Arrest of a U.S. Citizen

DISCLAIMER:  

Officers of the U.S. Department of State and U.S. embassies and consulates overseas are prohibited by 22 CFR 91.81 from acting as agents, attorneys or in a fiduciary capacity on behalf of U.S. citizens abroad.  U.S. Department of State personnel, including its attorneys, do not provide legal advice to private citizens.

 Any information relating to conditions within a specific foreign country is provided as a courtesy, for general information only, and does not constitute legal advice.  The Department of State makes no representation regarding the accuracy, completeness, or timeliness of this information.  Questions about foreign laws and legal systems should be addressed to appropriate attorneys.

The Japanese legal and penal system is different than in the United States.  The following account is intended to provide general information about what to expect from the point of arrest through investigation, indictment, conviction, sentencing and service of a prison term if the case is not dismissed. These descriptions are general only, and your case might proceed differently.  You should not rely on this information for the purpose of making legal decisions; the only true authority for your case is your lawyer.

Providing assistance to U.S. citizens arrested or detained abroad is one of the highest priorities of the Department of State. The U.S. Department of State is committed to the welfare of U.S. citizens detained overseas. Our embassies and consulates stand ready to assist citizens and their families within the limits of our authority in accordance with international, domestic and foreign law.  The Embassy/Consulates will make every effort to ensure that U.S. citizens are treated in accordance with Japanese laws and regulations.

While in Japan one is subject to the same laws as is a Japanese citizen. A U.S. passport does not entitle its bearer to any special privileges. One should not expect to receive preferential treatment or to expect that the same array of legal rights accorded one under the U.S. judicial system are necessarily applicable in Japan.

 

You are subject to local laws. If you violate local laws, even unknowingly, you may be arrested, imprisoned, or deported. If you are arrested in Japan, even for a minor offense, you may be held in detention without bail for several months or more during the investigation and legal proceedings.  Information on the Japanese Judicial System is available on the Japan Federation of Bar Associations’ website.

Furthermore, some laws are also prosecutable in the U.S., regardless of local law. For examples, see the U.S. Department of State website on crimes against minors abroad and the Department of Justice website.

Japanese authorities aggressively pursue drug smugglers with sophisticated detection equipment, “sniffing” dogs, and other methods. Penalties for possessing, using, or trafficking in illegal drugs, including marijuana and synthetic drugs, are severe, and convicted offenders can expect long jail sentences and fines.

You must carry your U.S. passport or Japanese Residence Card (Zairyu Kado) with you at all times. In Japan, you may be taken in for questioning if you don’t have your passport or Japanese residence card to show your identity and visa status.

It is illegal to work in Japan while in tourist or visa-waiver status. Overstaying your visa or working illegally may lead to fines of several thousands of dollars, and in some cases, re-entry bans can be as long as ten years, or indefinitely for drug offenders. For additional information please see Japan’s Immigration Control and Refugee Recognition Act and contact the Japanese Embassy or nearest Japanese consulate in the United States for more information.

Laws governing rape, sexual commerce, and other activity involving sexual relations do not apply to same-sex sexual activity. This definition leads to lower penalties for perpetrators of male rape and greater legal ambiguity surrounding same-sex prostitution.

Driving under the influence of alcohol could also land you immediately in jail. The blood-alcohol limit in Japan is approximately 0.03%, less than the amount of alcohol in a single glass of beer. Punishments can be up to 10,000 USD in fines and up to five years in prison.

Possession of a gun or ammunition is a crime in Japan. Possession of a knife with a locking blade, or a folding blade that is longer than 5.5 cm (a little more than two inches), is illegal in Japan. U.S. citizens and U.S. military personnel have been arrested and detained for more than 10 days for carrying pocket knives that are legal in the United States but illegal in Japan. The possession of lock-picking tools is illegal in Japan.

list of English-speaking lawyers located throughout Japan is available on the Embassy’s website.

Arrest Notification:  If you are arrested or detained, ask police or prison officials to notify the U.S. Embassy immediately.

Providing assistance to U.S. citizens arrested or detained abroad is one of the highest priorities of the Department of State. The Department of State is committed to the welfare of U.S. citizens detained overseas. Our embassies and consulates stand ready to assist citizens and their families within the limits of our authority in accordance with international, domestic and foreign law.  The Embassy/Consulates will make every effort to ensure that U.S. citizens are treated in accordance with Japanese laws and regulations.

We can: 

  • Provide you a list of local attorneys;
  • Contact your family, friends, or employers with your written permission;
  • Visit you regularly and provide reading materials, personal items, and vitamin supplements, where appropriate and permitted;
  • Help to ensure that officials are providing you appropriate medical care;
  • Inform you of local and U.S.-based resources available to detainees;
  • Request that officials permit you visits, including with a member of the clergy of the religion of your choice; and
  • Help facilitate family and friends in sending you money.

We cannot: 

  • Get you out of jail;
  • State to a court that you are guilty or innocent;
  • Provide you with legal advice or represent you in court;
  • Serve as your official interpreters or translators;
  • Pay your legal, medical, or other fees.

The Privacy Act of 1974 (Public Law 93-579) was enacted to protect U.S. citizens against unauthorized release of information about them by the government. If you want us to notify your family or friends about your arrest you must first give us written permission to do so.

The Embassy will not inform any person of your arrest without your permission. Even if your family or friends find out by other means, we will be unable to discuss your case with them without your permission. Although we routinely report to the Department of State in Washington on the condition of American prisoners in our consular district, the Department of State does not release this information to individuals without your permission.

You give us permission to contact people via a Privacy Act Waiver, or PAW. Here is a sample copy(PDF – 184 KB).

These files are maintained primarily for the purpose of providing protection and assistance to American citizens abroad and not for law enforcement purposes. While there is no automatic or mandatory dissemination of information in consular files to other agencies, we can release specific information to other agencies that have a legitimate interest in such data. Therefore, for legitimate law enforcement purposes in the U.S., the appropriate law enforcement agency in the U.S. may be notified.  Arrest records maintained by the Japanese government, however, are not bound by the restrictions of the Privacy Act.

Under Japanese law, you may be arrested and detained without bail for 48 hours by the police on suspicion of having committed a crime. During this period, the police are required to inform you of the crime of which you are suspected, of your right to remain silent, of your right to hire a lawyer at your own expense, of your right to request a court-appointed lawyer, and of your right to have the Embassy or the Consulate notified of your arrest.

If an arrestee is unable to hire a lawyer, he or she can request a court-appointed lawyer.  However, the police usually begin their initial questioning before you have an opportunity to see a lawyer.

If the police believe they have enough evidence to detain you, they must present this evidence to a public prosecutor within the initial 48-hour detention period. The suspect appears before the prosecutor when the police present the evidence. If the prosecutor concurs, he/she must then obtain a warrant of detention from a judge within 24 hours. Again, the suspect would appear before the judge when the warrant is requested. A case could be dropped at either of these stages for lack of evidence, or the investigation may continue.

If an arrestee is unable to hire an attorney, he or she may be entitled to receive a court- appointed attorney if certain conditions are met.  If you are interested in a court-appointed attorney, please advise the police, the prosecutor, or the judge.

NOTE:  Anyone arrested can request for an attorney on duty (Toban Bengoshi) from the nearest bar association who can visit you once free of charge.  Simply ask the police to contact the “Toban Bengoshi” for you.  The police has telephone numbers for the nearest bar association for “Toban Bengoshi.”  This information is also available on the Japan Federation of Bar Associations website.

Bail

Bail is the exception rather than the rule in Japan and  virtually unheard of for foreigners on visitor status. Regardless, bail is not approved until you are indicted.  If you are arrested in Japan you will in all likelihood remain in jail until you are indicted or released. Suspects are usually kept at the local jail where they were arrested and generally eat the same Japanese style food as the other prisoners.

If the judge agrees there is probable cause to believe a crime has been committed, the court will issue an initial 10 day detention order to permit the prosecutor to continue their investigation. At the end of this 10 day period, the prosecutor can request a second 10 day detention period to continue the investigation further.  The arrestee will normally appear before the judge at each of these hearings and may be asked to testify on his/her own behalf.

At the end of this 20 – 23 day detention period, the prosecutor must either ask the court for a formal indictment or release the prisoner. Of course, an indictment could be sought sooner if enough evidence is readily available or the prisoner could be released sooner if adequate evidence is not forthcoming.

Daily Life In Jail / Detention: Communication

Suspects jailed in Japan are prohibited from making or receiving phone calls. The precise terms of your confinement will be spelled out by the prosecutor. For most drug cases, prosecutors place a suspect incommunicado which bars them from receiving visitors other than a lawyer or a Consul, and from corresponding with anyone other than their lawyer or (in most cases) the Embassy or Consulate.

Some suspects incommunicado may also be prohibited from receiving mail or reading material from the Embassy or Consulate, although they are usually allowed to meet in person with a Consul and to write to a Consul. Incommunicado orders may continue until the first trial date.

Suspects not incommunicado are able to write and receive letters from family and friends. The police routinely censor all outgoing and incoming mail, except for correspondence from lawyers or a Consul. Consequently, there may be delays in sending or receiving mail if it is not written in Japanese or Japanese translation is not attached since it must be translated for screening. You may be charged for translation fees if you write/receive letters in foreign language including English.

Visits

Suspects not incommunicado are permitted to receive visitors during normal business hours. The visitor is separated from the suspect by a window and all such visits must be monitored by a police officer.  Most police officers in Japan do not speak English.  Therefore, a visitor must bring an interpreter.  Visitors should check with the police station about the visiting hours and other requirements before any visit is made.

Clothing, Toiletries, Snacks, Etc.

Until they are convicted, suspects wear their own clothes. Laundry facilities are normally available only once a week, so suspects should make arrangements to have sufficient clothing.  The police  also supplies basic toiletry items, but visitors can supply familiar brands of soap, toothpaste, shampoo, etc.

Visitors are also permitted to provide books, magazines and newspapers. However, some police stations may refuse those written in foreign language.  News journals would be censored of any references to the suspect’s own or related crimes. At the police’s discretion, visitors can purchase snacks (including take-out meals) to supplement the normal jail food. Suspects can also purchase items through the police if they have no friends and relatives in Japan.

If the prosecutor believes there is sufficient evidence, the suspect will be brought before a judge again and formally indicted. Prosecutors in Japan generally do not take a case to trial unless they are convinced they can win. After indictment, the conviction rate in Japan is over 99 percent. If indicted, the defendant is usually transferred to the regional detention prison where he/she will be held for the duration of the trial.

Trial

Information on the Japanese Judicial System is available on the Japan Federation of Bar Associations website.

There is no trial by jury in Japan. Instead, cases are tried by a panel of three judges, unless the case is a serious criminal case.  Serious criminal cases are tried under a lay judge system  called “Saiban-in” (citizen judge) system, similar to jury system.

Individual court sessions can last a short period of time or several hours. Subsequent sessions will be held anywhere from several days to several weeks later.

Depending on the complexity of the case, a trial could last for many months. If a defendant pleads guilty, the trial could be resolved in as few as two hearings.

A trial will typically begin by identifying the defendant and reading the charges against him/her.  The defendant will be advised of the right to remain silent and to refuse to answer individual questions.  The defendant will be given an opportunity to make a statement about the charges but warned that the statement could be used against him/her.  The defendant then enters a plea.  Following this the attorney makes the opening statement for the defense followed by the prosecutor’s opening statement.

If the case is complex, subsequent sessions will be held for the prosecutor and the defense to present evidence.  After all the evidence is presented, the prosecutor and the defense make their closing arguments.  The judge will then set a date to render their judgment and sentence.  Even with a guilty plea, a trial will usually consist of a minimum of two sessions, except for a speedy trial as described below.  At the court’s discretion, defendants may receive partial credit for time spent prior to the conviction.

Speedy Trial

A speedy trial may be implemented for a first time offender charged with a misdemeanor for which the sentence will be suspended.  Provided that you plead guilty, and both the prosecutor and you consent to the proceedings, a trial should be held in two weeks of the date of the indictment.  The trial and the sentencing will be completed in one day.

Lay Judge System

Serious criminal cases are tried under the lay judge system.  Six lay judges randomly selected from among eligible voters, together with three professional judges at district courts, examine serous criminal cases such as murder, robbery resulting in bodily injury or death, bodily injury resulting in death, unsafe driving (such as drunken driving) resulting in death, arson of an inhabited building, kidnapping for ransom, and abandonment (of a child) by a person responsible for protection resulting in death.  This system is different from the jury system in the United States where jurors are involved in deciding guilt or innocence, and the judges determine the sentence.  Lay judges participate in determining guilt or innocence, and if they find the defendant guilty, also participate in determining the sentence, including the death penalty.  Verdicts and sentences are determined by majority vote.  A guilty verdict must be supported by at least one professional judge.  Lay judges also participate in the questioning of the defendant and trial witnesses.

Lawyers

Private lawyers are expensive in Japan, charging roughly $6,000 to $10,000 for a criminal case. Statistics suggest that the most effective period for legal intervention is at the pre-indictment period when a lawyer can exert most influence on the outcome of the case.

Japanese prosecutors do not face the same workload constraints as their American counterparts and have sufficient resources to prosecute each and every crime to the full extent of the law.

If a defendant is unable to hire a lawyer, the court-appointed lawyer can be assigned.  There is no Public Defender’s office in Japan, and court-appointed lawyers are really private lawyers who have been tasked with defending an indigent client.

As in the pre-indictment period, bail is virtually unheard of for foreigners. Life in the detention prison is much more regimented than at the local jail. There are numerous rules covering all aspects of behavior, including how one sits in the room.

In order to do anything, e.g. see a doctor, write a letter, purchase snacks, etc., one must submit a written request, called a gansen. The suspects are usually confined to individual cells with little opportunity to talk with other inmates. The most common complaint about life at the detention prison is boredom.

Communication

Inmates at detention prisons are not allowed phone calls, and mail continues to be censored. Visiting hours at the detention prison are strictly limited, with no provision for after-hours access. Visitors are allowed to make only one visit a day, which is generally limited in duration. The timing of visits may also be affected by the availability of language-qualified prison officials to monitor the meeting. Meetings with the lawyer and the Consul, however, are not monitored.

Clothing, Toiletries, Snacks, Etc.

Visitors are permitted to supply reading material and clothing. Other items, such as soap, snacks, toiletries, etc., must be purchased at the prison shop. Prisoners can purchase items on their own behalf from the prison shop by submitting a gansen. The guards have a list of items available for purchase. Prescription medications should be obtained through the prison doctor.

Under Japanese law, if the judges have a reasonable doubt as to the defendant’s guilt they are obliged to render a verdict of not guilty.

If found not guilty, the defendant must be compensated for his detention by the Japanese government. If found guilty, those guilty of relatively minor offenses may receive a sentence of imprisonment whose execution is suspended for one to five years. This is possible if the sentence to be suspended is less than three years in prison or a fine less than 200,000 yen, and at least five years have elapsed since the completion or remission of any previous sentence.

If an individual receiving a suspended sentence is convicted of no other offenses in Japan during the time of suspension, the original sentence would be remitted. If, however, they were to commit another offense in Japan during the time of suspension, they would have to serve both the initial sentence and the new sentence. Those receiving heavier sentences will serve their sentence or pay their fine in Japan.

If an individual has strong ties to Japan and a valid visa status, he/she may be allowed to remain in Japan after receiving a suspended sentence, if a Japanese national acts as his/her sponsor with the Immigration authorities.  However, those with drug-related convictions will generally be deported.  Even if you are released after receiving a suspended sentence, you may not be able to renew your immigration status later, and eventually may be deported. Those without strong ties to Japan and whose visa status has expired would be deported after their conviction.

Similarly, an individual convicted and sentenced to actual imprisonment would have the same options after release from prison. Those with strong ties and a willing sponsor in Japan could be permitted to remain while others would be deported after their release from prison. Deportation in Japan is at the deportee’s own expense.

Under some circumstances, U.S. citizen prisoners  may be able to serve part of their sentence in the U.S. instead of in a Japanese prison. Follow this link to learn more about Prisoner Transfer.

Fines

If a sentence includes a fine as well as imprisonment, the prisoner will be detained until the fine is paid. If they are financially unable to pay the fine, they could substitute additional imprisonment for the money at a rate of one day’s extra imprisonment for each 5,000 yen – 20,000 yen of the fine.  This rate will be determined by the judge.

Appeals

After conviction in the court of first instance, a defendant has two weeks in which to submit a written request for an appeal (koso). After receiving a request for an appeal, the court will set a deadline for the defendant and his/her lawyer to submit a formal statement (koso-shuisho) of the basis for the appeal to the appropriate High Court. In a Koso appeal, the High Court will re-examine the facts of the case to determine if they support the verdict.

One can also request a jokoku appeal to the Supreme Court in which one examines the applicability of the laws and procedures applied in the lower court decision rather than the facts of the case.

The prosecution too has the right to appeal a sentence if they believe it was too lenient or too harsh, or that the defendant should not have been found not guilty. If the defendant appeals, the High Court will not impose a higher sentence. If the prosecutor appeals, the High Court could increase the sentence.

The High Court has the power to reverse a lower court decision, alter the sentence, or return the case to a lower court for retrial. High Court decisions may also be appealed to Japan’s Supreme Court if questions of constitutional law are involved. A defendant may receive partial credit for time served during the appeal process. The amount of credit given for time served is entirely at the discretion of the judge.

There are eight high courts in Japan: Tokyo (for the Kanto area), Nagoya (for the Chubu area), Osaka (for the Kansai area), Fukuoka (for Kyushu and Okinawa), Hiroshima (for the Chugoku area), Takamatsu (for Shikoku), Sendai (for the Tohoku area), and Sapporo (for Hokkaido).

Defendants lodging an appeal are held at the detention prison nearest the high court hearing the appeal, which may involve a transfer from one detention prison to another. Those appealing to the Supreme Court would be held at the Tokyo Detention Prison.

After the appeal process is exhausted, prisoners are transferred from the detention prison to the prison where they will serve their sentence. Male foreign prisoners in Japan are generally housed at Fuchu Prison in Tokyo while females are usually housed at Tochigi Prison in Tochigi Prefecture. All penal institutions in Japan are national facilities under the jurisdiction of the Correction Bureau of the Ministry of Justice.

Please visit the Japan Federation of Bar Associations website for Information for Prison Inmates (PDF – 244 KB).

Fuchu Prison

Fuchu Prison is the largest prison in Japan and contains both Japanese and foreign prisoners. The Japanese prisoners are generally male offenders 26 years old or over with prison terms of 10 years or longer, and who have past prison records. Most foreign men convicted in Japan are held at Fuchu Prison. More than 300 foreigners representing over 40 nationalities are found in the foreign inmate population. The vast majority of the prisoners eat Japanese style food.

Orientation

Upon admission to Fuchu Prison, the prisoners undergo a 15 day orientation and assessment period in which they are acquainted with the rules and regulations and assessed as to their skills and personality profile.

Discipline

The prison imposes a strict, military-like discipline. The inmates wear prison-issue uniforms and there is a prescribed way to walk, talk, eat, sit and sleep. Doing things the wrong way or at the wrong time will be punished. Similarly, good behavior is rewarded with more privileges. There are four grades of prisoners with increasing privileges accorded those of higher rank. Requests for assistance from the guard staff are done by gansen.  As a result of the harsh discipline, the guards are able to exert near complete control over the prison.

Communication

Prisoners are generally allowed to write and meet only their family, their lawyer and their consul. They are not allowed to correspond with or have visits from friends. During the orientation period, the prisoners will be asked to make a list of their relatives which will be their authorized correspondents. There are limitations on the number of letters which prisoners can write but no limit on the number of letters they may receive.

All mail is censored and the prisoners must pay for all postage, stationary, etc. There are strict limitations on communications between prisoners. Talking is permitted only at prescribed times during the day.

Prisoners may have access to radio and television, books and newspapers during leisure hours. Furthermore, outside speakers are invited to give lectures. There are also physical exercises such as calisthenics and various ball games during exercise period. Foreign embassy staff members and authorized non-Japanese religious representatives also are available to assist foreign inmates.

Education

Fuchu Prison provides vocational training in auto mechanics, leather craft, woodworking, and ceramics, as well as supplementary education courses in Japanese. Foreign inmates are offered Japanese language lessons. Fuchu Prison states that it has a library with over 8,000 books and magazines in English. Prisoners are also allowed to receive books from their relatives and to purchase books through the prison.

Work

Work is obligatory for inmates sentenced to imprisonment with forced labor, which includes the bulk of the population at Fuchu Prison. Inmates are assigned eight hours of work per day, 168 hours of work every four weeks. Work is assigned to the inmate based on the results of the orientation assessment.

In addition to the vocational training-related work, prisoners may do assembly work for outside contractors and work in various sections of the prison plant, e.g. the prison laundry, the kitchen, etc. The inmates receive payment for their labor which they can use to order books and magazines, or buy items from the prison store. Any unspent money will be given to the prisoner upon release. All income received by the prison for the sale of goods produced by the inmates is treated as government revenue.

A Typical Day at Fuchu Prison

06:45 Rise/Roll-call
07:05 Breakfast
07:35 Proceed to workshops
08:00 Resume work
09:45 Break time
10:00 Resume work
12:00 Lunch
12:45 Resume work
14:30 Break time
14:45 Resume work
16:40 Return from workshops to cells
16:55 Roll-call
17:00 Dinner
18:00 Free time
21:00 Sleep

Tochigi Prison

Tochigi is a regular women’s prison which is also designated to hold foreigners. Housing over 600 prisoners, it is located in a rural area north of Tokyo. The prison is organized along the same lines as Fuchu Prison, though the overall regime is less harsh. The procedures described for Fuchu Prison are applicable to Tochigi Prison as well, with a few minor differences:

The English-language holdings at the prison library are much smaller than at Fuchu Prison. The Embassy, however, is contributing books to increase the English-language holdings.

Instead of training auto mechanics and carpenters, Tochigi Prison offers training for beauticians, (Japanese) typists and seamstresses. The beauticians provide limited hairdressing facilities for their fellow prisoners, though they specialize in treating Japanese-type hair and have difficulty with curly or thicker hair.

Advanced inmates at Tochigi also have the option of working an extra two hours per day for their own, personal profit.

The most advanced inmates are permitted to live by turns in a completely open house outside the prison, like ordinary citizens. Other advanced inmates are able to live in unlocked rooms within the prison compound.

A Typical Day at Tochigi Prison

06:30 Rise
06:50 Roll-call
07:15 Breakfast
07:50 Resume work
09:30 Break time
09:45 Resume work
12:00 Lunch
12:20 Break time
12:40 Resume work
14:30 Break time
14:45 Resume work
16:20 End of work
16:30 Dinner time
17:00 Roll-call/Free time
20:00 May lie down
21:00 Sleep

Please visit the Ministry of Justice website for more information on Penal Institutions in Japan.