TEXT BELOW FROM JAPAN TIMES March 24th, 2009
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Punishing foreigners, exonerating Japanese
Debito Arudou sees growing evidence of judicial double standards

By DEBITO ARUDOU
Examine any justice system and patterns emerge. For example, consider how Japan's policing system treats non-Japanese. Zeit Gist has discussed numerous times (July 8, 2008; Feb. 20 and Nov. 13, 2007; May 24, 2005; Jan. 13, 2004; Oct. 7, 2003) how police target and racially profile foreigners under anticrime and antiterrorism campaigns.

But the bias goes beyond cops and into criminal prosecution, with Japanese courts treating suspects differently according to nationality. We've already tackled the subject of how judges discount testimony from foreigners (Zeit Gist, Aug. 14, 2007), but here's the emerging pattern: If you are a Japanese committing a crime toward a non-Japanese, you tend to get off lightly. Vice versa and you "haven't a Chinaman's chance," as it were.

For example, consider the Hiroshi Nozaki Case. In 2000, Nozaki was caught flushing a Filipino woman's body parts down a public toilet. However, he was not charged with murder — only with "abandoning a corpse" (shitai iki). That got him all of 3 1/2 years in jail. By 2008 he was stowing another dismembered Filipina corpse, that of Honiefaith Ratila Kamiosawa, in a train station locker.

We've had plenty of cases where Japanese men kill and mutilate Japanese women (e.g. Yoshio Kodaira, Kiyoshi Okubo), and they tend to get the hangman's noose. Not Nozaki.

Contrast this with the case of Nigerian Osayuwamen Idubor, convicted on appeal in 2008 of sexually assaulting a Japanese woman. Sentenced to two years plus time served during trial, Idubor asserts that his confession was forced, that police destroyed crucial evidence, and most importantly that there was no material evidence. Didn't matter: He got about as much jail time as Nozaki. Which means, pardon the ghoulish tone, that if Idubor had been Japanese and the woman foreign, he could have chopped her up without adding much to his sentence. If there was material evidence, that is.

Hyperbole? Consider other crimes against non-Japanese women, like those of convicted serial rapist Joji Obara. His connection with the Lucie Blackman murder has been well-reported, particularly the botched police investigation despite ample material evidence — even videotapes of his rapes. Regardless, in 2007 Obara was acquitted of Blackman's murder due to "lack of evidence."

Obara did get life imprisonment (not death), since he was only charged with "rape leading to death" of nine other women (one of them foreign). But only after strenuous appeals from Blackman's family was the acquittal overturned in 2008. Obara became guilty of "dismembering and abandoning" her corpse. Again, guilty of crimes to their dead bodies, not of making them dead.

Now triangulate that with the case of Lindsay Ann Hawker, who was allegedly murdered by Tatsuya Ichihashi in 2007. The evidence here is damning too: video evidence of her accompanying him to his apartment building, her beaten and strangled body found in a tub of sand on his apartment balcony, and his fleeing barefoot when police visited to investigate. He's still at large today. You can see his mug shot on police posters with five other suspects wanted for "murder" (satsujin). That is, except for Ichihashi. He's just accused of "abandonment of a corpse," again.

Last week I called Chiba police to inquire about Ichihashi's charges. An investigator entrusted with the case wouldn't comment on specifics. Asked about the process of determining murder or abandonment, he said if the suspect admits "homicidal intent" (satsu-i), it's murder. However, it's unclear how at least one of the crimes shown on the poster is significantly different from Ichihashi's, or how some suspects indicated their homicidal intent before escaping. Police did not respond to requests for further clarification.

Clearer is the exceptional treatment given Atsushi Watanabe, who in March 2008 choked to death an allegedly irate Scott Tucker, an American, at a Tokyo bar. Generally, in these situations the survivor goes down for "too much self-defense" (kajo boei), regardless of intent. That precedent was set in the 1980s by Steve Bellamy, a British martial artist who intervened in a drunken altercation and killed someone. Bellamy was acquitted of wrongdoing, then convicted on appeal, then acquitted again.

Although asphyxiating somebody is arguably overdoing it, media anticipated the case was "likely to draw leniency." They were right. Last November Tucker's killer got a "suspended sentence" of three years. Moreover, public prosecutors, normally pit bulls in these situations, decided not to appeal.

Even less tenacious were the police prosecuting Peter Barakan's case. Barakan, a famous British commentator on Japanese TV, was assaulted with pepper spray by a masked assailant in 2007. Police tracked down the getaway van, found the driver, and found mace cans in the back. Yet no one was given that 23-day-maximum marathon of interrogations granted for investigating lesser crimes (such as foreigners who don't cooperate with police ID checks). Barakan tells me the police have since done "absolutely zilch" about his case.

Maybe police were too busy to pursue Barakan's macing, but I doubt the relatives of American Matthew Lacey would sympathize. As The Japan Times reported in 2007, Lacey was found dead in his apartment in a pool of blood in 2004. Fukuoka police declared the cause of death to be "dehydration." When his family insisted on an autopsy, the cause was updated to "cerebral hemorrhage," apparently from an accidental fall. The police, however, refused to issue Lacey's full autopsy for independent inspection. Public prosecutors and the U.S. Embassy have not pursued the case. It's a busy world.

So does this mean that authorities have it in for foreigners? You could make that case. This is a land with a policing regime instead of an immigration policy, where under the Foreign Registry Law (Article 18) only foreigners can be arrested, fined up to ¥200,000 and incarcerated for up to a year just for not carrying ID 24-7. Severe criminal penalties for something as easy to misplace as a library card or car keys?

You could argue that this system affects everyone regardless of nationality. Masayuki Suo's excellent movie "I Just Didn't Do It" depicts how the judicial process overwhelmingly favors the prosecution. Don't forget that 99.9-percent conviction rate.

But you'd be wrong. Non-Japanese are particularly disadvantaged because: 1) There is no certified quality control for court and investigative language interpretation; 2) public prosecutors can have negative attitudes toward non-Japanese; and 3) non-Japanese cannot get bail (hoshaku).

Item 1 creates obvious communication problems for non-natives, especially given how heavily Japan's judiciary relies on confessions, so let's not dwell further. The next item, attitudes of prosecutors, has received due attention from scholars.

Professor David T. Johnson writes in his book "The Japanese Way of Justice" that prosecutors consider "crimes committed by foreigners" as "one of the three main challenges facing the procuracy." Tokyo University law professor Daniel H. Foote was cited saying that criminal justice officials "have stepped up their surveillance and prosecution of (foreign workers)," and that the foreign influx poses "the greatest external challenge" to Japan's "benevolent paternalism" in criminal justice. Thus foreigners, in Foote's view, have "a separate track" for criminal prosecution.

As for bail, it may be difficult for Japanese to get, but it's impossible for non-Japanese to get. Standard reasons for denial are fears that the suspect might flee or destroy evidence. However, that didn't stop twice-convicted-yet-bailed businessman Takafumi Horie or Diet member Muneo Suzuki (who even got re-elected during his perpetual appeal).

Non-Japanese, however, face an extra legal layer: status of residence. Stuck in Japanese jug means you can't renew your visa at immigration. Therefore, the logic goes, if a foreigner is bailed, even if they don't flee, they might get deported before their trial is finished. So they remain in custody for the duration of the case, no matter how many years it takes. Then they can be released for deportation.

And it will indeed take years. For example, a Swiss woman, declared innocent twice in court of drug smuggling, has been incarcerated since October 2006. Even though an acquitted Japanese would have been released during the appeal, the Supreme Court upheld the denial of her bail. Same with Nepalese man Govinda Prasad Mainali, acquitted of murder in 2000, yet detained until his conviction in high court that same year. Thus, for foreign defendants, all a public prosecutor has to do is file an appeal and it will void any court acquittal.

So let's summarize: If you're a foreigner facing Japan's criminal justice system, you can be questioned without probable cause on the street by police, apprehended for "voluntary questioning" in a foreign language, incarcerated perpetually while in litigation, and treated differently in jurisprudence than a Japanese.

Statistics bear this out. According to Johnson, 10 percent of all trials in Japan had foreign defendants in 2000. Considering that non-Japanese residents back then were 1.3 percent of the Japanese population, and foreign crime (depending on how you calculate it) ranged between 1 and 4 percent of the total, you have a disproportionate number of foreigners behind bars in Japan.

Feeling paranoid? Don't. Just don't believe the bromide that Japanese are a "peaceful, law-abiding people by nature." They're actually scared stiff of the police and the public prosecutor. So should you be. For until official government policy changes to make Japan more receptive to immigration, non-Japanese will be treated as a social problem and policed as such.

Debito Arudou is coauthor of the "Handbook for Newcomers, Migrants, and Immigrants." A version of this essay with links to sources can be found at www.debito.org. Send comments on this issue to community@japantimes.co.jp