Will Japan's New Conspiracy Law Lead to 'Thoughtcrime'?

On May 2, 2017, three Osaka prefectural police officers stopped a man for acting suspiciously. Questioning led them to suspect he was under the influence of drugs. They asked him to voluntarily submit to a urine test. He refused, probably because he was already on trial for a drug charge. One of the officers went to get a warrant.

Seeking legal assistance, the man walked three kilometers to the Osaka Bar Association building to meet with his lawyer. A band of police now swollen to eight followed him into non-public areas of the building (without a warrant) and videotaped him as he tried to talk with his attorney. The suspect abandoned the consultation and left the building. The police subsequently obtained a warrant and were able to compel a urine test, which showed positive for methamphetamines.

This is what Japanese police can do today if they get someone in their sights. The Police Duties Execution Act, which allows police to stop anyone if they suspect a crime has been or may be committed and ask them to “voluntarily” answer questions or accompany them to a police facility, has been extended to “voluntarily” submitting to searches of person and possessions, and even proffering bodily fluids. The law says persons facing such police demands may not be compelled to cooperate and the text of the Japanese Constitution seems to be on their side, but judges all the way up to the nation’s Supreme Court have been forgiving of aggressive police behavior – warrantless searches, one might even call them. If you don’t want to cooperate, the thinking goes, you must be a criminal – probable cause – so go fill this cup and we’ll check your bicycle registration to see if it’s stolen while we wait; it’s all for the greater good.

The Osaka police justified their following the suspect into the Bar Association building on the grounds that a warrant was on the way. That to the police there is apparently no practical difference between having applied for a warrant and actually having one is understandable, since judges grant virtually all requests for search and arrest warrants. According to most recently available judicial statistics (2015), Japanese courts rejected just 0.06 percent of requests for arrest warrants.

The incident also illustrates not only the contempt in which police apparently hold lawyers and the attorney-client relationship, but the powerlessness of Japanese lawyers to do anything meaningful about it. According to one press account, the suspect’s own lawyer did not clearly object to a squad of police observing his effort to consult with a client; it took another lawyer to demand they leave. The Osaka Bar Association issued a letter of protest to the prefectural police, but that is almost certainly as far as it will go.

This is just what law enforcement authorities in Japan can do before an arrest. Once they arrest you, then a prosecutor can ask a judge to detain you for almost three weeks before they even decide to prosecute you for anything.

This is not pretrial detention, but pre-charge detention, detention for the purpose of investigating you and the crime you are suspected of committing. You are not a defendant on trial, so protections you would expect do not attach. You can consult with a lawyer, but only at times when it doesn’t interfere with their questioning. You cannot contact your family and are under complete control of the police from dawn until dusk. The people interrogating you are essentially the same people who you must rely on to give you food and drink. And medical attention, if you need it. Of course there are organizational barriers, policies and procedures to prevent abuses, but they are still essentially the same people.

Things get easier if you confess, cooperate, agree to a version of the facts that implicates somebody else; whatever they want. Perhaps they will even let you go. You haven’t been charged with anything, after all, though even if you are released you will almost certainly feel that you have been punished. If you disappeared for long enough perhaps you will have lost your job, and if the media reports your arrest perhaps your life will be ruined in other ways as well — even if you are completely innocent.

If necessary, three weeks of detention can effectively be extended into months through subsequent arrests for different offenses, each of which resets the clock. The arrest-detention cycle can thus be used to punish almost anyone severely without ever putting them on trial. In fact, it can be used to punish people more severely than they probably would (or should) be even if they are found guilty. In March 2017 activist Hiroshi Yamajiro was released on bail after five months of detention for allegedly cutting a barbed wire fence and other minor charges (some of which he contests) in connection with anti-base protests in Okinawa. Normally such offenses would attract a fine or shorter custodial sentence at worst.

That a judge must approve pretrial detentions is small comfort. Just as with arrest warrants, statistics indicate they will almost certainly accede to a prosecutor’s request to presume that you are guilty – that you might flee justice or tamper with evidence, thereby frustrating their investigation – and issue a warrant for your detention. In 2014 a judge in Nagoya issued a warrant in a minor bribery case that resulted in the detention for weeks of a democratically elected, sitting mayor of a regional city on the absurd grounds that he was a flight risk.

Japanese courts famously convict 99.9 percent of defendants in criminal trials (though that statistic includes cases that in other countries would be settled by an admission of guilt and a plea bargain). What is less known is that they also play an indispensable role in a system of pre-trial punishment and coercion. The coercive aspects of this system can also be used to encourage arrestees to turn on others, to make exaggerated or even false statements implicating others. That this might be useful to less scrupulous police officers – or honest ones who just doggedly want their hunch about what happened to be correct – should be obvious.

The suspect the police chased into the Osaka Bar headquarters turned out to be on drugs. They got their man. Some might argue that Japan is an amenable place to say because of public safety and a lack of drug-related crime in particular that is unimaginable to people living in some parts of the United States or other parts of the world. What is the problem?

It’s this: in June 2017, Japan’s ruling party and its allies used procedural sleight of hand to ram through a bill that added almost 300 categories of conspiracy offense to the nation’s criminal laws. Seeking to pass the law before the expiry of the Diet session, the usual formality of voting on it in committee was skipped at the House of Representatives; the bill was instead put directly to a vote of the full chamber. To those who voted it through perhaps the ends justified the means, but the frightening prospect is that the same attitude to procedural niceties shown in the course of making the law will also apply to its enforcement.

Now it will not only be against the law to engage in tax evasion, trademark infringement, forging documents, or any number of regulatory or corporate offenses, but merely to plan it – discuss it – and take acts in furtherance of the plan. These acts do not themselves need to be crimes.

Enacted as a set of amendments to the nation’s or anti-organized crime and money-laundering act, these conspiracy offenses will supposedly only apply when committed by “organized criminal groups.” Yet this is amorphously defined and in questioning during the legislative process the minister and deputy minister of justice could not even give consistent answers as to whether the law could be used to implicate “regular” people.

The combination of planning a crime and taking a step in furtherance of that plan is how conspiracy already works under Anglo-American criminal law. Whether Japan is doing anything different from other countries seems a reasonable question. Certainly nothing in this article is intended to hold Anglo-American or any other system out as a superior model.

In any case, a comparison of substantive criminal law may not be very meaningful. In Japan the problem is not likely to be whether people start getting convicted of plotting to engage in illegal mushroom hunting or some of the more quirky examples taken up by the Western press. As this article has tried to show, the real issue is likely the degree to which the mere suspicion of a conspiracy will serve as a pretext for intrusive and coercive police behavior and offer even greater scope for de facto punishment without trial.

By its nature, a conspiracy is based on communication between two or more people – “planning.” With such communications now criminalized, the powers of Japanese law enforcement to intrude into the private spheres of the populace may be vastly expanded. More surveillance warrants will be needed, and when not available perhaps the police will just demand that you “voluntarily” unlock your phone and email accounts for them; “voluntary” urine tests are already okay, so why not?  All for the greater good and you shouldn’t have anything to hide.

With a vast range of conspiracy crimes to choose from, improper thoughts communicated to others can be sanctioned without trial through existing detention protocols. The “act in furtherance” requirement will almost certainly prove to be a bothersome formality. Police can already coerce a confession first and use that to find corroborating evidence second. A confession that reveals an otherwise innocent act to have been in furtherance of the planned crime will likely prove easy to procure.

Those detained on suspicion of conspiracy can be made to divulge any bad motives behind private conversations or correspondence and implicate others. The recent introduction of another feature of Anglo-American criminal law – the plea bargain – will make it easier for police to promise lenient treatment in exchange for testimony against co-conspirators.

Unlike their American counterparts, however, Japanese prosecutors have countless tools for withholding evidence – even exculpatory evidence – from the defense. How far secret accusations of conspiratorial discussions, generated in the dark recesses of the interrogation chamber, can be used to target inconvenient people remains to be seen.

If this sounds alarmist, it is worth remembering that in 2003, the day after an incumbent LDP prefectural assemblyman lost an election to an independent challenger, the Kagoshima prefectural police began questioning, arresting, and detaining the winner and those around him for alleged vote buying. Some were coerced into confessing about meetings and exchanges of cash that never took place, and 13 were prosecuted. Mostly middle-aged or elderly, working-class people, one died during the trial and the remainder were ultimately acquitted but not after collectively suffering years of imprisonment and emotional torture. This abuse of power against multiple innocent people was possible without a conspiracy offense, and failed in its intended result in part because the meetings and exchanges of cash events constituting the alleged crime never took place. If conspiring to rig elections is ever added to the list of crimes (and gradually expanding the list of conspiracy offenses will be easy), it will be enough if the parties just discussed the possibility.

With conspiracy on the books, thoughtcrime does not itself need to be on the books to be policed and punished. The nation’s famed orderliness could be made even more orderly – in time for the 2020 Olympics, perhaps – if people could stop with their bothersome protests and, ideally, thinking disruptive thoughts. Even peaceful dissent and protest are a form of disorder, as are unexpected election upsets. Going forward, the challenge for Japanese civil society will be in identifying and being able to discuss what I think will prove to be the inevitable use of conspiracy arrests to impose and maintain an increasingly static public order.

The use of this new tool will probably expand slowly and gradually, becoming normalized in stages so most people only vaguely appreciate how it becomes increasingly difficult to discuss certain subjects either publicly or in private. Providers of social media and other communications or expressive tools will become increasingly conservative about potentially facilitating conspiratorial interactions. Perhaps there will be enough Pyrrhic victories in Japanese courts to mollify mainstream civil-rights intellectuals. But if prior precedents are any indicator, even the “good” cases will likely consist of high-sounding dicta combined with a finding that the defendant whose rights were violated by prosecutorial overreach was guilty anyway.

The cases featuring police or prosecutors acting badly and garnering press attention will be the exception. The cases which do not but which cumulatively have a bigger impact in bringing about the new state of public order will be developed by well-intentioned police and righteous prosecutors convinced that they are right. Well-intentioned judges will give credence to those convictions by finding in their favor, in judgments that may espouse high-sounding general principles that never seem to apply in specific cases. The persistent inability of Japanese political and legal authorities to institutionalize effective mechanisms for doubting and challenging official narratives will enable the emergence of an increasingly authoritarian state, without any of the well-intentioned people involved ever intending that result.