Volume 18 | Issue 24 | Number 2 | Article ID 5523 | Dec 15, 2020 The Asia-Pacific Journal | Japan Focus Comparative Reflections on the Carlos Ghosn Case and Japanese Criminal Justice Bruce E. Aronson, David T. Johnson he would have fared better under American law, nor is it obvious that justice would have Abstract: The arrest and prosecution of Nissan been better realized. executive Carlos Ghosn, together with his dramatic flight from Japan, have focused Key words: criminal justice, white-collar unprecedented attention on Japan’s criminal crime, Japan, United States, Carlos Ghosn, justice system. This article employs comparison hostage justice, conviction rates, confessions, with the United States to examine issues in plea bargaining Japanese criminal justice highlighted by the Ghosn case. The criminal charges and procedures used in Ghosn’s case illustrate several serious weaknesses in Japanese criminal justice—including the problems of prolonged detention and interrogation without a defense attorney that have been characterized as “hostage justice.” But in comparative perspective, the criminal justice systems in Japan and the U. S. have some striking similarities. Most notably, both systems rely on coercive means to obtain admissions of guilt, and both systems have high conviction rates. The American counterpart to Japan’s use of high-pressure tactics to obtain confessions is a system of plea bargaining in which prosecutors use the threat of a large “trial tax” Carlos Ghosn in Detention in Japan (a longer sentence for defendants who insist upon their right to a trial and are then convicted) to obtain guilty pleas. An apples-to- apples comparison also indicates that Japan’s Introduction “99% conviction rate” is not the extreme outlier that it is often said to be. Commentary on The arrest and criminal prosecution of Nissan Ghosn’s case emphasized the weaknesses in executive Carlos Ghosn, together with his Japanese criminal justice. Those weaknesses dramatic flight from Japan, have focused are real and important, but by many criteria, unprecedented international attention on such as crime and incarceration rates, Japan Japan’s criminal justice system. The period outperforms the U.S. As for Ghosn’s case in from Ghosn’s arrest in November 2018 until his particular, this article explores four scenarios press conference in Lebanon in January 2020 of what might have happened to him if his case was filled with a seemingly endless series of had occurred in the U.S. It is not obvious that controversies. Was Ghosn a greedy autocrat or 1 18 | 24 | 2 APJ | JF the victim of a coup by Nissan? Were Ghosn’s First is a basic principle of comparative study, arrest and prosecution justified? Were the that one should not compare “my theory with conditions of his detention acceptable or was your practice.” Abstract theory always looks he subject to undue pressure to force a better than the troubling realities of practice. confession? More generally, were the tools of In the Ghosn case, there were numerous Japan’s criminal justice system usedmisleading comparisons that broadly idealized appropriately against Ghosn, or were they the rights of criminal defendants in the U.S. in utilized to deprive him of his rights as a ways that would surprise participants in the criminal defendant? And are defendants’ rights actual administration of American criminal adequately protected in Japanese criminal justice. The value of comparative study lies in justice, or is the system itself seriously flawed? utilizing knowledge of another country’s system to shed light not only on that country, but also The controversy was fanned by Ghosn’s tactics on your own country’s system. in response to his sudden arrest and lengthy pretrial detention and interrogation. Following Second is the unfortunate tendency in the failure of Ghosn’s first defense team to discussions of Japan to resort to broad cultural obtain his release from prolonged detention generalizations and stereotypes. This is true of (for details on Ghosn’s detention and other both critics and defenders (foreign and developments of the case, see the timeline in domestic) of Japanese criminal justice. Critics Appendix 1), Ghosn changed lawyers and went often imply that the Japanese do not fully on the offensive. He launched a broad public understand or appreciate the “Western” rights of defendants due to cultural reasons, while attack, amplified in the international media, on defenders sometimes respond that the Japanese Japan’s entire system of criminal justice, calling criminal justice system is appropriate because it “hostage justice” hitojichi( shiho). The it “fits” with Japanese culture. But an response of Japan’s government often consisted “essentialist” view of culture as the of formalistic citations of provisions in Japan’s determining factor in explaining legal constitution, rather than descriptions of differences often makes comparison more Japanese criminal justice in practice or difficult (Nelken, 2010). acknowledgement of real problems. The government’s defense was combined with There are also problems specific to assertions that each country should be able to comparisons of criminal justice systems. First, choose the system of criminal justice it desires, criminal justice is largely a domestic field of with little mention of human rights. study. Utilizing the state’s sovereign power to deprive individuals of their liberty is a weighty The oversimplified arguments on both sides process closely tied to a host of domestic policy were reflected in much of the prolificconsiderations. As a result, criminal justice commentary on Ghosn’s case. The Western experts seldom make comparisons with other media was generally sympathetic to Ghosn’s countries’ systems, and comparative criminal complaints, while the Japanese media mostly justice remains a limited field. In addition, condemned him and his actions. The case white collar crime and corporate crime are clearly highlights several difficulties in making neglected in most criminology journals, comparisons between criminal justice systems. textbooks, scholarship, and teaching, rendering Two of the problems are basic issues that apply marginal what may well be the most serious to comparisons with Japan generally, while crime problem of our age (Johnson, 2018). other concerns are specific to the comparison of criminal justice systems. Second, civil and common law systems have 2 18 | 24 | 2 APJ | JF different assumptions and procedures,proceeds as follows. Section 2 provides general particularly in criminal cases. The criminal background on the Ghosn case. Section 3 justice system in Japan began as anpresents substantive and procedural aspects of inquisitorial system imported from Germany, in the case. Section 4 summarizes Ghosn’s which defense lawyers played a minor role criticisms of Japanese criminal justice, compared to judges and prosecutors. Postwar compares the criminal justice systems in Japan reforms from the U.S. resulted in a formal and the U.S., focusing on conviction rates and changeover to a more U.S.-style adversarial the potential for coercion, and presents several system, but in many respects the change has scenarios for how Ghosn might have been been incomplete. treated if his case had occurred in the U.S. Our final section concludes by discussing the Finally, there is a lack of common assumptions, significance of the Ghosn case from a definitions, and data among countries with comparative perspective. respect to criminal justice. Common terms such as “arrest,” “trial,” and “conviction” have different meanings in different countries. As a Contexts of the Ghosn Case result, data on matters such as “conviction rates” utilize different methods of calculation Nissan and Toyota were the only two and may not be readily comparable without significant domestic automobile manufacturers significant qualification. Data availability is also in prewar Japan (Morck and Nakamura, 2007). an issue. Japan’s centralized system produces Nissan expanded globally following the Second uniform data, while the U.S. has a complex World War and was the first Japanese car federal structure with only fragmented data for manufacturer to penetrate the profitable U.S. the large majority of cases that occur at the market (beginning in 1958) with a lineup of state and local levels. This makes it challenging small, efficient cars and trucks and a famous to carry out apples-to-apples comparisons. sports coupe (Nissan Motor Corporation Global Website, 2020). Much of the commentary on the Ghosn case has focused on differences between criminal Nissan fell upon hard times following the justice systems in Japan and the U.S. (see, for bursting of the Japanese bubble economy in the example, Associated Press, 2018), but it is also early 1990s. It incurred large losses and necessary to note broad similarities. In both accumulated heavy debts. Like many countries the overwhelming majority ofcompanies in Japan, it was in need of criminal cases are cleared without trial, and restructuring but appeared reluctant to adopt conviction rates in contested cases are high. the necessary, painful measures. This long- The image of dramatic courtroom battles does deteriorating situation became a question of not represent the reality of how most cases get survival in February 1999 when both major processed. credit rating agencies threatened to downgrade Nissan’s rating from investment grade to Because the Ghosn case raises significant “junk” status, and it was unclear whether issues for Japan’s