Creation of a New Form of Imprisonment
Further enhancement of treatment and introduction of various systems to support rehabilitation

Makoto Tadaki
Professor, Faculty of Law, Chuo University
Area of Specialization: Criminal Jurisprudence

Currently, a bill for amendment of the Penal Code has been submitted to the Diet in the form of a bundled bill that includes topics such as the 1) creation of a new form of imprisonment, 2) expansion of the suspended sentence system, 3) further enhancement of treatment in facilities and in society, and 4) increased statutory penalties for contempt. (The bill was passed and enacted on June 13, 2022; however, this article explains the bill as of the end of May 2022. Therefore, the terms such as amendment and current law are used as appropriate as of the end of May 2022.) In this article, I will briefly introduce the contents of the amendment bill, particularly the creation of a new form of imprisonment. I will also discuss the related topic of initiatives aimed at the rehabilitation and return to society for convicted criminals.

1. Current situation of recidivism

The re-entry rate refers to the rate of convicted criminals who are re-imprisoned due to committing a subsequent crime within two years of being released from prison. According to last year's White Paper on Crime, the re-entry rate was about 16%. In particular, for inmates who are released upon expiration of a prison term and who cannot be observed during probation, it is difficult to receive support after their release. As a result, the re-entry rate for such released inmates is more than double that of parolees, and strengthening measures to prevent recidivism has become an issue. Furthermore, the re-entrant ratio (the ratio of re-entrants to the number of inmates) remains high at 58%. On the other hand, it is generally known that the percentage of unemployed persons is high among re-entrants, and the re-entry rate of released inmates who have undergone vocational training is low. It seems that recognition of these current conditions and issues was the background to discussion of this amendment.

2. Explanation of the bill

The bill for partial amendment to the Penal Code stated that the current systems of imprisonment and imprisonment without labor will be abolished. Instead, a new form of penal servitude including necessary instruction (hereinafter, "the new form of imprisonment") will be created. There is also a plan to organize the required rules for further enhancing treatment in facilities and in society, with the aim of rehabilitating inmates and facilitating a smooth return to society. In other words, as described below, this includes the utilization of discernment when investigating the inmate's qualities and environment (investigation of treatment), the expansion of assistance for those who have completed their prison sentence, and the implementation of treatment based on the feelings of the victims. Additionally, upon introducing the new form of imprisonment, the Act on Penal Detention Facilities and Treatment of Inmates and Detainees also imposes work on inmates who are serving prison sentences according to their individual characteristics and needs, and provides instruction on reform and education. Moreover, as part of rehabilitation, a system was newly established to convey the feelings of victims to inmates if the victims wish to do so.

On the other hand, in regards to 1) work activities aimed at increasing the motivation to work, cultivating a disciplined working attitude, and acquiring knowledge and skills useful in a certain profession, 2) reform instruction for cultivating awareness toward responsibility for crime and normative awareness, and acquiring abilities that are required to be a health member of society, and 3) educational instruction for acquiring knowledge that is the basis for life in society, all of the above are important treatments from the perspective of preventing recidivism after the rehabilitation and release of inmates. However, inmates face a number of challenges including a conspicuous lack of academic ability, the need for welfare support in old age, and drug addiction. The key is to provide well-balanced treatment through work and instruction depending on the characteristics of issues faced by inmates. Therefore, it is necessary to concurrently take measures such as focusing on instruction instead of labor. The introduction of a single type of imprisonment was in line with said necessity. Furthermore, in order to aim for flexible and effective treatment suitable for each inmate, if it is deemed necessary to assign work and provide instruction according to the individual issues faced by the inmate, it would be inappropriate to entrust the implementation of that work and instruction to the will of the inmate. Accordingly, as a compliance item for inmates, it has been stipulated that inmates must not refuse such work and instruction without a justifiable reason.

In addition, the treatment investigation that is conducted to ensure proper judgment on the reform and rehabilitation treatment for inmates subject to the new form of imprisonment as described above is assumed to utilize and implement a discernment function of juvenile detention homes that conduct scientific investigation based on specialized knowledge. It also takes into consideration continuous follow-up assistance such as improving the living environment after the release of inmates who have completed their sentence and emergency protection for rehabilitation when stable acquisition of living funds is not possible.

3. Inevitability of unifying the types of imprisonment

Regarding the debate on unifying the types of imprisonment that was raised in this amendment, spurred by reducing the applicable age of the Juvenile Act to under 18 years old and examining the form of treatment for young inmates, there has recently been new attention placed on debate for unifying the types of imprisonment, as raised in this amendment. Nevertheless, a trend toward unification seems to have been inevitable both theoretically and practically.

Under the current Penal Code, imprisonment without labor was once described as a punishment for noninfamous crimes, but it is currently believed that it is irrational to distinguish crime between infamous crimes and noninfamous crimes. Reasons for this belief are as follows: 1) the main crimes targeted by imprisonment without labor are political crimes and negligence, but there is no basis for treating these two categories of crime in the same way, 2) the interpretation of penal servitude as a bitter and embarrassing work for infamous crimes is a way of thinking that holds labor in scorn, and 3) with more than 80% of imprisoned inmates engaging in voluntary labor, there is virtually no difference between imprisonment and imprisonment without labor. When examining the current state of imprisonment without labor, only 0.3% (about 50) are subjected to this form of imprisonment every year. Furthermore, it has been pointed out that such imprisonment is limited to cases of negligence subject to a small amount of criticism, not noninfamous crimes, and that the Juvenile Act no longer distinguishes between the two types of imprisonment in terms of enforcement. Furthermore, it has been indicated that the Act on Penal Detention Facilities and Treatment of Inmates and Detainees stipulates labor and the performance of instruction on reform and education as rehabilitation treatment (Article 84, Paragraph 1), that inmates are obligated to engage in said labor and instruction, and that it does not distinguish treatment on instruction on reform and education between inmates subject to penal servitude and inmates subject to imprisonment without labor.(Note 1)

As mentioned above, the meaning of not imposing work on inmates subject to imprisonment without labor and the need to maintain imprisonment without labor as a punishment are diminished. Consequently, it is currently becoming difficult to find significance in the distinction between imprisonment and imprisonment without labor. By revising the point in which work is imposed during imprisonment at criminal facilities, it is possible to individualize treatment such as allocating sufficient time to treatment other than work, and to configure flexible treatment which is the best mix of work and instruction.

4. Efforts to rehabilitate inmates and facilitate their return to society

Regarding the unification of imprisonment as described above, I would like to examine efforts aimed at rehabilitating inmates and facilitating their return to society.

An example of specific efforts to implement support for the rehabilitation of inmates after their release is the establishment and operation of criminal facilities utilizing the PFI method, which treats inmates in collaboration with the private sector.(Note 2) The purpose and significance of these facilities include providing countermeasures against overcapacity, realizing coexistence with the community, and utilizing the know-how of the private sector for regenerating human resources. As a result, the re-entry rate within 2 years at PFI prisons decreased by more than 10% compared to the national average. Practical experience has been accumulated for the past 15 years at PFI prisons. The treatment techniques cultivated at PFI prisons can now be used more flexibly under the new form of imprisonment. Private know-how such as directly linking out-of-facility treatment and work/vocational training to employment will be utilized and exerted for the operation of criminal facilities in the future.

Recently, from the perspective of CSR (Corporate Social Responsibility) and SDGs (Sustainable Development Goals), the number of companies aiming for businesses with high public benefit is increasing. The idea of motivating investment by evaluating corporate activities from factors other than profitability has spread. One such example is ESG (Environment, Social, Governance) investment.(Note 3) An increasing number of corporations are cooperating with the prison management business, which is positioned as a social business.(Note 4) Corporations develop business schemes by regarding the prison management business as a public interest initiative. Prisons create values shared with society in the form of preventing crime and revitalizing the community, thus gaining recognition from private corporations and society as an entity that addresses regional issues. In this way, both parties can expect positive results. Specifically, inmates will be able to increase their awareness of contributing to society, while society will change its awareness towards inmates and have a broader perspective for support that prevents reoffenders; for example, cooperating employers that support released inmates.

The movement of society and citizens to support inmate's rehabilitation and reintegration into society in response to such changes in treatment at criminal facilities is also drawing attention. The Japanese government has set up a Safe and Secure Town Development Day to create a crime-resistant society. The government is working to widely disseminate the efforts of individuals and groups regarding crime prevention activities and the prevention of recidivism in the local community. Such efforts include diverse and wide-ranging activities such as securing employment and housing, promoting the use of health care and welfare services, and supporting the elderly, people with disabilities, and people with drug addiction.

Amidst today's growing momentum for support from the private sector, it seems significant for criminal facilities to provide programs with optimized work and treatment under the unification of imprisonment.

The bill for amending the Penal Code can be highly evaluated as seeking to further enhance the treatment of inmates, to strengthen social rehabilitation and recovery support, and to create a new form of imprisonment in line with these goals.

(Note 1) Toshihiro Kawaide, Unification of Imprisonment, Journal of Criminal Law, Vol. 57, No. 3 (2018), from p. 441. Also refer to Naoya Takahashi, Unification of Imprisonment, Criminal Law Journal, No. 69 (2021), page 4.
(Note 2) https://www.moj.go.jp/kyousei1/kyousei7.html (Ministry of Justice website). Refer to my manuscript, Current Status of Operation of Criminal Facilities by PFI Method, Chuo Law Review, Vol. 125, No. 11 & No. 12 (2019), from p. 169.
(Note 3) https://www.meti.go.jp/policy/energy_environment/global_warming/esg_investment.html (Ministry of Economy, Trade and Industry website).
(Note 4) Refer to the Report of the Review Conference on the Ideal Operation of Criminal Facilities Using the PFI Method.

Makoto Tadaki

Professor, Faculty of Law, Chuo University
Area of Specialization: Criminal Jurisprudence

Makoto Tadaki was born in Fukushima Prefecture. He graduated from the Department of Law in the Faculty of Law, Chuo University.
He completed the Master’s Program in Chuo University Graduate School of Law with a major in criminal law, and completed the Doctoral Program.
He is a Doctor of Law (Chuo University).
He assumed his current position in 2002 after serving as Professor in the Faculty of Law, Dokkyo University.
His themes of research are bioethics and law theories of intent and mistake of fact.
His main written works include Compact: General Theory of the Penal Code, (Shinsei-Sha, 2018), Study of Number of Crimes Theory (Revised Edition), (Seibundoh, 2009), Modern Issues Surrounding Criminal Jurisprudence, (Chuo University Press, 2009), and more.