The Asia-Pacific Journal | Japan Focus Volume 14 | Issue 5 | Number 4 | Article ID 4863 | Mar 01, 2016

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Prison Law Reform in Japan: How the Bureaucracy was Heldto Account Over the Nagoya Prison Scandal

Silvia Croydon

Abstract: Japan's prison system is renownedfor its safety and order. There has not been aprison riot there in decades, and figures aboutescapes from and assaults at its penal facilitiesare far lower than in other developed nations.Such features have not gone unnoticed; foreignpolicy makers increasingly look to Japan forlessons in how to improve their own prisons.Whilst various aspects of the Japanese prisonsystem have been investigated by legal experts,government agencies and human rightsorganizations, however, a gap remains withrespect to how Japanese prison policies areformulated. This article provides a study of thedecision-making process, focusing on thepolitical events triggered by a sequence ofinmate injuries and fatalities in Nagoya Prisonfollowing the turn of the century, whichculminated in the 2005/6 reform of the 1908Prison Law. Whilst this study reveals the scopeof the discretion that the Ministry of Justiceenjoys over prison management, it also showsthe capability of the legislature to hold theformer to account when called to do so, and thepotential for civil society to impact policy-making in Japan.1

Key Words: Japan, prisons, Nagoya Prison,Ministry of Justice, Correction Bureau, JapanFederation of Bar Associations, Prison Law,Standard Minimum Rules for the Treatment ofPrisoners

Prisons, mental hospitals, and other institutionsare a thermometer that measures the sicknessof the larger society. The treatment societyaffords its outcasts reveals the way in which itsmembers view one another – and themselves.

Joy Hayms and Tom Murton, Accomplicesto the Crime: Arkansas Prison Scandal, 1969

'Japanese prisons are generally safe places withnone of the violence or gang activity that thepopular cinema associates with prison life inthe [United States of America (USA)]', writesthe American government on its TōkyōEmbassy website. Former American SenatorJim Webb, having visited Fuchū Prison in 1984and talked to inmates there, holds the Japaneseprison system in similarly high regard. Hisimpression was that '[A]mericans familiar withthe horrors of Attica and New Mexico and theroutine tales of brutality and homosexual rapewould find the orderly corridors of a Japaneseprison mind-boggling'2, and he has since keenlyadvocated that the US try to learn what it canabout prisons from Japan.

This picture of safety in Japan's prisons isborne out by statistics. Indeed, there has notbeen a single riot since 1969, which isremarkable given that prison rioting is acommon occurrence in many other countries,both developing and developed. Moreover, ineach of the years from 1998 to 2009, therewere no more than four assaults on prison staff,and no more than 25 assaults on inmatesreported by the Ministry of Justice (MOJ)across the entire network of Japanese prisons.Fires and escape attempts are also rare (seeTable 1). Although these statistics are difficultto compare directly, as each country recordsincidents in a slightly different way, bycontrast, the United Kingdom (UK), which has apr i son popu la t i on o f a s im i la r s i ze(approximately 60,000-70,000 inmates),recorded that a 'serious assault' occurred for

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every 1.57 inmates in 2004-5 3 , whichcorresponds to over 40,000 such incidents. TheJapanese figures are orders of magnitude lessthan their equivalents in other developednations, and seem staggeringly low for anypopulation of this size. It is further noteworthythat, despite the high suicide rate in Japangenerally, the number of suicides occurring inJapanese prisons (see Table 1 again) is alsocomparatively low by international standards.

Table 1.IncidentsinJapanesePrisons

ASSAULT ONSTAFF

ASSAULT ONINMATES FIRE ESCAPE SUICIDE

2005 2 15 0 1 152006 4 25 1 0 182007 4 12 0 1 212008 0 7 1 0 252009 0 7 0 0 15

Source: MOJ pamphlet, Penal Institutions inJapan, 2011

Maintaining such a high degree of safety andorder is something about which the MOJ isextremely proud4. And why not? Surely a well-ordered prison benefits everyone in society. Fora start, with the guards on top of discipline, thegeneral public can rest easy in the knowledgethat a low escape rate will follow. Moreover, itis no doubt in the interest of the inmatesthemselves to be afforded a sense of security intheir surroundings.

The former MOJ building (now a museum); the current MOJheadquarters lie just behind

Nonetheless, disregarding the contentiousphilosophical question as to whether prisonershave rights at all (MacIntyre 1981; Hunt 2008),international instruments to which Japan is aparty hold that they do, and that the humanityof a prisoner commands rights other than theright to security. Indeed, apart from theUniversal Declaration of Human Rights thatJapan aligned itself with when it joined theUnited Nations (UN) in 1956, it also ratified theConvention against Torture and Other Cruel,Inhuman or Degrading Treatment orPunishment in 1999, and in 2015 was part ofthe unanimous adoption of the revisedStandard Minimum Rules for the Treatment ofPrisoners known as the 'Nelson MandelaRules'. The latter instrument in particulardemands that states seek to protect all mannerof prisoners' rights, and are intended 'to set outwhat is generally accepted as being goodprinciple and practice in the treatment ofprisoners and the management of institutions'5.

What is not so clear in this legal frameworkcreated by the UN is the interdependencebetween the different rights it espouses, andwhen rights can justifiably be restricted. This isnot an easily solved problem, as natural trade-offs between different rights make a 'correct'theoretical answer impossible. For example, ifit were to be decided that prisoners are allowedto bathe unsupervised on the grounds of theirright to privacy, their right to security would becompromised, as the risk of inmate-on-inmateviolence in the bathing facilities wouldincrease. Additionally, the relevant UN statutesrecognize that there is a balance that has to bestruck between the limitation of certainprisoners' rights, most obviously to liberty, andthe just requirements for public order andwelfare of the society.

With these fundamental issues at stake it isnatural to ask how rights other than to safetyand security are implemented in Japan, andalso how the policies in which choices on rightsare distilled were arrived at. Concerning the

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former question, much can be found in theliterature produced by the Japan Federation ofBar Associations (JFBA) and human rightsNGOs (such as Amnesty International andHuman Rights Watch)6, with the particularfocus being on how aspects of the Japanesesystem diverge from the international regime.Furthermore, in the academic literature thereis plenty of description of the system's rules,provisions, and procedures, as well as formaltechnical analysis of how these interact witheach other and with international human rightsinstruments7. However, these works neglect toexamine who it is that is pulling the strings inthe political processes that yield the underlyinglegislation. How are choices relating toprisoners made and legitimized in Japan, andwith what constraints? Which actors are thedriving forces behind the existing policies thathave resulted in such a high degree of order inJapanese prisons? And, on the other hand,which (if any) actors are excluded from thedecision-making process?

The present paper fills this gap. It places aspotlight on the political events and debatestriggered by a sequence of inmate injuries andfatalities in Nagoya Prison in 2001, whichculminated a few years later in the first evermajor amendment of what was at that point anearly century-old Prison Law. To reconstructthese developments, the timeframe of which issummarized in the Appendix, the paper drawson interviews with key decision-makers(including the Justice Minister of the timeMoriyama Mayumi), parliamentary and otherofficial deliberations' minutes, media reports,amongst other sources. Naturally, the rare anddramatic episode so described provides aunique window into the world of Japaneseprison policy-making, and enables us to explorewhich actors are responsible for shaping theprison policy of Japan, and what theirmotivations and limitations are. Beyond theparticular question of who governs Japaneseprisons, the analysis pursued provides aninsight into the much broader and long-running

debate on who governs Japan.

Abashiri Prison in Hokkaido, built during the Meiji period,and operational when Japan's first Prison Law wasintroduced in 1908

To foreshadow my conclusions, the studydemonstrates that, for a long time, prisonmanagement was left almost exclusively toMOJ, which tightly controlled informationemerging from such establ ishments.Nonetheless, when the Nagoya Prison scandalhighlighted wide-spread problems that hadbeen plaguing the system, the legislatureshowed its capability to hold the bureaucracyto account, and bring about change in a promptfashion. Whilst normally largely restricted byMOJ, the hard-working civil society groups withan interest in the treatment of prisoners wereready to take advantage of this moment toensure that at least some of its requests madeit into the revised legislation.

Alarm Bells: The Outset of the Crisis

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Replica of the leather restraining devices used in Japaneseprisons, created by the Centre for Prisoners' Rights

In November 2002, six Nagoya Prison guardswere arrested on suspicion of inmatemaltreatment in two independent cases, one ofwhich resulting in fatality. Both cases involvedthe use of a particular type of leatherrestraining device (kawa tejō), consisting ofhandcuffs attached to a belt, and protectioncells (hogo-bō)8, in which the inmates had beenplaced. From the point at which it became clearin public that the Public Prosecutors Office wasmaking investigations into these cases,misgivings were raised in parliament thatinmate mistreatment might be more extensivethan the two cases in which it had just beenalleged. However, MOJ was keen to reassurethe public, even after the arrests had beenmade, that the two cases under investigationwere out of the ordinary.

The first incident to surface from NagoyaPrison concerned the 34-year old inmateYamashita Hideki, who had allegedly beenrestrained by his guards with the leather deviceto an extent that caused him to bleed internallybefore being put in a protection cell. Thistreatment had been inflicted to him on 25September 2002 and the allegation went that itrepresented a punishment for his refusal towithdraw an earlier complaint he had made tothe Justice Minister. Yamashita had indeed fileda grievance about his guards to the incumbentMOJ's head, Moriyama Mayumi – a right

granted to inmates under the so-called jōgansystem of the Prison Law of 1908 (Kangoku hō).The precise way in which the news of thisalleged abuse reached the outside world wasthrough the Tōkyō Bar Association, which wasscheduled to meet Yamashita the day after hebled to discuss the copy they received of hisofficial complaint.

Having learned of this mistreatment, the localbar's misgivings were raised about anotherrecent incident in the same prison facility inMay that year in which an inmate had died invery similar circumstances – i.e. in a protectioncell, with the leather device having beenapplied. Since this other prisoner was only 49years of age, and so unlikely to have diedspontaneously due to natural causes, thelawyers became suspicious about the possibilityof foul play in his death.

On 4 October 2002, against the background ofthe bar investigating both these cases, MOJcalled a press conference. In it, the Ministry'srepresentatives, amongst whom was thewarden of the Nagoya Prison, sought to explainabout Yamashita's case that he had beenviolent and that the guards had been trying tosubdue him. The reassurance was also issuedthat an investigation into the incident wasunderway, and that the Ministry was fullycooperating with the Nagoya Prosecution9. Asfor the May case, the Ministry only commentedon it after fielding questions from reporters.Whilst refraining from disclosing any nameswith regard to this case, they did confirm thatan inmate had indeed died on the particularday and place. They added that the relevantinformation, including the cause of death –which had been determined by the autopsy tobe 'acute heart failure (kyūsei shinfuzen)' – hadbeen conveyed to the family of the deceased,with no issues having been raised by them.

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An aerial view of Nagoya Prison

Despite MOJ's efforts to assuage suspicionsabout what had transpired in Nagoya,questions continued to be asked. On 31October 2002, at the first autumn session of theHouse of Councillors' Judicial AffairsCommittee, the events at Nagoya Prison werediscussed in public again and furtherrevelations were made. Under cross-examination by Fukushima Mizuho of the JapanSocialist Party (JSP), the Head of theCorrection Bureau, Nakai Kenji, acknowledgedthat the death in the Nagoya protection cell inthe May case had been shortly preceded byanother such, in December 2001, and that thenumber of similar deaths in Japanese prisonsover the previous three years totalled five.Fukushima had obtained this information fromthe prisons themselves, but she felt frustratedthat her investigation was allowed to go only asfar back as 1999. Insisting that the CorrectionBureau show more cooperation, she challengedNakai to produce data for earlier years.However, the chief of the Bureau replied thatthree years was as far back as CorrectionBureau records go, and that besides the factthat such data was kept to the minimum forpractical reasons, access to it was restrictedout of courtesy to the privacy of the families ofthe deceased.

In the meantime, the Nagoya District PublicProsecutors Office was making progress withits investigation. By November the evidencethey collected about the September case ledthem to arrest five guards, including Chief

Warden Watanabe Takashi10. With regard to theMay case as well, their suspicions were piquedwhen they discovered that the prisonauthorities had withheld the fact from thedeceased's family that he had been restrainedwith the leather device shortly before his death,and that the 'acute heart failure' had actuallyresulted from pressure on the stomach leadingto a 'damaged diaphragm (chōkan makusonshō)'. Indeed, the relatives only learnt thedetails of the autopsy later from the media11.Suspecting that improper use of physicalrestraints might have been the cause of theMay fatality, the prosecution issued furtherarrest warrants to two of the guards alreadybeing held in custody, as well as a fresh arrestwarrant to a third.

With MOJ coming under greater scrutiny overthese arrests, questions began to be raised asto whether the Justice Minister herself bore anyculpability for allowing multiple such incidentsto occur under her leadership. Indeed, whenthe events at Nagoya Prison were debated forthe first time in the Diet, on 31 October 2002,the allegation was levelled at Moriyama thatshe and her aide Nakai were trying to cover upthe incidents12. In defence, Moriyama explainedthat Nakai had informed her of both the Mayand September incidents promptly after theyhad occurred, but that there was no reason forher to become concerned until the later case.And even then, she argued, it seemedunnecessary for her to implement measures ofher own, other than hold ing a pressconference, since she believed it had becomethe responsibility of the prosecution todetermine the facts of the case (Moriyama,2004, pp. 140-3). As for the December 2001case, Moriyama again acknowledgedawareness, but her argument went thatbecause Nakai had briefed her that the injuriesto the anus, of which the inmate had died, wereself-inflicted, there was no way for her to seethis case as anything other than one of acompletely different category from the latertwo.

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Justice Minister Moriyama, and Correction Bureau DirectorNakai

Complaints about Complaints

The arrests of the guards over the May andSeptember cases had shaken MOJ, but the

Ministry maintained that these incidents wereisolated and not necessarily reflective of theprison system as a whole. Moriyama herselfcommented that all that the events of thepreceding weeks had revealed was that anissue existed with a few individual guards atthe Nagoya facility13. However, this positionwould soon be contradicted by non-governmental organisations (NGOs) which hadstories to tell from even before media attentionhad turned to prison affairs of how authoritiescensored and even pro-actively discouragedinmates' complaints. Whilst by its nature thesegroups' claim that inmates' grievances oftennever even see the l igh t o f day wasunverifiable, subsequent Diet discussionswould establish that the majority of grievancesthat had reached the formally recognisedchannels had not been handled in accordancewith the provisions of the Prison Law.

Two of the civil society groups that cameforward challenging the government wereAmnesty International and the JapanFederation of Bar Associations (JFBA). Thedirector of the former in particular, TeranakaMakoto, did not waste time to make clear thathe disagreed with Moriyama, highlighting thatthe application of restraining devices andprotection cells was far from exceptional to theNagoya case and that in fact it could be seen atevery prison14. What was more, he argued,these were not the only cruel punishments thatwere used by guards, with something called'the trampoline', in which the inmate's head iscovered with a jute bag before guards whom hecannot identify jump on his stomach, is alsocommonplace. To Teranaka's knowledge, therewere a number o f i nmates who hadindependently experienced this treatment orbeen threatened with it by guards. As for theJFBA, it quickly aligned with the claim thatabuse is more widespread than MOJ is willingto concede: the Association referred to the sixcases in which they had won compensationfrom the government for undue sufferingcaused by the use of leather restraining devices

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and protection cells15.

Indisputably, however, the wealth ofinformation about inmate abuse that came outduring this time was through the Centre forPrisoners' Rights (CPR) – an organisationestablished in 1995 for the specific purpose ofinvestigating human rights violations in prisonsand providing legal advice and help to inmates.Whilst the Centre had a long list of instances ofreported abuse, it also made the point that thenumber of cases which remain unreported ismost likely even bigger. To illustrate this, theyreferred to a case of a prisoner called HondaKazutomi whose correspondence with them hadbeen subjected to tight control. In what theycalled a typical case, the CPR described howthis Nagoya Prison inmate had made acomplaint regarding an act of abuse that hehad witnessed in October 2000 through theMinisterial petition system. This complaint hadbeen rejected on the grounds that he couldprovide no evidence of abuse, and, for histroubles, he had been subjected to a year insolitary confinement (Kaido, 2004, p. 70)16.After being returned to the ordinary prisonpopulation, Honda had asked staff of the prisonfor the address of the CPR, to which heintended to report what he had witnessed andhis subsequent treatment, including beingabused with a leather restraining device.Apparently, he was told that 'since the CPR isnot a public office, [they were] not obliged totell [him] the address' and Honda's envelopewas torn up before his very eyes by theguards17. Eventually, Honda did manage tomake contact with the CPR three timesbetween October 2001 and December 2002, asa result of which charges were pressed againstthe guards he had named.

Kaido Yūichi, Director of the Centre for Prisoners' Rights

During the resulting probing into the handlingof prisoners' complaints that took place in theDiet, it became clear that the mechanisms wereindeed not operating as they were supposed to.In particular, upon finding that from the startof 2002 the use of leather restraining devices inNagoya Prison had climbed, from 61 theprevious year, to 158, only 10 of which werenot combined with detention in protectioncells18, Fukushima sought reassurance fromMOJ that whenever such disciplinary measureswere applied inmates still had recourse toappeal19. She was especially interested inhearing from Moriyama how she had reacted tothe 30 appeals filed to her from Nagoya Prisonsince the beginning of that year – appeals thatused the jōgan procedure, which existed forallowing inmates to make secret complaintsdirectly to the Justice Minister20. Similarly,Yamahana Ikuo of the Democratic Party ofJapan (DPJ) was outraged to find out thatdespite having been in office for a year and ahalf already, Moriyama had not seen a single ofthese complaints and was hardly even aware ofthe existence of this procedure21. Moriyamapleaded that she cannot possibly be expected toread thousands of prisoners' letters a year, andthat it was perfectly reasonable for this work tobe delegated to her staff at the Correction

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Bureau, but the opposition charged that suchhandling of the jōgan appeals defeated theirpurpose. In their eyes, this newest revelationonly served to highlight the need for a thirdparty to administer applications for humanrights relief in prisons22.

In addition to the criticisms of the mechanismfor dealing with claims of human rights abusesmade to the Justice Minister, the debatessurrounding the Nagoya affair sparkedconcerns about the management of inmates'medical complaints. For a long time, the JFBAand the CPR had claimed that all was not wellwith the standard of medical care in prisons,having been approached on numerousoccasions by prisoners who reported that theirtreatment had been inadequate. Moreover, theJFBA had successfully fought battles forcompensation from the government in severallawsuits. A common theme in the storiesreported to these NGOs was of guards ignoringrequests for medical help beyond a point that afull recovery would be possible, often becauseof doubts about the prisoner's sincerity, theupshot being that the inmate in question hadbecome chronically ill (Kikuta, 2002, pp.68-73). The JFBA had even published a numberof such instances in a compendium of humanrights relief case studies, which included, forexample, a description of an inmate atAsahikawa Prison being left with paralysis afterhis complaints of chest and lower back painwent unheeded for six months (JFBA, 2000).

This issue of medical care would be brought tothe Diet by DPJ and SDP politicians. As aconsequence of Fukushima's investigation intothe deaths in protection cells, it became publicknowledge that, among the five cases, thefamilies of two of the dead had already wonstate compensation after it was established thatbelated medical care had led to death fromsuch avoidable causes as heatstroke andfrostbite23. For Fukushima, the circumstancesof death were incomprehensible given thatprotection cells are supposedly meant to be

monitored 24 hours a day; how, she asked,could the supervising guards have failed tonotice the suffering of the prisoners24? AbeTomoko of the Social Democratic Party (SDP)similarly expressed shock at how such deathscould have occurred in the modern age, with allthe medical expertise available. Demandingclarification of the December 2001 case, Abemaintained that for an ordinarily healthy adultto die after two days in isolation fromperitonitis – a condition with a low mortalityrate, either his symptoms had been leftunnoticed by the guards for an extremelylengthy time or something more sinister hadoccurred25.

SDP's Fukushima Mizuho. Source: Asahi Shimbun

In the end, however, the concerns about theadministration of medical care in prisons werebrushed off by the Justice Minister with anexplanation that, although there was room forimprovement, an extensive framework fortreating medical conditions and procedures to

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be followed upon the reporting of an illnesswere already in place. Furthermore, althoughthe representativeness of her choice ofinstitution would be questioned by theopposition, Moriyama noted that on a recentvisit to Ōsaka Medical Prison she had beenfavourably impressed with the attention toinmates by specialists where needed. As for thespecific December 2001 case, she assuredthose interested that the truth would berevealed with the complet ion of theprosecution's investigation in the near future26.

Guards under Scrutiny

The prosecution's misgivings about theDecember 2001 case of maltreatment inprotection cells prompted it, in February 2003,to arrest yet more prison staff. When it becameclear that MOJ staff had lied in the Diet and tothe Justice Minister about their awareness ofthis case, the Nagoya scandal reached a wholenew level, bringing the deliberations in Diet toan impasse.

Misgivings about the death of the inmate inquestion had been expressed the previous yearby the SDP's Fukushima and Abe, but had, atthat time, been explained away by theCorrection Bureau as resulting from self-inflicted injuries. In particular, the Bureau'saccount of the fatality, included a description ofhow the prisoner, who had a history of self-harm, had smeared excrement on the walls ofthe protection cell in which he was detainedafter having removed it from his rectum withhis hands27. From these observations, theconclusion was drawn that the prisoner had, inthe course of his actions, mortally damagedhimself28.

However, on studying the autopsy results indetail, the Nagoya Prosecution inferred thatmaltreatment was a real possibility andinstigated the third set of guard arrests. Theinvestigators were particularly interested in theclause in the autopsy that 'it could notnecessarily be determined that the [tears in the

rectal passage 10cm from the rectum] wereself-inflicted'29, and they decided to pursue thecase further with an open mind for anycriminality. Since the prison's report statedthat an attempt had been made to clear the cellby prison staf f using a f ire hose, theprosecution thought it would be proper toexplore the conjecture that such equipmentbeing used inappropriately caused the death30.It was quickly realised that the key toestablishing the plausibility of this inferencewas the strength of the pressure of the hose,and in February 2003, to measure the extent ofdamage that the Nagoya hose could haveinflicted on the inmate, the investigatorsconducted an experiment in the car park oftheir offices31. Specifically, the trial, led by amedical specialist from Teikyō University,Emeritus Professor Ishiyama Ikuo, involved therectum of an anaesthetised pig, weighing 60kg,being subjected to the spray of a fire-fightinghose set to what was believed to be the samepressure as that in Nagoya Prison, 0.6kg/m2 32.After 30 seconds, laceration occurred33. Tostrengthen the result, a second pig, weighing50kg, underwent the same treatment, with theresult being laceration after only 15 seconds34.Furthermore, autopsies were made on the twopigs, in which it was determined that thewounds closely resembled those that theprisoner's autopsy had described35. On thebasis of this finding, the prosecution arrestedin the same month (February 2003) first theDeputy Chief Warden Otomaru Mikio, with twoother assistant guards considered accomplicesbeing arrested later36.

Even after the arrests, MOJ maintained theposition that it had not, until this time, hadcause to be suspicious that a criminal act hadtaken place. With the prosecution findingevidence of wrongdoing in a case that had notbeen treated as a matter needing furtherattention by the Correction Bureau, MOJ wascalled to provide an explanation as to why ithad not checked earlier whether, if notcriminal, disciplinary action against the guards

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involved was in order. In the press conferenceheld by MOJ shortly after the arrests, officialstook the line that this development had takenthem by surprise, as they had found out aboutthe use of the hose only when the guards hadbeen arrested37. Similarly, the CorrectionBureau Director, Nakai, had issued a two pagereport on the matter that day, to the effect that,since a report had previously been receivedfrom Nagoya Prison stating that it is thoughtthe cause of death is self-infliction and there isno criminal element to this event, the findingsof the Nagoya Prosecution's investigation werea shock to him3 8. These words would bereiterated by the Justice Minister, who alsoclaimed that it was only at the point of thearrests that the involvement of a hose had beenreported to her for the first time (Moriyama,2004, p. 144).

MOJ would soon be forced to retract thesestatements after a media scoop revealed thecontrary, but would not be able to shake offaccusations of more serious failures. What wasreported was that some of the Ministry's staffhad been privy for some time to the informationregarding the possibility of abuse with a fire-fighting hose39. Quickly reacting to this newsstory, Yamashita Susumu, the commander ofthe Special Investigation Team at theCorrection Bureau charged with scrutinisingthe series of incidents at Nagoya, came forwardwith a public apology for MOJ having given afalse account of the situation. He explained thathis 'own ineptitude' and 'lack of consideration'had resulted in his omitting to inform hissuperiors, Nakai in particular, that the reportfrom Nagoya Prison included informationsuggesting that the case might be morecomplicated than one of self-harm, and did notrule out the possibility of a criminal element40.Although Yamashita's apology might haveexcused MOJ's false statements in theimmediate aftermath of the arrests, thisepisode would call into question why seniorMOJ officials had not taken more responsibilityfor the case earlier, seemingly remaining

strictly hands-off in their approach to thesituation. Many in the public would even levelthe allegation that, rather than this being asimple case of poor communication, there hadbeen a concerted attempt by the authorities tohush up the case.

Upon requesting explanation about what hadbeen revealed, the opposition was astonished todiscover the communication of informationwithin MOJ dysfunctional. A week after thearrests, Nakai was summoned to the Diet toaccount for how in the original pressconference senior MOJ officials had not beenfully informed by their subordinates about theinformation available within the CorrectionBureau regarding the December 2001 case. Heexplained that, since the prison staff have thetask of assembling evidence of crime in prisons,as the police does outside, they have the dutyto treat cases with utmost care, limiting thenumber of people who know about them to theabsolute minimum and treating them as topsecret so as not to prejudice the subsequenttrial. With further prompting, he added that hedid not consider it controversial that theCorrection Bureau had not passed on theinformation it had to the Justice Minister, andwas even heard stating that '[sensitiveinformation] should definitely not have beenreported to the [the top]'41. Despite it havingbeen suggested that she cannot be relied onwith information, Moriyama agreed with Nakaithat she does not need to be privy to everythingthat happens in prisons4 2 , igniting theopposition's anger even more.

After a short recess in which the speakers wereable to collect their thoughts, Nakai wasencouraged to retract his earlier statements,which he duly did, and the attention thenturned to Moriyama in order to determineprecisely when she had discovered the detailsof the case. At this point, Moriyama admittedthat she had received a report from theCriminal Affairs Bureau in January that theprosecution had raised the possibility of

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criminality, but was adamant that it was notuntil the arrests that she became aware of theinvolvement of the hose43. For members of theopposition such as Yamahana Ikuo of the DPJ,this response only served to highlight thediscrepancy between the attitudes towardsreporting to the Justice Minister of the variousdivisions of MOJ. Specifically, he made sure tonote the stark contrast between the CriminalAffairs Bureau's action of informing the JusticeMinister immediately on receiving word of apossibly criminal act and the CorrectionBureau's position of withholding suchinformation precisely because such a possibilityexisted. By not dealing with such mattersherself, Yamahana suggested, Moriyama hadcreated a 'paradise for bureaucrats'44.

The outcry over the management of informationdid not end there, as the opposition sought toimplicate Moriyama for neglecting her duties.Abe, in particular, recalled the dialogueMoriyama had engaged in about the December2001 case several months previously withherself and Fukushima. At that time, the JusticeMinister had met the queries about the dubiousnature of this fatality with the declaration thatthe facts surrounding the event were underinvestigation by the Nagoya Prosecution, theCorrection Bureau and MOJ's Human RightsBureau, and that her intention had been toreport back to the Diet as soon as a completepicture of what had happened becameavailable45. More than the fact that Moriyama'spromised report had never materialised, whatreally enraged the opposition, however, wasthat she had evidently failed to demand a fullaccount of the case from her aides even at thestage, in late January, when she had beeninformed of the possibility of a criminal actbeing committed46. Nor, it was noted, was thereany trace of the investigation Moriyama hadreferred to in the Diet by the Human RightsBureau, an office supposedly existing for thepurpose of considering this kind of case.Heavily chastised for her lack of assertion incalling for reports, rather than waiting for

them, the Justice Minister defended herselfwith the argument that, not wanting toinfluence any subsequent trial, she had thoughtthe best course of action was to leave the caseuntil the prosecution discovered the truth, andonly then impose disciplinary measures, iffound necessary47.

An almost identical criticism would be made amonth later, when the remark in the autopsyreport sent from Nagoya Prison to theCorrection Bureau indicating that the cause ofdeath was not clear-cut, as well as theaccompanying investigator's comment that 'thismight become a complicated case', were madepublic48. In reaction to these revelations,Moriyama was driven to concede that she hadtrusted Nakai's reports, which had been 'basedon the autopsy', rather than investigating thefacts herself, even after the earlier scandalshad emerged (Kaido, 2004, p. 72; Moriyama,2004, p. 142). Although opposition politicianswould accuse the Justice Minister of lyingabout her knowledge of the case in order tocover it up, retrospectively Moriyama wouldwrite that:

The feedback from Nagoya Prisonand the Correct ion Bureauregarding this series of incidentswas certainly insufficient andincorrect, and there are points forself-examination, but not for asingle moment did MOJ, with[herself] included, intend to hidethese cases by shrouding them indarkness. [They] simply thoughtthat the most appropriate way ofreacting to them was to refer themf o r a f a i r h a n d l i n g t o t h eprosecution (Moriyama, 2004, pp.144-5, author's translation).

Having thus uncovered the failures ofcommunication within MOJ, the four majoropposition parties of the time – the DPJ, the

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SDP, the Liberal Party and the JCP – managedto successfully threaten the ruling LDP-coalition that unless Moriyama is intensivelyexamined and then forced to resign, they wouldsabotage the pivotal impending deliberations ofthe budget49. Grudgingly, the LDP yielded tofurther debating the prison issue.

More Complaints about Complaints

During the next week, as promised, moreparliamentary hours were devoted todiscussing the management of prisons, with yetmore becoming unveiled about the functioning,or lack thereof, of the Ministerial petitionmechanism.

Following the opposition's threat to stallparliamentary proceedings over what was nowa prison scandal, the deliberations of the issuedominated the Diet, even taking place withinthe high-profile Budget Committee for thewhole of March. Much to the delight of allthose on the other side of the House ofRepresentatives, the Budget Committeesessions commenced with Moriyama issuing aseries of apologies covering topics includingthe incidents resulting in the arrests, herfailure to report adequately the facts at theearlier press conference and in Diet sessions,the budget debate being suspended, Nakai's'inappropriate' comments, her insufficientleadership and her moral irresponsibility50. Thiswas succeeded by an intensive probing of theminutiae of the December 2001 death andsubsequent events at the Ministry.

However, the heat would not really rise untilthe focus turned once again to the Ministerialpetition system, when it was determined thatMoriyama had still not read any prisonercomplaints, despite seemingly havingpersonally stamped responses. On request,reiterating the point that she had made theprevious year, Moriyama explained that theflow of prisoners' grievances were, as they hadbeen since the 1970s, processed routinely atthe level of the bureaucracy and screened a

number of times. Finally, 'only the mostimportant' were handed to the JusticeMinister51. Controversially, Moriyama'sstatements further revealed that this hadmeant her not having seen any letterswhatsoever, even after the censoring procedurewas criticised in the Diet. This induced criesfrom the opposition that Moriyama lacked asense of urgency about the whole affair andthat the current complaints mechanism wascompletely dysfunctional52. Taking this pointfurther, Yamahana of the DPJ brought forwardas evidence the rejection letter that Honda, theformer inmate who had contacted CPR abouthis alleged abuse at the hands of the NagoyaPrison guards, had received in response to thepetition he had sent to the Justice Minister.Given that this letter clearly bore Moriyama'spersonal seal, which would lead any person toreasonably believe that the Justice Minister hadbeen party to the decision, when she confessedthat she had not , Yamahana seemedincredulous that Moriyama felt her positionwas still tenable.

Although the use of the Justice Minister's sealby her subordinates would be explained awayby Nakai as 'standard practice', this did notconclude the discussion of the issue, asopposition sought to ascertain precisely whowas responsible for opening prisoners'grievances. Seeking to test the legal basis forthe authority of the Justice Minister regardingMinisterial petitions being passed to thebureaucrats, Yamahana and Kijima Hideo of theJapanese Communist Party (JCP) cited the 1908Rules for the Implementation of the Prison Law(Kangoku hō sikkō kisoku), which stated thatcomplaints should be 'passed without delayfrom the Prison Director to the JusticeMinister,… and on no occasion can prison staffopen the petition'53. In response, for the secondtime in seven days, Nakai brought disorder tothe Diet with his broad interpretation of thesame statute, claiming that, since the clauseonly stated that 'on no occasion can prison staffopen the petition', Correction Bureau staff

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could do so legi t imately . Even i f h isinterpretation of the Rules was accurate and itwas the case that MOJ staff were allowed toopen the Ministerial petitions, Nakai'sargument failed to convince the opposition thatanyone but the Justice Minister had any legalgrounds to act upon them. Indeed, by doing so,the opposition claimed that the CorrectionBureau was usurping the authority of theMinister and breaking the Prison Law as itstood. Anyway, two weeks later, Nakai'sargument involving the distinction between thehandling of prisoners' complaints by prisonofficials or Correction Bureau personnel wouldbe somewhat undermined when he was pressedto reveal that the first stage of processingMinisterial petitions took place within a part ofthe Bureau called the 'Correctional AuditSection (Kyōsei kansa shitsu)', which wasstaffed by those on secondment from prisons54.

When It Rains, It Pours: Death RegistersUnearthed

In March 2003 Japan's prison system movedfurther into disrepute, with yet anotheroutrage. This time the Ministry of Justice wouldbe proved to have obstructed knowledge aboutthe records of deaths in penal institutions inthe Diet. This revelation was significantbecause i t appeared to vindicate theopposition's claim that the deaths at theNagoya facility were just scratching thesurface.

In the same session that Moriyama and Nakaiwere grilled over the Ministerial petitionsystem, the two were asked whetherprecedents existed of inmates being torturedand killed by prison guards, and in response,for a third time, they denied feasible means ofinvestigating deaths in prisons prior to thethree years of records that the MOJ admitted tokeeping. The first such denial had been madein October 2002 when, after already havingobtained information for the three previousyears, Fukushima had requested that details

about the deaths involving protection cells andleather restraining devices from the last 10years be released55. In response to her plea,made through the Board of Directors of theHouse of Councillor's Judicial AffairsCommittee, i t had been stated by theCorrection Bureau that records of deaths werekept for only three years at a time, and tocheck for deaths further back than this, anintolerable amount of work would berequired56. Specifically, this was only possible,it was claimed, by examining individually eachof the several hundred thousand prisoneridentification books. On the grounds that thiswas a time when overcrowding of prisons wasalready placing an insurmountable burden onprison staff, the Correction Bureau refused toundertake this task. Similarly, when membersof the Judicial Affairs Committee had requestedon a December 2002 visit to Nagoya Prisonrecords of deaths for more than three yearsfrom this institution, the Correction BureauDirector had declared in front of the prisonofficials there that such documentation did notexist57. Thus, including Moriyama and Nakai'slatest statements, up to February 2002 threedeclarations of this kind had been made.

In early March, Hosaka Nobuto of JSP managedto establish through his own investigation thatindividual prisons did, in fact, keep records thatpermitted the causes of inmate fatalities to beeasily identified for a much longer period – adecade at least – in an institutional 'DeathRegister (Shibō-chō)'. Although Hosaka limitedhis study to four prisons, including Nagoya, theinformation he collected and presented to theBoard of Directors of the Judicial AffairsCommittee of the House of Representativeschronicled that, over the previous 10 years,approximately 100 unnatural deaths ofprisoners had been recorded58.

As it transpired, the Death Registers compiledat each facility formed yet another part of theprison administration system that had evadedMoriyama, and their discovery would give

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Nakai some more explaining to do. Of course,the issue was brought to the Diet, with Nakaibeing forced to explain in both Houses hisfailure to produce the information about DeathRegisters at any one of the opportunities hehad already had to do so59. Facing calls for hisresignation over the matter, the CorrectionBureau Director was compelled to apologise tothe Diet once again, this time for not havingkept Moriyama informed and repeatedly givingfalse answers60. The justification that he gavefor his earlier position was that, even thoughthe books contained the 'cause' of each death,they would not necessarily allow one toascertain whether the death in question hadoccurred in a protection cell, which was whatthe Judicial Affairs Committee's Board ofDirectors had originally asked for61.

Unfortunately for those hoping that the recordsof prisoner deaths released by MOJ wouldprovide a clear indication as to the number offatalities in which abuse by guards could havebeen a factor, the poor quality of the datameant that this was not the case. On findingout about the Death Registers, members of theJudicial Affairs Committee from the ruling andopposition parties had demanded MOJ collatethe data from each of their prisons for theprevious 10 years, so that the true extent of thesituation could be gauged62. In answer to theDiet's request, in March 2003 MOJ produceddetails of 1,592 inmates who had died in prisonbetween 1993 and 2002, but would quicklyencounter severe criticism on the managementof the Death Registers. Apart from theunprofessional archiving, which meant that thefiles were often in complete disorder, it wasquestioned in the Diet why in so many casesentries had been left blank or concealed usingthick black ink63. It was also immediatelyapparent that descriptions of the circumstancesof death were far too sparse to be conclusive inmany cases. Many deaths, it was noted, hadsimply been explained away with suchcomments as 'acute heart failure'64 or the evenvaguer 'stopping of the heart (shinzō teishi)',

rather than a description of the cause of theseproblems. Moreover, often no explanation wasgiven as to the medical procedures followed inattempts to revive the inmates and no autopsieshad been conducted in cases in which it wasunclear whether criminality had been involved.

Despite some anxiety amongst politicians overthe scale of the problem, MOJ's resultingassessment suggested that only a tiny fractionof the fatalities recorded in the Death Registersover the last 10 years could be deemedsuspicious. After being asked to arrange theinquiry into prison deaths, Nakai was quick topoint out that, due to the broad definition of an'unnatural death', the initial figure of 238unnatural deaths that had been widely quotedwas likely to vastly overestimate the number offatalities involving a criminal element65. Evenso, both the House of Representatives andHouse of Councillors saw fit to conduct theirown enquiries in addition to that of MOJ. Aspart of these investigations, a number of expertwitnesses would be called to the Diet to discussthe revelations, some of which would onlyheighten the politicians' fears. For example, aspecialist in cardiology claimed that 'if medicalerrors similar to those recorded by MOJ in themajority of the unnatural death cases hadoccurred in [his] hospital, the doctors involvedwould be likely to face lawsuits and the hospitala large compensation bill'66. Although theHouse of Councillors' Judicial AffairsCommittee was more reserved in i tsassessment, even without taking into accounttheir discovery of a conspicuous loss of recordsat Fuchū Prison, it judged 65 deaths to requirefurther investigation67. Following up on thepoliticians' efforts, the Ministry would presenttheir own conclusions in June, reporting that, ofthe nearly 1,600 deaths, only 15 cases werepossibly suspicious and in only 18 cases waspoor medical treatment implicated68. Moreover,MOJ asserted, in none of the cases outside ofthe Nagoya Prison incidents already beingpursued could it be established that abuse byprison guards had been involved, even though

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in five of them inmates had been placed inrestraining devices shortly before theirdeaths69.

Unsurprisingly, the threshold of observingNGOs for what constituted a 'suspicious death'was lower than that of MOJ, and theseexpressed their scepticism about the way inwhich the Ministry had arrived at its figures.CPR, in particular, reported back on as many as29 cases in which the cause of death wasunclear but it was known that the inmate hadbeen placed in a protection cell shortly beforedeath. It would also count over 70 cases inwhich insufficient or inappropriate medicalcare was implicated, including, for example,deaths immediately following pacifyinginjections and cases in which prisoners haddied from apparently curable diseases oroverheating in their cells (Kaido, 2004, p. 74).Too many times, Kaido of CPR and JFBA wouldargue, 'the Ministry [had] unconditionallyaccepted far-fetched explanations from prisonofficials'70.

Although a universally accepted answer to thequestion of how many dubious deaths inprisons had occurred in the previous 10 yearscould not be reached, what did become clearfrom the information available was that medicalcare in prisons was far from adequate.Specifically, the opposition used the recentlyunveiled documents to challenge MOJ as to whymedical care for prisoners seemed to divergeso much from that of the general population71.As a result, it would be discerned that theshortage of doctors and medical staff in prisonswas yet another systemic failure of the prisonsystem. This problem, which would be admittedby Moriyama herself , was reportedlyexacerbated by the rather unscrupulouspractice of prison doctors not alwaysperforming their paid hours of work, with agovernment survey disclosing that as many as84% of the 219 supposedly full-time prisondoctors worked fewer than four days a week attheir designated prison72.

With the analysis of the deaths at prisonsswelling the inexorable flow of revelationsregarding institutions of detention, manyproblems of the correctional administrationthat JFBA and other NGOs had hitherto beendiscussing without having access tocorroborating data, were now very much in thepublic domain. This situation was much to thechagrin of officials at MOJ73.

Off With Their Heads

In the aftermath of the Death Register exposé,which had shown again the bureaucracy ashaving wilfully hidden data and facts, MOJ staffwere eventually handed sanctions for their partin the story, but Moriyama managed to survive,despite the continued pressure for herresignation.

The opposition had called since the previousautumn for Moriyama to be more like theunforgiving Emma dai-ō74, rather than theprotective, compassionate Jibo kan'on75, when itcame to her subordinates, and it seemed thatthe unvei l ing of the Death Registersrepresented the tipping point for thistransformation to take place. In a preliminaryMOJ assessment of the failures at Nagoya,Nakai and Moriyama held that many of theprison staff were insufficiently aware of humanrights issues regarding prisoners76. The pairexplained that it was this factor that had led tothe escalation in the inappropriate use ofleather restraining devices, with lower ranks ofguards not following strictly their rules ofapplication and higher ranking ones notmonitoring their use closely enough7 7.Operating accordingly, MOJ had imposed athree-month long suspension on three seniorprison officials at Nagoya, including thewarden78. As for officials in the higher echelons,the opposition was shocked to find that Nakaiand others at the central MOJ offices had onlybeen reproached, the most palpable sanctionimposed on anyone there being a 5% deductionfrom a month's salary79. Refusing to let the

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issue rest, the opposition challenged Moriyamaas to why she had only given Nakai a sermon(o-sekkyō) for all his serious failings80. Althoughshe would never criticise Nakai in public, thisdid not mean he would escape unscathed; as adirect result of his role in the scandal, he wasvery soon shifted from his position asCorrection Bureau Director to a post in theCabinet Secretariat8 1 .With respect toMoriyama, despite the repeated four-party(DPJ, SDP, Liberal Party and JCP) demand thatshe resign, the end of the scandal saw her stillin her post. Responding in the Diet to thequestion of why he had not fired her, PrimeMinister Jun'ichirō Koizumi expressed what hadalready become Moriyama's sentiment as well –in other words, that '… the responsibility of theJustice Minister is to self-examine herself inlight of the points made [by the opposition]with a view to correcting them…'82 (see alsoMoriyama, 2004, pp. 146-7). Although it wassaid with his tongue set firmly in his cheek,Kawamura of the DPJ also conceded that,through her repeated promises in the Diet thatMOJ would overcome its sins in the future andher assertion that, despite being so deep in themud, she could rise again, Moriyama had beenprovided with valuable lessons about thephilosophy of rehabilitation that would beuseful in the remainder of her term as Japan'schief correction administrator83.

Reform at Last

Following the events at Nagoya, for the firsttime in the post-war period, prisons took centrestage in the public's attention, with the entireprison administration splashed across frontp a g e s a n d t h r u s t t o t h e t o p o f t h eparliamentary agenda. Whilst Moriyama'sposition as Justice Minister was still inquestion, she would embark upon fullscalereform of penal administration. In addition toinstigating several immediate practical changesto the system, she also initiated the processthat would eventually lead to the revision of thePrison Law, which had long been anticipated.

Amongst the first steps that the JusticeMinister undertook in her attempt to make adifference to the prisons of Japan was theremoval of the leather restraining devices thathad been at the centre of the scandal and theimprovement of prison guard human rightseducation. Indeed, the MOJ had made anofficial announcement that the restrainingdevices in question were being withdrawn inthe midst of Moriyama's Diet travails in March2003 following an inquiry set up by her84, andthree months later their replacement wasconfirmed with the unveiling of a new type offelt-lined manacle without a belt that would beintroduced in October 200385. The restrainingdevices had been a principal concern ofprisoners' rights advocates for a number ofyears86, and the move by MOJ was broadlywelcomed by the devices' critics87. Moreover,the MOJ promptly introduced prison guardtraining courses focusing on compliance withthe UN instruments in practice88. To these,criminologists specialising in internationalhuman r ights trends were invi ted toperiodically present lectures to prison staff89.

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The replacement restraining devices (blue)

On a personal level, by devoting vast amountsof time to the petitions formally sent to theJustice Minister, Moriyama made sure that hercommitment to prisoners' care could never bequestioned again. Following the events atNagoya, she was very much aware of theexistence of the channel through whichprisoners could appeal directly for humanrights relief. Until the end of her tenure inSeptember 2003, with assistance from her ViceMinister, she would scrupulously read each ofthe several thousand grievances written,ordering where necessary that MOJ's HumanRights Bureau takes the appropriate steps90.Moriyama entered into this duty extremelyconscientiously, perhaps even more than wasexpected, later admitting that some of theinformation that she had read was notnecessarily her immediate concern, noting that'prisoners have plenty of free time andsometimes write quite a lot without realisingthat a very busy person will have to read it'91.Indeed, amongst the letters she read was

material ranging from the 'dull and dreary' tothe more fantastical, with one prisoner'scomplaint premised on claiming to be the thirddescendant of the Sun Goddess – Amaterasu.Moriyama received much sympathy from herMOJ colleagues for these efforts on the groundsthat 'there is no country in the world where theJustice Minister would read all these letters'92,and it is almost certain that future JusticeMinisters would not follow closely herexample93.

As for the regulatory prison regime, the JusticeMinister devised an advisory organ – theCorrectional Administration Reform Council(Gyōkei kaikaku kaigi, hereafter the 'Council') –to deliberate the overhaul of the system94, andit would be their suggestions that would lead in2005/6 to the revision of the outdated PrisonLaw. The Council consisted of 14 diversemembers, one of whom was a harsh critic ofprison practices95, which earned the respect ofthe JFBA and other advocates96. Convening asearly as March 2003, the group held regularmeetings for nine months, canvassing opinionsof guards, wardens, inmates, etc. A number ofthe members also undertook trips to Germany,France and the United Kingdom in order tofamiliarise themselves with the administrationof facilities there, whilst Moriyama herselftravelled to an American prison (Moriyama,2004, p. 152).

In their recommendations, issued at the end of2003, the Council provided a number ofsuggestions for improving the lives of prisonersand making the administration of prisons moretransparent, and also stressed that the speedywholesale revision of the Prison Law wasindispensable for the realisation of the penalreform. Although it did not approve NGOsrequest to make prisoner medical careindependent of MOJ and place it with theMinistry of Health, Labour and Welfare (Kōseirōdō-shō, hereafter MHLW)97, the Council'srecommendations were broadly welcomed. Oneparticular suggestion which met with approval

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was the creation of neutral, third-partymonitoring bodies for prisons – Boards ofVisitors for Inspection of Penal Institutions(Keiji shisetsu shisatsu iinkai, henceforth the'Boards'). These bodies were to inspectpremises, so as to ensure that systematicfailures in prisoners' rights protection do notoccur. They would consist of at least one lawyerand one doctor besides other individuals, andwould be charged not only with investigatingconditions in facilities, but also interviewinginmates, and expressing opinions to the prisonauthorities and MOJ. Another change that thelawyers saw potential improvement in,depending, of course, on its implementation,was the introduction of a new 'preferentialclassification system (yūgū kubun seido)',under which the behaviour of prisoners wouldbe regularly assessed, with 'work, guidance forreform, and guidance in school courses', as wellas rewards or penalties in terms of livingconditions assigned accordingly98.These moreexplicit rules concerning prisoner treatmentreduced the discretion of individual prisonstaff. For instance, the newly introduced'privilege measures' described within the lawincluded a provision stating that the number ofvisitations allowed per month must be explicitlyspecified within a MOJ ordinance99.

Class for prisoners providing guidance in reform. Source:MOJ

After close consultation with the JFBA, in thespring of 2005, MOJ submitted to the Diet adraft bill that aimed at revising the section ofthe Prison Law pertaining to prisons andconvicted inmates. The Ministry had attemptedto achieve such a revision on three occasions inthe 1980s and the 1990s. However, there weresignificant disagreements between the NationalPolice Agency and the JFBA over the treatmentof criminal suspects, which the Prison Law alsocovered. With sections of the opposition(including the Japanese Communist Party, theJapanese Socialist Party, the DemocraticSocialist Party, and Kōmeitō) aligned with theJFBA and objecting to the proposals, all theseattempts had been stalled (for a more detailedaccount on this see: Croydon 2016). With theNagoya Prison scandal having highlighted theurgency for prison regime reform, a consensusfinally emerged between the three interestedparties to put the contentious issue of criminalsuspects aside for the time being therebygiving MOJ the space necessary to achieve itsplanned Prison Law revisions.

The lawyers saw a number of flaws in thedetails of the MOJ bill. Nonetheless, thegeneral sentiment amongst them was one ofsatisfaction. One of the Association's pressre leases , for example , pra ised how'recommendations by [the Council] on reform ofpunishment practices were well reflected in thebill'100. In the absence of major objections onthe JFBA's part the draft legislation had asmooth run in the Diet, becoming promulgatedon 18 May 2005. In this way, the Prison Law,which had provided the framework for themanagement of prisons up until the NagoyaPrison scandal, was revised in its entirety forthe first time in nearly a century.

Discussion

What then can we learn from the NagoyaPrison scandal about how prison policies arearrived at in Japan? Clearly, the most

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prominent actors in the story were thebureaucracy – MOJ in particular, the legislatureand the civil society. In what follows, analysis isprovided of the role these actors played up toand during the crisis, so as to determine wherethey feature in the management of prisons andthe governance of Japan more generally.

MOJ: Broad, unchecked discretion

The disclosures in the Diet and elsewhereduring the Nagoya Prison saga demonstratedthat there was a high degree of discretionwithin MOJ when it came to the management ofprisons. This was both at the level of thecentral bureaucracy and at the level of prisonguards. The autonomy of individual staff couldbe seen as part of the wider culture of'bureaucratic informalism' within Japan, andwhilst the reforms did include some measuresto reel this in, critics continue to expressconcerns on this front.

To elaborate on the freedom enjoyed by thecentral prison management, this was based onthe control of information, and an institutionalbelief that it was appropriate for MOJ officialsthemselves to make decisions on prisonswithout wider consultation. Indeed, individualbureaucrats retained extensive leeway todetermine whether potentially sensitiveinformation should be handed to their superiorsor not. This broad discretion was perhaps mostclearly illustrated in the divergent approachesto informing the Justice Minister about possiblycriminal events taken by the Directors of theCriminal Affairs and Correction Bureaux.Moreover, Nakai's endorsing of the SpecialInvestigation Team Commander's initialposition of not passing on details of theDecember case was illustrative of how, withinthe Correction Bureau at least, freedom ofaction was a matter of course. That this was thecase more widely was made clear by thepractice of those staff opening Ministerialpetitions not raising concerns with the JusticeMinister, and dealing with complaints directly.

Such a course of action had become soinstitutionalised that it might well have beenconsidered irregular to do anything but this.

Individual prisons and guards, too, were givenfree rein in determining how best to deal withunexpected situations. For a start, there was noobligation for prison staff to provide fullaccounts of fatalities. Whilst there is apossibility that the resulting poor recordkeeping of deaths was nothing more than badadministration, with the meagre official reportgiven to the victim's family in the May case, theNagoya Prison episode did nothing to disputethe alternative suggestion that it was aconvenient means for the authorities to evadepublicity in cases of maltreatment. The Nagoyaguards' testimonies demonstrate further that,at the very point of execution of prison policies,there was a significant degree of autonomy. Inparticular, with their complaints that they hadreceived no warning of wrongdoing, theyimplicitly supported Moriyama and Nakai's Dietremarks that senior prison officials did notclosely supervise their staff.

The autonomy MOJ enjoyed, however, wasimpacted by the Prison Law reform, whichintroduced greater checks on its staff. Perhapsthe most significant change brought about bythe new legislation was the introduction of theBoards; given that much of MOJ's authority onprisons came from the control of informationemerging from such establishments, theintroduction of third-party monitoring bodies towhich MOJ has a legal responsibility to supplyaccess to prisons and associated data clearlyrepresents a significant change in Japaneseprison management. Indeed, with the Boards inplace, it seems difficult to imagine that a largenumber of poorly explained deaths could bebrushed under the carpet in the way that thoselisted in the Death Registers had been.Moreover, as a means of providing inmateswith an improved mechanism for seekinghuman rights relief, the Prison Law amendmentincluded a new complaints procedure involving

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a 'suggestion box (teian-bako)' set up at eachprison for inmates to express opinions andcomplaints, the key to which is only held by theBoards. With this new procedure in place, itwill be difficult for MOJ to retain a completelock-down on information from the inside ofprisons.

A suggestion box for prisoners' complaints. Source: MOJ

However, whilst the Boards and the newcomplaints procedure have gained a degree ofapproval from NGOs and the UN, the power ofsingle officials continues to be cited as aconcern. Indeed, the immediate response of theJFBA in its report to the UN on the new prisonlegislation was generally positive101. NGOs, too,commented on the many positive aspects of thereform102. On the other hand, in the yearsfollowing the revisions, critics raised theconcern that practice is in some ways laggingbehind the legislation. The JFBA, for example,noted how in some cases prison authoritieshave withheld medical records from theBoards103. And, together with NGOs, thelawyers' organisation still complains that alarge scope of action for individual prisons andwardens with regard to determiningdisciplinary measures, including solitaryconfinement, and access to medical treatmenthas remained. For death row inmates inparticular, there is an issue of how certainarticles, which permit prison authorities todeny visits when the latter views this as having

the potential for disrupting the 'peace of mind'of such an inmate, are applied, with prisoners'rights advocates claiming the statutes are usedbeyond their original intent for disciplinarypurposes104.

With respect to the existing literature on theJapanese bureaucracy, the above observationson MOJ's prison management reflects the'bureaucratic informalism' that has been seento be prevalent in various aspects of policyimplementation in Japan. Concretely, it hasbeen argued that within state-societyinteractions, informal measures are seen by thestate as being at least as attractive as laws orother more formal mechanisms of control. Inparticular, in terms of policy implementation ithas been suggested that the Japanesebureaucracy favours extra-legal and informalmodes of regulation, which it sees as moreflexible and effective, as a substitute for a morerigid legal framework in its administrativestrategies (Ginsburg, 2003), and this isachieved through 'careful statutory drafting,…[which] give[s] bureaucrats a wide discretion todefine their mission under a statute and theability to carry it out through an administrativeprocess' (Upham, 1987, p. 22). Such apreference has been especial ly well -documented in the case of business regulation,but also in other areas of social control:informal 'administrative guidance' in the formof ordinances, minister ia l rules andadministrative notices has been linked toJapan's economic miracle (Johnson, 1982);informal out-of-court settlement has beenidentified as a tool for managing social conflictin the cases of environmental pollution, Burakuliberation105, gender discrimination, andindustrial policy (Upham, 1987); and moreover,the informalism inherent in broad and loosely-defined laws drafted by bureaucrats allow themto delegate much power to those responsiblefor policy execution (including police officersand prosecutors), which is seen as an effectivemeans of maintaining social order (Haley,1991). Whilst more recent studies have

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indicated that informalism is on the decline, thedegree to which this is occurring is contested.For example, whilst Foote has described 'aturning point' in the administration of civil andcriminal justice in Japan since the turn of thecentury (Foote 2008), others, such as LukeNottage, argues that the process is moregradual (Nottage 2008). The description of thesituation prior to the Prison Law reform of thepresent study certainly seems to corroboratethe ear l ier theories of bureaucrat icinformalism, and moreover, the subsequentevolution of the policy seems to support a morecontinuous process of shifting away from this,rather than a watershed moment.

Legislature: Not always interested, but notwithout power to instigate change

Of course, the Japanese bureaucracy does notexist in isolation, and it is natural to ask how itwas that MOJ was able to keep the tight grip onprison management it had for so long. Inanswering such a question one is naturally ledto consider the role of their political masters inthe events. Unsurprisingly, and hardly uniqueto Japan, the norm was that the ruling LDPpoliticians did not have a particular interest inprioritising prison policies. However, one of themost striking features of this whole story isthat, when pushed to do so by oppositionparties keen to highlight poor politicaloversight, the legislature showed it wasperfectly capable of holding the bureaucracy toaccount, and the LDP of effecting swiftlegislative change.

To expand on the first of these points, from thenarrative presented, there is nothing to suggestthat Japanese ruling politicians had anyparticular electoral incentive to becomeinvolved with updating prison policies. Indeed,prior to the Nagoya episode, even though theLDP had previously sponsored three billsproposed by MOJ in the 1980s and 1990s, therehad never been a serious Diet debate on theissue, and each of these was allowed to slip off

the agenda before reaching a vote. Althoughthe party had a majority at the time, and socould have pushed the bills through if it had sodesired, it is clear that it did not see any meritin sacrificing political points to oppositionparties that disputed aspects of the billsconcerning police detention in order to do so.As already noted, it is something of a universalissue that, particularly conservative, legislatorsdo not see the modernisation of a prison systemas a big vote winner, especially when thismight require a serious financial commitment.Even in the reform process itself, such a lack ofdesire to divert resources to prisons can beseen in certain aspects of the new legislation.

Notably the medical care situation in prisonshas remained essentially as it was before, withMOJ rather than MHLW continuing to beresponsible for this, a state of affairs that hasbeen severely criticised by the UN and otherprisoners' rights advocates. In a recent WorldHealth Organisation report, for example, it isstated that 'many prison and public healthreformers argue that a close relationship[between prison-administered health servicesand public health] is not enough and thatprison health should be part of the generalhealth services of the country rather than aspecialist service under the governmentministry responsible for the prisons'106. This isthe case in many other developed countries:Norway introduced such a policy in the 1980s,France did in 1994, and in England and Walesprison healthcare was moved under theNational Health Service in 2002.

In the aftermath of the Nagoya scandal,however, prisons did for a time become thefocus of Diet attention. During this time,politicians from both sides of the house showedthe role they can play in determining policyoutcomes and bringing the bureaucracy intoline. To start with the opposition parties, theDPJ and SDP in particular were quick to see thechance the events at Nagoya Prison gave forholding the government to account over its

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'prison problem'. It was politicians from theseparties that were the driving force inhighlighting the new developments as theyoccurred, and grilling both the Justice Ministerand MOJ officials upon these. With theaccompanying public outcry over the abuses bythe Nagoya guards and other issues raised bythe opposition, the LDP, in turn, was unable toignore this challenge, and forced to set asideDiet-time that it would rather have used forother purposes. Ultimately it was thisinvolvement of the LDP that led to the end ofthe stagnation of the Prison Law reformprocess. Moreover, in appeasing the growingunrest within the Diet, the Justice Ministershowed herself capable of imposing herauthority on the MOJ with a rare instigation ofdisciplinary procedures against its staff. Thus,despite the management of the prison systemhaving been left to MOJ for the decades beforethe Nagoya scandal, the long leash that theyhad been given by their political overlords wasshown not to be limitless.

Thus the present case study offers a clearexample of a legislature both responding toexternal inputs, and also realising itsdominance in the political decision-makingprocess. Although these are not newobservations in Japanese politics, they arenonetheless noteworthy given the ongoingdebates regarding the question of who governsJapan, in which the bureaucracy was long seenas being the predominant force.

Civil Society: Grabbing its chance

Whilst the bureaucrats and politicians were nodoubt the central players, it cannot be said thatcivil society did not also play an important rolein the prison reform process. This was highlylimited by the lack of availability of informationon prisons, yet when the Nagoya scandalerupted, groups such as the JFBA and the CPRseized the opportunity to push for change.

To begin with the challenges they faced, itcould be said that a direct structural

impediment to civil society groups was posedprior to and throughout the Nagoya affair bythe difficulty in obtaining information from MOJabout Japanese prison practices. As describedby several NGOs, previously, their principlemeans of collecting data had been from currentand former inmates. Aside from the barriers tocommunicating with the former, verification ofsuch anecdotal evidence was usually notpossible, since investigation of facilities washighly limited. Even the resource-rich JFBA wasrestricted to following the same approach ofcollecting information from individual inmateaccounts. Moreover, these were sometimescensored, and it was only with the DeathRegister exposé that a large-scale statisticalsummary of fatal abuses or medical negligence,in particular, was possible. Given thatnumerous MOJ prison directives issued since1908 were not open to the public, it wastherefore virtually impossible for activists toassess the state of prisoners' rights protectionin Japan, let alone formulate a clear campaignmessage with which to lobby politicians. Thesituation with regard to obtaining relevantinformation on prisons hardly eased after theevents at Nagoya started to make the publicdomain, with even the Judicial AffairsCommittee being unable to command availabledata, as MOJ repeatedly denied its existenceuntil this was no longer possible. Reinforcingthis sense of secrecy surrounding prisons wasthe disappearance of the videotape of theDecember case, and the discrepancies betweenthe guards' and MOJ's accounts. Did the blood-stained trousers exist or not?

Having established that hindrances wereindeed present for civil society, the role of suchgroups in maintaining momentum in the Diet,and setting standards for prisons, should not beoverlooked. For a start, together with the JFBA,NGOs such as the CPR, provided crucialinformation to the opposition politicians oncases of abuse that they were aware of.Without this painstakingly gathered material,the ammunition of the latter in attacking the

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ruling elite would have been significantlyreduced, and perhaps the issue would not haveexploded into the public domain in the way thatit did. Although it might not have hugelyinfluenced the content of the new legislation,this attention from the wider populace wassignificant, because, as Lawson notes, it didlead to reform actually occurring at thisjuncture, rather than drifting off the agenda asit had done when it had been consideredpreviously (Lawson 2015). Moreover, when itcame to the revision process itself, the JFBAwas involved in the discussions upon which thenew legislation would be based. That this inputwas not just for display was subsequentlyconfirmed by the reaction of the JFBA to theoutcome of this process, with the lawyersclaiming to have played an important role inensuring the inclusion in the revised law'sprovisions for the creation of third-party bodiesfor facilities' inspection.

Last Word

The in-depth account of prison policy-making inJapan presented here should serve to provide auseful point of reference for such processeselsewhere. This is particularly the case in theWest, and especially in the United States,where problems relating to security and orderthat arise from prison overcrowding have led tothe Japanese model of prison administrationbeing viewed as a cure-all panacea. Whilst thestudy establishes that many of the successes ofJapan in this area are the result of a systemthat gives individual guards a high degree ofdiscretion as to how the institution in whichthey are working functions, the Nagoya episodedemonstrated that precisely this kind ofdiscretion can be taken too far, and can evenbe systematically abused.

Of course, this is not the first time thatprisoners have been victims of overly powerfulindividuals. In the US, for instance, the 1960sArkansas Prison scandal – events fictionalizedin the Oscar-nominated Robert Redford film

Brubaker – saw, within just one penalinstitution, the unearthing of hundreds ofskeletons, seemingly of inmates who had mettheir end at the hands of the prisoner 'trusties'charged with the responsibility of theirmanagement.

On the other hand, it must be recognized thatguards need to be granted and trusted with themeans to do their job of looking after andprotecting the inmates. Indeed, following the1990 Strangeways Prison Riot in Manchester,UK, in which prisoners took control of theinstitution housing them for 25 days in protestat the poor conditions in which they were beingheld, a public inquiry included within itsconclusions the recommendation that thereshould be an '[i]ncreased delegation ofresponsibility to Governors of establishments'.Similarly, in a recent proposal to bring 'greaterdiversity, fresh ideas and new leadership' to thechallenges of recidivism, drug-taking, self-harm, suicide and violence towards guardsfacing the UK prison system, Prime MinisterDavid Cameron pledged to 'remove thebureaucratic micromanagement thatdisempowers [prison staff]', and give prisongovernors 'unprecedented operational andfinancial autonomy, and [trust] to get on andrun their jail in the way they see fit'107.Ultimately, although one can strive to improveboth security and the treatment of inmates, theinherent r ights trade-of fs make themanagement of prisons a complicated business.This is not to say, however, that more could nothave been done to prevent the widespreadabuses witnessed in Japanese prisons; althoughthese were eventually noticed and responded toby the legislature following a tenaciouscampaign by prisoners' rights activists andtheir allies in the Japanese opposition parties,the lack of political intervention earlier in theday was certainly an exacerbating factor. Inconclusion, only regular reevaluation ofpractices and adequate resourcing can helpreduce the potential for yet more tragediesoccurring in prisons in the future.

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~~~

APPENDIX: CALENDAR OF EVENTS

Failed Early Prison Law Reform Attempts

1977 March MOJ announces intent to submit Prison Law amendment bill in1978

1982 April Draft legislation for Prison Law reform submitted to 96th DietSession

1983 November Proposed legislation dropped at end of 100th Diet Session

1987 April Draft legislation for Prison Law reform submitted for a secondtime, 108th Diet Session

1990 January Proposed legislation dropped with the dissolution of the House ofRepresentatives at 117th Diet Session

1991 April Draft legislation for Prison Law reform submitted for a third time,120th Diet Session

1993 July Proposed legislation dropped at the end of 126th Diet Session

The Nagoya Saga

2001 December Death of inmate in protection cell2002 May Death of inmate in protection cell September Abuse of inmate in protection cell October MOJ press conference, questions asked about May death Fukushima notes December death in Diet November Five guards arrested for September case Three guards arrested for May case2003 February Prosecution's pig experiment One guard arrested for December case Diet halted after opposition ultimatum March Death Registers uncovered by Hosaka Nobuto Two more guards arrested for December case

Prison Law Reform Process

2003 March Correctional Administration Reform Council formed December Correctional Administration Reform Council releases proposal

2004 June Talks begin between major stakeholders: MOJ, National PoliceAgency (NPA), and JFBA

December MOJ, NPA, JFBA agree to postpone reform of remand system

2005 March Bill Concerning Criminal Facilities and the Treatment ofSentenced Inmates submitted by MOJ to 162nd Diet Session

May Law Concerning Criminal Facilities and the Treatment ofSentenced Inmates enacted

MarchBill partially Amending the Law Concerning Criminal Facilitiesand the Treatment of Sentenced Inmates submitted by MOJ andNPA to 164th Diet Session

May 2005 legislation goes into effect

Second bill, renaming the law to Law Concerning CriminalDetention Facilities and the Treatment of All Criminal Detainees,enacted

2007 May 2006 legislation goes into effect

Acknowlegments

The author would like to thank the editorsMark Selden and David Johnson, as well as theanonymous referees, for their numerousinsightful comments, which helped improve thearticle no end.

Recommended citation: Silvia Croydon, "PrisonLaw Reform in Japan: How the Bureaucracy

was Held to Account Over the Nagoya PrisonScandal", The Asia-Pacific Journal, Vol. 14,Issue 5, No. 4, March 1, 2016.

References

Croydon, S. A. (2016). The Politics of PoliceDetention in Japan: Consensus of Convenience.Oxford: Oxford University Press.

Foote, D. H. (ed.) (2008). Law in Japan: ATurning Point . Seattle: University ofWashington Press.

Japan Federation of Bar Associations (JFBA),(Ed.) (2000). Keiji shisetsu nado ni okeru jinkenkyūsai jireishū [Compendium of Human RightsRelief Case Studies from Criminal Facilities].Tōkyō, JFBA.

Johnson, C. (1982). MITI and the JapaneseMiracle: The Growth of Industrial Policy1925-1975. Stanford, Stanford UniversityPress.

Haley, J. O. (1991). Authority Without Power:Law and the Japanese Paradox. New York,Oxford University Press.

Ginsburg, T. (2003). East Asian RegulatoryInformalism: Implications for Post-CommunistCountries. Law and Informal Practices: ThePost-Communist Experience. D. J. Galligan andM. Kurkchiyan. New York, Oxford UniversityPress: 171-90.

Kaido, Y. (2004). Kangoku to jinken (2): Gendaino gōmon・Nagoya Keimusho jiken wa nazeokita ka [The Prison and Human Rights (2):Modern Day Torture and Why the NagoyaIncidents Occurred]. Tōkyō, Akashi shoten.

Kikuta, K. (2002). Nihon no keimusho [TheJapanese Prison]. Tōkyō, Iwanami Shinsho.

Lawson, C. (2008). 'Reforming JapaneseCorrections: Catalysts and Conundrums' in L.Wolff (ed.) Who Rules Japan? PopularParticipation in the Japanese Legal Process.

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Northampton, MA: Edward Elgar Publishing.

Moriyama, M. (2004). Hōmu daijin to shite no880 nichi [880 Days as Justice Minister]. Tōkyō,Kawade shōbō shinsha Publishers.

Nottage, L. (2008) 'Daniel H Foote (ed.), Law in

Japan: A Turning Point', Zeitschrift fürJapanisches Recht (Journal of Japanese Law)25: 261–5.

Upham, F. (1987). Law and Social Change inPostwar Japan. Cambridge, MA, HarvardUniversity Press.

Dr Silvia Croydon is Hakubi Research Fellow at Kyoto University, where her research centerson criminal justice issues in Japan, as well as in East Asia more broadly. Her academicarticles, which appear in both English and Japanese, treat topics such as victim impactstatements, the death penalty and the introduction of lay judges to Japan. Her latest work"The Politics of Police Detention in Japan: Consensus of Convenience(https://global.oup.com/academic/product/the-politics-of-police-detention-in-japan-9780198758341?cc=jp&lang=en&)" discusses the distinctive substitute prison system, under whichsuspects can be held by the police for up to 23 days prior to indictment. It will be published asa monograph in April 2016 as part of Oxford University Press's Clarendon Studies inCriminology series.

Notes1 All Japanese names appear with family name first, as per the Japanese convention.2 'What Can We Learn from Japanese Prisons', January 15, 1984, Parade Magazine.3 See here (http://www.hmprisonservice.gov.uk).4 Asian and Pacific Conference of Correctional Administrators, 2003.5 Preliminary Observations, 1. Full text available.(http://www.ohchr.org/EN/ProfessionalInterest/Pages/TreatmentOfPrisoners.aspx)6 As illustrative examples, see: Japan Federation of Bar Associations Report on Response onthe Second Report of the Japanese Government under Paragraph 1 of Article 19 of theConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment(https://apjjf.org/admin/site_manage/details/tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/JPN/INT_CAT_NGO_JPN_12809_E.pdf) (25 February 2013) Japan Federation of BarAssociations; Japan: Abusive Punishments in Japanese Prisons(http://www.amnesty.org/en/documents/asa22/004/1998/en/) (1998) Amnesty International;and Prison Conditions in Japan(http://www.hrw.org/sites/default/files/reports/JAPAN953.PDF) (1995) Human Rights Watch.These were retrieved on 7 January 2016.7 See for example the articles in journals such as Jurist, Hōritsu Jihō and Keisei.8 Protection cells are special rooms used to isolate prisoners who make attempts on their ownlives or become violent. These rooms are different from normal cells in that there is nofurniture in them, the walls are made of wood, so that, even if the prisoner bangs his head

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against it, he does not fatally injure himself, and the small, high windows are reinforced inorder to not be easily broken.9 For details of the press conference, which was held on 4 October 2002, see: here(http://www.jca.apc.org/cpr/2003/030212.html) and here(http://www.jinken.ne.jp/flat_now/kurashi/2003/09/25/1106.html). Last retrieved on 3December 2014.10 For the names and further details of the guards arrested, as well as their subsequent fate,see Table 2.11 Yomiuri Shimbun, 30 November 2002, p. 37.12 Judicial Affairs Committee, House of Councillors, 31 October 2002.13 Guardian (online edition)(http://www.theguardian.com/world/2002/nov/15/worlddispatch.japan), 15 November 2002.Retrieved on 13 January 2016.14 Ibid.; Japan Times, 17 November 2002, p. 12.15 Fukushima, Judicial Affairs Committee, House of Councillors, 19 November 2002.16 See also Japan Times(http://www.japantimes.co.jp/news/2003/04/05/national/victim-of-prison-guards-angry-at-being-ignored/#.VpVT0FIXvER), 5 April 2003. Retrieved on 12 January 2016.17 Ibid.18 Judicial Affairs Committee, House of Councillors, 31 October and 12 November 2002.19 Judicial Affairs Committee, House of Councillors, 12 November 2002.20 Ibid..21 Judicial Affairs Committee – Judicial Affairs Committee, House of Representatives, 27November 2002.22 For example, Fukushima, Judicial Affairs Committee, House of Councillors, 12 November2002.23 Judicial Affairs Committee, House of Councillors, 7 November 2002.24 Ibid.25 Judicial Affairs Committee – Health Welfare and Labour Committee Joint Session, House ofRepresentatives, 29 November 2002.26 Ibid.27 For example, Nakai, Judicial Affairs Committee, House of Representatives, 18 March 2003,and Fukushima, Budget Committee, House of Councillors, 6 March 2003.28 Ibid.29 Hiwatari Toshiaki, Director, Criminal Affairs Bureau, Budget Committee, House ofRepresentatives, 21 February 2003.30 Ibid. Also, Yomiuri Shimbun, 2 November 2005, p. 36, and 5 November 2005, p. 28.31 Yomiuri Shimbun, 2 November 2005, p. 36, and 5 November 2005, p. 28.32 Ibid.33 Ibid.34 Ibid.35 Ibid.36 Ibid.37 Kyōdō Tsushin (http://www.47news.jp/CN/200302/CN2003021301000419.html), 13

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February 2003. Retrieved on 28 May 2009.38 Yamahana's questioning of Nakai, Budget Committee, House of Representatives, 18February 2003.39 Kyōdō Tsushin (http://www.47news.jp/CN/200302/CN2003021301000419.html), 13February 2003. Retrieved on 28 May 2009.40 Ibid.41 Judicial Affairs Committee, House of Representatives, 18 February 2003.42 Ibid.43 Ibid.44 Ibid.45 Ibid.46 Ibid.47 Ibid. Also Moriyama 2004.48 The inconclusive parts of the autopsy and the prosecutor's comments were read by Nakaiupon prompting by Inoue Satoshi, at the Budget Committee, House of Councillors, 17 March2003.49 Nihon Keizai, 20 February 2003, p. 2. Note that holding only 233 of the 480 possible seatsmeant that the LDP did not have a majority at the time, and so were forced to govern incoalition, whereas the main opposition party – the DPJ – was making political inroads (andwould go on to increase its share of seats from 127 to 177 in the House of Representativeselection later that year).50 Budget Committee House of Representatives, 21 February 2003.51 Ibid.52 Haraguchi Kazuhiro, DPJ, Budget Committee, House of Representatives, 21 February 2003.53 Article 4, paragraphs 2 & 3.54 Budget Committee, House of Representatives, 3 March 2003.55 For example, Judicial Affairs Committee, House of Councillors, 31 October. See alsoFukushima, Judicial Affairs Committee, House of Councillors, 19 November, and 5 December2002.56 Fukushima, Judicial Affairs Committee, House of Councillors, 20 March 2003, and InoueSatoshi, JCP, Budget Committee, House of Councillors, 17 March 2003.57 Inoue Satoshi, JCP, Budget Committee, House of Councillors, 17 March 2003, Fukushima,Judicial Affairs Committee, House of Councillors, 20 March 2003.58 Interview with Hosaka and perusal of Death Register copies, 23 August 2007. See alsoChiba Keiko, Judicial Affairs Committee, House of Councillors, 20 March 2003.59 Inoue Satoshi, JCP, Budget Committee, House of Representatives, 17 March 2003, andIchikawa Ichirō, LDP, Judicial Affairs Committee, House of Councillors, 20 March 2003. Seealso Fukushima addressing Moriyama, Budget Committee, House of Councillors, 18 March2003.60 Budget Committee, House of Councillors, 17 March 2003.61 Judicial Affairs Committee, House of Councillors, 20 March 2003.62 See, for example, Budget Committee, House of Councillors, 17 March 2003.63 Chiba Keiko, DPJ, Judicial Affairs Committee, House of Councillors, 20 March 2003.64 In a later Diet hearing, an expert witness observed that the figure of 21% of the unnatural

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deaths in prisons during the 10-year assessment period being attributed to 'acute heartfailure' was 'inconceivable'. Dr. Shimizu Yōichi, Judicial Affairs Committee, House ofRepresentatives, 21 May 2003.65 Judicial Affairs Committee, House of Councillors, 20 March 2003.66 Expert witness Dr. Shimizu Yōichi, Shinkatsushika Hospital, Tōkyō, at the Judicial AffairsCommittee, House of Representatives, 21 May 2003.67 Fukushima, Judicial Affairs Committee, House of Councillors, 20 May 2003. Also, JapanTimes (online edition), 18 April 2003.68 Japan Times, 9 July 2003, p. 3.69 Interview with JFBA's Kaido Yūichi and Tagusari Maiko, 18 July 2007. Also, Japan Times, 14June 2003, p. 1.70 Japan Times, 9 July 2003, p. 3.71 Questioning by Asahi Toshihiro, DPJ, Budget Committee, House of Councillors, 18 March2003.72 Japan Times, 7 September 2003, p. 2.73 At an interview on 31 August 2007, MOJ's Ōguchi Yasuo and Ikeda Satoko described theNagoya affair as one whereby observers, such as the JFBA, had managed, through theopposition, to 'win (kachitoru)' a great amount of information from MOJ.74 Buddhist God of Death, who is known to take out the tongues of those who lie.75 Buddhist Affectionate Mother Goddess. Eda Satsuki, DPJ, Judicial Affairs Committee, Houseof Councillors, 19 November 2002.76 Budget Committee, House of Representatives, 21 February 2003.77 Ibid.78 Nakai, Budget Committee, House of Councillors, 17 March 2003.79 Ibid.80 Ibid.81 Judicial Affairs Committee, House of Councillors, 26 March 2003.82 Budget Committee, House of Representatives, 3 March 2003.83 Judicial Affairs Committee, House of Representatives, 25 March 2003.84 Judicial Affairs Committee, House of Councillors, 20 March 2003.85 Japan Times, 18 June 2003, p. 2.86 See, for example, Concluding observations of the Human Rights Committee: Japan. UNdocument CAT/C/79/Add.102, 19 November 1998, paragraph 27.87 Interview with Amnesty International's Teranaka Makoto, 28 August 2007. See also theJFBA Report on the Japanese Government's Implementation of the Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment, 18 January 2007, p. 10,and The Alternative Report on the Japanese Government's Report of the Convention againstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT Network,March 2007, p. 4.88 The First Report of the Japanese Government under Paragraph 1 of Article 19 of theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment. UN document CAT/C/JPN/1, 20 December 2005, p. 36, 46.89 Interview with prisoners' rights activist Kuwayama Aya, 3 December 2007.90 Judicial Affairs Committee, House of Councillors, 20 March 2003.

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91 Interview with Moriyama, 17 December 2007.92 Interview with MOJ's Ōguchi Yasuo and Ikeda Satoko, 31 August 2007.93 Interview with Moriyama, 17 December 2007.94 Judicial Affairs Committee, House of Councillors, 20 and 27 March 2003.95 This was academic and lawyer Kikuta Kōichi, a central figure in the CPR, who was takenaback by the establishment's invitation due to having recently published a book that openlycriticised the prison system (Interview with Kikuta Kōichi, 29 October 2007). In his book,Kikuta was concerned that prisoners' rights were being violated by the excessive applicationof punishments, such as protection cell detention and solitary confinement, as well asrestrictions on individual autonomy, such as the dictating of hair styles, sitting and sleepingpositions in cells, the order of writing in one's notebook, bathing and exercise occasions(Kikuta 2002). He argued that criminologists should not be satisfied to let MOJ act as thestandard setter, and be more critical of the obvious problems of the system.96 Interview with Amnesty International's Teranaka Makoto, 28 August 2007. Moriyama wouldlater take pride in this outcome as one of the major accomplishments in her unusually long,but not always enjoyable, term of two years as a Justice Minister (Moriyama 2004: 151). Also,interview with Moriyama, 17 December 2007.97 Interview with prisoners' rights activist Kuwayama Aya, 3 December 2007.98 Second periodic report of States parties due in 2011, submitted in response to the list ofissues (CAT/C/JPN/Q/2) transmitted to the State party pursuant to the optional reportingprocedure (A/62/44, paras. 23 and 24), 18 July 2011. p.38. See also Kaido Yūichi, CPRNewsletter, No. 45, 1 June 2006, pp. 2-4.99 Article 89 of the Law Concerning Criminal Detention Facilities and the Treatment of AllCriminal Detainees.100 Prison Law Revised First in Century [sic.](http://www.nichibenren.or.jp/en/meetings/year/2005/20050601.html), 1 June 2005. Retrievedon 13 December 2015.101 Japan Federation of Bar Associations Report on the Japanese Government's Implementationof the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment(https://apjjf.org/admin/site_manage/details/tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/JPN/INT_CAT_NGO_JPN_38_9267_E.pdf), Japan Federation of Bar Associations, 18January 2007. Retrieved on 10 January 2016.102 The Alternative Report on the Fifth Periodic Repors (sic.) of the Japanese Governmentunder Article 40 of the International covenant on civil and political rights(https://apjjf.org/admin/site_manage/details/www2.ohchr.org/english/bodies/hrc/docs/ngos/Center_Prisoners_Rights_Japan94report.pdf), Center for Prisoners' Rights, Japan, 9 September2008. Retrieved on 10 January 2016.103 Japan Federation of Bar Associations Report on Response to the Second Report of theJapanese Government under Paragraph 1 of Article 19 of the Convention Against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment(https://apjjf.org/admin/site_manage/details/tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/JPN/INT_CAT_NGO_JPN_12809_E.pdf), Japan Federation of Bar Associations, 25February 2013, p.65. Retrieved on 10 January 2016.

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104 The articles in question state: 'Upon treatment of an inmate sentenced to death, attentionshall be paid to help him/her maintain peace of mind' (Article 32); and 'In cases where aperson other than [a relative or a person important for the death row inmate's reconciliationof marital relations, pursuance of a lawsuit, or maintenance of a business] requests to visit aninmate sentenced to death, if it is deemed that there is a circumstance where the visit isnecessary for the maintenance of good relationship with the person or for any other reasons,and if it is deemed that there is no risk of causing disruption of discipline and order in thepenal institution, then the warden of the penal institution may permit the inmate sentenced todeath to receive the visit' (Article 120). As for the rights advocates' critique of them, seeHanging by a Thread: Mental Health and the Death Penalty in Japan(https://apjjf.org/admin/site_manage/details), Amnesty International, 2009. Retrieved on 10January 2016.105 Burakumin are descendants of outcast communities of the Japanese feudal era thatconsisted of executioners, butchers, tanners, and workers in slaughterhouses – occupationsthat were considered impure or tarnished by death. Historically the Burakumin have beenvictims of institutional discrimination.106 Health in prisons: A WHO guide to the essentials in prison health, World HealthOrganization, 2007.107 Prison reform: Prime Minister's speech, Policy Exchange, Westminster, London, 8 February2016.