Criminalizing Yakuza membership: a comparative study of the anti-boryokudan law.

• Published date: 22 December 2014
• Author: Reilly, Edward F., Jr.
• Date: 22 December 2014

I. INTRODUCTION: THE YAKUZA'S PLACE IN MODERN JAPANESE SOCIETY

Originating in Japan and operating across the globe, the Yakuza are regarded as some of the most sophisticated and wealthiest criminal organizations. (1) Yakuza gangs operate a wide variety of illegal revenue-generating activities ranging from securities fraud to traditional extortion of civilians. (2) These hierarchical criminal organizations are classified under Japanese Law as boryokudan (violence groups). (3) As of 2010, the National Police Agency identified 22 boryokudan groups operating in Japan. (4)

In July 2011, the United States Department of State included the Yakuza on a list of four transnational criminal organizations that "facilitate and aggravate violent civil conflicts." (5) Pursuant to this order, in 2012, the Treasury Department froze the U.S. assets of two members of the largest Yakuza syndicate, the Yamaguchi-gumi, (6) Despite these foreign designations, Japanese law does not criminalize active Yakuza membership. (7) While a direct prohibition on Yakuza membership would appear to be the most efficient method of eliminating the Yakuza, the Japanese legislature, the Diet, has refrained from enacting such legislation. (8) The Diet has instead opted for piecemeal legislation aimed at impeding Yakuza revenue-raising activities, increasing liability for criminal acts by Yakuza members, and empowering local citizens who choose to challenge Yakuza groups. (9) Eighteen years after the Japanese legislature enacted its first regulations aimed at curbing Yakuza activities, the National Police Agency proudly proclaimed in 2010 that Yakuza membership nationwide had dropped back to 1992-levels. (10)

Part II of this Note will describe Yakuza's role in Japan. Part III will examine the Anti-Boryokudan law, its revisions, and implementation against the Yakuza. Part III will also describe the Yakuza's reactions and adaptations to the law.

Part IV will take a comparative look at the laws criminalizing organized crime membership in the United States and Italy. This examination includes an analysis of the relevant laws' language, legislative history, and evolution following implementation.

This Note will conclude with the following observations: The Anti-Boryokudan Law's primary effect has been to organize public opinion against the Yakuza. However, the legislation relies too heavily on individuals and communities to shoulder the burden in the battle against the Yakuza. Until legislation is enacted that provides prosecutors with the tools necessary to attach criminal liability to Yakuza membership, the Yakuza will remain an influential presence in Japanese society.

II. THE YAKUZA AND JAPAN

Part of the debate about the Yakuza's role in Japanese society is encapsulated in the group's historical origins. (11) The modern Yakuza trace their lineage back to the machi-yakko, 17th century Robin Hood-type civil defense groups, who protected townspeople from gangs of rogue samurai. (12) However, the link to the heroic machi-yakko is merely a Yakuza brand narrative designed to posture the Yakuza as an essential and benevolent force in traditional Japanese society. (13) In fact, the Yakuza did not emerge until the 18th century and can be traced to two groups, tekiya and bakuto, marketplace managers and professional gamblers. (14) Regardless of its veracity, the National Police Agency has recognized that the Yakuza's association with concepts of traditional Japanese chivalry and nobility are an effective tactic in obtaining a degree of social tolerance for the Yakuza. (15)

Times of crisis have provided the Yakuza with high profile opportunities to promote their image as protector of the people. (16) Yakuza groups delivered aid to the victims of the Great Hanshin Earthquake in 1995 and again following the Great Tohoku Earthquake and Tsunami in 2011. (17) News stories in 1995 frequently emphasized--possibly at the Yakuza's urging--the Yakuza's ability to deliver aid (sometimes more quickly and efficiently than the national government). (18) Other reports portrayed the Yakuza operating as de facto police, patrolling the streets in gangs to enforce order. (19) Yakuza groups arrived with trucks of food and necessities before other organizations were able to mobilize their relief efforts. (20) By contrast, Yakuza bosses appeared reluctant to publicize their relief efforts in 2011. (21) Their apparent modesty may be attributable to the backlash that occurred in 1995 following reports that Yakuza members had demanded letters of support from citizens in exchange for aid. (22)

The Yakuza also portray themselves as ultra-Japanese through associations with right-wing political groups. (23) The Yakuza have been connected with Japan's ultranationalist movement from the movement's inception. (24) The relationship has provided the Yakuza with political influence and has contributed to the portrayal of the Yakuza as protectors of Japanese traditions, untainted by Westernization. (25) In the early twentieth century, several Yakuza bosses served as Diet members, reinforcing the involvement of Yakuza groups in politics. (26) Yoshida Isokichi, a prominent boss from Kyushu, was held as an ideal parliamentarian in the 1900s and a mythically brave "man of chivalry." (27) Incidents in 2013 have revealed that connections remain between the Yakuza and right-wing political groups in their attempts to exert influence in Japan's current political climate. (28) Territorial conflicts between Japan and its Asian neighbors have rekindled nationalist sentiment in Japan. (29) The combination of an ideological shift further towards the right and the severing of ties to Japan's geographic neighbors may provide an opportunity for the Yakuza to exert power and influence. However, there still remains a dispute among commentators as to whether the Japanese public accepts the perception of the Yakuza as ultra-Japanese or simply a group of criminals. (30)

There is great public interest in Yakuza exploits, as well as respect for their achievements, both domestically and abroad. (31) Weekly and daily Yakuza fan magazines, the 'We facto trade publications" of organized crime in Japan, are available at newsstands, convenience stores, and public libraries. (32) Yakuza techniques and etiquette are also popular themes for self-help and management books aimed at businessmen. (33) Films, documentaries, and video games portraying the Yakuza as code-adhering gentlemen capable of ninja-like assassinations have also become a staple Japanese cultural export. (34)

The Yakuza's aggressive public relations efforts have not kept the issue of their utility in modern Japanese society from becoming the focus of public debate. Periods of intense violence during turf wars between gangs, widely reported acts of Yakuza vigilante justice, and the Yakuza's increasing connections to foreigners have fostered a resilient and vocal anti-Yakuza movement. (35) Even so, public sentiment has not entirely shifted, and some still argue that Japanese society is better off with the Yakuza than without them. (36) Supporters of the "necessary evil" argument contend that the Yakuza are a stabilizing force in what would otherwise be a chaotic criminal underworld. (37) Others, including Japanese talk show host Ogura Tomoaki, contend that there are problems uniquely suited to the dispute resolution techniques of the Yakuza. (38) In litigation-averse Japan, many Japanese voluntarily take their problems to the Yakuza rather than resolving them through judicial channels. (39) Ogura was censured for his comments, but his sentiment probably represents a "small but solid minority of Japanese who accept the role of the Yakuza as unofficial enforcers in Japanese society." (40) Ogura's contention may say more about the Japanese civil court systems than the Yakuza. The Yakuza continue to play a role in resolving minor disputes between non-Yakuza members even after the enactment of laws designed to curb Yakuza mediation. (41)

Support for the main legislation aimed at the Yakuza, the Anti-Boryokudan Law, came from three sources: international pressure, domestic politics, and the Yakuza themselves. Japanese politicians were under pressure from their U.S. counterparts for not pulling their weight in the "War on Drugs." (42) Relations between the two nations were already strained due to a bilateral trade imbalance. (43) Japanese politicians felt compelled to act after being criticized for being slow to comply with the 1988 UN anti-drug trafficking convention. (44) Unlike the U.S. and European parties to the convention, "Japan lacked specific countermeasures against organized crime." (45) In the mid-1980s, several high profile gang wars broke out across Japan. (46) These conflicts created a poor public image of the Yakuza. (47) Public tolerance of the Yakuza also waned as Yakuza participation in the legitimate economy increased during Japan's real estate bubble. (48) The ruling Liberal Democratic Party (LDP) had been looking for an opportunity to clean up its image following a string of scandals, disgraced prime ministers, and electoral disasters. (49) Prime Minister Kaifu Toshiki took a hard line against the Yakuza and introduced the Anti-Boryokudan law in hopes of regaining public confidence. (50) The Anti-Boryokudan was thus introduced as a result of the confluence of domestic and international factors.

III. THE ANTI-BORYOKUDAN LAW

A. Boryokudan Designation

The Anti-Boryokudan Law, enacted in 1991, was the first of Japan's three major laws against organized crime. (51) The Anti-Boryokudan law is an executive law that prescribes regulations for the Yakuza. (52) The law has undergone a number of revisions since 1991, most notably in 2006 and 2012. (53) The original legislation allowed the Prefectural Public Safety Commissions to designate certain groups as "boryokudan" (violence groups). (54) Article 3 of...