February 25, 2016

Lawyering up


As I discussed last week, prison life in Japan is harsher but sentences are (often much) shorter than for comparable crimes in the U.S. In Japan through the Looking Glass, Alan MacFarlane points out that, compared to the United States, prison sentences

are lighter in every category of crime, except for homicide. Suspended sentences are meted out extensively, as are small fines. Less than two percent of all those convicted of a crime ever serve a jail sentence as compared with more than 45 percent in the U.S.

The crime rate in Japan is a fraction of what it is in the U.S. But the police have more latitude when it comes to due process. Too much latitude. His .44 Magnum aside, Dirty Harry would be right at home. Detaining a suspect for weeks without access to a lawyer makes extracting a confession the easy way to "solve" a case.

Japan also has a fraction of the number of lawyers as the U.S. Observe that in Hero, criminal defendants almost never have a lawyer present during interrogations, despite ostensibly having the right. On the rare occasions that a defense lawyer does show up, it's cause for great consternation.

Lots of order, not much law, and hardly ever an actual trial.

Few complain because the Japanese are generally loath to involve the courts even for civil matters. So on the one hand, doctors pay almost nothing in malpractice premiums. On the other, an incompetent quack is less likely to get sued, and if money changes hands, rarely the sums common in U.S. malpractice suits.

This creates enough uncertainty in the system that patients in dire circumstances will bribe doctors to guarantee getting the proper care by the proper people (a scene not uncommon in Japanese medical melodramas). Oh, excuse me, that's not a bribe; it's a "gift" (orei).

Though to be fair, a decade ago, the UCLA Medical School received a generous "gift" after performing a liver transplant for a yakuza boss. The exception rather than the rule. Dick Cheney really did wait his turn. (So few transplants are performed in Japan that a bribe would have done the yakuza boss no good at home.)

A decade ago efforts were made to increase the number of practicing lawyers in Japan, in part to counter the powerful National Police Agency, after several prominent cases were overturned because of coerced confessions. Those efforts succeeded about as well as government schemes to increase the birth rate.

Most Japanese simply don't want to become lawyers.

But the Justice Ministry was able to enact a jury system in which "one's peers" essentially act as lay judges, in addition to the traditional panel of judges (usually three). An obvious intent was the threat of jury nullification.

Lay judges comprise the majority of the judicial panel. They do not form a jury separate from the judges, like in a common law system, but participate in the trial as inquisitorial judges in accordance with the civil law legal tradition, who actively analyze and investigate evidences presented from the defense and prosecution.

This strikes me as the more logical approach. The U.S. jury trial system makes for great melodrama, but it's hard to imagine a more inefficient and less effective system for dispensing justice. Not to mention being subject to all sorts of manipulation, hence the whole dubious industry of jury selection.

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