The successful flight of former automobile executive Carlos Ghosn to his native Lebanon from the kangaroo court of Japan should be seen as a victory for individual liberties.
Japan, like Russia and China, has a conviction rate of more than 99 percent of those indicted, and Japanese procedural rules provide no protections at all for defendants. Accused or potentially accused people may be interrogated for at least three weeks with no counsel present to assist them or even witness the proceedings. There are, in practice, also no restraints on what prosecutors may do to procure inculpatory evidence, including the outright extortion and subornation of evidence.
No such country can be regarded in criminal matters as a jurisdiction governed by the rule of law. I have no standing to try the facts, and this wouldn’t be the place for it anyway. The prosecutors have formed an argument that raises doubts about the propriety of some of Ghosn’s actions as head of Renault-Nissan (embezzlement and tax evasion are alleged), but there is at least as much room to question whether the defendant wasn’t sandbagged by his competitors in the tight cartel of the great Japanese conglomerates (zaibatsu).
He spent more than three months in solitary confinement and even when out on bail, he could only telephone his wife with the permission of a judge, which was obtained just twice in nine months.
At the least, escaping from apparently airtight surveillance while under house arrest and making his way on two flights to Beirut from Tokyo, while hidden in an adequately ventilated musical equipment storage box wins Ghosn a gold star in ingenuity.
Examination of Due Process Needed
China can locate hundreds of millions of people among its population within 30 minutes because of the ubiquity of security cameras. We learned from Edward Snowden of the hitherto unacknowledged extent of electronic surveillance of vast numbers of individuals in the United States and elsewhere, (which is not to justify his theft and publication of classified information). There are also regular public revelations of the cavalier manner with which technology companies sell confidential information about the habits, at the least, of millions of consumers, as well as the reckless handling of much of that information.Such a prominent fugitive from justice from such an important jurisdiction, and a country justly regarded as advanced, democratic, and highly civilized, should be taken as a starting gun in calling the world’s regulatory, constabulary, and prosecutorial authorities to be meticulously examined from the standpoint of judicial due process.
Most countries would be found wanting. While no one would expect much from China and Russia in terms of defendants’ rights, Japan is a shock. Its conviction rate is only mitigated by its low incarceration, just 41 per 100,000 of population, the lowest of all advanced prosperous democracies and among prominent countries, the lowest of all except India, where the number is 33.
Obviously, about a third of India’s population would have to be considered effectively dysfunctional sociologically, but India remains admirable as its conviction rate among prosecutions is only 46 percent, less than half of China’s. However primitive much of India may be, in the highest spirit of the British Raj that ruled India for 200 years, it appears to have a lively defense bar.
The statistics from the United States are very alarming in both absolute and comparative terms. This country has, by a wide margin, the highest incarceration rate of any nation in the world, 737 per 100,000 of population, or 2.2 million people, almost 110 percent of the country’s official prison capacity. The only other countries admitting to more than 500 per 100,000 are Russia (615), El Salvador (604), Turkmenistan (552), Thailand (526), and Cuba (510, and that was after the flight from Cuba of more than 10 percent of its population).
None of these others, even in their most delusional and propagandistic moments, would claim to be “the land of the free ... (where) we hold these truths to be self-evident, that all men are created equal.” Nor is this a “new order of the ages.” Even allowing for the likely minimization of published incarceration levels in China and other undemocratic countries, these are shocking figures when compared with other sophisticated and prosperous democracies.
Mass Incarceration
There is room for unlimited statistical analysis and sociological research, but the basic facts are that the entire American political society bought into the idea of mass incarceration, from right to left; the views of Richard Nixon and Ronald Reagan on this subject were practically interchangeable with those of Robert Kennedy and Nelson Rockefeller.The United States conviction rate rose to 93 percent in 2012 from 85 percent in 1992 and 75 percent in 1972. Of those, 97 percent are without a trial: plea bargains in which prosecutors harvest evidence from witnesses whom they can threaten to include in indictments, especially for obstruction of justice if they are inadequately forthcoming, and to whom they promise immunity from prosecution for perjury after they have produced affidavits that must be recited if the matter goes to trial.
Every legally knowledgeable person in the United States is aware of the political posturing that has fueled and been rewarded by these rising levels of indictment and conviction. The corresponding conviction rates in Canada and the United Kingdom, allowing for charges that are dropped, is about 67 percent; their prosecutors aren’t ineffectual—but defendants have rights and prosecutors are disbarred if they suborn perjury.
The United States has a more complicated sociology than some of its peers named above, but it also has a higher crime rate, and it’s obvious that it over-indicts, over-convicts, and over-sentences. I spent three (admittedly somewhat interesting) years in U.S. federal prisons (for crimes I’ve now been officially determined not to have committed) and despite having won 95 percent of my case at trial and the rest on appeal, and I can attest to all of this.
It’s an evil and hypocritical criminal justice system, and the only president in living memory who has done anything to ameliorate it is the incumbent. Apart from its severity and inherent injustice, it wreaks a terrible wastage of human resources that should be constructively engaged in U.S. society.
This is some distance from the flight from justice of Ghosn, but the best and most constructive interpretation of his disembarkation from the Japanese near-equivalence of accusation and conviction is that if such a man can be persecuted, anyone can; and if he can escape his preordained fate, so can less conspicuous people. (He went a little bit overboard, however, at his press conference in Beirut, when he compared his fate in Japan to the attack on Pearl Harbor.)
No country should tolerate a conviction rate of more than 80 percent of its accused—no prosecution service is that just. No country should extradite anyone to such a country, and the trend to ever more overbearing surveillance by almost all governments must be resisted at some point. If not now, when?
