‘Penal populism’ and penological change in contemporary Japan

Introduction

A key concept framing criminological understandings of recent changes in criminal justice has been that of penal populism. This concept has also been deployed in discussions on recent developments in Japanese criminal justice (Hamai and Ellis, 2006, 2008a, 2008b; Kuzuno, 2005; Miyazawa, 2008a, 2008b). The literature on penal populism in Japan highlights a number of policy reforms that are characterized by increased severity in state punishment or greater harshness (genbatsuka). Examples cited include juvenile justice introducing punitive elements into a system that previously operated under a legal obligation to focus exclusively on the protection of young offenders; extensive changes in criminal procedure placing greater emphasis on victims’ rights in criminal proceedings and criminal justice ‘net’ widening, longer custodial sentences and a concomitant increase in the prison population.

Presented in schematic form, these changes may seem familiar to anyone who has followed developments in crime control in the USA, UK and elsewhere over the last three decades. They appear to track the kind of reconfiguration of the modern ‘penal-welfare complex’ that has provided a central theme in the contemporary Anglo-American debate in the sociology of punishment (Daems, 2008; Garland, 1985, 2001; Pratt, 2002; Wacquant, 2009a, 2009b). As such, they raise the more general question as to whether recent Japanese developments exhibit a similar ‘logic’ to that manifested elsewhere, and the extent to which recent changes in state punishment across diverse jurisdictions are undergoing a process of convergence as a result of more generalized social transformations associated with the well-documented transition to ‘late’ or ‘post’ modernity (Bauman, 2002; Giddens, 1990).

And yet, even a cursory review of the broader literature on penal populism reveals it to be a fluid term that encompasses a number of interconnected, but conceptually distinct, aspects (Pratt, 2007). Moreover, there is extensive debate in contemporary political theory on populism that has not received a great deal of attention within criminology, in spite of the fact that it addresses similar phenomena (e.g. Laclau, 2005). This article proceeds from the suggestion that the existing discussion of recent Japanese developments has adopted an overly narrow conception of penal populism focusing primarily on the issue of severity in criminal justice.

In order to introduce this argument, three overlapping, but nevertheless analytically distinct, ways that we might think about penal populism will be introduced, namely (1) penal populism as a specific policy program of ‘tough’ criminal justice measures, (2) penal populism as a form of political rhetoric on crime designed to bolster electoral support for political elites, and (3) penal populism as a process in which new actors emerge and influence criminal justice debate and policy.

These different conceptions of penal populism will first be described in rather general terms before asking how they might be relevant to a discussion of crime control developments in Japan. In particular, it will be suggested that each conception of penal populism articulates a different and competing narrative of how and why change within criminal justice occurs. Section one will suggest that the first conception of penal populism has tended to frame existing discussion on Japan and has limited utility in either helping us to understand or explain recent reforms. In particular, it results in a tendency to interpret events in terms of a conception of harshness that obscures the diverse range of values and influences affecting contemporary reform processes, as well as the complex character of the resulting policy outcomes. Moreover, it fails to provide a framework for explaining criminal justice reform. Section two will suggest that although the last decade has witnessed the proliferation of ‘anti-establishment’ political actors in Japan who have utilized an aggressive form of ‘crime talk’ as part of their rhetoric these actors have had a marginal influence on the actual process and content of penal reform.

Nevertheless, section three will suggest that, in spite of these limitations, we should not abandon the concept of penal populism entirely as a framework for understanding contemporary changes within criminal justice. By drawing upon recent developments in the political theoretical literature, notably the work of Ernesto Laclau, the third conception of penal populism will be developed in order to offer an account of an important feature of recent Japanese events, namely the proliferation of new political identities articulating an unmet social demand for security and justice. These new voices have, to some degree, challenged the status quo resulting in a greater public inclusion in criminal justice decision making. Although Japanese criminal justice elites still retain substantive control over policy formation and the daily operation of criminal justice, it will be suggested, following Mitani (2009), that the emergence of these new voices, acting as a partial check on state power, represents a significant development, and that this phenomenon can usefully be understood by reference to a conception of populism derived from Laclau.

In defending a particular conception of penal populism, the general intention of this article is to suggest that although, in some broad sense, penal populism can be regarded as a global phenomenon it is, nevertheless, important to remain alert to the fact that the various constituent elements associated with any such account (e.g. severity in state punishment, a new experience of insecurity and an unmet demand for justice) all manifest themselves in culturally distinctive ways and derive their significance within a specific societal context. The crucial task for any contemporary ‘regional’ criminology is to map the specific local criminal justice practices and associated experiences of crime that provide the content and meaning for penological change.

Penal populism as a program of ‘get tough’ criminal justice policy preferences

In its most commonly understood form, penal populism refers to a broad set of criminal justice policy preferences. More specifically, it refers to policies that favor a ‘tough’ stance on crime and crime control issues. These policy choices are populist in the sense that they are seen as reflecting ‘common sense’, everyday understandings of crime and are fueled by a public mood of popular outrage (Petit, 2001). The kind of policies normally associated with this approach would include, for example, zero tolerance policing, ‘boot camps’ and ‘shock incarceration’, electronic monitoring, as well as determinate, mandatory or minimum sentences.

A number of general features of this conception of penal populism are worth noting. First, penal populism is understood as having a specific, substantive ideological agenda, that is, it refers to a particular set of policy choices that are conventionally regarded as ‘right-wing’. Second, the notion of ‘toughness’ is quite specific; the language of social defense, retribution, and incapacitation displaces rehabilitation as the primary rationale for state punishment. Third, these policies are populist in the sense that they are presumed to resonate with ‘common-sense’ understandings of crime and a public mood of righteous anger that is directed toward criminals. Finally, although the concept—as used by criminologists—is ostensibly a neutral term, it often has a skeptical tone. There is a suggestion—either explicit or more usually implicit—that there is something misguided or even wrong about this trend and its associated policy choices, based as they are on emotively charged perceptions of crime rather than scientific data and systematic analysis (Loader and Sparks, 2011).

Much of the existing discussion of Japan adopts this conception of penal populism when examining recent reforms; penal populism is equated with genbatsuka (i.e. harshness) and the question to be asked is whether and to what degree, recent developments exhibit a tendency in this direction (see, for example, Hamai and Ellis, 2006, 2008a, 2008b; Kuzuno, 2005; Miyazawa, 2008a, 2008b). Recent Japanese events are then interpreted as an instance of penal populism, in the sense that there seems to be a broad consensus around the idea that over the last two decades there has been intensification in the severity of state punishment.

In what follows, I want to suggest that a focus on harshness results in a tendency to neglect the diverse range of values and influences that inform and characterize recent changes, as well as the more nuanced range of demands that have been advanced by critics of the criminal justice system. The following discussion will focus on the most significant reforms of the last decade, namely juvenile justice reform, the rise of victims’ rights and introduction of lay panels, and criminal justice ‘net’ widening and longer custodial sentences. Examination of these developments will highlight that a range of values have informed contemporary debates not only harshness. An advantage of focusing on these areas of reform is that they have provided the focus for the existing discussion and are conventionally regarded as providing some of the best evidence for increased harshness.

In May 1997, in the city of Kobe, an 11-year-old boy was reported missing after leaving home to visit his grandparents. Three days later his severed head was discovered in front of the main gate of a local school. With the head was a note—apparently written by the killer—expressing his hatred of the school and of society in general. Within a few days a 14-year-old boy, whom the media came to refer to as ‘Shonen A’ (Young person A), was arrested.

This individual tragedy came to symbolize a more generalized societal malaise about youth crime (Kuzuno, 2005). In the ensuing debate, the youth justice system came under the spotlight—in part due to the fact that Shonen A was 14 at the time the crime was committed and, under the law at that time, was ineligible for criminal prosecution (the minimum age for a criminal prosecution, at the time of the offence, was 16). The debate surrounding the Kobe case triggered a reform process that culminated in the 2000 amendment to the Juvenile Law, the first major change since its enactment in 1948.

Perhaps the most significant amendment—at least in the light of the Kobe case—was to lower from 16 to 14 the minimum age at which juveniles can be held criminally responsible for their acts. It was now possible for a 14-year-old who committed a serious offence to have their case referred to the prosecutor for criminal prosecution rather than the welfare-oriented juvenile system (Juvenile Law, Article 20). The most obvious consequence of this change was that the killer in the Kobe incident would, if the crime were committed after the reforms came into effect, at least face the possibility of criminal prosecution. Moreover, the revised law required that, in principle, the Family Court should send all juvenile murder suspects aged 16 or older to the prosecutor so that they can be put on criminal trial, that is, it created a strong presumption in favor of criminal prosecution (Juvenile Law, Article 20(2)). The previous emphasis on the ‘cordiality’ of the Family Court proceedings was supplemented by the requirement that juvenile offenders must engage in ‘soul-searching’ over the crimes they have committed. In addition, a newly added provision (Article 22(2)(i)) gave the Family Court the discretionary power to allow the prosecutor to participate in any hearing. Finally, the amended law strengthened the rights of the victims in cases involving juvenile offenders. Victims and their relatives were given the right to be formally notified of the Family Court’s findings and offered access to copies of records (Juvenile Law, Article 20). Victims or relatives were given an opportunity to present their views at any hearing, whereas before their inclusion was at the court’s discretion and subject to the condition that it did not negatively impact on the defendant’s welfare.

Certainly, one can offer an account of these changes framed in terms of increased harshness. The complete absence of any punitive moment in the pre-reform system was criticized and much was made of the limited use of custodial sanctions in juvenile justice, the exclusion of the prosecutor from the hearings and the unwillingness of the judges to exercise their discretionary power to refer cases, even serious ones involving offenders over 16, back to the prosecutor for prosecution in a criminal court.

However, such a narrative has various shortcomings. Most obviously, it reduces the diverse range of concerns about the system pre-2000 that in the public debate preceding the amendment were identified as problematic. First, youth justice was perceived as unfair in that it was exclusively oriented toward the protection of the interests of the offender rather than society more generally or the victim. In fact, the exclusion of the victim from the process became one of the key issues in the ensuing debate. There were horror stories of parents of murder victims, receiving almost no information on the details of their child’s death, of the murderer’s identity or motive, or of the outcome of the judicial process. Second, it was argued that assumptions of childish innocence embodied in the law were widely perceived as outdated and naïve given the type of offences that juveniles were committing. Offenders were not forced to take responsibility for their actions. This issue assumed special significance as a result of the relatively high age of offenders subject to the Juvenile Law. Third, the fact that criminal records were erased when the suspect reached 20 combined with the guarantees of anonymity to create a sense that the law failed to have any real value as a deterrent. On the contrary, the system was seen as providing an open invitation to commit crimes safe in the belief that there would be minimal consequences for those that did so. Finally, the Bar Association highlighted various due process concerns that resulted from the fact that most juveniles did not have any form of legal representation. A diverse range of criticisms was thus articulated.

Moreover, the character of the implemented reforms cannot be understood exclusively in terms of increased harshness. Equally, they might be characterized as marking a shift from an exclusively welfare-oriented process managed by Family Court judges working in cooperation with social workers and other ‘psy’-professionals to a more mixed style of proceeding in which lawyers play a more important role, there is more emphasis on due process, a greater respect for the victim, and an acknowledgement of the personal responsibility of the offender. The presence of the prosecutor at youth crime hearings in a greater number of cases and the corresponding requirement, in such cases, that a lawyer representing the defendant is also present (Article 22(3)) support this impression of a shift from a welfare-oriented to a more mixed style of proceeding.

A similar observation—namely, that a diverse range of values and concerns are informing penological change—can be found in changes relating to victims and the introduction of lay panels for determining certain criminal cases. Implemented reforms have been, in part, a response to a greater demand for harshness, but also involve the expression of an unmet social demand for justice among crime victims. In addition, there is also a sense that the public has been unjustifiably excluded from the administration of justice and that criminal justice experts have become increasingly detached from everyday concerns about crime. The breakdown in public confidence or trust in the institutional arrangements for responding to criminal wrongdoing has been crucial. It has been suggested that the most striking feature of these new institutions is that they introduce a degree of civilian control—or at least supervision—into criminal justice and that this ‘check’ is vitally important for the ‘health’ of the system, involving as it does the exercise of state power (Mitani, 2009).

Until recently, victims were relatively neglected within Japanese criminal procedure. For example, the Japanese Constitution, which contains, on paper at least, extensive provision for defendant’s rights (Articles 31–40), makes no mention of victims of crime and there was no statutory law dealing with victims pre-2000 (Matsui, 2011). Victims were regarded solely as a means of establishing guilt in criminal procedure, so if the prosecutor did not consider the victim to be necessary as a witness in proving the alleged wrongdoing, the victim would not be offered an opportunity to testify at a criminal trial or even receive notification about developments in the case. As such, victims were treated as members of the public and were obliged to watch any trial in the public gallery of the court.

Moreover, intrusive media coverage of high profile cases facilitated by weaknesses in the privacy laws meant that the identity and personal details of victims would often be exposed in the media. Finally, a combination of broad prosecutorial discretion and a ‘conservative charging policy’ (Johnson, 2003) meant that many cases involving prima facie of evidence of criminal wrong doing were not brought to trial and victims had relatively few legal mechanisms for challenging prosecutorial decisions not to prosecute. Limitations in the Prosecutorial Review Committee system were well documented (Fukurai, 2010; West, 1992). In 2000, for example, about 0.21 percent of the 884,700 non-indictments resulted in complaint. Of the few cases brought, only 5.5 percent resulted in committee recommending prosecutors to reconsider or indict, and in only 34 percent of these cases did prosecutors take that advice (Anderson, 2004: 38).

Nevertheless, starting in 2000, there was a radical transformation in the status of victims. In 2000, two important changes were enacted. First, and most importantly, victim impact statements were admitted for the first time in Japanese criminal procedure. A victim was now able to express their opinion not simply as a witness, but as a victim and able to express their feeling about the harm suffered (Code of Criminal Procedure, Article 292–2).

In 2004, a comprehensive law was enacted—the Fundamental Act on the Protection of Victims of Crime—with the explicit purpose of protecting the dignity of victims in criminal cases (Article 1). This framework law placed new obligations on local and central government to implement measures to increase victim participation during criminal trials, to protect the privacy of victims from media intrusion, and to improve compensation payments to victims.

The law has radically changed the treatment of victims in a whole range of ways (Matsui, 2011: 60–70). Of particular importance, are the new rights concerning victim participation in the criminal trial. If the court believes that giving testimony imposes extreme anxiety on the victim, the court may allow a victim supporter—such as a family member, counselor, or member of a victim organization—to sit with the victim while they testify (Code of Criminal Procedure, Article 157–2(i)). Victims’ legal representatives, as well as family members of deceased victims, are also allowed to state their opinions (Code of Criminal Procedure, Article 292–2(i)). Victims of serious crime may also now request to sit with the prosecutor in the courtroom (Code of Criminal Procedure, Article 316-34(i)).

Reforms were also introduced making it easier for victims to challenge prosecution decisions not to prosecute. Decisions of the Prosecutorial Review Committee previously had no legal binding force. However, in 2004 the law was amended and the mandatory prosecution system under which prosecution can be commenced based on a committee decision, provided that certain conditions are fulfilled, was introduced from May 2009.

On 28 May 2004, the Japanese Diet enacted a Law Concerning Participation of Lay Assessors in Criminal Trials (see Anderson and Ambler, 2006; Anderson and Saint, 2005; Dobrovolskaia, 2010; Fukurai, 2007, 2010; Katsuya, 2010). The inclusion of a significant role for ordinary citizens in criminal trials represents a major departure from post-1945 Japanese criminal justice. It was enacted, at least in part, as a response to an increasing perception that the Japanese judiciary was a detached, bureaucratic elite out of touch with the values of ordinary people (Matsui, 2011: 78).

The new law established a framework where persons charged with serious crimes would have both their guilt and sentence determined by a judicial panel composed of three professional judges and six lay persons in serious contested cases and one judge and four lay persons in lesser-uncontested cases. The matters eligible for resolution by lay assessors include crimes where the maximum penalty is death or indefinite imprisonment with hard labor, and crimes where the victim dies due to an intentional criminal act (i.e. very serious offences). Decisions of the court are made by a modified simple majority that requires at least one judge and one layperson to consent to the conviction and sentence. Lay assessors are chosen from the general population by lottery off the voter register.

The law came into effect in August 2009 and as of April 2012, 21,000 people have served as lay judges and they have prosecuted almost 5000 defendants. The Supreme Court data indicate that the presence of lay judges has resulted in more severe custodial sentences (20–30 percent longer) for the majority of criminal offences using lay panels (e.g. attempted murder, robbery resulting in injury, or inflicting injury resulting in death). Lay judges tend to hand down heavier sentences in cases involving sexual offences or other cases that are particular disturbing. For the other offences (e.g. murder, arson, and serious drug crimes) sentencing is broadly in line with previous practice (Daily Yomiuri, 2012). For no category of offence is there any evidence of more lenient sentencing, although there has been an increase in suspended sentencing for various offences.

On the specific issue of death sentences, as of April 2012, there have been 17 trials in which prosecutors made a request for a death sentence and lay panels handed down 14 death sentences plus two life sentences and one acquittal (Sher, 2011). As Johnson (2012) notes, the data are still inadequate for meaningful comparisons to be made with the situation pre-2009, but an 82 percent rate is higher than the death sentence rate of 60 percent when a panel of three career judges adjudicated such cases.

This last point suggests that in certain areas the concept of harshness may well be relevant. There has been a widening of the criminal justice net in the sense that a greater number of cases that were previously diverted from criminal justice are now formally processed, and a greater proportion of offenders previously tried in summary courts and fined, formally tried and sentenced to prison (Hamai and Ellis, 2008b). This latter change has been driven by legislative trend toward longer sentences for existing criminal offences and the creation of new criminal offences, resulting in an increase in the prison population.

The legislative trend toward more severe punishment is exemplified by the December 2004 revision of the Penal Code, which inter alia raised the maximum prison term for a single offence from 15 to 20 years and the minimum sentence for murder from three to five years. Reforms were also made to rape laws, with cases involving more than one defendant having a minimum sentence of four years, or six years (with a maximum of life) if resulting in death or injury (previously the minimum sentence was two years with no distinction between cases involving multiple defendants). Finally, the Diet passed a number of laws, including the Anti-Stalker Act, 2000, which created new types of offences for behavior that had been the focus of high profile cases and extensive media coverage.

The result of the above changes has been that Japan’s imprisonment rate rose between 1992 and 2007, from a rate of 36 per 100,000 populations in 1992 to a rate of 59 per 100,000 in 2007 (Johnson, 2008). This 75 percent increase was the largest since the end of the post-war US occupation in 1952. This sudden spike resulted in prison overcrowding, triggering operational reforms and a 2006 overhaul of the Prison Law and a new Rehabilitation Law enacted in 2007. It is perhaps worth noting that such a rate is still relatively small compared to the USA (751 per 100,000 in 2007), European countries (e.g. France, 91; Germany, 92; UK, 146), or comparable Asian countries (e.g. Korea, 97). However, it still represents a significant change in policy from a system that previously regarded incarceration as a measure of last resort.

In summary, the above discussion has cast some doubt on the suggestion that recent changes can primarily or exclusively be understood in terms of a shift to harsher or tougher criminal justice policies. A wider range of considerations has been at play, in particular the demand for greater public inclusion in criminal justice and a demand for justice for victims. Framing recent events in terms of a conception of penal populism as harshness obscures the diverse range of values and influences affecting contemporary reform. This is not to suggest that the harshness discussion is irrelevant, however. As evidenced by sentencing reform and the concomitant increase in the prison population, there is evidence that in certain areas there has been an increase in the severity of state punishment. The suggestion, here however, is that such a change should be considered in the context of a broader series of changes many of which exhibit a different character.

Penal populism as style of persuasion and/or strategy for electoral success

A second, slightly different, conception of penal populism regards it as a particular strategy or style of persuasion adopted by various ‘elite’ actors concerned with criminal justice. In particular, this conception of penal populism draws attention to the way that politicians, in particular, seek to bolster their own popularity or legitimacy by adopting a particular policy agenda that is seen as popular with the public. More generally, this refers to a process whereby crime policy has emerged as a focal point of political debate and is no longer the sequestrated preserve of experts.

This aspect of penal populism has its origins in Bottom’s (1995) work on factors influencing contemporary penal policy. Bottoms identified politicians tapping into the perceived punitive stance of the public in order to gain electoral advantage as a new and distinctive influence on criminal justice policy, something that he characterized as ‘populist punitiveness’. As such, it was ‘intended to convey the notion of politicians tapping into, and using for their own purposes, what they believe to be the public’s generally punitive stance’ (Bottoms, 1995: 40). Similar to Bottoms, Roberts (2002: 5) characterized penal populism as: ‘a set of penal policies designed to win votes rather than to reduce crime or to promote justice’.

There are a number of general observations we can make about this second concept of penal populism. The persuasive style of populism is direct address; criminal justice policy choices are defended, justified, and communicated in clear, strong, and often confrontational language that relies upon everyday tropes and themes, and offers simple solutions to problems. Moreover, populism refers to a ‘tabloid’ style of persuasion in which policy choices on a given issue are justified by reference to the ‘common-sense’ understanding of ‘the people’ rather than on the knowledge of public officials, academics, or other experts. Populism entails a displacement—even denigration or condemnation—of expertise and its nuances and complexities in favor of the (presumed) simpler understanding of the ‘people’.

As such, this conception of populism connects to debates in political science. Shils (1956: 100), for example, famously regarded populism as an ideology of popular resentment against entrenched elites. Populist leaders invoke the idea of a people who have somehow been exploited by the elite. The populist leader speaks for, and on behalf of, the people against the status quo. Populism thus articulates a grievance structured around historical social exclusion.

As used in contemporary criminal justice debate, populism consists of an attempt by political elites to purchase political legitimacy by simultaneously appealing to commonsensical and presumptively popular punitive understandings of crime and crime control. In doing so it seeks to discredit existing elites (most obviously public officials, lawyers and other criminal justice ‘experts’) who are overly attached to either (a) a conception of the underlying causes of criminality that seems to absolve offenders of responsibility for their wrongdoing, and/or (b) due process values that are perceived as affording too much legal protection to offenders at the expense of victims and the public.

It is important to stress that there is no necessary link between populism as a rhetoric or style of persuasion and a particular set of (harsh or tough) policy choices. Populism as a substantive policy agenda and populism as a style of persuasion are analytically distinct, even though in the context of contemporary criminal justice they have often been combined. As Jones (2010) has shown, for example, however, there are instances of populist leniency.

Moreover, although developed in the context of western liberal democracies, it would be a mistake to restrict this sense of populism to democratic nations. Popularity at the election box is only one form of legitimacy and all states need—to some degree—to secure legitimacy, particularly in the context of an issue as politically sensitive as state punishment. This is not an issue pursued here, since Japan has a well-entrenched democratic political system.

To what extent then has Japan experienced a politicization of ‘crime talk’ of this kind? For much of the post-war period, the Japanese political system was oriented around the Liberal Democratic Party and its highly developed party machinery, and crime was not regarded as a political issue at all (Neary, 2002). Crime issues remained the exclusive preserve of public officials, most obviously the judiciary and ministry bureaucrats.

However, since the mid-1990s, Japanese politics has seen the emergence—particularly at the regional and local level—of a new kind of populist politician who has often adopted policy platforms that are anti-establishment and openly criticizes the system within which they operate. Moreover, many of them have employed ‘crime talk’ as a key element in their political rhetoric (Fenwick, 2004; Hamai and Ellis, 2006). In this sense, a politicization of crime has occurred in Japan that tracks the experience elsewhere.

Nevertheless, one should exercise some caution when connecting this new form of political ‘crime talk’ with actual changes within the criminal justice system or as a distinctive influence on criminal justice policy. Much of the new public discourse on crime is sensationalist and motivated by an apparent desire to establish a public persona as a maverick, political outsider, rather than from a genuine desire to make a serious contribution to crime control debates. For example, one of the most electorally popular and high profile politicians in Japan, the former Governor of Tokyo, Shintaro Ishihara, has frequently resorted to extremely provocative statements particularly regarding the issue of crimes committed by foreigners. A second example of this new style populist politician is Toru Hashimoto, formerly governor of Osaka prefecture and currently Mayor of Osaka city. Raised in a working class area, Hashimoto became a lawyer and then a TV celebrity before entering politics. Also famous for his outspoken comments, he has frequently made controversial comments on crime and criminal justice policy.

A new generation of populist Japanese politicians does seem increasingly willing to resort to outspoken rhetoric on crime, and crime has become part of the contemporary political debate in a way that was not previously the case. However, it would be wrong to regard this new political discourse on crime as marking the introduction of what Lacey (2008) characterizes as a ‘political competition’ around criminal justice policy that creates new pressures on lawmakers and criminal justice elites. Rather, it has been the preserve of anti-establishment figures seeking to exploit a broader breakdown of trust in political institutions in general. As such, the degree to which this new kind of crime talk actually influences criminal justice policy outcomes is highly questionable, at least in a Japanese context, and we need to exercise some caution not to exaggerate the influence of this new discourse on the policy changes discussed in the previous section. Nevertheless, we should not dismiss this sensationalist rhetoric entirely as it clearly resonates with many people and seems to articulate a sense of grievance that is very real. In this respect, this conception of penal populism as a new type of political crime talk points us toward a third concept of penal populism, which constructs a different and more plausible narrative of penal change.

Penal populism and the emergence of new actors in the field of criminal justice

A third sense of penal populism focuses on populism as a process resulting in the emergence of new political identities or social movements that exert an influence over criminal justice policy. The work of political theorist, Ernesto Laclau (2005) on ‘populist reason’ can be helpful here in providing a vocabulary and framework for understanding this type of process. Laclau’s account is interesting because he takes seriously the idea of the people as an historical agent, that is, that political change can be influenced from the ‘bottom–up’ via new social groups or movements converging around various collective unmet demands.

Laclau (2005: 72) takes as his ‘minimal unit of analysis’ the ‘social demand’. This is a simple concept—an individual has a particular grievance over some perceived problem, and they demand that the Government (or other relevant authority) do something about it. These demands are thus addressed to some pre-existent structure, an ‘institutional system’ or an ‘institutional order’, that is presupposed in their articulation of a demand. These ‘democratic demands’ are ‘formulated to the system by an underdog of sorts’. Laclau’s examples of such institutional systems include the ‘local authorities’ from which people might seek a resolution to housing problems or, elsewhere, the ‘city hall’ that could improve transport networks.

When a demand is satisfied, it disappears: it ‘ceases to be a demand’. When demands remains unsatisfied, however, they gain what Laclau refers to as a ‘discursive presence’. Unmet demands bind the people who have expressed the demand against the power bloc that failed to satisfy the demand in an antagonistic relation. As unmet demands accumulate within a society a relationship of equivalency is established between these unmet demands and groups of individuals who collectively experience this dissatisfaction; unmet demands ‘start to constitute the “people” as a potential historical actor’. Thus emerges ‘an internal antagonistic frontier separating the “people” from power’ (2005: 127–128).

With the repeated failure of the local authorities to resolve this demand, more and more demands arise. In the beginning, these demands are all separate and individual. Yet at a certain threshold, these democratic demands become articulated together through a common equivalence—they become specifically ‘populist demands’, made equivalent through their common antagonist. Laclau develops this idea to build an entire edifice upon these basic foundations, examining how populist movements congeal into something more than a transitory phenomenon and affect political outcomes.

This conception of populism—as a process originating with unmet demands and culminating in the formation of new political identities—can be helpful in accounting for the emergence and proliferation of new actors and new voices that increasingly exert influence over criminal justice policy formation. In particular, it allows us to move away from an account that seeks to reduce these voices to outrage and an emotive demand for greater harshness and takes seriously the crime-related concerns of ordinary citizens as an agent of historical change.

In particular in a Japanese context, there are two manifestations of this kind of unmet demand. First, a generalized unmet societal demand for security broadly conceived, and second, high profile charismatic victims of crime who via the media express forceful, highly personalized, yet representative, accounts of an unmet demand for justice. This combination of unmet demands has created the structural conditions necessary for the emergence of new political actors who are able to influence the policy and practice of criminal justice in Japan in a historically unprecedented fashion. As such, it is worth examining in more detail these unmet demands.

A recurring feature of many accounts of recent development in contemporary penal policy has been the invocation of a novel and distinct historical experience of insecurity as a key variable in explaining transformations in criminal justice. In his influential account, David Garland (2001), for example, identifies a ‘new collective experience of crime and insecurity’ as a key factor in the emergence of a ‘culture of control’. In an account that explicitly seeks to distinguish itself from that presented by Garland, Loïc Wacquant (2009b), argues that the punitive turn does not reflect insecurities about crime as such—which he suggests has not really changed in the relevant period—but to a more ‘generalized social insecurity’ surrounding the new urban poor that has emerged as a result of neoliberalism.

Although the content and causes of the experience clearly differ in these two narratives of penological change, there does seem to be some agreement around the notion that a historically unprecedented experience of insecurity has played a pivotal important role in recent policy developments. Both Garland and Wacquant treat this experience, at least in part, as being an everyday experience in the lives of ordinary people and that it cannot be dismissed solely as the product of the imaginations of either media or political elites.

Moreover, this generalized experience constitutes an unmet demand in Laclau’s sense in that there is a perception that the relevant authority—in this case, the State—has failed to adequately provide security. The limits of the sovereign state in satiating the public demand for security is not only a sociological fact connected to the complexities of late modernity (Garland, 2001: 11), but also an everyday experience that provokes a range of emotions, ranging from cynicism to ambivalence to anger. This new experience of unmet demand can explain the deep emotional investment that citizens have in crime control issues, as well as the widespread fascination with crime, both real and fiction.

In the literature on Japan, there seems to be agreement that pre-1990 there was little generalized public concern with crime or insecurity (Hamai and Ellis, 2008b). There was a widespread perception that crime rates were low and this combined with high levels of trust in the effectiveness of the criminal justice system and key actors within that system, particularly the police (Bayley, 1991). Nevertheless, over the last decade an increasingly widespread perception has developed that serious crime has increased and that criminal justice is failing. This failure has been exemplified by a series of police scandals and a sense that politicians and other criminal justice actors (e.g. the prosecutor and judiciary) are detached from everyday concerns and more concerned with the preservation of their own interests rather than in the provision of public safety. This has resulted in a new and widespread everyday experience of insecurity, as well as a new public mood that overrides scientific expertise and suggestions that objectively little has changed.

In the context of late modernity, it appears that a widespread and routinized perception of a lack of security seems to be a global phenomenon. Nevertheless, it is important to emphasize that this unmet demand for security expresses itself in distinctive, culturally specific ways. In a Japanese context, one finds the kind of heightened concerns with personal security and domestic security that one finds elsewhere, but a historical tradition in which conceptions of security have always been intimately linked to various aspects of community means that a new sense of insecurity in communal local space has been a particular source of concern, even in large urban centers (Fenwick, 2004). What is also clear is that, at least in a Japanese context, the contemporary sense of insecurity extends beyond crime and encompasses insecurities associated with the adverse economic effects of the extended period of economic stagnation experienced since the price asset ‘bubble’ burst in 1991 (Mikuni, 2003) and geo-political concerns with expanding Chinese power and the perceived threat posed by North Korea (Manyin, 2010). Moreover, particularly post-11 March 2011 the contemporary sense of insecurity has become entangled with the uncertainties associated with the issue of nuclear power safety and the threat posed by future catastrophic natural disasters.

The lived experience of insecurity thus has multiple dimensions many of which may well be far removed from crime per se. This observation lends apparent support to the kind of account proffered by Wacquant. Nevertheless, Wacquant’s emphasis on global neo-liberalism and attendant concerns about urban poor is insufficiently attentive to the contingencies of particular societies and their associated path dependencies in the production of a contingent experience of insecurity. A new experience of an unmet demand for security provides the background and context in which criminal justice policies are developed, implemented and publically justified. However, this experience manifests itself in culturally distinctive forms that are deeply embedded in a particular historical experience of crime and criminal justice, but also in a particular historical experience of order and security. As such, it would be a mistake to think of recent Japanese developments as the result of an unfolding general logic connected to neoliberalism, occurring independently of a specific cultural context. A key challenge for contemporary criminology is to map the specific manifestations of this multi-dimensional contemporary experience of insecurity and the cultures of order and security that provide the background against which these recent changes have occurred.

A second form of unmet demand is that experienced directly by victims of crime, particularly serious crime, and can be characterized as an unmet demand for justice. Commentators on this issue have suggested that a series of high profile cases from the 1990s resulted in greater media interest in the experiences of crime victims and particularly in the perceived inadequacies of the criminal justice system in providing justice for victims. Matsui (2011: 60–67) offers a review of a series of high profile cases that have received extensive media coverage and have communicated this unmet demand for justice throughout Japanese society.

A key feature of these cases is that the victims or their families are individualized as having—solely by virtue of their victimhood—a privileged authority to speak on the issue of crime and criminal justice, and particularly the failure of the system in delivering justice. On the other hand, they are somehow representative, in the sense that their experience is ‘assumed to be common and collective, rather than individual and atypical’ (Garland, 2001: 144). Within the context of a society experiencing an unmet demand for security, highly individualized accounts of the system specific failures of criminal justice take on a particular resonance and acquire a broader public meaning.

Particularly charismatic victims have thus been able to become the focal point of public opposition to traditional sources of power in the formulation of criminal justice policy. Just to take one particularly high profile and frequently mentioned example, Isao Okamura—whose wife was murdered in 1997—received extensive media coverage in the light of critical comments made about the lenient treatment of his wife’s killer. He founded the National Association of Crime Victims and Surviving Families (NACVSC) (in Japanese, the organization is known as the Association for Tomorrow). This movement has successfully employed the media to criticize society for failing to change as a result of previous, similar incidents. Okamura participated in the Lower House Committee on Judicial Affairs in April 2000 as a witness and made powerful statements on the need for reform, which helped to trigger the reforms discussed above in section one relating to victims (Hamai and Ellis, 2008a: 80). It is important to stress that the increased prominence of this kind of highly personalized critique of criminal justice expresses system specific grievances. In the case of Okamura, for example, he was opposing the values of benevolent paternalism that justified leniency in sentencing on the grounds of specific deterrence (Foote, 1992).

In this way, anecdote and personal experience communicates a different kind of truth about crime and justice. New political actors articulate an emotive demand for justice—characterized by fear and concern—that is not based on quantifiable knowledge and rational, considered judgment. Popular political identities have emerged that situate themselves in opposition to traditional criminal justice elites and the previous monopoly enjoyed by criminal justice elites has been compromised. The ability of criminal justice insiders to control the flow of information, policy formation and practice regarding criminal justice has been constrained, and a degree of fragmentation is introduced into the policy and praxis of criminal justice. By providing a conceptual framework for understanding this type of process, the concept of penal populism can retain its relevance.

Nevertheless, the capacity of this unmet demand for justice to instigate change is not without limits, and it is important to acknowledge the countervailing forces that limit the capacity of these new voices to affect change. Criminal justice is still overwhelmingly the preserve of nation states and it is important not to detach punishment from the substantive institutional contexts of a particular nation when seeking to account for changes in criminal justice policy. Particular institutional contexts continue to provide the space and resources for criminal justice elites to exert a dominant influence over policy formation and daily operations. In particular, we should not underestimate the capacity of existing state institutions to shape policy outcomes and to resist external influences seeking change of the kind discussed here. Most obviously, there is the continued capacity of political and legal institutional structures to define particular interests as legitimate, to acknowledge some societal actors and not others, and to use acknowledged interests for self-advancement. The continued influence of criminal justice elites within Japanese policy networks is still vital to understanding policy outcomes, in spite of the new pressures for reform.

The centralized and relatively closed criminal justice policy-making structures of Japan mean that criminal justice elites are still relatively insulated from external influence. The most obvious contrast would be with the federalized US system, which seems to provide a greater opportunity for populist campaigns to gain influence over policy outcomes. A more decentralized and open system allows for more sites of access for the relevant interest groups to target and promote change. Moreover, the direct election of criminal justice officials—including judges, prosecutors and police chiefs—obviously exposes the US system to direct popular influence in ways that do not exist in Japan where officials are appointed not elected and a preference for consensus over majority decision making still prevails.

As a result of this relative degree of insulation, Japanese policy elites may be better placed to resist change and preserve their core functions. Just to take one example, the revisions to the Code of Criminal Procedure that allow victims to participate in criminal trials alongside the prosecutor were drafted by the prosecutors before being approved by the Ministry of Justice and Diet. As Hamai and Ellis (2008a: 86) observe, ‘a careful reading of the law’ reveals that, in spite of significant changes, ‘all decision making is retained by the prosecutors’. As such, it is important to acknowledge the limits of populist influences over criminal justice reform.

Local institutional structures and cultures thus exert a crucial influence on policy outcomes and, in certain contexts, provide structural limitations on the possibilities for populism to influence criminal justice. Nevertheless, this insulation is not complete, and as the Japanese experience indicates the new political rhetoric surrounding the issue of crime and the emergence of new pressures on policy makers and criminal justice actors—both of which can be understood by reference to the concept of penal populism—have resulted in significant criminal justice reforms over the last decade and a new complexity in the policy formation and practice of Japanese criminal justice.