[A selection from “Restitution in Theory and Practice” in Volume 12, Number 1 (1996) of the Journal of Libertarian Studies.]
Japan takes restitution very seriously, and it appears to work. A key feature of Japanese culture that apparently underlies the success of restitution is that there is no acceptable excuse for criminal activity. Criminals are expected to acknowledge their guilt, repent, and seek absolution from their victims, and this is the dominant focus of each stage of the criminal justice process.37 In fact, the vast majority of all criminals show repentance, admitting responsibility to the victim through an intermediary (e.g., family, friend), before public prosecution. Then the criminal bargains with the victim through the intermediary (as a mediator), offering restitution in an effort to convince the victim to write a letter to the prosecutor or judge stating that no further punishment is necessary. Thus, the victim generally receives restitution before prosecution occurs, and as Evers explains: “The emphasis on restitution and pardon by the victim in the Japanese approach tends to satisfy the victim’s desire that justice be done.” The criminal then asks for mercy from the public sector criminal authorities and, given a letter from the victim, the punishment imposed by the state tends to be “lenient” relative to other modern countries. Without such a letter, punishment can be harsh. Indeed, the victim typically has an advisory role (although not control or a veto power) as decisions regarding charges, prosecution and sentencing are made.
The victim might be in a position to hold up the criminal by demanding a large restitution in exchange for a letter to the judge or prosecutor. The victim’s ability to do so is clearly constrained, however, both by the moral standards of the society and by the fact that the criminal can refuse. The victim cannot really force payment because the criminal has a choice between making such a payment or facing what may be a harsher punishment if he is prosecuted without a victim’s pardon. Even then, of course, it is likely that confessing to the prosecutor/judge, expressing sincere remorse, and explaining the unreasonable demands of the victim might mitigate the punishment, so victims’ incentives are to not demand excessive restitution.
The importance of confessions in the Japanese system might suggest that there are strong incentives to extract confessions through force. However, the bargain between the victim and the offender takes place outside the official channels of coercion. The victim is not likely to benefit from a coerced confession. Furthermore, confessions alone are not sufficient for convictions in the Japanese courts. Indeed, there is no guilty plea (e.g., as through plea bargaining) in the Japanese process, although many proceedings are summary in nature. Every case that is prosecuted (not all cases are, as explained below) must involve a hearing on the evidence, and even when a confession exists, the burden of proof remains with the prosecutor who must show that the confession was freely given, and must also provide corroborative evidence. Furthermore, the underlying focus on admission of responsibility and remorse also has a great moral force in Japan. In contrast to prosecutors in the U.S., who appear to be more concerned with getting large numbers of convictions, these officials in Japan apparently are concerned with obtaining confessions that are sincere, and expressions of remorse that are genuine. Thus, as Evers explains, “The rectification of crime, leniency of punishment, and rehabilitation of criminals in Japan have a moral basis that would be undermined by false confessions.”
Japan’s clearance rate apparently is very high: Evers cites sample figures that exceed 52 percent compared to the roughly 20 percent average in the U.S.. Why? Perhaps because victims, who can anticipate restitution as well as a good deal of influence on the criminal justice process, are much more likely to cooperate with policing? But not all criminals are prosecuted. Over 21 percent of the criminals who could be referred for prosecution are released by the police without additional criminal proceedings. They have the power to do this for simple cases where they and the victims are satisfied that the offender is sufficiently remorseful. The vast majority of the cases that are prosecuted are settled in a summary procedure based on documented evidence, for which the maximum public penalty (on top of the privately negotiated restitution) is a fine. For example, in 1983, 85.8 percent of the adult criminal cases that were prosecuted were through summary procedures while only 5.1 percent involved ordinary criminal trials (prosecution was suspended for 9 percent of the adult accused). Summary proceedings are not allowed for serious offenses like murder, fraud, and extortion for which fines are not statutory options for punishment (although prosecution can be suspended in such cases). While convictions rates are very high (almost 99.5 percent), few offenders receive government imposed penalties on top of their restitution other than small fines or short prison terms.
How successful is this criminal justice process which substitutes holding criminals responsible to their victims (restitution) for harsh punishment? The number of offenses and the numbers of criminals are substantially lower in every crime category than they are in any other modern, industrialized country. Furthermore, among these industrialized countries, only Japan’s crime rates have fallen continuously since World War II.38 Finally, there is evidence that recidivism is very low in Japan. This is not surprising, however, since the Japanese system breeds a very different attitude among criminals. In the U.S., “Criminals all too often try to relieve their moral and psychological guilt for their crimes by portraying themselves in the forum of their own consciences as victims of society who are not responsible for their deeds. But the process of confession and restitution found in Japan discourages such self-indulgent self-forgiveness and develops honest attitudes and patterns of conduct by punishing in moderation only when criminals show remorse and pay restitution.”
Could such a system be implemented in the United States in the context of the exiting system of public prosecution and corrections? Perhaps, but it is highly unlikely. It would clearly take some significant changes in law, in procedures, and most significantly, in public-sector attitudes. In fact, as Evers notes, trends appear to be running in the opposite direction, as the government’s influence in society is rising, while: “In Japan, society runs largely on its own; government officials do not figure importantly in making things work. Norms are mostly enforced through social pressure in the family, school, workplace, and local neighborhood. Face-to-face communities enforce conformity … [and] strive to curb criminal violence and to correct its practitioners. … In Japan, it is mostly society rather than government that is in charge of crime control.” What makes restitution work well in Japan is that private individuals and groups are much more responsible for controlling crime.
- 37. John O. Haley, “Confession, Repentance, and Absolution,” in Mediation and Criminal Justice: Victims, Offenders, and Community, Marian Wright and Burt Gallaway, eds. (London: Sage Publications, 1989), p. 204.
- 38. Haley, “Confession,” p. 204.
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