. Ibusuki himself.The father of the victim did not respond much and the mother did notcome out to see the offender. However, other relatives met theoffender and even a few favorable words were exchanged. Thevictim’s grandmothers words so impressed the offender that he cried,Dr. Ibusuki observed.This type of practice seems to be motivated by a directive issued bythe director of the Corrections Bureau in the Ministry of Justice inSeptember 2000, requesting that corrective institutions initiatecorrective education programs based on victims perspectives. 10/15
  12. 12. Private Compensation/Apology (Jidan), Culture and Criminal Justice in JapanThe RJ practices in Japan (for a more detailed and comprehensive list of practicesand theories, see, A Brief History of RJ in Japan) we observed indicate, amongother things, the influence of, and interplay between, informal culturesand the deliberate introductory practices of RJ. So, some observersargue that there has been a culture favorable to restorative treatment ofcrime in Japan. They tend to see the practice of "jidan" as a form of RJpractice: For example, John Haley argues: Mediation is a normal aspect of daily life. Those in a position of authority or influence have been expected to act as go-betweens or intermediaries in the settlement of disputes. Negotiating the restitution for victims of crime may be a more serious and onerous task; Nontheless, it is one many persons are expected to undertake on behalf of victims with close family, community, or friendship ties. The restorative model and all of its essential elements have thus fit quite naturally within the Japanese cultural and institutional matrix. 11/15 (Haley 1998:856)
  13. 13. Private Compensation/Apology (Jidan), Culture and Criminal Justice in JapanIt is no doubt that the practice of “jidan” has been an essential elementof Japanese legal culture.However, this type of practice is not universally adopted amongJapanese legal profession: an empirical study of the practices of locallawyers in Sapporo found that the rates of lawyers in Sapporo whotook the effort of mediating "jidan" were 36% in publicly assignedcases, 50% in cases contracted privately after prosecution, and 73% incases privately contracted before the prosecution (Murayama1996:175-176).So, we may see that the lawyers’ eagerness to mediate "jidan"increases as their expectation of success (of getting lenient officialdecision, and the amount of expected fees) increases. 12/15
  14. 14. Private Compensation/Apology (Jidan), Culture and Criminal Justice in JapanAlso, it is clear that the values of restoration, or something like that,are held by prosecutors, judges, or other officials.However, it is also apparent that restorative ideals in the modern sense(as was discussed in the literature cited in the ealier section) are inmany ways taken to be different from, or even be alien to, theaccepted legal practice, including "jidan" in Japan."Jidan" ordinarily is not conducted by the presiding judges except incivil cases, so that in criminal cases, judges like Igaki had to ask forthe collaboration of lawyers or other officers in order to get consentfrom the parties involved: Mediating “jidan” is not regarded as theproper task for the court of law. 13/15
  15. 15. Private Compensation/Apology (Jidan), Culture and Criminal Justice in JapanI cannot go into any detailed analysis of what is new to Japan in RJpractices, as opposed to what is merely an extension of a traditionalcultural preference for the restoration of peace and harmony insociety.I only suggest there are three reasons to cast a doubt on the argumentthat “jidan” is a valid manifestation of RJ (see Yoshida 2003 for otherpoints of consideration).(1) Traditional social consciousness (e.g. Kawashima 1967) containsthe strong sense of hiararchy or "mibun" (status) among members ofsociety. Some aspect of “jidan” seems to be mere extentions of thetraditional status-oriented consciousness, whereas the morality of RJis thought to be something new and different. 14/15
  16. 16. Private Compensation/Apology (Jidan), Culture and Criminal Justice in Japan(2) The argument of a "dual" system of informal ("jidan" ) and formalsystem (Haley 1989) seems to assume that people are free to choosebetween the two. However, in actuality, people are not free but ratherforced to select the informal alternative, of “jidan” over formalsystem, only because to do so is less costly and socially sanctioned tochoose, even against their personal preference.(3) The experience of the victims of crimes in Japan indicates that thesocietal reaction to victims such as exclusion from informal ties orfriendships is a major secondary damages caused by crime. This ispart of the reason why victims want to have a voice in the officialsystem of criminal trials. Any RJ arrangements should not ignore theneeds of social vindication and the protection of other legitimateneeds of victims either, whereas "jidan", as far as it is practiced as it isinformally, seems to fail to meet this particular need of the victims. 15/15
  17. 17. ReferencesBraithwaite, John 2008 Shufukuteki Shiho no Sekai (The Universe of Restorative Justice) . Editedand translated by Hosoi Yoko el al. Tokyo: Seibundo.Consedine, Jim & Helen Bowen 2001 Shufukuteki Shiho: Gendaiteki Kadai to Jissen.(RestorativeJustice: Contemporary Themes and Practice) (Translation of Restorative Justice:ContemporaryThemes And Practice 1999) Translated by Maeno Ikuzo & Takahashi Sadahio. Nishinomiya:Kwansei Gakuin Daigaku Shuppankai.Haley, John O. 1989 “Confession, Repentance and Absolution”, in Martin Wright and BurtGalaway eds. Mediation and Criminal Justice: Victims, Offenders and Community, pp. 195 - 211.Haley, John O. 1998 "Apology and Pardon: Learning From Japan", American Behavioral Scientist41:842-867.Ho to Minshushugi 2000 "Tokushu: Meiso suru Shonen Ho Kaisei Rongi wo Koete: Genbatsukayori Shufukuteki Shiho he (Special Issue: Beyond the Impasse on "Reform" of Juvenile Act: Nota Hard-way But Restorative Justice)" Ho to Minshushugi 352:3-27.Hosoi, Yoko et al. 2006 Shufukuteki Shiho no Sogo Kenkyu: Keibatsu o Koe Aratana Seigi oMotomete (A Comprehensive Study on Restorative Justice: Beyond Penalty in Search of NewJustice). Tokyo: Kazama Shobo.
  18. 18. ReferencesIgaki, Yasuhiro 2006a “Shonen Shinpan to Shufukuteki Shiho: Shinpan no Jirei o Chushin ni(Juvenile Justice and Restorative Justice: Focusing on examples of juvenile trial),” in In Hosoiet al. 2006: 176-188.Igaki, Yasuhiro 2006b Shonen Saibankan Nooto (A notebook of Juvenile Court Judge). Tokyo:Nihon Hyoron Sha.Ibusuki, Teruhisa 2001 "Shokuzai no Jissen Rei (An Example of Practice of Redemption)"Osaka Katei Shonen Tomo no Kai Kaiho 45:4-5.Ibusuki Teruhisa 2006 "Shonen Kyosei to Shufukuteki Shiho (Juvenile Correction andRestorative Justice)" In Hosoi et al. 2006: 189-197.Jiyu to Seigi 2010 "Tokushu: Shufukuteki Shiho no Kanosei: Higaisha Kagaisha Taiwa karaKomyunitei no Saisei e (Special Issue: The Possibilities of Restorative Justice: From Victim-Offender-Dialogue to Resurgence of Community" Jiyu to Seigi 61(9): 9-43.Johnson, David T. 2001 The Japanese Way of Justice: Prosecuting Crime in Japan. OxfordUniversity Press, U.S.A. (Translated into Japanese as David T. Johnson, Amerika-jin no MitaNihon no Kensatsu Seido: Nichibei no Hikaku Kosatsu (Japanese Prosecution System as anAmerican Saw It: A Comparative Discussion) . Translated by Mitsuya Okubo. Springer-Verlag,Japan, 2004.)
  19. 19. ReferencesKawashima, Takeyoshi 1967 Nihonjin no Ho Ishiki (Legal Consciousness of Japanese). Tokyo:Iwanami Shoten.Keiho Zasshi 2002 "Tokushu: Keiho no Mokuteki to Shufukuteki Shiho no Kanosei (SpecialIssue: The Possibilities of Restorative Justice and the Purposes of Criminal Law)" KeihoZasshi 41(2):218-263.Kobayashi, Juichi 2010 "Keisatsu to Shufukuteki Shiho: Shonen Taiwa Kai no Torikumi oKangaeru (The Police and Restorative Justice: Thinking the Practice of Juvenile RestorativeConference)" In Hosoi, Yoko et al. Shufukuteki Seigi no Kyo Asu: Koki Modanitei ni okeruAtarashii Ningen Kan no Kanosei. Tokyo: Seibundo: 130-151.Maeno, Ikuzo 2001 “Shufukuteki Shiho ni tuite (On Restorative Justice)” Keiho Zasshi 40(2):222-231.Moriyama, Tadashi & Haruo Nishimura 1999 Hanzaigaku e no Shotai (Introduction toCriminology). Tokyo: Nihonhyoronsha.Murayama, Masayuki 1996 “Horitsu Gyomu no Shakai Soshiki to Keiji Bengo: Sapporo/Aomori Chosa kara (Social Organisation of Legal Practice and Defending in Criminal Cases:A Discussion Based on the Survey in Sapporo and Aomori)”, Chiba Daigaku Hogaku Ronshu10(3): 161-312.
  20. 20. ReferencesNagai, Susumu 2004 Hanzai Higaisha no Shinri to Shien (The Psychology of Victims of Crimeand Their Support). Kyoto: Nakanishiya Shuppan.Segawa, Akira 2005 "Shufukuteki Shiro (Restorative Justice) Ron no Konmei (WanderingDiscussion on Restorative Justice)" Doshisha Hogaku 56(6): 2053-7612.Takahashi, Norio 1992 "Keiho ni okeru Songai Kaifuku Ron: KeihoRironteki=Kaishakuronteki Apuroochi (Theory of Restitution in Criminal Law: Theoreticaland Interpretive Approaches" Keiho Zasshi 32(3): 343-367.Yoshida, Toshio 1995 "Hoteki Heiwa no Kaifuku (Restoration of Legal Peace) (2)" HogakuKenkyu 31(1): 1-32.Yoshida, Toshio 2003 "Confession, Apology, Repentance and Settlement Out-of-court in theJapanese Criminal Justice System -- Is Japan a Model of Restorative Justice? In, ElmarWeitekamp and Hans-Jurgen Kerner, eds. Restorative Justice in Context: International Practiceand Directions.Devon, UK and Portland Oregon: Willan Publishing.173-196.Zehr, Howard 2003 Shufukuteki Shiho to wa Nanika (What is Restorative Justice?)(translation of Changing Lenses. Herald Press, 1995). Translated by Haruo Nishimura et al.Tokyo: Shinsensha.

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