John Haley is Garvey, Schubert & Barer professor of law and professor of international studies at the University of Washington, where he has taught Japanese law since 1974.
Haley’s research on Japanese criminal justice and Japan’s success in significantly reducing crime rates led to his interest in American approaches, especially the restorative justice movement and victim offender mediation programs. He has lived and taught in Japan for six of the past 30 years. Haley is a member of the Board of Directors of the Seattle Mediation Services for Victims and Offenders.
No industrial democracy has been as successful as Japan in dealing with crime. Over the past four decades, Japan has reduced crime substantially in all categories except traffic-related offenses. Japanese authorities have learned from experience that offender correction and restoration to the community are essential elements of an approach that has proven to be effective in correcting socially deviant behavior. What has developed is a spiral of success, with law enforcement officials, community members, criminals, and victims working interdependently to prevent crime and reintegrate offenders back into the community.
Police, prosecutors, and judges share an overriding mission to correct rather than punish, incapacitate, or rehabilitate. From the initial police interrogation to the final judicial hearing for sentencing, the vast majority of those accused of criminal offenses confess, display repentance, negotiate for their victims’ forgiveness, and submit to the mercy of the authorities. In return they are treated with extraordinary leniency; they gain at least the prospect of absolution by having their case dropped from the formal process altogether.
The statistics are compelling. The police are estimated not to report up to 40 percent of all apprehended offenders, and prosecutors suspend prosecution of possible convicts in nearly a third of the reported cases. Despite conviction rates that hover at 99.5 percent, judges consistently suspend sentences in nearly 60 percent of adjudicated cases; only a small fraction of all offenders ever see the inside of a jail or prison.
To justify such leniency, Japanese law enforcement officials must be satisfied that the offender and community are working together to compensate the victim and restore peace. The offender’s acknowledgment of guilt, expression of remorse, and willingness to compensate any victims are not enough. The family and the community must also come forward and accept responsibility to ensure that steps will be taken to prevent future misconduct and provide some means of control. In addition, the victim must express forgiveness.
It has become standard practice in Japan for offenders to seek a letter of forgiveness from the victim. A formal letter to the police, the prosecutors, or the judge states that the victim has been adequately compensated and has pardoned the offender. The letter may include a request that the authorities not report, prosecute, or punish the offender. Japanese law enforcement officials consider such letters evidence of victim compensation and an essential element in their decision about whether to proceed with the case or, for judges, suspend the sentence.
The cultural foundations for their approach are firm. Apology and reciprocal pardon are dominant threads in the Japanese social fabric. In the words of Hiroshi Wagatsuma and Arthur Rosett:
In a society that emphasizes group membership as a basis of personal identity, it is important to maintain the sense of "insideness" after a rupturing conflict. There must be a ceremony of restoration to mark the re-establishment of hamony. The process of "conciliation" (chotei) and "compromise" (wakai) and the show of benevolence by the insulted superior party are important, but an apology, and best of all a mutual apology, are even better as the explicit acknowledgment of commitment to future behavior consonant with group values.1
Experience has taught Japanese law enforcement authorities that, expressed as an acknowledgment of guilt and sealed with an apology and pardon, such commitment does deter future misconduct.
The Japanese system is not lenient or forgiving for all offenders. The Japanese have not abandoned incarceration or capital punishment as a means to incapacitate or to deter deviancy. They recognize that some offenders cannot be corrected through confession, remorse, and pardon. What the Japanese experience shows, however, is that for many offenders, pardon is a corrective response and in combination with other preventative and reintegrative community efforts, victim-negotiated restitution and forgiveness are significant factors in crime control.
The Japanese process works. The most recent studies of recidivism (repeat offenses) in Japan confirm previous research in showing that the more lenient the treatment of offenders by the authorities, the less likely the offender is to commit another offense within three years.
To be sure, these statistics can be read to indicate that Japanese law enforcement officials have been extraordinarily prescient in assessing which offenders pose the least risk of repeating criminal conduct. However, because by every account their decision depends upon offender confession, remorse, victim compensation, and forgiveness, it seems apparent that these factors must themselves be critical in determining that risk. In other words, the success of the Japanese criminal justice system in reducing repeat offenses simply reflects the accuracy of Japanese law enforcement authorities’ judgment that confession, repentance, and victim as well as official forgiveness are determining factors in the assessment of offender risk.
The community also plays a role in this assessment. In his book, Crime, Shame and Reintegration, John Braithwaite emphasizes the role of community disapproval – which he labels "shaming" – as the primary mechanism of social control and crime prevention in communitarian societies. He distinguishes, however, "reintegrative" disapproval from various forms of "stigmatizing shaming" in arguing that effective crime control requires reintegration of the offender into the community.
"A critical feature of communitarian societies is that they are both more capable of potent shaming which amounts to stigmatization and less willing to cast out their deviants," writes Braithwaite.
In Japan, it is usually only when the person is deemed to be incorrigible that formal legal action will be taken. So long as the community refuses to condone the conduct but also pardons and restores the remorseful offender, deviant behavior is controlled without state intervention.
To the extent that state officials monopolize the law enforcement process by placing legal constraints on community sanctions or rejecting substitutes for legally prescribed penalties, community controls erode.
In Japan, the state has effectively incorporated community controls as a vital component in the formal process of criminal justice.
According to Braithwaite, nearly all accounts of criminal justice in Japan stress the efforts of voluntary community associations working with law enforcement officials to reintegrate offenders.
In Japan, community volunteers outnumber offenders. There are Crime Prevention Associations in 3,405 cities and towns, with 540,000 liaison units and 10,725 Vocational Unions for Crime Prevention. There are local and national Juvenile Problem Councils concerned with guiding and protecting youth, a yearly "Brighter Society Campaign" to mobilize delinquency prevention; 38,000 volunteer cooperators for Juvenile Guidance doing street work with juveniles; and 320,000 women volunteers in the Women’s Association for Rehabilitation.
The end result for Japan is a spiral of success. As community involvement lowers the number of offenders, offender apprehension becomes easier. As victims become essential participants out of the necessity for their restitution and expressed pardon, they have less to fear and tend to support the discretionary powers that make official restorative measures possible. Similarly, as crime rates decrease, the society at large has less reason to clamor for punitive approaches and becomes more prone to favor compensatory and restorative measures.
Because leniency also depends upon the offender’s family and community responses, the society becomes more, rather than less, dependent upon both for their well-being, thus further intensifying community-based social controls.
With broad public support and evident success, the authorities are able to continue to rely on community participation in the criminal justice process and to emphasize non-punitive, correctional approaches that restore the offender to the community.
by John O. Haley
Victim-Offender Mediation brings offenders and their victims together. With the guidance of a mediator, they share their feelings, discuss the facts, and develop agreements about restitution. Read about programs based on this concept in Genesee Justice, Reclaiming Love: An incest survivor’s story, and Transformation: Victim Offender Reconciliation.
By the end of the 1980s, hundreds of victim-offender mediation projects and programs were established in North America and the United Kingdom, and an increasing number of similar projects had also begun in continental Europe.
After two decades of experience, sufficient data now exist on these programs to make a reliable assessment of their effect.
Most impressive is the consistency of results from evaluations of mediation programs over time and in strikingly different cultural and institutional settings.
Victim-offender mediation projects have uniformly resulted in (1) extremely high levels of victim satisfaction in terms of the perceived fairness of the processes as well as the outcome of negotiations with offenders; (2) at least modest reduction in offender recidivism and; (3) higher levels of actual compensation received by victims than through the formal criminal justice process or other victim restitution programs.
Victims consistently report their appreciation for having the opportunity to tell their stories and to confront offenders with their sense of injury, anger, and outrage. Offenders show more frequent acknowledgment of guilt, deeper appreciation for the consequences of their wrongdoing, and a greater sense of remorse. The statistics from evaluations of a variety of programs show the extraordinary successes of victim-offender mediation.
In a 1983 survey of three Indiana programs, 83 percent of the offenders and 59 percent of the victims were satisfied with the experience, with 97 percent of the victims and all of the offenders indicating they would choose to participate again.
Replies to a 1986 survey in Seattle showed similar levels of victim satisfaction, with more than 90 percent of the participants saying the process was helpful.
A Langley, British Columbia, program reported 92 percent of their participants satisfied.
The Leed’s Reparation Project in the UK reported that 78.6 percent of their victim participants were highly satisfied and 14.3 percent moderately so.
Concurrently, results reported by a variety of researchers in Germany and Finland show that victim-offender mediation programs in these countries have been successful.
On the issue of repeat offenders (recidivism) and successful completion of mediated restitution contracts, a 1986 University of Washington survey found recidivism rates from 8 to 25 percent, and contract completion rates from 64 to 100 percent.
Victim-offender mediation and – more broadly – an approach to criminal justice that emphasizes the restoration of relationships and reintegration of offenders into the community, has proven to be successful in every society where it has been attempted – from Japan to Switzerland, from the US to Finland.
This piece was excerpted with permission from an article in the Mediation Services for Victims and Offenders newsletter of King County. For more information: 1305 Fourth Ave., Suite 606, Seattle, WA 98101. Telephone: 206/621-8871.