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MIGRATION,
PALGRAVE ADVANCES IN CRIMINOLOGY
AND CRIMINAL
DIASPORAS JUSTICE
AND IN ASIA
CITIZENSHIP

Japan’s Prosecution
Review Commission
On the Democratic
Oversight of Decisions
Not To Charge
David T. Johnson
Palgrave Advances in Criminology and Criminal
Justice in Asia

Series Editors
Bill Hebenton, Criminology & Criminal Justice, University
of Manchester, Manchester, UK
Susyan Jou, School of Criminology, National Taipei
University, Taipei, Taiwan
Lennon Y. C. Chang, School of Social Sciences, Monash
University, Melbourne, Australia
This bold and innovative series provides a much needed intellectual space
for global scholars to showcase criminological scholarship in and on Asia.
Reflecting upon the broad variety of methodological traditions in Asia,
the series aims to create a greater multi-directional, cross-national under-
standing between Eastern and Western scholars and enhance the field
of comparative criminology. The series welcomes contributions across all
aspects of criminology and criminal justice as well as interdisciplinary
studies in sociology, law, crime science and psychology, which cover the
wider Asia region including China, Hong Kong, India, Japan, Korea,
Macao, Malaysia, Pakistan, Singapore, Taiwan, Thailand and Vietnam.
 David T. Johnson

Japan’s Prosecution
Review Commission
On the Democratic Oversight
of Decisions Not To Charge
David T. Johnson
University of Hawaii at Manoa
Honolulu, HI, USA

Palgrave Advances in Criminology and Criminal Justice in Asia

ISBN 978-3-031-19372-9 ISBN 978-3-031-19373-6 (eBook)
https://doi.org/10.1007/978-3-031-19373-6

Revised and expanded version of “Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka” [copyright
David T. Johnson, Mari Hirayama, and Hiroshi Fukurai], published by Iwanami Shinsho in Tokyo,
2022. All rights reserved.
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
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Cover credit: © Steve Cavalier/Alamy Stock Photo

This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland
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The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
 Preface

Japan’s Prosecution Review Commission is unique in the world. It was

created as the result of compromise between Japanese and American offi-
cials during the postwar occupation. The main mission of this panel of
11 citizens is to review non-charge decisions made by professional prose-
cutors and to determine which cases should be reinvestigated or charged.
PRCs are also authorized to provide prosecutors with general proposals
and recommendations for improving their policies and practices. These
are important tasks, for the prosecutor has more control over life, liberty,
and reputation than other person.
The PRC is less well-known than the lay judge system, which is
another form of lay participation in Japanese criminal justice. But the
PRC may be more significant because prosecutors are the key gatekeepers
in Japanese criminal justice, and because the PRC can review non-charge
decisions for all kinds of crime.
The main aims of this book are to explain why PRCs are important,
how they operate, and what their impacts are. When I started studying
this subject a decade ago I believed what many observers claimed, that
the PRC is an interesting but inconsequential ornament in Japanese

v
vi Preface

criminal justice. But as the research progressed I came to understand

the important functions that PRCs perform, and I also came to see the
potential these panels have for improving the quality of criminal justice
in Japan and other countries, where victims, deterrence, and democracy
are not well served by prosecution practices that frequently fail to hold
sex offenders, white-collar-criminals, and other lawbreakers accountable.
This research shows that PRCs have several significant impacts. In
most cases they ratify prosecutors’ non-charge decisions and thereby help
to legitimate Japanese criminal justice. Some will criticize this as “conser-
vative” because it reinforces the status quo, but law without legitimacy is
raw power, and it is seldom popular or effective.
PRCs also challenge and change prosecutors’ decisions. When a PRC
kicks back a case with a recommendation to reinvestigate or charge, pros-
ecutors change their non-charge decision to charge about one-quarter of
the time. There is room for debate about whether this rate should be
higher (or lower), but the evidence does not support claims that PRCs
have little influence on prosecutors in Japan.
PRCs also shape prosecutorial decision-making preemptively. This is
hard to measure, but it is probably the most important PRC impact. It
occurs when prosecutors operating in the shadow of the PRC decide to
charge a case because they want to avoid PRC review and public criti-
cism, and because they want to steer clear of the bureaucratic hassles that
occur inside their organization when a case is kicked back to them for
further review.
All of these impacts—legitimation, kickbacks, and shadow effects—
come from civilian influence on criminal prosecution. Through these
influences, PRCs make criminal prosecution in Japan more democratic,
but they also create risks of over-charging and wrongful conviction,
which are discussed along with suggestions for reforms that might reduce
them.
The most hailed and hated PRC practice is “mandatory prosecution,”
an authority acquired in 2009 when the PRC Law was reformed to
enable a PRC to overrule prosecutors by forcibly filing charges if it
decides twice in the same case that prosecution is appropriate. PRCs
have not used this power as much as supporters of the reform hoped
 Preface vii

or as critics of the reform feared. There were only 10 cases of manda-

tory prosecution in the first 12 years, and most of the public and media
attention directed at PRCs has focused on these cases. The highest profile
case involved the mandatory prosecution of three former executives of
the Tokyo Electric Power Company, for professional negligence leading
to injuries and loss of life from the nuclear meltdown in Fukushima
after the earthquake and tsunami of March 11, 2011. All three of those
defendants were acquitted, as were most of the other people subject to
mandatory prosecution. Some observers believe these not-guilty verdicts
prove that prosecutors were right not to charge—and that PRCs are over-
doing it. This is also the position taken by some Japanese prosecutors.
But just because a case ends in acquittal does not mean the decision
to charge was wrong. The TEPCO investigation and trial actually did
considerable good, by revealing facts that were previously concealed
and denied, and by clarifying important truths about the meltdown at
Fukushima. The TEPCO indictments and other mandatory prosecutions
also illustrate how difficult it is to hold offenders accountable in white-
collar crime cases. Which is to say, this research shows that prosecutors’
non-charge decisions can be checked and controlled, but changing crim-
inal justice practice is (to paraphrase Max Weber) the strong and slow
boring of hard boards.
Prosecution is understudied. I hope this book encourages more
research about the important but neglected subject of decisions not to
charge. If I see a little further than previous analysts, it is because I
have benefited by standing on their shoulders. I also hope this book
enables others to see further yet. If some readers change their minds while
reading it (as I did while writing), all the better.

Honolulu, USA David T. Johnson

 Acknowledgments

I received much help and advice while working on this book, but
two people deserve special thanks for their extraordinary insight and
generosity: Satoru Shinomiya and Takeshi Nishimura, both of whom are
attorneys in Japan. I also am grateful to some Japanese prosecutors whose
names must remain anonymous. They will not agree with everything in
this book but it is better because they cared. More generally, I learned a
lot from path-breaking works on prosecution and democracy by David
Alan Sklansky, Maximo Langer, and the late, great Kenneth Culp Davis.
Carl F. Goodman and Mark D. West wrote seminal studies about Japan’s
Prosecution Review Commission, and I learned many things from them
as well. Thank you all. A shorter version of this book was published in
Japanese by Iwanami Shinsho in 2022 as Kensatsu Shinsakai: Nihon no
Keiji Shiho o Kaeru ka [Will Prosecution Review Commissions Change
Criminal Justice in Japan?], co-authored by Mari Hirayama and Hiroshi
Fukurai. I thank those collaborators and I also thank Iwanami editor
Noriyuki Shimamura for guiding us through that publication process,
and Josie Taylor at Palgrave Macmillan for adroitly managing this one.

ix
 Praise for Japan’s Prosecution Review
Commission

“What is – and what should be – the role of citizens’ preferences in

making prosecution decisions? This fascinating and well documented
book takes Japan as its case study. The country’s high conviction rate
reflects a cautious and conservative charging policy that leaves many
victims of crime feeling abandoned by the prosecutors who are supposed
to be their allies and advocates. By contrast, its Prosecution Review
Commission – the subject of this book – enables citizens to exert some
external accountability on prosecutors for their non-charge decisions.
The book explores the strengths and weaknesses of Japan’s system while
stimulating readers to ask whether other systems of justice have more or
less need of such a body. The findings are interesting and important and
make a significant contribution to studies of Japanese criminal justice
and comparative criminal justice more generally.”
—David Nelken, Dickson Poon Law School, King’s College London, UK

“This book provides unprecedented insight into the complex dynamics

of democracy in a fascinating country where crime rates are low and

xi
xii Praise for Japan’s Prosecution Review Commission

conviction rates high. The focus is Japan’s Prosecution Review Commis-

sion, which is the principal mediator between different visions of democ-
racy and the main actor in that country’s criminal justice system – the
prosecutor. David Johnson takes us skilfully beyond simple explanations
in this clear, balanced, and empirically grounded analysis of an under-
studied institution which asks citizens selected by lottery to check the
non-charge decisions of professional prosecutors. The result is highly
recommended for readers interested in understanding the complexities of
Japanese criminal justice and the relationship between prosecution and
democracy.”
—Dimitri Vanoverbeke, Professor of Law and Society, University of Tokyo,
Japan

“This is the first systematic and comprehensive book on Japan’s Pros-

ecution Review Commission (PRC) written in English in the world.
The PRC was established in the postwar occupation, to enhance democ-
racy in Japanese criminal justice. It is composed of eleven lay people
selected randomly from voter registration lists, and its main mission is
the review of prosecutors’ non-charge decisions. This book explains the
PRC’s history and impacts and identifies lessons for Japan and other
countries that are based on original research that is rich in facts and
analysis. It brilliantly combines scholarly reflections on the PRC with
practical suggestions for making prosecution more democratic. It is a
major achievement.”
—Satoru Shinomiya, Professor of Law, Kokugakuin University, Japan
 Contents

1 Prosecutors and the Prosecution Review Commission 1

The Problems with Prosecutors 9
Power 10
Discretion 11
Misconduct 13
Ideology 14
Accountability 15
Inertia 16
Role Ambiguity 17
Three PRC Frames 19
Victims 20
Impunity 23
Democracy 27
Conclusion 30
2 PRC Origins and Operations 33
Origins 33
The PRC Law of 1948 36
The PRC Reform of 2009 39

xiii
xiv Contents

Operations 46
A Japanese Grand Jury? 53
A Japanese Special Prosecutor? 56
Conclusion 58
3 PRC Impacts 61
A Bird’s-Eye View 63
Kickback Patterns 70
Kickback Effects 75
A Surge of Complaints 84
Conclusion: Legitimation, Kickbacks, and Shadow Effects 89
4 Mandatory Prosecution 91
Akashi Pedestrian Bridge Case 93
JR West Amagasaki Rail Crash Case 96
Okinawa Unlisted Stock Fraud Case 99
Rikuzankai Incident 100
Senkaku Islands Ship Collision Case 104
Tokushima Town Mayor Assault Case 106
Golf Instructor Quasi-Rape Case 108
Judo Student Severe Injury Case 112
Tomei Road Rage Internet Libel Case 115
TEPCO Nuclear Meltdown Case 118
Conclusion 119
5 The TEPCO Prosecutions and Acquittals 123
Prosecutions 128
Trial 135
Shaky Prediction? 139
No Duty to Shut It Down? 140
Absolute Safety Not Required? 142
What If? 143
Reactions to the Acquittals 144
Analysis 148
 Contents xv

Prosecution and Truth 149

Comparisons 151
The Under-Prosecution of White-Collar Crime 156
The Limits of the Criminal Sanction 159
6 Lessons 163
A Failure to Prosecute Rape 164
Lessons 177
It Is Possible to Check Prosecutors’ Non-charge
Decisions 178
Origins 179
Legitimation Effects 179
Kickback Effects 180
Shadow Effects 181
Few Mandatory Prosecutions and Convictions 181
The Challenge of Controlling White-Collar Crime 182
Knowledge Gaps 183
Citizen Satisfaction 184
PRC Dangers 184
Prosecution and Democracy 186
Implications for Other Countries 188
Reform in Japan 192

Index 199
 List of Tables

Table 1.1 Penal Code cases disposed of by prosecutors in Japan,

2019 (% of suspects processed) 3
Table 1.2 Incarceration rates in 25 countries in 2021 (inmates
per 100,000 population) 4
Table 3.1 Cases investigated and proposals & recommendations
by PRCs, 1989–2019 65
Table 3.2 Penal Code suspects investigated by PRCs, by offense,
2019 and 1949–2018 68
Table 3.3 Suspects not charged by prosecutors, by reason, 2020
(with percentages) 70
Table 3.4 PRC dispositions, 1949–2019 71
Table 3.5 Prosecutor disposition after PRC kickbacks,
2001–2019 (number of suspects) 77
Table 3.6 Prosecutor charge rate after PRC kickbacks, 1949–2019 78
Table 3.7 Prosecutor disposition after PRC kickbacks
for suspended prosecution cases, 1997–2019 (number
of suspects) 79
Table 3.8 Prosecutor disposition after PRC kickbacks
for insufficient evidence cases, 2001–2019 (number
of suspects) 80

xvii
xviii List of Tables

Table 3.9 Trial result after cases charged by prosecutors following

PRC kickbacks, 2002–2019 82
Table 4.1 Mandatory prosecutions, 2009–2021 94
 1
Prosecutors and the Prosecution Review
Commission

Prosecutors have tremendous control over life, liberty, and reputation.

They can take your freedom, money, and peace of mind. They may sully
your record and reputation. They can influence your employability and
livelihood. They may take people away from your family and take away
your ability to form a family in the first place. They can make arrests,
conduct investigations, and present evidence at trial. And most funda-
mentally, prosecutors decide whether to file criminal charges. This is
significant because when prosecutors choose cases to charge they are also
choosing defendants. If so inclined, a prosecutor stands a good chance
of finding some violation by almost anyone.
In Japan, prosecutors exercise so much power and discretion that
Japanese criminal justice is often called a system of “prosecutorial
justice” (kensatsu shiho).1 In some respects prosecutors in Japan are even
more powerful than their American counterparts, who are themselves

1Gohara Nobuo, “Japanese ‘Prosecutors’ Justice’ on Trial,” June 15, 2020, at https://www.nip
pon.com/en/in-depth/a06802/.

© The Author(s), under exclusive license to Springer Nature 1

Switzerland AG 2022
D. T. Johnson, Japan’s Prosecution Review Commission,
Palgrave Advances in Criminology and Criminal Justice in Asia,
https://doi.org/10.1007/978-3-031-19373-6_1
2 D. T. Johnson

extremely powerful,2 for unlike prosecutors in the United States, prose-

cutors in Japan routinely conduct investigations and interrogations, and
they can also appeal acquittals. Japanese prosecutors also have almost
monopoly power to make charging decisions, and they may choose not
to file charges in any case, no matter how serious the crime or how
strong the evidence. In contrast, American prosecutors share responsi-
bility for charging decisions with several other actors, including police
(in rural jurisdictions and misdemeanor cases especially), citizens (private
prosecutions remain legal in some American states),3 judges (in prelimi-
nary hearings), and grand juries (which issue indictments). In short, the
powers of Japanese prosecutors are vast.
Prosecutors in Japan tend to exercise their power to charge cautiously,
by following a conservative charging policy which mandates that they
charge a case only if it is all but certain to end in conviction. The most
well-known results of this “trial sufficiency policy” are a conviction rate
that approaches 100% and an acquittal rate that is close to 0.4 Another
sign of this charging conservatism is the frequent use of “suspended
prosecution” (kiso yuyo). Under Article 248 of Japan’s Code of Crim-
inal Procedure, even if prosecutors believe there is sufficient evidence to
convict, they may withhold charges when they deem prosecution “unnec-
essary” in light of other considerations, such as the public interest or
the offender’s rehabilitation. In recent years more than 55% of criminal
cases have resulted in suspended prosecution (see Table 1.1). In 2000
the corresponding figure was about 40%, so the use of suspended pros-
ecution has increased considerably in recent years. The proportion of
criminal cases going to trial has also increased, from 6% in 2000 to more
than 9% in 2019. Conversely, the use of summary orders (ryakushiki
meirei seikyu) has declined by almost half in the last two decades, from
more than 40% of all cases disposed of in 2000 to just 22% in 2019.

2 Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (Oxford, 2007).
3 On private prosecution in the United States and other countries, see Jamil Ddamulira Mujuzi,
“The Right to Institute a Private Prosecution: A Comparative Analysis,” International Human
Rights Law Review, Vol. 4, No. 2 (2015), pp. 222–255.
4 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002),
p. 230; and Murai Toshikuni and Muraoka Keiichi, “Order in the Court: Explaining Japan’s
99.9% Conviction Rate,” January 18, 2019, at https://www.nippon.com/en/japan-topics/c05
401/order-in-the-court-explaining-japan%E2%80%99s-99-9-conviction-rate.html.
 1 Prosecutors and the Prosecution Review Commission 3

Table 1.1 Penal Code cases disposed of by prosecutors in Japan, 2019 (% of

suspects processed)
Disposition Percentage of suspects (%)
Public trial 8.9
Summary order 22.2
Suspended prosecution 56.6
Other non-prosecution 6.9
Sent to family court 5.3
Total 100
Source Japanese Ministry of Justice, Hanzai Hakusho (2020), at http://hakusyo1.
moj.go.jp/jp/67/nfm/images/full/h2-2-4-1.jpg

In sum, prosecutors in Japan are deciding not to charge many cases that
could be charged, with profound consequences for who gets what in the
criminal process and in society more generally. It is here where Prosecu-
tion Review Commissions (kensatsu shinsakai) become relevant, because
the main mission of citizens serving on PRCs is to check the power and
discretion of prosecutors by reviewing their non-charge decisions.
Japan’s conservative charging policy has many consequences. Most
notably, it results in less use of imprisonment than do prosecution
systems in most other democracies. As shown in Table 1.2, Japan’s
incarceration rate of 39 inmates per 100,000 population in 2021 was
one-sixteenth the incarceration rate for the United States (639) and less
than one-fourth the average rate for the other 24 countries in the table.
Among the 38 market democracies in the Organization for Economic
Co-operation and Development, only Iceland’s incarceration rate of 33
per 100,000 was lower than Japan’s—by a little. Japan’s incarceration rate
has declined by 40% in the last 15 years, from a peak of 64 inmates
per 100,000 population in 2006 to just 39 per 100,000 in 2021. The
criminal sanction has limited capacity to do good and great potential for
doing harm.5 In this light, Japan’s parsimonious use of imprisonment
can be called a significant virtue.
Japan’s conservative charging policies probably result in fewer
wrongful convictions than more aggressive charging policies would. Far
from being the sign of an authoritarian “iron hand” of justice that tries

5 Herbert L. Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968).
4 D. T. Johnson

Table 1.2 Incarceration rates in 25 countries in 2021 (inmates per 100,000

population)
Country Incarceration rate
USA 639
Thailand 549
Brazil 357
Russia 341
Taiwan 258
Philippines 200
Singapore 195
New Zealand 188
Australia 160
Mexico 158
Vietnam 128
China 121
United Kingdom 114
Canada 107
South Korea 105
France 87
Indonesia 85
Germany 69
Sweden 68
Netherlands 63
Japan 39
Pakistan 38
India 35
Iceland 33
Republic of Congo 27
Average 167
Source World Prison Brief, at https://www.prisonstudies.org/highest-to-lowest/pri
son-population-total

to convict offenders at all costs (as the Western media often claim when
they cover Japanese criminal justice), Japan’s high conviction rate reflects
caution about whether and what to charge. Indeed, many offenders who
would be criminally charged in other systems of criminal justice are not
charged at all in Japan. In this sense, Japan’s charging conservatism may
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