Daniel H. Foote, The Benevolent Paternalism of Japanese Criminal Justice, 80 Cal. L. Rev. 317 (1992), https://digitalcommons.law.uw.edu/faculty-articles/1012
Models for a criminal-justice system based on an ethos of rehabilitation and reintegration-such as Llewellyn's "parental" and Griffiths' "family" models-have been regarded as idealistic but unworkable in the real world, except perhaps in totalitarian or primitive societies. Professor Foote, however, has found in Japan just such a model, which he labels "benevolent paternalism." The Japanese criminal-justice system is benevolent in that its goal is to achieve reformation and reintegration into society through lenient sanctions tailored to the offender's particular circumstances. The system is paternalism in that it allows substantial discretion to the state in both gathering and using information about the offender and the offense. Drawing upon his extensive research in Japanese sources, from statutes to statistics, Professor Foote examines the successes and failures of benevolent paternalism. While recidivism rates indicate that many offenders are indeed reintegrated into society, the system has a dark side, permitting intrusions into the offenders' interests in autonomy and due process. Recognizing that benevolent paternalism comes at a price and can maintain order only under certain societal and cultural conditions, this Article suggests ways in which the Japanese criminal-justice system can adapt to change. It also reminds us that it is in reconciling the offender with the community that the law comes to work.