Japanese Sentencing Practices: Creating an Opportunity for “Formal” Paternalism

Erik David Herber

Abstract


In Japan, that has a western-style legal system, public sentencing guidelines do not exist. Officials enjoy great discretionary authority, and the system seems geared towards highly individualized sentencing. In the research on this topic, the way officials use their discretionary powers to give offenders an apparently individualized, rehabilitation-oriented treatment has received great attention. Research also shows, however, that cases are disposed of in relatively predictable ways. Nevertheless, the standards and policies apparently structuring sentencing decisions remain undisclosed, and, though known to some extent in practice, “unofficial”. Based on an analysis of Japanese case-files, legal judgments, commentaries and statistics, this article argues that the Japanese state, by committing to proportional sentencing in practice, yet keeping sentencing standards and policies “unofficial”, allows itself to use the legal system in an instrumental and paternalistic fashion (as opposed to dealing with individual offenders in a paternalistic way, by deciding what is best for them). By realizing and rewarding offenders’ formal, though not necessarily “substantive” compliance, state authority and morality, as well as a hierarchical state-citizen relationship can be publicly reaffirmed.

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International Journal of Criminology and Sociological Theory | ISSN : 1916-2782