Revising Shonenho: a call to a reform that makes the already effective Japanese juvenile system even more effective.

• Author: Tyson, Masami Izumida

ABSTRACT

Shonenho, the Japanese Juvenile Law, is based on ideas of protection, love, and tolerance towards the juvenile offender. Its main purpose is to protect him from the stigma of the crime or delinquent act that he has committed, as well as from the environment in which he was when he committed the crime or delinquent act. Punishment does not have a role within the Japanese juvenile system. Rather, Shonenho strives to reform the juvenile so that he can return to society as a fully functional member within a relatively short period of time. Looking at the low juvenile criminal and recidivism rates in Japan compared to other industrial nations, as well as the fact that the incidence of juvenile crime has decreased compared to when Shonenho was enacted in 1949, it is clear that Shonenho has proven effective.

Nevertheless, especially since the Kobe case in 1997 involving a juvenile who committed two murders and assaulted others, Japan has been contemplating revising Shonenho so that harsher penalties can be imposed on juvenile offenders. Such proposals have resulted from sharp criticism towards the current system that some people claim overprotects juvenile offenders. The two main proposals, introduced to the Japanese government by the leading political party, include allowing prosecutors to try juveniles and having a three-judge panel hear juvenile cases. The Japanese Diet will consider these proposals in the near future.

The proposals directly contravene the purpose of Shonenho. Hence, they do not have the best interest of the juvenile offender in mind. Despite the respectable track record of Shonenho, in the wake of the Kobe case lawmakers have been influenced much by the public outrage over several uniquely heinous juvenile crimes.

The focus of a reform that would truly improve the already effective system should be on enforcing Shonenho. One way to do this is to add enforcement provisions to Shonenho. As it stands now, Shonenho does not provide any legal recourse for the violation of provisions designed to protect the juvenile offender. In addition, lawmakers should place more of an emphasis on ensuring that Shonenho complies with international standards of juvenile justice by guaranteeing juveniles certain rights when they proceed through the juvenile justice system.

1. INTRODUCTION

   A fourteen-year-old commits a murder.

   What is the juvenile's name? What does he look like? Where does he go to school?

   The press and media would answer such questions almost immediately should such an incident occur in the United States. In many situations in the United States, the juvenile would be tried as an adult.(1) The more sensational and shocking the crime, the more likely the public would know and remember the juvenile offender's face and name.

   In Japan, however, the story is much different. A provision in Shonenho, the Japanese Juvenile Law, explicitly forbids the publishing of any information about the juvenile offender that could possibly lead to disclosure of his identity.(2) The purpose of the law is that the rehabilitation of the juvenile will not be hindered, and no one in the public will recognize him when he returns to society.(3) The law further forbids the victim's family any access to information about the juvenile offender.(4) It is not an option for the prosecutor to have the juvenile tried as an adult.(5) In fact, the prosecutor is not a part of the juvenile's trial.(6) All of these provisions exist to protect the juvenile offender in a system that does not make punishment its primary goal, but rather, reform.(7) Shonenho governs all those under the age of twenty years.(8)

   Shonenho has been in effect for over fifty years and has proven effective, without any significant changes since its enactment. Nevertheless, the 1997 Kobe Renzoku Jido Sassho case (Kobe case) has triggered a call for Shonenho's drastic reform.(9) The heinous nature of the crimes involved in the Kobe case, combined with sensational press coverage and a misconception that Shonenho is ineffective, have led to a national discussion on why the alleged overprotective nature of Shonenho should be revised.(10)

   Indeed on its face, Shonenho appears to focus exclusively on protecting the juvenile offender, rehabilitating him, and ensuring that the system does not further corrupt the youthful offender.(11) This goal is precisely what has been the subject of much criticism, especially since the Kobe case.(12) It is questionable, however, if the system has done everything possible to ensure the protection that Shonenho guarantees. As applied, the Japanese Juvenile Law may not be living up to its own goal of protecting the juvenile offender.

   Now, three years after the Kobe case, Shonenho continues to be debated, and the possibility of major revisions is on the table.(13) The leading Japanese political party has suggested two major ideas for revision, which the Japanese Diet(14) will consider in the near future: (1) allowing a prosecutor to be a part of the juvenile trial; and (2) having a panel of three judges, instead of one, hear the juvenile case. In addition, although not explicitly suggested as part of the reform, since the Kobe case, the press and even the courts have violated the guarantees of Shonenho in protecting the identity of the juvenile offender. Yet, because of a lack of enforcement provisions in Shonenho, such violations, for the most part, have gone unpunished.(15)

   The current suggestions for revision and blatant violations of Shonenho pose the danger of losing entirely the vision with which the Japanese Juvenile Law was enacted in the first place. The focus of the current revisions has been on how to punish more effectively, even though that directly contravenes the purpose and spirit of Shonenho, and how to please and protect the public.

   This Note will explain why the current proposals go directly against the purpose behind Shonenho and why they are not desirable. This section will also discuss the need for a reform that will ensure that Shonenho, as it stands, will be more strictly enforced. Part II will lay out the history and current status of juvenile crime in Japan. This section will also describe the Japanese juvenile system, its purpose, and its goals. Part III will discuss the Kobe case and how it has led to the recent call to reform Shonenho. It will also describe the Japanese government's early efforts to revise Shonenho, as well as the current proposals. Part IV will expose why the proposals will not work. Finally, Part V will suggest a different kind of reform that is necessary in order for the full potential and goals of Shonenho to be realized and will more closely adhere to international standards of juvenile justice.

2. SHONENHO: THE JAPANESE JUVENILE LAW

   The protective nature of Shonenho is based on an assumption that delinquency, as discussed in Shonenho, has two components. The first component is that which harms others, and the second is that which harms the juvenile himself.(16) When the juvenile commits delinquent acts, he often harms others. Because these acts label the juvenile as "delinquent," and he subsequently may be shunned by society, there is harm to the juvenile himself.(17) By putting the juvenile offender through rehabilitation programs and by taking the juvenile out of circumstances in which he committed the delinquent acts, Shonenho seeks to protect the juvenile from the harm and stigma he put on himself.(18) Shonenho's goal is to erase the offense completely, not only from the juvenile's own past, but also from the mind of the rest of society.(19)

   1. The Purpose of Shonenho: Protecting the Juvenile Offender

      Article 1 of Shonenho states the purpose of the Juvenile Law as follows:(20)

      This Law is instituted with the purpose of promoting the welfare and wholesomeness of the juvenile, and for the juvenile who is delinquent, that his character will be reformed and that his circumstances would be improved. It is also the purpose of this Law to outline the special treatment that the juvenile will undergo should he be involved in the committing of adult crimes.(21) Shonenho, therefore, contains no reference to retribution or punishment of juvenile offenders. The focus is on reforming the juvenile.(22) The principle of making protection the main focus is known as hogoshugi.(23) Hogo is translated as "protection" or "care" and "patronage" or "to keep from harm."(24) The word hogo is made up of two characters that mean "maintain," "keep," or "preserve," and "protect," "guard," "shield," and "defend," respectively.(25) The first character, for example, is used in the word "nurture" or "upbringing."(26) Juvenile crimes are often referred to as shonen no hogo jiken, loosely translated as "a crime that calls for a juvenile's protection."(27) The hearing, conducted in Family Court, and the "penalty" phase of a juvenile crime, are sometimes collectively referred to as hogo-tetsuzuki, or "the process of protection [of the juvenile]."(28) The punishment component is found in the fact that the juvenile is forced to undergo reform, even if he does not feel it is necessary.(29) It is clear that Shonenho has been designed so that punishment is not the primary focus.(30)

      The Japanese Constitution provides that all minors are guaranteed the right to grow, advance, and develop.(31) These rights are said to be implicit in Articles 13, 25, and 26 of the Constitution.(32) Thus, the Japanese government has a duty to enable and aid the juvenile offender to grow, advance, and develop, despite his delinquency,(33) through the protective nature of the juvenile system. Shonenho is also based on rights that international communities have traditionally guaranteed children.(34)

      The spirit of Shonenho is that of love and tolerance.(35) It presumes that the juvenile will be reformed with appropriate help and that making mistakes is a necessary step for growth.(36) The fact that punishment is not one of the main...