Issue Salience and Criminal Policy Process in Japan

Transcription

1 Issue Salience and Criminal Policy Process in Japan KYO, Shunsuke Abstract How are Japan s recent punitive criminal lawmaking processes explained? Previous research in the context of criminal sociology has explained them using penal populism theory. The paper shows that penal populism theory explains only a part of the recent more harshly punitive legislation in Japan and that low-salience policymaking explains another large part of it through a typology of cases and process-tracing case studies of the Juvenile Acts and the Acts against Child Prostitution and Pornography. Introduction It is desirable for public policy to reflect public opinion. However, to make a policy reflecting shortsighted interests or transitory public emotions is criticized as populism. Criminal policy is vulnerable to populism. Good citizens demand that criminals be punished severely because isolating atrocious criminals seems to be a way of keeping the peace. The development of media enables us to have sympathy for crime victims who detest criminals. The term penal populism in criminal sociology refers to the phenomenon of criminal policy becoming punitive to reflect the emotions of the citizens. Much research has been conducted on recent punitive criminal policy in the U.S., U.K., and other western developed countries. While criminal sociology research also has focused on a tendency toward harsher punishment in Japan, there is a conflict within penal populism theory. The research question of the paper is how to explain the recent punitive criminal lawmaking processes in Japan. Through a typology of cases and process-tracing case studies, the paper argues that penal populism theory explains only a part of the recent more harshly punitive legislation in Japan and that low-salience policymaking explains another large part Working Paper for Panel RC18.15, Public Policy in the Era of Post Institutional Reforms: Cases in Japan, International Political Science Association 24th World Congress at the Poznan Congress Center, Poznan, Republic of Poland, July 26, This work was supported by JSPS KAKENHI Grant Number 15H This is a preliminary draft. Please do not cite without permission of the author. Associate Professor, Chukyo University School of Law, Yagotohonmachi 101-2, Showaku, Nagoya, Aichi, Japan (s-kyo@mecl.chukyo-u.ac.jp). 1

2 of it. The paper is constituted as follows. Section 1 reviews previous literature and clarifies the position of the paper. In section 2, I attempt to grasp the recent punitive criminal policy as a whole using a typological analysis. I conduct process-tracing case studies of lawmaking processes of the Juvenile Law and the Law against Child Prostitution and Pornography (CPP) in section 3. I present the conclusion and implications of the paper in section Research Question 1.1 Political Analysis of Criminal Policy The paper focuses on the political dimension of criminal policy. There is a shortage of political research on this policy area because criminologists and sociologists do not have interest in the political dimension, and political scientists have little interest in criminal policy except in the context of the comparative political culture (Tonry 2007: 4; Zimring and Johnson 2006: 267; Johnson 2007: note 47). However, that does not mean that political analysis of the area is not important. Punishment is closely related to power, and recent punitive criminal policy in Japan includes potential restrictions on the freedom of expression, on which democratic politics is based. Some criminal law researchers argue that the recent punitive criminal policy represents the regression to the Japanese prewar regime, in which citizens enjoyed extremely low levels of freedom (Asada 2008; Uchida 2015). Why is there the similarity despite the great difference between prewar and postwar political institutions? The paper partly contributes to an understanding of this big question. 1.2 Penal Populism Theory In the context of criminal sociological research, it is common to understand the recent more harshly punitive legislation as the result of penal populism (Pratt 2007). Hamai (2009: 7) sums it up as follows: citizen groups that demand law and order and activists and media standing up for crime victims rights have come to influence criminal policy, while criminal justice experts have declined in influence. Criminal policy comes to reflect individual experience and common sense rather than result from social science research, and those who argue for excessively simplified solutions to complex problems come to be trusted and 2

3 supported by the public. The inclination toward harsher punishment is common to the western developed countries, especially the U.S. and U.K. Garland (2001) argues that it is caused by late modernity, which refers to the two countries changing social, economic, and cultural patterns in the late twentieth century, and by the policies of neo-liberalism and neo-conservatism, which are dominant in both countries. However, this does not explain wide variations in the degrees of punitiveness among countries. Punishment becomes harsher especially in the U.S. Whitman (2003) argues that this originated from the American tradition of equality, while Tonry (2008) argues that this is originated from constitutions of each state from the eighteenth century in which judges and prosecutors are elected. Some research attempts to understand the differences in criminal policy between countries through frameworks of comparative politics, such as those of Esping-Andersen (1990) and Lijphart (1999) (Cavadino and Dignan 2006; Lappi-Seppälä 2008; Green 2008). 1.3 Explaining Harsher Punishment in Japan Japan is categorized as a strong state with weak civil society, where the public rarely plays a key role in policymaking. It means that Japan resists penal populism (Feeley 2008: ). In addition, the criminal policy area is so technical that amateurs cannot easily be involved in lawmaking. In fact, the Ministry of Justice (MoJ) has jurisdiction over much of criminal law and drafts a bill based on the report of the Legislative Council of the Ministry of Justice (Hōsei Shingikai) in which criminal justice experts such as judges, prosecutors, lawyers, and criminal law professors have a majority. It is not easy for politicians to be fully involved in the process of making criminal law, which limits the direct influence of the public that demands harsher punishment. Some researchers argue that the more harshly punitive policy is appropriate for solving the recent deterioration of public security in Japan (e.g., Maeda 2000). However, based on crime statistics, it is reasonable to consider that public security in Japan has not necessarily been deteriorating (e.g., Doi 2003; Kawai 2004). Although it is possible that the deterioration of subjective public security influenced by salient incidents makes public opinion support harsher punishment, a study based on public opinion surveys indicates that public support for harsher punishment does not reflect popular reaction to recent salient incidents but comes from the 3

4 public s view of society, which has long-term stability (Matsubara 2014: Ch. 3). Thus, the recent trend toward harsher punishment in Japan is not a reaction to the recent deterioration of public security nor public opinion based on it. In the context of criminal sociology and the penal populism theory, research explains it through the actions of political actors and through Japanese institutional and environmental variables. Hamai (2004: 19 21) explains the political mechanism of institutionalization based on the myth of public security deterioration by the iron triangle (Best 1999), in which a moral panic triggered by media coverage arouses a serious social issue by involving the media, activists, politicians, and experts. The process of the Juvenile Act of 2000 is a typical case. The dispute about the Juvenile Law was triggered by the Kobe murder in 1997 and heavy media coverage of the case. Activists and crime victims demanded legislation to reinforce victims rights and make punishment harsher, and finally made the Diet pass the bill. Crime victims and experts supporting victims played especially important roles in the campaign (Doi 2003: 264, 297; Miyazawa 2007: ). Although the activities of crime victims and their supporters were influential, Hamai (2011: ) argues that the crime victims activities do not overcome the resistance of prosecutors who are much more independent from politics or public opinion than American ones, because most recent legislation regarding harsher punishment does not restrict prosecutors power. Prosecutors are political actors who actively promote harsher punishment in the context of the crime victims activities and public support. This is referred to as prosecutors promotion hypothesis below. On the other hand, Miyazawa (2008: 131) regards the role of the conservative politicians who supported the activities of crime victims groups as important. Prosecutors, as bureaucrats of the MoJ, resisted some demands of crime victims groups, which probably varied the basic structure of the Criminal Law and limited prosecutors power in criminal procedures, but they were forced to accept them because of pressure from the government core executives or the ruling Liberal Democratic Party (LDP) executives who specialize in judicial policy ( shihō-zoku ). This is referred to as the crime victims groups and shihō-zoku s promotion hypothesis below. Some researchers indicate that the changes of political institutions and external 4

5 environment surrounding actors are important variables. The electoral system reform in 1994 enlarged the scope of politicians interest from local to national issues and policies (Miyazawa 2008: 132; Leheny and Liu 2010: 253). The issue salience of criminal policy has increased, and distrust in governmental expertise has grown (Johnson 2007). A generalized unmet societal demand for security and emergence of high-profile charismatic crime victims became to influence criminal policymaking processes (Fenwick 2013: ). 1.4 Main Argument Thus, there is a conflict between the prosecutors promotion hypothesis and the crime victims groups and shihō-zoku s promotion hypothesis in explaining recent more harshly punitive legislation in Japan. This paper demonstrates that both the hypotheses explain only salient lawmaking cases through a comprehensive analysis of the recent more harshly punitive legislation. 2. Typology of More Harshly Punitive Legislation 2.1 Case Selection We need to grasp the more harshly punitive legislation as a whole in order to understand the political mechanism of harsher punishment in Japan. The concept of harsher punishment includes not only punishment in the narrow sense, which means extending the prison term the existent law prescribes, but also punishment in the broad sense, which means expansion of illegal acts (Asada 2008: 332). In addition, it includes application of the existent law if judges sentence criminals to unprecedentedly long prison terms. 1 The paper analyzes more harshly punitive legislation like previous research on Japanese penal populism. However, it is difficult to comprehend the whole legislation because some recent legislation includes revisions of articles making punishment harsher, while selection bias is not avoidable if I choose cases attracting my notice. In order to avoid selection bias, the paper analyzes the legislation that a criminal law researcher regards as the more harshly punitive legislation in a broad sense after 1995 (Asada 2008: ) and their revisions providing for harsher punishment (including ones about 1 As an index to measure it, the prisoner rate (or imprisonment rate) referring to the number of prisoners per population is often used (Lappi-Seppälä 2008). 5

6 which Asada (2008: 353) writes in the excursus). The list is Table 1. The legislation listed in the main text of Asada (2008) is indicated in normal font; those in the excursus are in italic, and the others are in bold. <Table 1 here> 2.2 Measuring Issue Salience Penal populism theory is implicitly premised on public support for harsher punishment. However, we cannot get comparable public opinion data on each piece of more harshly punitive legislation. Therefore, the paper measures issue salience, on which public opinion is premised, and discusses whether voters had an interest in each issue. Issue (or political) salience is defined as the importance of the issue to the average voter relative to other political issues (Culpepper 2011). In the high-salience policymaking process, the issue is overt, and the public is concerned with it (Matsuda 2006). If voters have little interest in the issues and the related legislation, then they do not form opinions on them. Thus, issue salience is an effective indicator to test the hypotheses based on penal populism theory. How is issue salience to be measured? The author considers it appropriate to use the number of newspaper articles in order to measure the voters interest, on which penal populism theory is premised, based on Kyo (2015) reviewing methods for measuring issue salience used by previous literature, because it is difficult for voters to have interest in an issue if there is little news coverage. The paper regards the number of newspaper articles as representing the value of each issue s salience. The number is determined by the average of keyword search results per year measured by Asahi Shimbun ( ), Nihon Keizai Shimbun ( ), and Yomiuri Shimbun ( ) databases. 2 The search formula is to combine the name of the law or act and the keywords of the facts the legislation was based on. Figure 1 shows the salience of seven extracted issues. 2 Kyo (2015) shows that there is a high correlation between the number of articles in four major newspapers, including Mainichi Shimbun. So it is appropriate to save on labor by eliminating one newspaper and to average the number of articles of three newspapers for summarizing the data. 6

7 <Figure 1 here> 2.3 Typology of Legislation This section categorizes and characterizes the legislation in Table 1. The paper presents two axes based on previous literature. One is the level of issue salience. Taking penal populism into account, the more harshly punitive legislation is backed by public opinion. Forming public opinion on an issue is premised on public interest in the issue, which is represented as issue salience. The paper adopts the Mendoza Line (Culpepper 2011: 58) as a means to distinguish high or low salience. Mario Mendoza was a defensive shortstop player in major league baseball whose batting average frequently fell below.200. Players whose batting average dose not reach the Mendoza Line of.200 are not considered good enough to play major league baseball. In the paper, the Mendoza Line is a minimal level of high salience, which refers to the average of the salience on the issue whose salience is the lowest among consistently high-salience issues, as Mendoza s batting average is the lowest among major leaguers. Which issues are consistently high-salience? In this research, taking the average of issue salience listed in the right end of Table 1 into consideration, the base line should be between the Criminal Act establishing the Crime on Dangerous Driving Causing Death or Injury (CDDCDI) and the Act on Punishment of Organized Crimes, or between the Juvenile Act and the Act against Domestic Violence, because there are large gaps, which means a border of salience. Previous research refers to the process of the Juvenile Act (especially, that of 2000) as a typical case of penal populism. After 1995, the average value of issue salience of the case is 132.2, which is near the Criminal Act on CDDCDI. So the paper regards the average of the issue salience of the case (92.2) as the Mendoza Line. The constant line in Figure 1 represents it. The other axis is a conflict between political parties. Culpepper (2011: 181) argues that partisan contestation is the likely mode of political interaction when rules at issue are formal (such as laws) and the issue salience is high. However, in the process of penal populism where the legislation based on civil emotions is approved, it is predicted that partisan conflicts are unclear, because seat-seeking politicians avoid opposing the bill reflecting civil emotions. Though the politicians might oppose bills that have public support when it comes to economic 7

8 regulatory legislation because of interest group ties, it is not rational for them to oppose the bills of public support in the more harshly punitive legislation, because the interest groups are criminals, possible criminals, and human rights lawyers. Thus, the paper classifies the cases by whether there are partisan conflicts, which means whether opposition members vote nay in the Diet. Table 2 is a typology of the cases of Table 1 by issue salience and partisan conflict. The value of issue salience is classified by whether the value in the legislation year is higher than the Mendoza Line. The partisan conflict is classified by whether the bill is opposed by the largest opposition party or approved and whether unanimously approved. The provisions of the bill that legislators introduced (the majority of bills are introduced by the Cabinet to the Diet in Japan) are indicated in bold font. Table 2 is shown below. Legislation such as the Act on Punishment of Organized Crimes and the Antigraft Act, which the opposition parties regarded as important bills, and the Organ Transplant Act for which parties except the Japanese Communist Party (JCP) loosened party discipline in voting, are in the northwest quadrant (high issue salience and partisan conflict). The paper analyzes the Juvenile Act of 2007 in the quadrant. The northeast quadrant includes the cases that previous literature regards as typical of penal populism such as the Juvenile Act of 2000, the Road Traffic Act regarding hit-and-run and drunk driving, and the Criminal Act on CDDCDI. Miyazawa (2013: 26 27) argues that this legislation was influenced by the crime victims groups, so his crime victims groups and shihō-zoku s promotion hypothesis is premised on the legislation in the quadrant. The prosecutors promotion hypothesis is also premised on the legislation of high salience in the quadrant, as long as it presumes that activities of crime victims and public support are political resources of the prosecutors. There are no cases in the southwest quadrant, as long as the paper measures issue salience and partisan conflict of the case in the year of the legislation. However, the case study shows that most of the legislative process of the Act against CPP are classified in the quadrant. Most of the legislation in the southeast quadrant is based on the bills introduced by the Cabinet, which were passed after relatively brief deliberation in the Diet. These cases are the legislation that the Diet substantially delegates to the bureaucrats. They resemble the legislative process of the Copyright Law, which Kyo (2011) analyzes as a low-salience 8

9 policymaking process. Most politicians have few incentives to be fully involved in low-salience policymaking processes because they have little to do with the vote. Thus, politicians usually delegate policymaking to the bureaucrats and are involved in legislation only for important interest groups. The number of more harshly punitive laws, including the penal populism legislation, is much greater in the northeast quadrant. In other words, the number of the recent more harshly punitive Japanese laws that we can understand through the theoretical framework of low-salience policymaking (Kyo, 2011) is much greater than those that we can understand through penal populism theory. However, as mentioned above, the southeast quadrant includes the exceptions of policymaking delegation to the bureaucrats. The exceptions are the Act against CPP and the Act against Domestic Violence, which are legislated based on bills introduced by legislators. The paper analyzes the former legislation and uses a case study to show how the policymaking developed. 3. Case Studies 3.1 Case Selection Using a typology of the more harshly punitive Japanese legislation, we previously examined the explanation for its political mechanism. We showed that the scope of explanation by both crime victims groups and shihō-zoku s promotion hypothesis and prosecutors promotion hypothesis based on the penal populism theory is limited, and they are not capable of explaining the whole mechanism of the more harshly punitive Japanese legislation. In the next part, the paper concretely shows when the penal populism theory can explain the political mechanism of the more harshly punitive legislation through case studies. Case studies are conducted on the Juvenile Acts of 2000, 2007, and 2014, and the Acts against CPP of 1999, 2004, and The reason for the case selection is twofold. The first is that the cases contain multiple legislation and variations of issue salience and partisan conflict, so there is more than one quadrant of Table 2 in a case. The second is that it is not so appropriate to classify the case, especially the legislation regarding the Act against CPP, as low-salience policymaking processes because the issue salience was low, but the legislation was based on bills introduced by legislators. 9

10 3.2 Juvenile Acts The Act of 2000: The Total Reform of Procedures of Juvenile Judgment The Kobe murder in the spring of 1997 sharply aroused public interest in juvenile crime. The LDP established a Subcommittee on Juvenile Law under the Judicial Affairs Division of the Policy Research Council (Seichōkai Hōmu-bukai) at the end of that August and started an examination of the revision of the Juvenile Law. 3 The Minister of Justice professed the need for the revision. 4 At the end of 1997, the families of juvenile crime victims established the Association of the Juvenile Crime Victims and launched a campaign for revising the law. 5 Starting in January 1997, the conference examining the Juvenile Bill succeeded the meetings of judges, prosecutors, and lawyers for an exchange of ideas triggered by the Yamagata Mat case in The Supreme Court proposed a reform that enabled prosecutors to attend juvenile judgments in case of hot factual disputes, and the MoJ supported it. The Japan Federation of Bar Associations (Nichibenren) opposed it the first time. 7 However, Nichibenren changed its standpoint and accepted prosecutors involvement by May, while there was a large gap between Nichibenren s idea and that of MoJ s and the Supreme Court. 8 On the other hand, the government and the LDP speeded up examining the revision. The Minister of Justice directed the bureaucrats to examine a bill that lowers the lowest age of punishment. 9 The subcommittee of the LDP reached an agreement that argued that the LDP, not the Cabinet, should introduce a revised bill. 10 In July 1998 Hōsei Shingikai was consulted on the revision, which included prosecutors involvement but did not include lowering the lowest age of punishment. The subcommittee of the LDP restarted during the discussion of Hōsei Shingikai. The report completed in December proposed not only lowering the lowest age of punishment but also establishing institutions enabling victims attendance at juvenile judgment Yomiuri Shimbun (evening edition), Aug. 23, 1997 etc. 4 Asahi Shimbun, Sep. 21 and Oct. 8, 1997 etc. 5 Asahi Shimbun, Feb. 25 and Apr. 29, 1998 etc. 6 Nihon Keizai Shimbun, Jan. 30, Asahi Shimbun and Mainichi Shimbun, Feb. 27, Asahi Shimbun and Yomiuri Shimbun, May 2, 1998 etc. 9 Asahi Shimbun and Yomiuri Shimbun (evening edition), Mar. 3, Asahi Shimbun and Nihon Keizai Shimbun (evening edition), Apr. 10, 1998 etc. 11 Asahi Shimbun and Yomiuri Shimbun, Dec. 22, 1998 etc. 10

11 The MoJ proceeded to draft a bill after a report was submitted by Hōsei Shingikai. The Minister of Justice and the Director of Seichōkai Hōmu-bukai of LDP agreed that the bill lowering the lowest age for punishment would be introduced by legislators. 12 The Cabinet s Juvenile Bill was introduced in March 1999, but the discussion on the bill did not start, and the bill was carried over because the Committee on Judicial Affairs of the Lower House had many important bills to pass. It was said that the bill would not be passed in the ordinary session of the Diet in 2000, 13 but the situation was changed by a series of shocking juvenile crimes that spring. In Nagoya, it was revealed in April that some juveniles had extorted fifty million yen from a boy. While the governing parties (LDP, Clean Government Party (CGP), and New Conservative Party (NCP)) agreed a plan to pass the Juvenile Bill soon thereafter, 14 it became difficult to carry out the plan because, at the request of the financial world, the Diet gave priority to the Commercial Bill. 15 The beginning of May saw a series of atrocious juvenile crimes such as the Nishitetsu bus hijacking and the Toyokawa housewife murder. The governing parties confirmed that the discussion on the Juvenile Bill would start as soon as possible and established a project team for examining actions for juvenile crimes. 16 The discussion of the bill started on May 11, but it was discarded by the dissolution of the Lower House. The LDP subcommittee completed an outline of the Juvenile Bill that included lowering the lowest age of punishment in May. 17 The LDP specified lowering the lowest age of punishment on its national election manifesto, 18 and the Prime Minister, Yoshiro Mori, emphasized the necessity for the Juvenile Act. 19 A public opinion survey showed that half of the voters considered educational policy that centers on actions for juvenile crimes as a criterion for voting, 20 and some legislators mentioned voters deep interest in juvenile crimes Yomiuri Shimbun, Feb. 3, Nihon Keizai Shimbun (evening edition), Apr. 13, 2000 etc. 14 Asahi Shimbun and Yomiuri Shimbun, Apr. 15, Yomiuri Shimbun, Apr. 20, Asahi Shimbun and Yomiuri Shimbun, May 9, 2000 etc. 17 Asahi Shimbun and Yomiuri Shimbun, May 19, Asahi Shimbun, Jun. 3, Mainichi Shimbun and Nihon Keizai Shimbun, Jun. 17, 2000 etc. 20 Nihon Keizai Shimbun, Jun. 6, The Proceeding No.3, the Committee on Judicial Affairs in the House of Representative of the 150th Diet 11

12 The Juvenile Bill was a main matter in the extraordinary session of the Diet in autumn 2000, as it was included in the Prime Minister s general policy speech. The governing parties confirmed that the bill would be introduced by legislators. 22 Although some legislators of the CGP had opposed harsher punishment for juvenile offenders, they then agreed on it as long as the bill limited the scope of juvenile offenders to whom it applied. 23 The bill introduced by legislators of the governing parties in September was, on the one hand, based on the Cabinet s bill that had been discarded, and, on the other hand, included much more harshly punitive provisions, such as lowering the lowest age of punishment. The discussion of the bill started in the Lower House, where the opposition parties were absent because of protest against the Public Office Election Bill. The largest opposition party, the Democratic Party of Japan (DPJ), which opposed the Cabinet s bill and agreed to the additional part by the governing parties, introduced an amendment. The governing parties and DPJ started a negotiation, but the bill was passed in the Lower House before their agreement. They reached an agreement before the vote of the committee stage in the Upper House, 24 and an amendment of the bill was passed The Act of 2007: The Reform of Police Procedure and Probation for Younger Juvenile Offenders Two serious cases that aroused discussion on the Juvenile Law occurred after the Act of 2000 went into effect: the Nagasaki kidnapping and murder in 2003 and the Sasebo classmate murder in Although the Act lowered the lowest age of punishment from sixteen to fourteen years of age, the juvenile offenders of the atrocious cases were twelve and eleven years old. A report by the Working Group for the Actions against Juvenile Delinquency established under the direction of the Prime Minister, Junichiro Koizumi, proposed the legislation enabling police investigations into cases of juveniles under age fourteen 25 and (Oct. 13, 2000), a statement by Shinako Tsuchiya etc. 22 Asahi Shimbun, Jul. 29, 2000 etc. 23 Mainichi Shimbun, Sep. 9 and 12, They agreed to add a supplementary provision to make the government review the Act in five years after the enactment. Asahi Shimbun and Yomiuri Shimbun, Nov. 22, 2000 etc. 25 Yoshihide Konoike, A Proposal to Take a Measure for Juvenile Delinquency (Sep., 2003). 12

13 suggested lowering the lowest age of entering the juvenile training school (shōnen-in) from fourteen. These are included in the report of Youth Development Headquarters 26 and the action plan of the Ministerial Meeting Concerning Measures Against Crime. 27 In September 2004, Hōsei Shingikai was consulted on these points. The discussion on the bill based on the report of Hōsei Shingikai started in June 2005 in the Lower House, but was not started in the committee stage, and the bill was discarded by the Postal Reform Dissolution. The bill was soon reintroduced, but the discussion was not started. When the discussion finally started in the committee in March 2007, legislators of the governing parties opposed a part of the bill abolishing the lowest age of entering shōnen-in. They proposed an amendment that centered on a provision making the lowest age older than about twelve years old. 28 While the governing parties and the opposition parties agreed to eliminate the provisions enabling police investigations into pre-delinquent cases, based on the argument of the CGP after a negotiation meeting, 29 the governing parties and the DPJ did not agree to co-introduce an amendment. 30 Although the DPJ requested to hold the negotiation meeting, the governing parties steamrollered the opposition into voting for the governing party s amendment in the committee. The bill was passed with a supplementary resolution agreed by both the parties in the Upper House The Act of 2014: The Reform of Juvenile Judgment Procedure and Punishment The Juvenile Law has a provision easing punishment. Some judgment from around 2007 pointed out that the provision was an obstacle to determining prison terms. 31 In particular, the judgment of Sakai Branch of Osaka District Court in February 2011 suggested the necessity of revision. 32 The revision was also requested in a meeting between the MoJ and representatives 26 Youth Development Headquarter, The Outline of Policy on Youth Development (Dec., 2003). 27 Ministerial Meeting Concerning Measures Against Crime, The Action Plan to Make a Society against Crime: To Revive Japan as the Safest Country (Dec., 2003). 28 Yomiuri Shimbun and Nihon Keizai Shimbun, Apr. 17, 2007 etc. 29 Nihon Keizai Shimbun, Apr. 18, Mainichi Shimbun and Nihon Keizai Shimbun, Apr. 18, 2007 etc. 31 The judgement of Tokyo High Court on Dec. 27, 2007; the judgement of Tokyo District Court on Oct. 2, 2008; the judgement of Tokyo High Court on Jan. 29, The judgement of Sakai Branch, Osaka District Court on Feb. 10,

14 of crime victims associations. 33 In this context, the MoJ examined a bill and consulted Hōsei Shingikai about it along with other matters in September The bill was introduced in 2014 and passed with no amendment after a quite short period of discussion Discussion A series of atrocious juvenile crime cases during the latter half of the 1990s aroused the issue salience of juvenile crime, so the Juvenile Law became an important political issue. Although the Cabinet s bill based on the report of Hōsei Shingikai caused a partisan conflict, the governing-party amendment to the bill that made punishment harsher was supported by the largest opposition party. The lawmaking process is explained by the penal populism theory, as previous literature points out. However, the process of the Act of 2007, which was also triggered by salient juvenile crime cases, is not explained by penal populism theory. The issue salience of juvenile crime decreased, while the discussion of the bill had not started. When the discussion started, the governing parties amended the bill, so that the punishment became less harsh, though they agreed on it before introducing it to the Diet. In the process of the low-salience Act of 2014, the policymaking was substantially delegated to the bureaucracy and was thus explained by the framework of the low-salience policymaking process (Kyo 2011). 3.3 The Acts against Child Prostitution and Pornography The Act of 1999: Establishing Punishment for Child Prostitution and Pornography Child prostitution and pornography became issues in the mid-1990s, to which there were two background factors. 34 The first was that there was no legislation for child prostitution after ratification of the Convention on the Rights of the Child in The government took the position that it had no need to legislate because it was ruled by existing laws such as the Child Welfare Law and the Prefectural Ordinance of Juvenile Protection. 35 The second concerns 33 The handout of the first meeting of the Committee on the Juvenile Law, the Legislative Council of the Ministry of Justice on Oct. 15, On the whole legislative process, see Moriyama (1999) and Koizumi (2000). 35 Asahi Shimbun, Apr. 6, 1998; Sonoda (2000: 309). 14

15 activities of civil society organizations. An alliance of global NGOs ran the International Campaign to End Child Prostitution in Asian Tourism and held the World Congress against Sexual Exploitation of Children and Adolescents with UNICEF and other associations at Stockholm in The government sent Sumiko Shimizu of the Social Democratic Party (SDP), which was one of the governing parties, as the head representative to the conference. While the Japanese government was blamed for ignoring child prostitution and pornography, she declared that it intended to embark on legislation. The project team of the governing parties (LDP, SDP, and Sakigake) chaired by Mayumi Moriyama of the LDP examined a bill from June 1997 and released an outline of the bill next March. Although the LDP proposed to the opposition parties that they co-introduce the bill, the opposition did not agree because an election of the Upper House was planned for the summer. The bill was criticized by not only Nichibenren and publishing industry associations 36 but also civil society organizations that had requested the legislation against child prostitution and pornography. This was because the bill was mainly against domestic prostitution of school girls (enjo kōsai) and lacked provisions against sexual exploitation of children and adolescents in developing countries. 37 The bill was carried over to the next session. Because the political situation changed and the committee of the Lower House had many important bills to pass after that, there was no plan to discuss the bill in the Diet. However, it was only after the DPJ released a counter-proposal that a study meeting among all the parties was held. The meeting completed a bill agreed by all the parties by coordinating the definition of child pornography, which varied in the former bills, and by eliminating the provision prohibiting its possession. Although the bill was not a prior issue in the Diet, the discussion on the bill started early because of a serious conflict between the governing and the opposition parties over the Bill on Punishment of Organized Crimes and the Wiretapping Bill. The bill was passed in May The Act of 2004: Harsher Punishment and Expansion of Criminal Act 36 Japan Federation of Bar Associations A Written Opinion on The Act against Child Prostitute and Pornography and The Criminal Act (May, 1998) ; Asahi Shimbun (evening edition), May 18, 1998 and Asahi Shimbun, Jun. 18, Tsuboi (1998); Asahi Shimbun, Mar 18 and Apr. 6,

16 Because the Act of 1999, which went into effect in November 1999, had supplementary provisions that required it be reviewed three years after the enforcement, the LDP established a special committee to examine the revision under Seichōkai in March The Japanese government signed Optional Protocol to the Convention on the Rights of the Child in this year which obligates contracting states to make production and distribution of child pornography illegal. A draft bill the following May had a provision prohibiting possession of child pornography without mandating punishment. While the CGP and NCP, which constituted the coalition government with the LDP, agreed to it, some DPJ and SDP legislators opposed it because it also had a provision making it punishable to possess child pornography for the purpose of providing it for a small number of people. The bill was introduced by legislators of the governing parties. It was discarded when the Lower House dissolved in 2003 and was reintroduced in However, there was little time to discuss it because of the Bills of Justice System Reform, so the governing parties withdrew the bill and had the chairman of the Special Committee regarding Youth Problems in the Lower House introduce an amendment that eliminated the provision prohibiting possession of child pornography. The bill was passed unanimously in both houses The Act of 2014: Establishing Punishment for Possession of Child Pornography The adoption of the Act of 2014 was triggered by pressure from the U.S. Ambassador to Japan, J. Thomas Schieffer. In January 2008, he contributed an article to a newspaper calling for the government to legislate against child pornography 39 and met the Minister of Justice, Kunio Hatoyama, in March. 40 The LDP established a Subcommittee regarding Review on the Law against Child Pornography under Seichōkai Hōmu-bukai in order to examine provisions making possession of child pornography punishable. 41 A project team of the LDP and CGP also started and completed a bill making possession of child pornography punishable. 42 The DPJ also completed a bill altering the definition of child pornography in the existing law and 38 On the whole legislative process, see Moriyama and Noda (2005). 39 Yomiuri Shimbun, Jan. 30, Asahi Shimbun and Yomiuri Shimbun, Mar. 12, Yomiuri Shimbun, Mar. 9, Yomiuri Shimbun, Apr. 19, May 3 and 23,

17 limiting punishable possession of child pornography, so there was a gap between the bill of the governing parties and that of the opposition. 43 The governing parties bill was introduced in June, but the bill was carried over without any substantive discussion. Foreign pressure ensued. At the G8 Justice and Home Affairs Council accompanying the G8 Hokkaido Toyako Summit, Minister Hatoyama mentioned that the government was working on the legislation against possession of child pornography. 44 The Third World Congress against Sexual Exploitation of Children and Adolescents in November completed the Rio de Janeiro Declaration, which was intended to regulate perverted comics and animations. At the end of the year, Schieffer again contributed to a newspaper, which argued that only Japan lacked a law against possession of child pornography. 45 Hatoyama referred to it in an answer in the Diet to emphasize the necessity of the legislation. 46 The DPJ also introduced a bill in March 2009, and the discussion of both bills began at the committee stage of the Lower House in June. The governing parties started to negotiate an amendment with the DPJ in secret, on which they reached a broad agreement in July. 47 However, the ordinary session substantially ended before the last day because of an opposition boycott, and both bills were discarded with the dissolution. The LDP and CGP, which became the opposition after the general election, reintroduced almost the same bill. They started to negotiate with the ruling DPJ and the other governing parties in secret. 48 In the middle of December, they nearly agreed to have the chair of the committee introduce an amendment and have it passed unanimously as long as the SDP agreed to it. 49 However, the amendment was not introduced after all. In August 2011, the DPJ introduced a bill that did not provide punishment for possession of child pornography. Neither bill was substantially discussed, and both were discarded with the dissolution of the Lower House in late The LDP, CGP (they returned to government in late 2012), and the Japan Restoration 43 Asahi Shimbun, May 22, Asahi Shimbun, Jun. 13, Asahi Shimbun, Dec. 31, The Proceeding No.15, the Committee on Budget in the House of Representative of the 171st Diet (Feb. 18, 2009). 47 Yomiuri Shimbun, Jul. 11, Yomiuri Shimbun (evening edition), Nov. 17, Hosaka (2009: 6). 17

18 Party reintroduced the bill. While lobbying associations had demanded that possession of child pornography be prohibited since the governing parties introduced the bill in 2008, 50 the new bill was once again opposed by Nichibenren and publishing industry associations. 51 The publishing industry associations regarded the supplementary provisions as problematic in that the government was expected to take necessary action three years after enactment as a result of investigating the relationship between comics, animations, and computer graphic videos, and infringement of children s rights, though there are no real victims in these works. The bill was carried over again. After a year, the governing parties and large opposition parties reached a broad agreement on an amendment. 52 The bill introduced had a provision that added a limitation to the definition of child pornography. There was a possibility that the law s previous definition of child pornography included a very popular comic strip Doraemon, in which a girl character often took a bath, and pictures recording children s growth. The supplementary provisions that the publishing industry regarded as problematic were deleted. The amended bill was passed by an overwhelming majority of both houses, although the JCP opposed it Discussion The issue salience of the Law against CPP was slightly higher than the Mendoza Line in 2001 and 2010 in which there was no legislation, but lower than it in the other years. In the latter half of the 1990s, the public had much less interest in child prostitution in developing countries, which triggered the new legislation, than in juvenile crimes. The legislation was led by the civil society organizations and a few legislators (especially, women legislators) of the governing parties, which had strong interest in the matter. A temporary partisan conflict in the process of drafting the bill was settled by compromise, which eliminated provisions from which the opposition dissented. The bill had a low priority in the Diet. These indicate that this policymaking process was not explained by penal populism theory. In the process of adopting the Act of 2004, a partisan conflict occurred over a provision 50 Yomiuri Shimbun, Dec. 5, 2009, May 28, 2010, and Aug 4, They were Japan Magazine Publishers Association, Japan Book Publishers Association, Japan Cartoonists Association,Japan Writer s Association etc. (Asahi Shimbun, Jul. 27, 2013). The statement of opposition of Japan Writer s Association et al. is on Shuppan News, No. 2316, pp Yomiuri Shimbun, May 24, 2014; Asahi Shimbun, Jun. 4,

19 for preventing possession of child pornography. However, the governing parties made a compromise that deleted the provision in order to pass other important bills, and the bill was passed unanimously. This process was also not explained by the penal populism theory. In the next bill, the provision for preventing possession was again accompanied by punishment. The bill also included a supplementary provision that would make the government regulate comic strips and animations. Although the opposition protested against these provisions, the governing and opposition parties reached a compromise in the end. The amended bill was passed. It limited the definition of child pornography, made possession of it illegal with punishment, and eliminated the supplementary provision. As long as penal populism is a category of high salience and little partisan conflict, most of this process was in a category of low salience and conflict between the governing and opposition parties (in the southwest quadrant). It took over six years from its introduction to pass the bill; the discussion of the bill in the Diet often paused, and there were no salient cases regarding it, which means that penal populism theory that is premised on public opinion of criminal policy does not explain the legislative process. 4. Conclusion The research question of the paper is how to explain the recent punitive criminal lawmaking processes in Japan. The paper reviews previous literature and categorizes the recent more harshly punitive legislation in Japan by issue salience and partisan conflict. Although the penal populism theory explains high-salience cases such as the revised Juvenile Law of 2000, it does not explain many other low-salience and harshly punitive laws. The substantial policymaking is delegated to the bureaucracy, while the public has little interest in the issue in most low-salience cases, which is roughly explained by the framework of low-salience policymaking. However, some low-salience legislation providing harsher punishment was based on bills drafted not by bureaucrats but by legislators, such as the Act against CPP. The paper shows that the bill always had low priority in the Diet, and the governing parties and the opposition often reached a compromise in order to pass other important bills, which means that legislators had little interest in the issue. Thus, it is not appropriate to consider the lawmaking process as the process of penal populism. 19

20 There are two remaining issues. The first is to reexamine the means to understand the recent more harshly punitive legislation in Japan. The cases in the paper are based on a list by a criminal law researcher. The cases in the list go until Since then, there has been more harshly punitive legislation related to freedom of expression, such as the Act on the Protection of Specially Designated Secrets in 2013 and the Copyright Act of 2012, which made download of illegal computer files punishable. It is important to examine the means to analyze legislation including these. The second is to construct a coherent framework to explain more harshly punitive legislation. Although the paper indicates the limited explanatory power of the penal populism theory, it is insufficient in presenting the framework. While issue salience is an independent variable, partisan conflict is a partial result of a policymaking process, so that it describes a characteristic of the process but is not an independent variable. Thus, it is necessary to construct a framework to explain the whole criminal policymaking process in Japan, including the penal populism legislation. References <Literature in Japanese> Asada, Kazushige Harsher Punishment Legislations of the Criminal Law. The Committee of Publishing Collected Papers in Celebration of Prof. Ikuzo Maeno s Seventies Birthday ed. A System of Criminal Policy Studies. Hōritsubunkasha. Doi, Takayoshi Disappearance of Juvenile Delinquent : Myth of Personality and Juvenile Crime. Shinzansha. Feeley, Malcolm M Three Hypotheses about Crime Developments in Japan and the West. Ryukoku Law Review 41-3: Hamai, Koichi How 'the Myth of Collapsing Safe Society' Has Been Created in Japan: Beyond the Moral Panic and Victim Industry. Japanese Journal of Sociological Criminology 29: Globalized Penal Populism and its Countermeasures. Japanese Association of Sociological Criminology ed. Globalized Penal Populism and its Countermeasures. Gendaijinbunsha Empirical Criminal Policy Theory: Toward the Effective Action for Crimes. Iwanami Shoten. Hosaka, Nobuto The Bill against Child Pornography and the Risk of `Regulation on Expression. Shuppan News 2195: Kawai, Mikio Paradox of Collapse of the Safe Society Myth: Law Sociology on the Public Order. Iwanami Shoten. Koizumi, Hiroko The Making of the Child Prostitution and Pornography Prohibition Law. Annual Report of the Institute of Social Work, the Japan College of Social Work 36: Kyo, Shunsuke Analyzing the Politics of Copyright Law Revision: Strategic Interactions and Policy 20

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