Why Is the Japanese Conviction Rate So High ?

Conviction rates are high in Japan. Why? First, Japanese prosecutors are badly understaffed. Able to bring only their strongest cases, they could be presenting judges only with the most obviously guilty defendants. High conviction rates would then follow naturally. Crucially, however, this is not the full story, for Japanese judges face seriously biased incentives. A judge who acquits a defendant runs significant risks of hurting his career and earns scant hope of positive payoffs. Using data on the careers and published opinions of 321 Japanese judges (all judges who published an opinion in a criminal case in 1976 or 1979), we find skewed incentives to convict. First, a judge who – trying a defendant alone -– acquits a defendant will spend during the next decade an extra year and a half in branch office assignments. Second, a judge who acquits a defendant but finds the acquittal reversed on appeal will spend an extra three years in branch offices. Conversely, a judge who finds a conviction reversed incurs no substantial penalty. Unfortunately for innocent suspects, the absence of an unbiased judiciary also reduces the incentives Japanese prosecutors have to prosecute only the most obviously guilty defendants. Ramseyer: Harvard Law School, Cambridge, MA 02138. Email: [email protected]. Office: (617) 496-4878. Fax: (617) 495-1110. Email: [email protected]. Rasmusen: Indiana University, Kelley School of Business, Dept. of Business Economics and Public Policy, BU 456, 1309 E. 10th Street, Bloomington, IN 47405-1701. Office: (812) 855-9219. Fax: 812-855-3354. Email: [email protected]. Web: Php.indiana.edu/~erasmuse. We thank John Coates, John Lott, Setsuo Miyazawa, Arthur Rosett, Detlev Vagts, Mark West and participants at workshops at Harvard University, Kyushu University, Washington University St. Louis, and the University of Wisconsin for helpful comments. We received generous financial assistance from the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation, and the John M. Olin Foundation. Japanese Conviction Rates: Page 2 Virtually every American law professor knows at least one fact about Japanese law: Japanese courts convict everyone tried. The puzzle is what to make of this. Perhaps Japanese judges convict because Japanese prosecutors try only the guilty. If so, then the high conviction rates would represent a phenomenon many people would envy. Or perhaps Japanese judges convict because they further their careers by convicting. Most defendants might still be guilty -but then again they might not. Perhaps the law in its majestic equality offers, as Anatol France might have put it (nationality aside), the innocent and guilty alike the right to hang for crimes. That Japanese prosecutors might do unusually well at trying only guilty defendants follows straightforwardly from budget constraints. Chronically understaffed, Japanese prosecutors lack the time to prosecute any but a small fraction of the suspects forwarded by the police. Rather than waste their time with dubious cases (other than the occasional politically driven corruption case), perhaps rational prosecutors prosecute only the most obviously and gruesomely guilty. That Japanese judges might face skewed incentives follows from the bureaucratic structure of the Japanese courts. Usually, Japanese judges take their jobs straight out of the national law school. They then stay judges until they retire. During their career, they work as judicial bureaucrats: where they work and what they earn depends on the reputation they maintain with their judicial betters at the courts' administrative office. Using data on the careers and published opinions of 321 judges (all judges who published opinions in criminal cases in 1976 or 1979), we find that Japanese judges do indeed face skewed incentives in criminal cases. They indeed do better if they convict than if they acquit. Suppose a judge sitting alone acquits a defendant. On average, he will spend an extra year and a half in branch offices over the next decade. Or suppose he finds a case reversed on appeal. If a high court reverses one of his convictions, he will suffer no significant penalty -but if it reverses one of his acquittals, he will spend an extra three years in branch offices. We begin by comparing conviction rates in Japan and the U.S. (Section I). We explain why the severe budget constraints in Japanese prosecutorial offices could result in a high ratio of guilty to innocent prosecutions (Section II). We then explore empirically the pressure Japanese judges face to convict (Section III). I. Comparative Conviction Rates: A. The Rates: Conviction rates are high in Japan. They are high in most countries, of course, but they are particularly high in Japan. In 1995, federal courts convicted 85.1 percent of all defendants (46,773 out of 54,980) and 83.3 percent of murder defendants (265 out of 313). In the state courts, prosecutors win roughly 87 percent of their felony cases and 88 percent of their misdemeanors. In 1994, Japanese district court judges convicted 99.9 percent of all defendants (49,598 out of 49,643). Of the defendants up on murder charges, they convicted 99.7 (587 out of 589). If the U.S. attorney 1 In a majority of Japanese murder cases, the charges against the suspect are dropped, as we discuss in Section II.B.2., below. For Japanese figures, see Homusho, Hanzei hakusho [White Paper on Crime] 122 (Tokyo Okura sho, 1996). The Saiko saibansho jimusokyoku, Shiho tokei nempo, Heisei 6-nen [Annual Report of Judicial Statistics, 1994] (Tokyo: Hosokai, 1994) gives slightly different figures. For U.S. federal courts, see Administrative Office of the U.S. Courts, Judicial Business of the U.S. Courts tab. D-4 (Washington, D.C.: Administrative Office of the U.S. Courts, 1995) (murder includes 1st and 2d degree; figures -10/94-9/95). For state courts, see U.S. Dept. of Justice, Bulletin – Prosecutors in State Courts, 1994 (1996, NCJ-151656). Japanese Conviction Rates: Page 3 goes after you, you had better hire a good lawyer; if a Japanese prosecutor does, you had better pack for prison. B. Uncontested Proceedings: