By USALI Affiliated Scholar Bruce E. Aronson and David T. Johnson

Abstract: The arrest and prosecution of Nissan executive Carlos Ghosn, together with his dramatic flight from Japan, have focused unprecedented attention on Japan’s criminal justice system. This article employs comparison with the United States to examine issues in 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” (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 “99% conviction rate” is not the extreme outlier that it is often said to be. Commentary on Ghosn’s case emphasized the weaknesses in Japanese criminal justice. Those weaknesses are real and important, but by many criteria, such as crime and incarceration rates, Japan outperforms the U.S. As for Ghosn’s case in particular, this article explores four scenarios of what might have happened to him if his case had occurred in the U.S. It is not obvious that he would have fared better under American law, nor is it obvious that justice would have been better realized.

Key words: criminal justice, white-collar crime, Japan, United States, Carlos Ghosn, hostage justice, conviction rates, confessions, plea bargaining