Japan is an independent, sovereign country. One of the chief attributes of sovereignty is the right of a country to make and enforce laws within its own borders. Just as in America, the government has the internationally recognized right to try foreigners as well as its own nationals within its territory.
Anyone who breaks the law in Japan is subject to prosecution under the Japanese legal system. If a person is convicted and sentenced to imprisonment by a Japanese court, this sentence will be served in a Japanese prison.
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.
- Information on the Japanese Judicial System at Japan Federation of Bar Associations’ website.
What follows is drawn from explanatory material provided to arrested Americans.
The Consul's Role
The United States Government cannot get you out of jail. The Embassy or Consulates cannot accept custody of you or guarantee your appearance in court. Nor can they post bail for you, act as your legal advisor or pay legal fees for you.
After being arrested, the police will ask you if you would like the Embassy to be notified of your arrest. You can ask that the Embassy will not be notified, and at a later date you may change your mind and request that the police do notify us.
Arrested persons are not allowed to make telephone calls. If you ask that the Embassy or Consulate be notified, the police will call us on your behalf. You cannot speak to us by phone, nor can you call friends or relatives.
What the Embassy/Consulates Can Do
- Visit you in jail after being notified of your arrest to check on your health and the treatment accorded you by the police;
- Give you a list of local English-speaking attorneys (you are responsible for paying any lawyers’ fees). Japanese law does not provide for a free, court-appointed attorney at the early stages of an arrest. The court-appointed lawyer will only be assigned in certain crime cases before indictment, when the case will go to court. If you are not eligible for a court-appointed attorney before indictment, you are still eligible for a court-appointed attorney after indictment when the case will go to court.
- We will also inform you of the toban bengoshi, or “Duty Attorney” system, whereby the local bar association will send an attorney to meet with you for a free, one-time, consultation. The Duty Attorney can also explain about a subsidy program run by the Tokyo Legal Aid Society that can help pay for an attorney to advise an arrestee before a court-appointed lawyer is made available;
- Make sure the police are aware of any medical conditions you have (for example, diabetes, seafood allergies, etc.), and request that you been seen by a doctor;
- Work with local authorities to ensure that your rights under Japanese law are fully observed, to include protesting any mistreatment or abuse;
- Supply you with English-language reading material subject to prison regulations;
- Notify your family and friends of your arrest, relay requests for financial assistance, provided you authorize the consul to do so.
The U.S. Privacy Act
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.
Nonetheless, American citizens arrested overseas are not liable for prosecution for the same crime upon their return to the U.S. unless they are also wanted for an offense committed in the U.S. Arrest records maintained by the Japanese government, however, are not bound by the restrictions of the Privacy Act.
We have no control over what information the Japanese police pass to their U.S. counterparts or to INTERPOL. It is possible that U.S. police agencies may have acquired more information about a prisoner from these sources than the Embassy or the Department of State in Washington has at its disposal.
Arrest Procedures: The First 72 Hours
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 and of your right to have the Embassy or the Consulate notified of your arrest.
There are no automatic “Miranda rights” in Japan. If an arrestee is unable to hire a lawyer, he or she will be assigned 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.
Under Investigation: The Next 20 Days
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 police 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.
At the end of this 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.
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 an English-speaking police censor is unavailable for screening.
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 an English-speaking policeman. If a language-qualified policeman is unavailable, visitors may be turned away. Therefore it would be advisable for visitors to check ahead of time that the police station is prepared to receive them.
Visitors are also permitted to provide books, magazines and newspapers. 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, and about a quarter of all cases are dropped prior to indictment. However, after indictment, the conviction rate in Japan is over 99%. If indicted, the defendant is usually transferred to the regional detention prison where he/she will be held for the duration of the trial. At times prisoners are held at local police stations due to space constraints at other facilities.
There is no trial by jury in Japan. Instead, cases are tried by a panel of three judges. 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.
Private attorneys are expensive in Japan, charging roughly $4,000 to $6,000 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. In our experience, intervention is most effective when the evidence is truly ambiguous.
American-style plea bargaining in which the prosecutor agrees to indict on a lesser offense in return for a guilty plea is unknown in Japan. 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 will only be assigned in certain crime cases before indictment, when the case will go to court. If you are not eligible for a court-appointed attorney before indictment, you are still eligible for a court-appointed attorney after indictment when the case will go to court. 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.
A court-appointed lawyer normally examines the records and evidence assembled by the police before meeting with the client. It is not unusual for a defendant not to see his court-appointed lawyer until a couple of weeks before the first trial date; in some instances the court-appointed lawyer and prisoner first meet just before the first hearing..
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 lawyer 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 judges will then set a date to render their judgment and sentence. Even with a guilty plea, a trial will consist of a minimum of two sessions.
Daily Life At The Detention Prison
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.
Please visit the Ministry of Justice website for more information on Penal Institutions in Japan (PDF 10 MB).
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 police officers to monitor the meeting. Meetings with the lawyer and the Consul, however, are not monitored.
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.
Japanese prisons are generally safe places with none of the violence or gang activity that the popular cinema associates with prison life in the U.S. While the many rules and regulations at the prison may seem petty and mindless to you, they are in fact part of the overall security plan which creates a physically safe environment for the detainees. It is precisely because of this intense regimentation that the guards are able to effectively control the prison population.
Under Japanese law, if the judges have a reasonable doubt as to the defendant’s guilt they are obliged to render a verdict of innocent.
If found innocent, 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. This typically occurs in cases where the prisoner has a Japanese spouse. 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 either at the deportee’s own expense, or, after a wait of perhaps an additional six to eight weeks in custody after the conclusion of a prison sentence, at the expense of the Government of Japan.
Under some circumstances, Americans may soon be able to serve all or part of their sentence in the U.S. instead of in a Japanese prison. Follow this link to learn more about Prisoner Transfer.
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 10,000 yen of the fine.
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 innocent. 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 is the largest prison in Japan and contains both Japanese and foreign prisoners. The Japanese prisoners are male offenders 26 years old or over with prison terms of less than 8 years, who have past prison records, lack the desire for rehabilitation, and are difficult to treat. Many of the inmates are members of criminal organizations, substance abusers or vagrants. They are often more repeat offenders rather than truly dangerous criminals.
Most foreign men convicted in Japan are held at Fuchu Prison. The number of foreign inmates is increasing yearly, and at present, more than 500 foreigners representing over 40 nationalities are found in the foreign inmate population. The vast majority of the prisoners eat Japanese style food.
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.
The prison imposes a strict, military-like discipline in order to maintain the security, order, and safety of the institution and its inmates. The prisoners 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 and so guarantee the physical safety of the prisoners. As in a military boot camp, the system seems geared towards breaking down old behavior patterns and instilling a more disciplined self-control and an ability to function in groups. Fuchu Prison provides continuing guidance in self-discipline and social ethics for everyday life and there are monthly slogans and frequent personal counseling.
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 also 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.
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 maintains a library with over 5,000 books and magazines in English. Prisoners are also allowed to receive books from their relatives and to purchase books through the prison.
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. Suitable 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.
07:35 Proceed to workshops
08:00 Resume work
09:45 Break time
10:00 Resume work
12:40 Resume work
14:30 Break time
14:45 Resume work
16:40 End of work
16:45 Return from workshops to cells
18:05 Educational and other activities
19:00 Optional activities
Tochigi is a regular women’s prison which is also designated to hold foreigners. Housing over 400 prisoners, it is located in a quiet, 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.
07:50 Resume work
09:30 Break time
09:45 Resume work
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