Herber, Erik --- "Between 'benevolent paternalism' and genbatsuka: diversity in Japanese criminal justice" [2014] ELECD 481; in Vanoverbeke, Dimitri; Maesschalck, Jeroen; Nelken, David; Parmentier, Stephan (eds), "The Changing Role of Law in Japan" (Edward Elgar Publishing, 2014) 111

Book Title: The Changing Role of Law in Japan

Editor(s): Vanoverbeke, Dimitri; Maesschalck, Jeroen; Nelken, David; Parmentier, Stephan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783475643

Section: Chapter 8

Section Title: Between 'benevolent paternalism' and genbatsuka: diversity in Japanese criminal justice

Author(s): Herber, Erik

Number of pages: 20

Abstract/Description:

In recent years, an increasingly punitive sentencing climate has developed in Japan, as more defendants are receiving harsher penalties, laws have been amended to allow for harsher punishments, and parole rates have gone down (a process referred to in Japanese as genbatsuka. These developments are significant in view of the apparent contrast with the 'traditional image' of Japanese criminal justice they represent. Japanese criminal justice has been famously characterized as 'benevolent paternalistic'. Benevolent 'in that its goal is to achieve reformation and integration into society through lenient sanctions tailored to the offender's particular circumstances' (Foote 1992, p. 317). Foote's paternalism referred to the discretionary authority granted to authorities in making decisions on investigation, prosecution, sentencing and so on (ibid., p. 361). Haley (1991, 1998) and Sasaki (2000) have painted a similar picture of Japanese criminal justice. In view of widely applied diversion practices, the emphasis on remorseful confessions (as a sign of corrigibility), Japanese criminal justice was seen as an example, of sorts, of Braithwaite's re-integrative shaming in action (Braithwaite 1989). The prolonged interrogations that confessions of guilt 'necessitate' have in turn received much attention as the downside of this 'Japanese approach' (more on these characterizations, below).