The Asia-Pacific Journal | Japan Focus Volume 18 | Issue 2 | Number 1 | Article ID 5336 | Jan 15, 2020

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Reflections on the TEPCO Trial: Prosecution and Acquittalafter Japan’s Nuclear Meltdown

David T. Johnson, Hiroshi Fukurai, Mari Hirayama

Abstract: This article focuses on the criminaljustice consequences of the nuclear meltdownat Fukushima that was precipitated by theearthquake and tsunami of March 11, 2011.Through a process of “mandatory prosecution”initiated by Japan’s unique Prosecution ReviewCommissions, three executives of the TokyoElectric Power Company were charged withcriminal negligence in 2015-2016. They wereacquitted at trial in 2019 when the TokyoDistrict Court concluded there was insufficientevidence to convict. Following this verdict,Japanese prosecutors essentially said “we toldyou so – these cases should not have beenprosecuted.” But we argue that a courtroomloss does not mean that the case should neverhave been brought, for the TEPCO trial and thecriminal process that preceded it performedsome welcome functions. Most notably, thiscriminal case revealed many facts that werepreviously unknown, concealed, or denied, andit clarified the truth about the Fukushimameltdown by exposing some of TEPCO’s claimsas nonsense. At the same time, this case studyillustrates the limits of the criminal sanctionand the difficulty of controlling corporate crimein the modern world.

Key Words: Fukushima, criminal negligence,white-collar crime, Prosecution ReviewCommissions, mandatory prosecution, Japanesecriminal justice

“The scale of the tsunami far exceeded allpreviously held expectations and

knowledge.”

Headline of “Important Report fromTEPCO” (April 24, 2012)

“Who could they be kidding?... TheSanriku coast [in the Tohoku region ofJapan] is famously like California: big

earthquakes hit it often, hit it regularly,and hit it with massive tsunami.”

Harvard University Professor of Law J.Mark Ramseyer (2012)

On September 19, 2019, a panel of threeprofessional judges in the Tokyo District Courtacquitted three former executives of the TokyoElectric Power Company (TEPCO). Thedefendants were former chairman KatsumataTsunehisa (79), and former vice presidentsTakekuro Ichiro (73) and Muto Sakae (69), whoshared responsibility for the company’s nuclearenergy sector. They had been charged withcriminal negligence1 for failing to prevent themeltdown of the Fukushima Daiichi nuclearpower plant, which was precipitated by theearthquake and tsunami of March 11, 2011,which killed more than 18,000 people andforced 400,000 to evacuate their homes inorder to escape the nuclear fallout (Hasegawa,2013).2

The 3/11 earthquake was the most powerfulever recorded in Japan, and it was the fourthmost powerful earthquake in the world sincemodern record keeping started in 1900. Thetsunami it precipitated reached heights up to40 meters (130 feet), and in some places the

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colossal swell traveled at 700 kmh (435 mph)and surged 10 kilometers (6 miles) inland. Theonly nuclear accident as serious as themeltdowns at the Fukushima plant was the1986 disaster at Chernobyl in Ukraine. Butwhile the Fukushima triple-disaster was severe,it was not precipitated by a low-probabilityevent. The 3/11 earthquake was a “high-probability event,” for massive earthquakes andtsunamis have been assau l t ing thenortheastern coast of Japan for centuries – in869, 1611, 1793, 1896, and 1933 (Ramseyer,2012). The size of the tsunami in 2011 wasalmost the same as the one in 1933.

There have been many legal and politicalreactions to the meltdowns in Fukushima(Samuels, 2013; Aldrich, 2019). Japan stoppedusing nuclear power for much of 2011 and2012, and its usage has remained low sincethen, though the administration of PrimeMinister Abe Shinzo seems determined torestart many of the country’s reactors. Morebroadly, several countries, including Germany,Italy, Belgium, and Taiwan, suspended orended their use of nuclear power, and Chinasuspended its plan to expand its use of nuclearpower for half a year. New nuclear safety lawswere also established in Japan, China, andSouth Korea, though in most of East Asia,major changes in the field of nuclear powerseem unlikely because of “nuclear power’ssunk-cost structure and embeddedness innational energy plans” (Fraser and Aldrich,2019, p.58). As for administrative law, Japan’slax regulatory system (Kingston, 2012) wasreformed after 3/11, with the Nuclear andIndustrial Safety Agency (NISA) and theNuclear Safety Commission (NSC) replaced bythe Nuclear Regulation Authority (NRA).Government supervision of the nuclear industrywas also transferred from the ministryresponsible for promoting it (the Ministry ofEconomy, Trade, & Industry, or METI) to theMinistry of Environment (MOE), which mightresult in more emphasis on safety and less onprofit and the production of power (time will

tell). In civil law, about 30 collective actionshave been filed against TEPCO and governmentofficials, in addition to some 400 individuallawsuits filed nationwide by the victims of theFukushima meltdown (Jobin, 2019, p.74). As ofSeptember 2019, eight of the collective actionshad resulted in judgments – and all foundTEPCO liable (Dooley, Yamamitsu, and Inoue,2019).3

And then there is the legal process throughwhich criminal sanctions can be imposed.Significant efforts were made to respond to theanti-social behavior of TEPCO executives andgovernment officials by imposing punishmenton those believed guilty of violating Japanesecriminal law. The central question in this essayis this: what was the criminal process good forin the TEPCO case? We argue that, despite theacquittal of the TEPCO defendants, Japan’scriminal process did some good in this case,and that when it failed it did so in ways that arecommon in other systems of criminal justice.The latter claim will be no consolation to thevictims and survivors of 3/11, but it does reflecthow hard it is to hold corporations and theirexecutives criminally accountable for the harmsthat they cause, not only in Japan but in allcountries. While we focus on the limits ofcriminal law and criminal procedure in a casethat may be the biggest crime in postwarJapanese history, our point applies morebroadly, for in many societies white-collarcrime is “the greatest crime problem of ourage” (Coleman, 2002, p. xi).4

Our essay proceeds in three parts. Part onedescribes the complicated process of criminalprosecution through which charges were filedagainst the three TEPCO executives. This partof our story involves a uniquely Japaneseinstitution called the Prosecution ReviewCommission (kensatsu shinsakai), which wasreformed in 2009 to enable panels of 11citizens to override the non-charge decisions ofprofessional prosecutors. Part two analyzes thereasoning of the Tokyo District Court and

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describes some of the reactions to its decisionto acquit the executives. Many Japanese wereharshly critical of that decision, but Japaneseprosecutors essentially said “we told you so”after the Court concluded there wasinsufficient evidence to convict. In our view,the verdicts in this case are troubling butunsurprising, for impunity is common both inwhite-collar crime cases and in cases of“mandatory prosecution” (kyosei kiso) initiatedby Japan’s PRCs. Part three of this articleconcludes by suggesting some lessons to learnfrom the TEPCO trial. Foremost among them ishow difficult it is for criminal law and theinstitutions of criminal justice to control theconduct of corporations and their agents.

I. Prosecution

A Timeline summarizing the main eventsleading to and resulting from the triple disasterof 3/11 can be found in the Appendix to thisarticle. The timeline shows that the earthquakeand tsunami of March 11, 2011 resembledlarge natural disasters that had occurred manytimes before on the northeastern coast ofJapan. In this sense, the chain of events leadingto 3/11 could be traced back centuries.5 But oursummary focuses on a cascade of executive,engineering, and regulatory failures thatoccurred in the few decades preceding theFukushima disaster (Synolakis and Kanoglu,2015). The Union of Concerned Scientists hasconcluded that “there is plenty of blame to goaround” for the Fukushima meltdown(Lochbaum et al, 2014, p.245), and some otheranalysts share this view (Jones, 2019).6 Amongthe key proximate causes are the following:

*There was too little attention paid toevidence of large tsunamis that hadassaulted the northeastern coast of Japanin previous decades and centuries. Thisheedlessness was widespread: by TEPCOexecutives, by regulatory officials andother agents of the Japanese state, and by

the mass media.

*There were inexplicably different designconditions in the nuclear power plantslocated near each other in northeasternJapan. The Fukushima plant design wasespecially deficient.

*There were major methodologicalmistakes in the hazard analysis thatTEPCO conducted to calculate themaximum possible tsunami at theFukushima No.1 Nuclear Power Plant.

*In the years preceding 3/11, TEPCO madefalse reports during governmentinspections of its nuclear plants more than200 times, and it concealed numerousplant safety incidents as well.

*There were major weaknesses in theregulation of Japan’s nuclear energyindustry.7

One question concerns what conduct leading tothe Fukushima meltdown can be consideredcriminal. Although the answer is contested, webelieve many people who should have beencharged and convicted were not held criminallyaccountable for the enormous harms that theyhelped cause. In June 2012, 1324 residents ofFukushima filed a criminal complaint with theFukushima District Prosecutors Office against33 TEPCO executives and government officials(Yamaguchi and Muto, 2012). Fifteen monthslater, prosecutors in Tokyo announced thatthey would not charge any TEPCO executivesbecause, in their view, there was little chanceof conviction. Over the next few years, twodifferent Prosecution Review Commissionswould review and reverse this non-chargedecision and institute mandatory prosecutionagainst the three former executives who wouldlater be acquitted. This section and thepre-3/11 part of the Timeline explain how thishappened.

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Photos from June 11, 2012, when 1324residents of Fukushima filed a criminalcomplaint against 33 TEPCO executives

and government officials.Ultimately, three of them would be

indicted, after citizens on two ProsecutionReview Commissions overruled the non-charge decisions of Japan’s professional

prosecutors.

A criminal trial can only occur if someone ischarged with a crime. In the modern world it isprosecutors who usually make chargedecisions. Even in the United States wheregrand juries can issue indictments, they almostalways do what the prosecutor wants:investigating only those whom the prosecutorwants investigated, and indicting only thosewhom the prosecutor wants indicted(Blumberg, 1979, p.139). In fact, Americangrand juries are so likely to do the prosecutor’sbidding that critics have said they will even“indict a ham sandwich” – if that is what theprosecutor desires (Heilbroner, 1990, p.245).Thus, in the US as in Japan and most othernations, the prosecutor is the main gatekeeper

of the criminal justice system. In the TEPCOcase, Japanese prosecutors tried to keep thegate to criminal tr ial closed, but twoProsecution Review Commissions (PRCs) priedit open by compelling the indictment of theformer executives. This section explains howthat happened.

Prosecut ion in Japan has long beencharacterized by three qualities (Johnson andHirayama, 2019). First, prosecutors have suchbroad discretion that they may have morecontrol over life, liberty, and reputation thanany other officials in the country. Second,prosecutors tend to exercise their discretioncautiously, by following a conservativecharging policy which mandates that theycharge a case only if it is all but certain to endin conviction. Third, the best-known results ofJapan’s charging conservatism are a convictionrate that approaches 100 percent and anacquittal rate that is close to 0 (Johnson, 2002;Ramseyer and Rasmusen, 2001).

Japan’s conservative charging policy hasseveral strengths. Most notably, it results inless use of imprisonment than do moreaggressive charging policies in otherdemocracies, most notably the United States.For progressives who are skeptical of thecapacity of the criminal sanction to do good,this is a significant virtue (Packer, 1968). It ishard to say for sure, but Japan’s chargingconservatism may also result in fewer wrongfulconvictions than more aggressive chargingpolicies. Some critics contend that Japan’s highconviction rate results from an authoritarianapproach to criminal justice in which too muchpower is vested in police and prosecutors andin which judges are too deferential to lawenforcement’s interests. There are elements oftruth in these criticisms, but one meaning ofthe country’s high conviction rate is that manycriminal offenders who would be charged andconvicted in other systems are never chargedat all in Japan. In this sense, Japan’s cautiousapproach to charging cases is more protective

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of the rights and interests of criminal suspectsthan are prosecution systems in countries withlower conviction rates (Johnson, 2002,pp.237-242).

But Japan’s conservative charging policy alsohas several negative consequences. Somevictims of crime feel abandoned or betrayed byprosecutors who do not charge the individualor organizational actors who have offendedagainst them. There are relatively few criminaltrials where guilt is seriously contested andwhere citizens can be instructed about law,government, and the duties of citizenship in the“classroom” of the courthouse (Tocqueville,1835). When a contested trial does occur, it isdifficult for some judges to remain neutralbecause issuing 98 or 99 convictions for everyacquittal can numb their sensitivity toreasonable doubt. The supply of skilled andaggressive defense lawyering gets suppressed,for who wants to do criminal defense workwhen the chances of victory are so slim? TheJapanese public loses some of the benefits ofgeneral deterrence that a more aggressivecharging policy would generate. And in the thinlayer of cases in which a crime is serious, thedefendant denies guilt, and there is publicpressure to produce a conviction, the risk offalse confession rises, as does the risk ofwrongful conviction (Johnson, 2002; Johnson,2015).

In an effort to address some of the problems ofprosecution, Prosecution Review Commissionswere established in Japan in 1948, and theirpowers were strengthened by a legal reformthat took effect in 2009 (Fukurai, 2011;Goodman, 2013). At present, there are 165PRCs in Japan’s 50 district court jurisdictions.Each is composed of eleven citizens chosenrandomly from local electoral rolls. If aprosecutor decides not to charge a case, avictim or suitable proxy can request that a PRCreview the decision.8

PRCs were created during the postwar

Occupation by adapting the American grandjury system to the Japanese context. In the1930s, when Japan’s government becamemilitaristic and fascistic, prosecutors frequentlyabused their powers by charging enemies andprotecting allies and friends (Mitchell, 1992).Article 1 of the PRC Law of 1948 states that themain purpose of the PRC institution is toguarantee “proper and fair execution of theright of public action by reflecting the popularwill,” and American officials in the Occupationdescribed PRCs as a “safeguard againstprocurators who fail to prosecute cases” (West,1992, p.694). The PRC Law left prosecutors’decisions to charge a case unreviewable exceptby the courts. Most prosecutors believed thisreform – a check on their non-charge decisionsbut no check on their decisions to charge – wasmore beneficial to their interests than anAmerican-style grand jury would have been(Goodman, 2013).

A Prosecution Review Commission and anAmerican grand jury share some similarities inform. Both rely on citizen oversight to checkprosecutorial discretion, and both focus oncharging decisions. But the two systems differin function, with the American grand juryreviewing cases before an indictment is issued,and PRCs reviewing cases after a decision hasbeen made not to charge. In most criminaljustice systems, decisions not to charge areseldom subject to discussion or disapprovalbecause the media and the public learn littleabout them (Davis, 1969; Bach, 2009, ch.3). InJapan, however, the possibility of review by aPRC means that prosecutors know a non-charge decision could be reviewed and (sincethe 2009 reform) reversed. It also means thepublic has a means of reviewing unchargedcases. If you believe prosecutors are inclined toprotect their friends and allies, or if you thinkprosecutors are biased in favor of certainindividuals or groups, then this form of layparticipation may be a welcome development.The affirmative power to charge someone witha crime is enormous, but “the negative power

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to withhold prosecution may be even greater,because it is less protected against abuse”(Davis, 1969, p.188).

In the United States, there is no institutionother than the media to review non-chargedecisions, so a case that is not charged butshould have been seldom received seriousscrutiny. Moreover, in the United States,prosecutors have been so timorous aboutcharging white-collar offenses and corporatecrimes that one highly acclaimed book on thesubject is called The Chickenshit Club: Why theJustice Department Fails to ProsecuteExecutives (Eisinger, 2017). The title comesfrom a speech James Comey gave toprosecutors in 2002 in the Office of the U.S.Attorney for the Southern District ofManhattan, where Comey was the topprosecutor (in 2013 Comey became Director ofthe FBI; he was fired by President DonaldTrump in 2017). After spending his first monthsas U.S. Attorney listening to career prosecutorsand learning what kind of cases they weremaking, he gave a speech in the criminaldivision, where he asked “Who here has neverhad an acquittal or a hung jury?” Among thego-getters and resume-builders in his office,many hands went up, whereupon Comeycongratulated them by saying “You aremembers o f what we l ike to ca l l theChickenshit Club” (quoted in Eisinger, 2017,p.xiv). As Eisinger explains,

“Prosecuting wrongdoers is an awesomeresponsibility, to be undertaken carefullyand judiciously. But prosecutors – unlikeother lawyers – are not simply advocatesfor one side. They are required to bringjustice. They need to be righteous, notcareerist. They should seek to right thebiggest injustices, not go after the easiesttargets. Victory in the courtroom should bea secondary concern, meaning thatgovernment lawyers should neither seek towin at all costs nor duck a valid case out offear of losing. Federal prosecutors should

not be judged on their trial record,whether they are criticized or what thepolitical consequences might be of theirprosecut ions. Comey wanted hisprosecutors to be bold, to reach and toaspire to great cases, no matter theirdifficulty” (Eisinger, 2017, pp.xiv-xv).

As it turns out, Comey’s speech came to beseen as feckless, and Comey himself joined thisdiscreditable Club by failing to pursue manywhite-collar offenders when he was the topfederal prosecutor in Manhattan (Eisinger,2017, p.136) . More broadly, despitewidespread and serious malfeasance that led tothe 2008 financial crisis, no top bankers fromAmerica’s biggest financial firms wereprosecuted. The problem of impunity for white-collar criminals in the United States extends farbeyond finance, to pharmaceutical companies,technology giants, automobile manufacturers,transnational corporations, and beyond. Inshort, the U.S. Department of Justice lacks thewill and ability to prosecute business elites, andso do many other prosecutors’ offices in theUnited States (Garrett, 2014; Soltes, 2016) andthe world (Bullough, 2019).

The problem of impunity through under-prosecution is one reason why countries suchas Germany, Italy, and Sweden requireprosecutors to file charges when an offense ismade known. Their approach reflects a“principle of mandatory prosecution,” whichcan be contrasted with the “principle ofdiscretionary prosecution” that prevails inJapan, the US, and South Korea, whereprosecutors have no legal obligation to charge,regardless of the state of the evidence(Johnson, 2002, p.37). In the former countries,prosecutors are, by law and tradition, supposedto have no choice but to charge. But how oftenis the principle of mandatory prosecutionevaded or ignored? After all, there is often agap between law-on-the-books and law-in-action. In Germany, where the principle oflegalitatsprinzip has long been established,

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prosecutors are frequently criticized forinappropriately dismissing charges or deferringprosecution, especially in cases of corporatecrime (Boyne, 2017, p.139). The German andthe American examples suggest that controllingthe problem of under-prosecution – especiallyin cases of white-collar crime – is a formidablechallenge in many countries and cultures.There is much evidence to support this view(Langer and Sklansky, 2017).9

As shown in Figure 1, Japan’s reformedProsecution Review Commissions can begin aninvestigation of an un-charged case in twoways: by holding a hearing in response to aclaim made by a crime victim or the victim’sproxy, or (through majority vote of its 11members) by starting its own investigation. ThePRC examines each case by questioningprosecutors, summoning witnesses, and askingfor advice from legal advisors (shinsa hojoinand kojo bengoshi).10 Ultimately, a PRC arrivesat one of three decisions, which it presents toprosecutors in writing: (a) non-indictment isproper (fukiso soto); (b) non-indictment isimproper (fukiso futo); or (c) indictment isproper (kiso soto). For the first two outcomes asimple majority vote of 6 to 5 is required, whilefor the third a super-majority of 8 votes isnecessary. Under the revised PRC Law, a PRC’sdecision is binding only after it finds that“prosecution is appropriate” two times for thesame case. Then one or more “designatedattorneys” (shitei bengoshi) will be appointedby a court and will file criminal charges. Thedesignated attorney (a private attorneyrecommended by the Bar) plays the role ofprosecutor during the investigation, trial, andpost-trial appeals. In English, cases charged inthis way are called “compulsory prosecutions”or “mandatory prosecutions” (kyosei kiso). Weemploy the latter term.11

The reformed PRC Law seems good on paper,but what effects do PRCs actually have? Until2009, PRC recommendations to prosecutorswere advisory, not binding. Hence, prosecutorscould ignore a recommendation – andfrequently did (Johnson, 2002, pp.222-223).Since PRCs seldom prompted prosecutors tochange their non-charge decisions, they werelong considered “obscure” and “underutilized”features of Japanese criminal justice (West,1992, p.694). This was also a motivation forreforming them.In assessing PRC influence, some analystsfocus narrowly on cases of mandatoryprosecution (Goodman, 2013). These are, afterall, the most visible consequence of PRCactivity. Japan has had only nine cases ofmandatory prosecution since the PRC reformtook effect in 2009 (TEPCO being the mostrecent), for an average of less than one caseper year. See Table 1. A total of 13 people werecriminally charged in these nine cases, andonly 2 were convicted, for a conviction rate of15 percent.12 Some critics of mandatory

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prosecution claim this low conviction ratemeans PRCs are pushing for prosecutionrecklessly, with little regard for the harmfuleffects on defendants and the public interest(Goodman, 2013; Sankei Shimbun, 2019; TokyoShimbun, 2019). Similarly, prosecutors believethe low conviction rate in cases of mandatoryprosecution vindicates their original non-charge decisions. After the TEPCO executiveswere acquitted, prosecutors stressed that thecourt had agreed with their original conclusionthat “the three couldn’t be indicted or heldcriminally responsible,” and they claimed theteam of designated attorneys who had playedthe prosecutorial role at trial had “failed topresent sufficient proof” to convict (quoted inThe Mainichi, September 20, 2019). This “wetold you so” attitude is supported by somescholarly observers too (Goodman, 2013;Goodman, 2019). After the TEPCO trial, MeijiUniversity Professor Otsuka Hiroshi said“They’re cases where prosecutors have givenup on bringing charges, so in a way it’s naturalthat a large number of them end in acquittals”(quoted in Dooley, Yamamitsu, and Inoue,2019).

The sentences imposed on the two defendantswho were convicted after mandatoryprosecution suggest that PRCs do not alwaysfocus on the most serious cases. In one, themayor of a small town in Tokushima prefecture(on the island of Shikoku) was convicted ofassault and fined 9000 yen (about $90). In theother, a sixth-grade teacher in Naganoprefecture was convicted of “professionalnegligence resulting in injury” for causing ahead injury to one of his students, by throwinghim in a judo class. He was sentenced to one-year imprisonment, suspended for three years –so he was not incarcerated.13

Measured in the currency of criminalconvictions and sanctions actually imposed,mandatory prosecutions seem to have had littleeffect. But the influence of Japan’s reformedPRCs should not be understated. For one thing,PRCs ratify the large majority of non-chargedecisions that they review, thereby lendinglegitimacy to the practices of professionalprosecutors. In 2011, for example, PRCsconcluded that “non-prosecut ion isappropriate” (fukiso soto) in nearly 80 percentof the cases they reviewed. To Japaneseprosecutors, this is a strong endorsement oftheir decision-making. Moreover, the possibilityof mandatory prosecution through PRC reviewsurely causes prosecutors to charge some casesmore aggressively than they otherwise would,though the frequency of this “hidden impact” isimpossible to measure (Hirayama, 2019). Inaddition, prosecutors sometimes reconsider anon-charge decision after a PRC “kick back” acase (kenshin bakku) by ru l ing that“prosecution is appropriate” or “non-prosecution is not appropriate.” In the half-century from 1949 to 2001, prosecutorsdecided to charge in about 7 percent of thecases (1144 out of 15,990 cases) in which PRCshad recommended once that they reconsider.From 2002 to 2017, this figure tripled to 22

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percent (Hirayama, 2019), largely becauseconcerns about vict ims’ r ights madeprosecutors more responsive to their interestsand desires (Herber, 2019, ch.4).14 Thus, whilePRCs seldom institute mandatory prosecution,when they ask prosecutors to reconsider a non-charge decision, prosecutors change it fairlyfrequently. Moreover, when PRCs agree withprosecutors about the propriety of a non-charge decision, they foster the perception thatprosecutors are making good charge decisions.In short, while the evidence suggests that PRCsare passive toward prosecutors and powerfuloffenders in some cases, this institution doesperform important political and criminologicalfunctions in Japanese society. One suchfunction concerns accountability for white-collar crime. Five of the nine PRC-indictedcases (56 percent) and nine of the thirteendefendants (69 percent) subject to mandatoryprosecution involved allegations of white-collarcrime by governmental, political, or corporateelites.15

One key issue in the TEPCO case concerned thejurisdiction of prosecution. This is also apolitical issue in that it concerns “who getswhat, when, and how” (Lasswell, 1936). Howdid such an important case involving victims inFukushima – a prefecture that did not use asingle kilowatt of power generated by TEPCO’snuclear power plants – get handled byprosecutors in Tokyo and by two differentProsecution Review Commissions, each ofwhich was composed of 11 residents of thenation’s capital, which is 150 miles south of thescene where the nuclear meltdowns occurred?16

The answer to this question requires anunderstanding of the way in which prosecutionin Japan is organized (Johnson, 2002, ch.4,pp.119-143).

Japan’s procuracy is a bureaucracy whichroutinely employs a system of “hierarchicalconsultation and approval” (kessai) that isespecially thoroughgoing in high-profile cases(Johnson, 2002, pp.128-132). In the TEPCO

case, too, there were many discussionsbetween prosecutors at various levels of thisbureaucracy. Ultimately, decision-makingauthority was vested in the executiveprosecutors in the Supreme Prosecutors Officein Tokyo,17 who seemed to believe that inmoving the jurisdiction to Tokyo they couldexercise greater control over the case byavoiding the involvement of Fukushima citizensin a PRC review, and who realized that ifcharges were filed, it would be better for thetrial to take place in Tokyo, where courtdecisions in criminal cases have long beenmore pro-prosecutor than in other parts of thecountry (Johnson, 2002, pp.67-71).

Prosecutors provided several justifications fortheir decision to transfer jurisdiction to Tokyo,although the transfer of venue was onlyannounced on September 9, 2013, just a fewhours before the non-charge decision wasissued by the Tokyo Prosecutors Office, not theFukushima Prosecutors Office. Procedurally,prosecutors spoke with attorneys fromFukushima before the transfer decision wasmade, thereby lending a patina of procedurallegitimacy to their decision. Practically, sincethe TEPCO executives lived in Tokyo, any trialsthat occurred would be more convenient there(there are also many more prosecutors in Tokyothan Fukushima). Historically, a similartransfer of jurisdiction had occurred in 2003,when cases involving allegations of criminalmisconduct by TEPCO officials in Fukushimaand Niigata had been transferred to the TokyoDistrict Court. And substantively, prosecutorsstressed that shifting the jurisdiction to thecapital would help preserve “the stability andunity of case dispositions” (Johnson andHirayama, 2019).

In our view, these justifications are lesspersuasive than a more parsimonious andpolitical explanation: executive prosecutors didnot want the TEPCO case to be charged.18 Infact, prosecutors and police did not evenemploy the basic methods of “coercive

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investigation” (kyosei sosa) that are routinelyused in serious cases – search warrants,arrests, interrogations, and the like – ostensiblybecause TEPCO officials were “cooperating”with the investigation (Herber, 2016). Apolitical explanation for the transfer ofjurisdiction is also favored by victims,survivors, and attorneys in Fukushima. Oneattorney said the decision to transferjurisdiction to Tokyo was an “extremely dirtytrick,” as was the decision to announce the non-p r o s e c u t i o n s o n t h e d a y a f t e r t h eannouncement that Tokyo would host the 2020Olympics, when that welcome news woulddominate public discussions (Johnson andHirayama, 2019). Criticism was common in thenational media too, with analysts calling thetransfer of jurisdiction and prosecutors’ non-charge decision “strange” (Asahi Shimbun,2013), “cold to victims” (Mainichi Shimbun,2013), and “monkey wisdom” (Shukan Kinyobi,2013). In this context, mandatory prosecutionthrough PRC review seemed to reflect “thepublic will,” which was the main purpose of thelaw that created this institution (West, 1992,p.694).

II. Trial

During the pre-trial process that ensued aftermandatory prosecution was instituted inFebruary 2016, the issues to be contested atthe TEPCO trial were defined, and relevantevidence was presented by the prosecution anddefense. Then the trial took place in 38sessions over a 27-month period, from June 30,2017 to September 19, 2019.19 It was a shortertrial than many people anticipated, partlybecause the sessions (one every three weeks,on the average) were held closer together thanis often the case when trials occur before apanel of professional judges.20 The TokyoDistrict Court did not want this trial to last aslong as many high-profile contested trials havein the past (in 1999, a former nursery school

teacher named Yamada Etsuko was acquittedof homicide some 21 years after she had beencharged when a PRC had concluded thatprosecutors’ non-charge decision wasinappropriate). The TEPCO trial also attractedmuch attention in the media and many moreobservers than the courtroom in Kasumigasekicould accommodate. Even late in the trial, fewanalysts were confident about what the verdictswould be. We were unsure, too.

In presenting the prosecution’s case, thedesignated attorneys stressed that, based onknowledge that was available before 3/11, amajor earthquake and tsunami were concretelyforeseeable events, and that the TEPCOexecutives should have and could haveprevented the nuclear meltdown if they hadfulfilled their “duty of care” (chui gimu).According to the criminal law of professionalnegligence as defined in Article 211 of Japan’sPenal Code (and under orthodox interpretationsof Article 211 by Japan’s judiciary), if aprofessional engages continuously andrepetitively in acts that are potentiallydangerous to others, the person who haschosen to commit those acts has a special “dutyof care” (Herber, 2016). Media reporting onthis trial stressed that the prosecution’s caserelied on a 2002 report from the Headquartersfor Earthquake Research Promotion (HERP),which stated that there was a 20 percentchance of a magnitude 8 earthquake occurringnear Fukushima within the next 20 years. Inactuality, the prosecution presented muchevidence in addition to the HERP report,including TEPCO emails and memos thatshowed TEPCO executives were informed ofrisks and advised of countermeasures longbefore 3/11, as well as testimony fromwitnesses who suggested that executivesseemed reluctant to take meaningfulcountermeasures against a catastrophe. To putit in plain language, the prosecution’s coreclaim was that TEPCO executives had allowedcost considerations and profit imperatives toprevail over considerations of public safety.

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In response to the charges of criminalnegligence, the defense maintained whatTEPCO spokespersons have long insisted: thatthe company has adhered to the “basic policy ofalways keeping safety first” (TEPCO, 2012). Italso stressed that HERP’s report wasunreliable, and that other experts disagreedwith its conclusions, especially the JapanSociety of Civil Engineers, whose 2002 reporthad been emphasized by professionalprosecutors in their explanations for the non-charge decisions that were subsequentlyoverturned by the Tokyo PRCs. Morefundamentally, the defense insisted that adisaster of Fukushima’s magnitude was not“concretely foreseeable,” and it argued that its5.7-meter (19 foot) sea wall was designed towithstand a tsunami equivalent to themaximum tide level ever recorded on theFukushima shores. For their part, the threedefendants echoed at trial what TEPCOspokespersons had been saying since the 3/11meltdown: the safeguards they took weresufficient, but they “deeply regretted” theaccident that occurred and the trouble itcaused to victims and survivors. Manyobservers found their words hollow andinsincere. Apologies of this kind – “I am notcausally or legally responsible, but I am sorry”– are common in Japan. One analyst has notedthe tendency to “grovel through a ritual ofremorse” is so routine that “it’s a running joke”in some parts of Japanese society (West, 2006,p.285).

Former TEPCO executives and criminaldefendants

Katsumata Tsunehisa, Muto Sakae, andTakekuro Ichiro.

The Tokyo District Court made three mainpoints in its decision to acquit the formerTEPCO executives (Takeda, 2019). First, theCourt acknowledged that the “long-termevaluation of seismic activities,” which waspublished by HERP in 2002, had predicted thata tsunami of up to 15.7 meters (52 feet) couldoccur, but it said this assessment lacked a“concrete foundation,” and concluded thatthere were doubts about its “reliability.” Wecall this the Shaky Prediction claim. Second,based on knowledge available at the time of3/11, the Court held that the defendants did nothave an obligation to shut down the nuclearplant until safety countermeasures against agiant tsunami could be completed. We call thisthe No Duty to Shut It Down claim. Third andmost broadly, legal standards that applied atthe time of the Fukushima incident did notcreate an obligation for the executives toensure the “absolute safety” of nuclear powerplants. In one often-quoted sentence, the Courtstated that “it would be impossible to operate anuclear plant if operators are obliged to predictevery possibility about a tsunami and takenecessary measures” (Dooley et al, 2019;Olsen, 2019). We call this the Absolute SafetyNot Required claim. On these three grounds,the Tokyo District Court concluded that none ofthe defendants is criminally responsible for thedeaths of the 44 patients who were evacuatedfrom Futaba Hospital or for the injuries of the13 soldiers that were caused by explosions atthe Fukushima plant.

In our view, all of the Court’s core claims arequestionable, and so, therefore, are itsconclusions.

Shaky Prediction? After the Great Hanshin-Awaji Earthquake of 1995 brought to light anumber of problems in Japan’s earthquakedisaster prevention measures, a SpecialMeasure Law on Earthquake Disaster

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Prevention was enacted in July of the sameyear. The law recognized fa i lures tocommunicate and apply the results ofearthquake research to the general public andto organizations that could and should preventdisasters. It also established a Headquartersfor Earthquake Research Promotion, as aspecial governmental organization attached tothe Prime Minister’s Office (HERP now belongsto the Ministry of Education, Culture, Sports,Science and Technology). Among othermissions, it “evaluates seismic activity in acomprehensive manner” and “publishesevaluation results”. Its report in 2002 predicteda 20 percent chance of an M8.0 earthquake and(in such an event) tsunami heights of 8.4 to10.2 meters, which far exceed the 5.7-meterseawall at Fukushima. But TEPCO ignored thisreport, claiming there was “no wave sourcemodel” for the prediction. However, otherengineers have explained that “the Fukushimaaccident was preventable” when examiningseismic hazards over long periods of time, andthey emphasized that “the best practiceremains to assume that the largest inferredevent can occur anywhere along the coast ofinterest” when there are large seismic eventsin the historical record (Synolakis and Kanoglu,2015, p.10). Considering the coast’s historicalrecord, TEPCO’s failure to follow best practiceis both “inconceivable” and “incomprehensible”(Synolakis and Kanoglu, 2015, p.10).

There also was an abundance of other evidenceintroduced at trial that major earthquakes andmassive tsunamis have occurred near theSanriku coast, including (as described at theoutset of this article) an 8.1 magnitudeearthquake in 1933 that caused a tsunamiabout the same size as its successor would bein 2011 (Ramseyer, 2012). In many fields whereexperts forecast the future, predictions areinaccurate and unreliable (Tetlock, 2005). Inthis case, however, the question was notwhether a major earthquake would occur; itwas when. And in science and common sense, itis taken for granted that a massive earthquake

may cause a giant tsunami. Philosophically, theMarch 11 earthquake and tsunami have beencalled “black swan” events, for they wereunpredictable, they had big impacts, and (afterthe fact) it was easy to concoct explanationsthat made them appear more certain than theyactually were (Taleb, 2007; Aven, 2015). Butscientifically and legally, a massive earthquakeand a mighty tsunami near Fukushima wereforeseeable events, even if their exact date wasimpossible to predict. TEPCO not only paidinsufficient attention to historical evidence oflarge tsunamis striking the region (Acton andHibbs, 2012). It also failed to follow up on itsown computer simulation which showed aserious tsunami risk to the plant in 2008, threeyears before 3/11. But TEPCO reported theresults of this simulation to NISA just 4 daysbefore the triple disaster occurred (Kingston,2012).

No Duty to Shut It Down? The Court’s secondconclusion, that uncertainty about earthquakesand tsunamis means there was no need to shutdown the nuclear reactors in Fukushima, is agrand non-sequitur (Takeda, 2019). To be sure,the nuclear meltdowns could have beenprevented by shutting the nuclear reactorsdown. In retrospect, this extreme step wouldhave been prudent. But shutting down thereactors was not the only way to avert nuclearcatastrophe. Other countermeasures couldhave been taken, and some were taken by otherpower plants impacted by 3/11 (Soeda, 2019).The plants that took sufficient precautions didnot meltdown, including Units 4, 5, and 6 of theFukushima No.1 Nuclear Power Plant (NationalAcademies Press, 2014; Synolakis and Kanoglu,2015).

By insisting that the only way to avert acatastrophic meltdown was to shut down theFukushima plants entirely, the Tokyo DistrictCourt “arbitrarily changed the frame” (katte nidohyo o kaeta) for deciding the question ofpreventability, and it did so in a way that madeconviction more difficult (Takeda, 2019). The

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Court also turned a blind eye to facts thatfavored conviction. If the emergency powersupplies had been moved to higher ground orplaced in watertight bunkers, the nucleardisaster could have been prevented. Ifwatertight connections had been madebetween emergency power supplies and criticalsafety systems, the nuclear disaster could havebeen prevented. And if seawater pumps hadbeen better protected or a backup means todissipate heat had been constructed, thenuclear disaster could have been prevented. Inshort, even if the TEPCO executives did nothave a duty to shut down the Fukushima plant,they repeatedly violated their duty of care byfailing to take other reasonable safetyprecautions.21

Absolute Safety Not Required? The Court’sthird conclusion, that absolute safety is notrequired when operating a nuclear powerreactor, also rests on dubious reasoning(Soeda, 2019). For starters, TEPCO’s nuclearpower plants have had numerous accidents andincidents over the years. “Absolute safety” is apipe dream. What the law expects is reasonablecare: the degree of caution and concern anordinary, prudent, and rational person wouldexercise in similar circumstances. Moreover, bysiting nuclear plants in convenient locationsbuilding public support for the production ofnuclear energy, TEPCO executives had longfostered belief in what has come to be calledthe “myth of safety” (anzen shinwa) – the viewthat nuclear accidents could not and would notoccur (Aldrich, 2014). Before 3/11, this belief“tended to stifle honest and open discussion ofthe risks” of nuclear power (Noggerath, Geller,and Gusiakov, 2011, p.37). After 3/11, thisbelief was revealed to be a fairy tale.22 In orderto find that “absolute safety is not required,”the Tokyo District Court had to turn a deaf earto TEPCO’s decades-long PR campaign, whoseaim was to convince the public that nuclearenergy is completely safe. It also had to turn ajurisprudential somersault, by applying a dutyof care23 in a case involving nuclear power (!)

that is lower than the duty of care that courtsroutinely apply for automobile accidents(Takeda, 2019).

In sum, the Tokyo District Court’s decisionmakes two major mistakes. First, by requiringthe prosecution to show that shutting down theplant was the one and only way to prevent ameltdown, it raised the evidentiary bar to anunusually and unreasonably high level. Second,by lowering the “duty of care” for TEPCOexecutives, it defined “professional negligence”down in a way that contradicts previous judicialinterpretations and that closely resembles theclaims prosecutors made in their original non-charge decisions (Soeda, 2019).24

We cannot read the minds or the motives of thejudges in this case, but their problematicalreasoning is compatible with the view that“peculiar convictions and biases” (tokuyu naomoikomi ya baiasu) led them to theirconclusion (Takeda, 2019). There is a longhistory of Japanese judges deferring to theinterests of professional prosecutors in criminalcases (Foote, 2010). Research also shows thatJapanese judges who decide cases in waysfavored by the ruling party sometimes enjoybetter careers than do judges who deviate fromthe party line (Ramseyer and Rasmusen, 2003).In this light, we should not be surprised to findthat judges’ convictions in the TEPCO caseclosely resemble those possessed by the LiberalDemocratic Party (LDP) and by professionalprosecutors.

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After the TEPCO Trial acquittals onSeptember 19, 2019, a woman

outside Tokyo District Court holds up asign saying “All Acquitted: Inappropriate

Judgment.”

The outcome of the TEPCO trial also raises aninteresting question: what if the trial hadoccurred before a lay judge panel of six citizensand three professional judges? This did nothappen in the TEPCO case because underJapan’s Lay Judge Law, the only crimes eligiblefor lay judge trial are those for which themaximum possible punishment is a lifesentence or a death sentence (only about 2percent of Japanese crimes fall into thesecategories). But what if?

One prominent Japanese journalist has claimedthat if there had been a lay judge trial, thecitizens sitting in judgment would have beenfree of the “peculiar convictions and biases”that caused judges to tilt toward acquittal (andtoward the procuracy and the LDP). He alsobelieves that lay judges’ fidelity to the basicrules of criminal procedure would have ledthem to conviction (Takeda, 2019). In our view,this counterfactual reasoning is plausible butnot persuasive. For one thing, the convictionrate in lay judge cases is actually a little lowerthan it was in similar cases before the lay judgereform took effect in 2009. For another,professional judges tend to dominate thedeliberations by lay judge panels in Japan,much as professional judges do in criminal

cases adjudicated by mixed tribunals inEuropean countries (Johnson and Vanoverbeke,forthcoming). Moreover, to convict a criminaldefendant in Japan, at least one professionaljudge must join the majority on a lay judgepanel. Under this rule, lay judges cannot simplyout-vote their professional counterparts on thebench. In the TEPCO case, persuading onejudge to join their side and convict the threedefendants may have been a tall order. On theother hand, this was a case in which citizens ontwo different PRCs overrode the non-chargedecisions of professional prosecutors. It istherefore reasonable to wonder whether citizenparticipation in the TEPCO trial would havereached a different verdict. The answer is notobvious.

III. Lessons

Sometimes a not-guilty verdict is a miscarriageof justice – recall O.J. Simpson’s acquittal for adouble-murder in 1995 (Toobin, 1996). In ourview, there is proof beyond a reasonable doubtthat the TEPCO executives acted with criminalnegligence when they failed to exercisereasonable care in their management of thenuclear power plants at Fukushima. In fact,there was more evidence of guilt (and lessroom for reasonable doubt) in the TEPCO trialthan in thousands of cases of negligence thatresult in the criminal conviction of automobiledrivers in traffic accidents each year in Japan(Kawai, 2015; Takeda, 2019).

But while the TEPCO trial ended in acquittal, itwas not all for naught. The trial and thecriminal processes that preceded it revealedmany facts that are proving useful to plaintiffsin their ongoing civil lawsuits with TEPCO andthe Japanese government (Dooley, Yamamitsu,and Inoue, 2019).25 The TEPCO prosecutionalso revealed facts that were previouslyunknown, concealed, or denied (Repeta, 2013;Herber, 2016; Takeda, 2019), and it promotedpublic discussion of issues related to nuclear

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power and regulation (Jones, 2019). Thecriminal process also clarified the truth aboutFukushima by exposing many of TEPCO’sclaims as humbug and hokum. In this sense, theTEPCO trial was an elaborate and successfulact of “bullshit-detection” (Frankfurt, 2005).26

Thanks to the information revealed in this case,we now know that TEPCO executives had manyopportunities to increase safety at the agingFukushima plants, and that they had manygood reasons to believe more safety wasimperative (Acton and Hibbs, 2012). Butinstead of spending money to make theFukushima facilities safer, and instead ofmaking improvements that could have madeFukushima as safe as the nuclear reactors atOnagawa in Miyagi prefecture (just north ofFukushima), which were assaulted by the samesize tsunami but had an entirely different fate,TEPCO executives paid dozens of celebrities toappear in advertising aimed at persuading thepublic that safety was the company’s toppriority (Horvat, 2011, p.201). Safety was notTEPCO’s top priority. Profit was (Repeta, 2011,p.186). The “most critical question” forcompany executives was not “how safe is safeenough?” but rather “how can we maximizeprofits?” (Lochbaum et al, 2014, p.248). It isnot clear whether TEPCO’s priorities havechanged in the post-3/11 period. In many localareas, the company continues to push for theuse of nuclear power, much as it has beendoing for decades (Aldrich, 2010). Backed bythe Ministry of Economy, Trade and Industryand by the cabinet of Prime Minister AbeShinzo, TEPCO is also lobbying for permissionto dump into the ocean up to one million tons ofcontaminated water that are currently stored in1000 or so giant tanks on the Fukushima plantsite (the water was pumped through thereactors to cool melted fuel that is too hot andradioactive to remove). TEPCO repeatedlyclaimed that all but one type of radioactivematerial (tritium, which is believed to pose alow risk to human health) had been removed tolevels deemed safe for discharge underJapanese law, but in the summer of 2019 the

company acknowledged that “only about one-fifth of the stored water had been effectivelytreated,” because TEPCO had not changedfilters frequently enough in its decontaminationsystem (Rich and Inoue, 2019). Fukushimafishermen believe that dumping the dirty waterwill destroy their already devastated business,and many observers believe TEPCO’s longhistory of dishonesty and deception means itsassurances should not be trusted.

The three elderly defendants in the TEPCO trialreturned home after they were acquitted, butthey did not return to life as normal. Thedesignated attorneys have appealed to theTokyo High Court, which will hold hearings inthe next year or two. Considering thetendencies of Japan’s conservative judiciary,convictions on appeal seem unlikely (Segi,2015).

Japan’s criminal courts have long beencriticized for having an “iron hand” of justicethat results in conviction rates of “close to 100percent” (Johnson, 2002, p.215),27 but in theTEPCO trial it was acquittals that promptedwidespread criticism. A spokesman forGreenpeace said,“A guilty verdict would have been a devastatingb low not jus t to TEPCO but the Abegovernment and the Japanese nuclear industry.It is therefore perhaps not a surprise that thecourt has failed to rule based on the evidence.More than eight years after the start of thiscatastrophe, TEPCO and the government arestill avoiding being held to full account for theirdecades of ignoring the science of nuclearrisks”.28

Ishida Shozaburo, one of the designatedattorneys, also claimed the fix was in. “This is aruling that took the government’s nuclearpower policy into consideration,” he lamented(The Mainichi, 9/20/2019). A more generalversion of this view holds that Japanese courtsare often instruments of state power, and thatJapanese judges routinely stand on the side of

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government by affirming its preferences – asthey did in the TEPCO trial (Segi, 2014;Ramseyer and Rasmusen, 2003).29

Lawyer Kaido Yuichi, who has representedvictims of the Fukushima meltdown in variouslegal proceedings, echoed these views when hefumed that “I never imagined such a terribleruling would be handed down…If criminalpunishments can’t be pursued for causing anaccident, a similar [nuclear] accident couldoccur again” (The Mainichi, September 20,2019).

Members of a support group for victims andcomplainants who were waiting outside theTokyo District Court “roared in anger” whenthey were informed of the acquittals (AsahiShimbun Asia & Japan Watch, September 20,2019). Yoshidome Akihiro, an 81-year-old anti-nuclear campaigner from Tokyo, said “I hadbraced myself that we might not get a cleanvictory, but this [result] is too awful. Thisshows Japanese courts don’t stand for people’sinterest” (Japan Today, September 20, 2019).

And an editorial in Japan’s newspaper of recordcalled the Tokyo court ruling “baffling” becauseit took “a surprisingly different stance towardthe predictability of the tsunami from other[Japanese] court decisions concerning thematter” (Asahi Shimbun Asia & Japan Watch,September 20, 2019).30

Around the turn of the 20th century, thescientist Marie Currie carried around a vial ofradium salt because she liked the pretty blueglow. Since then there have been many atomicmistakes, accidents, and disasters (Mahaffey,2015). Two of the biggest were Three MileIsland in 1979 and Chernobyl in 1986. Thecriminal justice consequences of both differedmarkedly from those in the Fukushima case.

On March 28, 1979, the accident that occurredat Three Mile Island in Pennsylvania beganwhen a pump providing cooling water to steamgenerators stopped running. This triggered a

series of events that caused a nuclear reactorto shut down (Walker, 2006). It was the 13thtime in a year that problems in the coolingsystem had caused a shutdown. The TMIaccident was much less serious than the crisisat Fukushima, but the fundamental cause was“one common and dangerous belief: that anaccident at Three Mile Island, or FukushimaDaiichi, just could not happen” (Lochbaum etal, 2014, p.142). TMI has been called “the moststudied accident in U.S. history, at least up tothat time” (Lochbaum et al, 2014, p.149). Manyanalysts agree that “the accident largelyresulted from safety studies and reviews thatfocused too narrowly on nuclear plant designsand hardware and not sufficiently on thehuman part of the safety equation” (Lochbaumet al, 2014, p.149, emphasis added). Forexample, the Kemeny Commission (appointedby President Jimmy Carter) stressed “thefailure of organizations to learn the properlessons from previous incidents” and said “weare convinced that an accident like Three MileIsland was inevitable” (quoted in Lochbaum etal, 2014, p.150).31 Other studies have revealedthat organizational and management factors,not technology, were the main cause of the TMIincident (Perrow, 1984; Pidgeon, 2011). YetAmerica’s nuclear industry was “uncowed bythese conclusions,” and in the decades thatfollowed, the industry and its supportersrepeatedly emphasized that “nobody died atTMI.” This shibboleth would become “a hugestumbling block to comprehensive safetyreform” in the United States and othercountries, including Japan (Lochbaum et al,2014, p.150). In the end, a federal grand juryindicted the TMI operator, the MetropolitanEdison Company, for falsifying leak rate dataand destroying documents related to theaccident, but none of the human mistakes ormisconduct resulted in the prosecution andconviction of corporate executives (Weinraub,1983).

In the 1986 Chernobyl nuclear disaster in theUkrainian Soviet Socialist Republic, a reactor

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exploded during a test of emergency poweravailability, killing at least 31 people (thisofficial Soviet count is contested, and it doesnot include those who died from the effects ofradiation exposure in the years that followed).The subsequent meltdown forced theevacuation of 135,000, and it spreadradioactive material across Europe and beyond.This has been called “the world’s greatestnuclear disaster” (Higginbotham, 2019). After3/11, it took Japan’s criminal justice systemeight-and-one-half years to reach verdicts incriminal court. In Chernobyl, it took just threemonths for the head of the nuclear powerstation and two of his aids to be convicted ofcrimes and sentenced to 10 years in a laborcamp. In a summation of the criminal court’sdecision, the chief judge stressed that theChernobyl plant had been poorly administered,and that “an atmosphere of lack of control andlack of responsibility” was the main cause ofthe disaster (New York Times, July 30, 1987).Three other Chernobyl employees wereconvicted of crimes and sentenced to 5 years, 3years, and 2 years, respectively, and threeother engineers who were criminally chargedhad their prosecutions terminated when theydied. The criminal trial of the six people whowere convicted lasted all of three weeks, andmost of it was closed to the public. This was arush to judgment of the kind that is common inrepressive legal systems (Nonet and Selznick,1978, p.29). As for the remains of Chernobylitself, they now lie within an “exclusion zone”of 1000 square miles, where wildlife flourishesin what some have called “a radioactive Eden”(Higginbotham, 2019).

Another turn of the comparative kaleidoscopefocuses on a non-nuclear accident involvingJapan’s nearest neighbor, South Korea. Thesinking of the M.V. Sewol ferry in South Koreanwaters on April 16, 2014 killed 304 people –250 of them high-school students on a classtrip. Lee Jun-seok, the captain of the Sewol,jumped a railing and abandoned ship. He wasone of 172 passengers and crew to survive –

and one of 15 members of the crew to beconvicted of criminal charges related to thesinking (Lavery, 2019). In November 2014, theGwangju District Court found Lee guilty ofnegligence and sentenced him to 36 years inprison. The chief engineer of the Sewol wasconvicted and received a 30-year sentence, andthe 13 other defendants were convicted andsentenced to terms of imprisonment up to 20years. After the prosecution and defenseappealed, Lee’s sentence was increased from36 years to life imprisonment, while the other14 defendants had their sentences reduced to amaximum term of incarceration of 12 years.This may not have been a rush to judgment inthe Russian style, but it was fast enough tomake many observers wonder if the “quick”was undermining the “careful.” The criminalprosecutions in the Sewol case were alsoshaped by brazenly populist and political forcesthat are common in Korean criminal justice(Choe, 2019) but more difficult to discern inhigh-profile cases in Japan – including theTEPCO case.32

The TEPCO case raises important questionsabout the capacity of the criminal law to holdcorporations and their agents accountable. Formany decades corporations have been, for goodand for ill, some of the primary makers andmanagers of social change in Japanese society,and they are rightly considered the source ofmany of the country’s most serious crimeproblems (Miller and Kanazawa, 2000,pp.81-92). Some analysts believe the TEPCOacquittals are prima facie evidence that therewas insufficient evidence to prosecute theformer executives in the first place (Goodman,2019). But in our view, “a courtroom loss, evenif predictable, does not mean the case shouldnot have been brought” (Gillers, 2000). Asdescribed above, the TEPCO trial and criminalinvestigations revealed many important factsand performed a variety of functions, includingincreased public awareness of the risks ofnuclear power.

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Other analysts have criticized the Tokyo PRCfor presuming the possibility of a “zero-risksociety” (Sankei Shimbun, August 1, 2015). Onthis view, using law to promote extremely lowtolerance for risk creates perverse incentivesfor business, governmental, and civilian actors,who may become too cautious about takingrisks that would lead to economic growth. Butwhen it comes to nuclear energy, the centralrisk is a disaster that could be catastrophic –and that was catastrophic at Fukushima andChernobyl. The most perverse legal incentivesare those put in place by the rules of limitedliability that apply to corporations in Japan andmany other nations, for in the event of adisaster they cap a corporation’s liability at thefire-sale value of its net assets. As Ramseyer(2012) has observed,

“Because that maximum [amount ofliability] falls far short of the social costs ofa nuclear meltdown, Tokyo Electric willnot pay the full cost of running thesereactors. Instead, it can use the law toexternalize the cost of doing business. Itand the other power companies builtnuclear reactors that could not surviveexpected earthquakes. But they did not doso foolishly. They did so because thelimited liability at the heart of thecorporate law made it profitable to do so.”

Ramseyer is right about the effects of the legalrule of limited liability, for it creates incentivesfor corporations to externalize the negativeconsequences of their actions. But we wonderabout the wisdom of contrasting profit-seekingbehavior with foolishness, for what is profitablecan be foolish in the extreme – and Fukushimais Exhibit A. The legal regime under whichTEPCO and many other corporations operate isperverse in that it encourages and condonesharmful behavior if it is profitable to thecompany. It is even appropriate to ask aquestion that some may find inflammatory: arecorporations “psychopathic?”One hallmark of corporations is that they “lack

the ability to care about anyone or anything butthemselves” (Bakan, 2004, p.57). This is also adefining trait of psychopathy. And when anexpert on psychopathology (Dr. Robert Hare)was asked how his checklist for diagnosing thiscondition in individuals applied to the characterof corporations, he found a close match inseveral other respects (see Bakan, 2004,pp.56-57):

(1) Corporations are irresponsible in thatthey attempt to satisfy the goal ofprofitability and are willing to put muchelse at risk in the process.

(2) Corporations are manipulative aboutpublic opinion.

(3) Corporations are grandiose, frequentlyinsisting on their own superiority.

(4) Corporations lack empathy for thevictims of their behavior.

(5) Corporat ions are asocia l andinconsiderate of the interests of others.

(6) Corporations refuse to acceptresponsibility for their own actions.

(7) Corporations are unable to feelremorse.

(8) Corporations relate to otherssuperficially, by presenting themselves tothe public in a manner that seemsappealing but does not reflect their realcharacter.

In short, corporations are often “compelled tocause harm when the benefits of doing sooutweigh the costs” (Bakan, 2004, p.60). This isnot mainly a matter of will or malevolence.Rather, the corporation has within it, as theshark has within it, “those characteristics thatenable it to do that for which it was designed”(Bakan, 2004, p.70). The result is a self-interested organization that is created and

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enabled by law yet difficult for law to control(Stone, 1975; Bakan, 2004; Barak, 2017).Japan’s lawmakers have done little tocriminalize corporate misconduct (Matsuo,2007), and Japanese prosecutors and judgeshave long been re luc tant to pun ishcorporations and their agents for the harmsthat they cause (Miller and Kanazawa, 2000;Johnson, 2000; Johnson, 2017). In these senses,Japanese criminal law and criminal justiceresemble their counterparts in many othercountries. In the TEPCO case, it was layc i t i zens on the Prosecut ion Rev iewCommissions whose decisions led to theprosecution of a few corporate elites – andultimately to their acquittal. In the end,Fukushima teaches lessons about the risks ofnuclear energy, the awesome power toprosecute, and the limits of the criminalsanction. It also serves as a poignant reminderthat “business as usual” for corporations canhave terrible consequences for people and theplanet, both in the present and far into thefuture.33 Experts believe it will take 40 to 200years to clean up the Fukushima site (Jobin,2019, p.73). In the meantime, the plant and itssurroundings have become a huge storage areafor radioactive waste and a grotesquemonument to corporate misconduct ,government dereliction, and criminal impunity.

Appendix: Fukushima Timeline

Our summary of the events leading to andresulting from the Fukushima nuclearmeltdown of March 11, 2011 focuses narrowly,on a few decades before 3/11, and the decadeor so after it. The first entries in the timelineare meant to highlight the context of 3/11 bydescribing events that preceded Japan’s tripledisaster, while the remaining entriessummarize the criminal justice aftermath.

Before 3/11

May 1960 – The Great Chilean earthquake(magnitude 9.4 – 9.6) is the largest ever

recorded instrumentally. Estimates of the totalnumber of fatalities from the earthquake andsubsequent tsunamis range between 1000 and7000. A 6-meter tsunami (20 feet) reachedJapan 23 hours later, killing 138 people. InChile, the tsunami reached 25 meters (82 feet).And the 35-foot tsunami that struck Hilo,Hawaii at 1:05 AM on May 23 killed 61 people.It was on the basis of these experiences thatseawalls with normalized heights of 6 meters orso were constructed along the Sanriku coast inthe Tohoku region of northeastern Japan(Synokalis and Kanoglu, 2015).

1974 – Two scholars (SL Soloviev and ChN Go)publish a 310-page book (A Catalog ofTsunamis on the Western Shore of the PacificOcean) which refers to 19 studies (publishedbetween 1868 and 1969) of the magnitude 8.6Jogan earthquake of 869 AD, which had anepicenter approximately 120 kilometers west ofthe earthquake that occurred on March 11,2011. This Russian book was translated intoEnglish in 1984. It assigned the Jogan tsunamian intensity of I = 4 (one of the highest values).Research published in 1971 showed that themagnitude 8.5 Showa Sanriku earthquake of1933 generated a tsunami with heights up to29 meters (95 feet). Hardest hit was the townof Taro in Iwate prefecture (now part of Miyakocity), where 42 percent of the population waskilled and 98 percent of the houses weredestroyed. The seawall built to protect theFukushima plant was 5.6 meters (18 feet). After3/11, TEPCO argued repeatedly that there hadbeen no reliable evidence of significantly largertsunamis striking the eastern coast of Japan(Synolakis and Kanoglu, 2015).

July 1993 – A magnitude 7.7 earthquake occurs,causing the Hokkaido Nansei-oki tsunami thatdevastated the island of Okushiri with run-upsin some places reaching 30 meters (98 feet).Okushiri’s 4.5-meter seawall (15 feet) wasovertopped by a tsunami of 11 meters (36 feet).In 1998, Japan spent over $600 million($130,000 per Okushiri resident) to build an 11-

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meter seawall, to rebuild the main town ofAonae, and to protect about 20 kilometers (12miles) of coastline.

2000 – Sugaoka Kei, a nuclear inspectorworking for General Electric at FukushimaNo.1, notices a crack in a reactor’s steamdryer, which extracts excess moisture toprevent damage to the turbine. When TEPCOdirects Sugaoka to cover up the evidence, hecontacts government regulators, who orderTEPCO to handle the problem on its own.TEPCO does, and Sugaoka is fired.

July 2002 – Japan’s Headquarters forEarthquake Research Promotion (HERP)publishes a long-term Evaluation of SeismicActivities (choki hyoka) which estimates a 20percent chance of an M8.0 earthquakeoccurring in the next 30 years in the JapanTrench that includes Fukushima Prefecture.

August 2002 – The Japanese governmentreveals that TEPCO is guilty of false reportingin routine governmental inspections of itsnuclear plants, and of concealing numerousplant safety incidents. All seventeen ofTEPCO’s boiling-water reactors are shut downfor inspection, and the company’s chairman,president, vice-president, and two advisersresign. TEPCO eventually admits that itsubmitted false technical data at least 200times between 1977 and 2002. TEPCO's newpresident announces that the company will takeall necessary countermeasures to prevent fraudand restore the nation's confidence, but in 2007the company announces that an internalinvestigation has revealed other unreportedincidents.

December 2004 – A 9.1 to 9.3 magnitudeearthquake in the Indian Ocean near Sumatraruptures along a fault length of 1500 km (900miles, or longer than the state of California).The rumbling lasts 10 minutes and causes aseries of tsunami waves up to 30 meters high(100 feet), killing more than 220,000 people in14 countries. This comes to be known as the

Boxing Day Tsunami.

September 2006 – In response to a 6.8magnitude earthquake in Kobe that killed 6000people in January 1995, Japan’s Nuclear SafetyCommission (an organization within theCabinet Office) issues 14 pages of newguidelines “concerning inspection standards forvibration resistance,” and the Nuclear andIndustrial Safety Agency (under the Ministry ofEconomy, Trade and Industry) instructs nuclearpower operators to conduct “backchecks” toconfirm compliance with the new guidelines.The guidelines state that Japan’s nuclearfacilities must be built to withstand tsunamis“which are appropriate to expect during theoperational life [40 years] of the plant eventhough the possibility of such occurrence maybe very rare.” But they provided no guidanceabout what would be “appropriate to expect”(Repeta, 2011, pp.188-189).

July 2007 – A 6.8 magnitude earthquake occursin Niigata Prefecture. Later in 2007 TEPCOacknowledges that it had known since 2003about the 14-mile-long active fault in theseabed about 11 miles from Kashiwazaki-Kariwa, but it had not reported its findingsbecause company staff did not believe the faultcould produce an earthquake large enough tothreaten the reactors. After this earthquake, allseven units at TEPCO’s Kashiwazaki-KariwaNuclear Power Plant are stopped and safetychecks are performed. Without 20 percent ofits generating capacity, TEPCO posts its firstloss in 28 years, totaling $1.44 billion, and itsstock value drops 30 percent. To boost publicconfidence, Shimizu Masataka replacesKatsumata Tsunehisa as the new TEPCOpresident, and Katsumata (who later becameone of the TEPCO trial defendants) becomeschairman. Shimizu, a career TEPCO employee,makes cost-cutting a high priority, and withintwo years he returns TEPCO to profitability,exceeding his target of $615 million in cuts,part ly by “reducing the frequency ofinspections” (Lochbaum, Lyman, Stranahan,

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and the Union of Concerned Scientists, 2014,pp.50-51).

March 2008 – TEPCO makes a tentativecalculation that a tsunami of up to 15.7 metersin height (52 feet) could strike the site of theFukushima No. 1 Nuclear Power Plant. Thecalculation is reported to vice-president MutoSakae in June 2008.

July 2008 – Vice-president Muto puts on hold aTEPCO plan to take countermeasures against alarge tsunami. He suggests taking more time tostudy the issue, and he asks an academicsociety specializing in this field to do therelevant research.

January 2010 – A 7.0 magnitude earthquakeand more than 50 aftershocks occur in Haiti,killing approximately 160,000 people. Thefishing town of Petit Paradis is hit by alocalized tsunami, killing three people.

February 7, 2011 – After 40 years of operation,the Ministry of Economy, Trade and Industry(METI) issues TEPCO a renewed license tooperate Unit 1, the oldest nuclear reactor atthe Fukushima Daiichi (No.1) Nuclear PowerPlant.

March 11, 2011, 2:46 PM – The Great EastJapan Earthquake (higashi nihon daishinsai)occurs at 2:46 PM, Japan Standard Time. The9.0 magnitude earthquake strikes off thenortheast coast of Honshu, causing a tsunamithat destroys many towns and villages. At theFukushima Daiichi (No.1) Nuclear Power Plant,which was commissioned in 1971, the powersupply and the cooling system for the reactorare damaged, causing nuclear fuel to overheatand melt down. Despite warnings fromscientists, critical backup diesel generators hadbeen placed in low-lying areas at high risk fortsunami damage. Some generators were put inthe basement, and others were placed 10 to 13meters above sea level. The tsunami heightscoming ashore reached about 15 meters (49feet). In the words of two engineering scholars

who studied the meltdown, TEPCO’s placementof the emergency diesel generators was“inexplicably and fatally low” and made theFukushima No. 1 plant “a sitting duck waitingto be flooded” (Synolakis and Kanoglu, 2015).

March 11, 2011, 7:03 PM – The Japanesegovernment declares a nuclear emergency andissues evacuation orders to residents who livenearby. The evacuation boundaries aregradually expanded from 3 km to 30 km in theweeks to come. In total, approximately 170,000people were evacuated from the “prohibited”and “on-alert” areas. In the coastal town ofNamie-machi, mayor Baba Tomatsu learned ofthe nuclear crisis by watching TV, after whichTEPCO and government officials directedcitizen evacuees from his town of 21,000directly into the path of the plume. Fifteen-thousand Namie citizens later signed acomplaint against TEPCO, and Baba accusedTEPCO and the government of “institutionalmurder” (Cleveland, 2019). In total, the 3/11earthquake and tsunami killed approximately18,000 people and forced about 400,000 toevacuate their homes in order to escape thenuclear fallout.

After 3/11

March 12, 2011 – Workers at the Fukushimaplant open a Unit 2 reactor vent, whichreleases pressure and radioactive fumes frominside. The first of a series of hydrogenexplosions at the plant rips through thebuilding, but the reactor remains intact.Approximately 160,000 people living near theplant vacate their homes.

December 16, 2011 – Japan’s government saysit has contained the leaking reactors, which arenow in a state of cold shutdown.

June 11, 2012 – Some 1324 Fukushimaresidents file a criminal complaint with theFukushima District Prosecutors Office against33 TEPCO executives and government officials.

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June 20, 2012 – TEPCO releases an accidentreport that says the strength of the tsunamiwas beyond what could have reasonably beenforeseen.

July 4, 2012 – A panel of experts appointed bythe Japanese Diet releases a report whichconcludes that the Fukushima nuclear accidentwas “a profoundly manmade disaster – thatcould and should have been foreseen andprevented” (National Diet of Japan, 2012). Thisreport has been criticized for stressing thepurported dysfunctions of “Japanese culture,”thereby obscuring personal and politicalresponsibility for the decisions that led to themeltdown (Curtis, 2012).

September 7, 2013 – Tokyo is selected to hostthe 2020 Summer Olympic Games. In a speechto the International Olympic Committee, PrimeMinister Abe Shinzo says the Fukushima crisisis “under control,” though decontamination anddecommissioning work is expected to continuefor decades.

September 9, 2013 – The Fukushima DistrictProsecutors Office officially transfers thecriminal case to the Tokyo District ProsecutorsOffice. On the same day, prosecutors in Tokyoannounce that they will not charge the TEPCOexecutives because there is little chance ofobtaining convictions.

October 2013 – A Citizens Group fromFukushima asks a Prosecution ReviewCommission (kensatsu shinsakai) in Tokyo toreview prosecutors’ non-charge decisionagainst 6 of the former TEPCO executives.

Ju ly 2014 – The Prosecut ion ReviewCommission in Tokyo finds that “prosecution isappropriate” (kiso soto) for 3 of the formerexecutives, which obligates prosecutors toreinvestigate the case.

January 2015 – For the second time, the TokyoDistrict Prosecutors Office decides not tocharge the 3 former executives.

July 31, 2015 – A Prosecution ReviewCommission in Tokyo concludes for the secondtime that “prosecution is appropriate” (kisosoto), which initiates the process of “mandatoryprosecution” (kyosei kiso). The panel of 11citizens on this PRC decide that the threeformer executives should be tried fornegligently causing: (a) the deaths of 44patients from Futaba Hospital, who died duringtheir evacuation from the area around theFukushima plant, and (b) the injuries of 13 SelfDefense soldiers who were hit by rubble thrownby explosions at the Fukushima plant. These 57people became the designated victims in theTEPCO criminal trial.

August and September 2015 – The TokyoDistrict Court appoints five private attorneys(recommended by Nichibenren, the JapanFederation of Bar Associations) to be the“designated attorneys” (shitei bengoshi) to playthe role of prosecutor in the mandatoryprosecution of the three former executives.

February 2016 – The designated attorneyscharge the three former executives with“professional negligence resulting in death orinjury” (gyomujo kashitsu chishishozai). Themaximum criminal punishment for this crime isfive years imprisonment or a fine of not morethan 1 million yen (about $9100). This was theninth case of mandatory prosecution since alegal reform in 2009 enabled PRCs to overridethe non-charge decisions of professionalprosecutors and compel prosecution. In theprevious eight cases, only 2 out of 11defendants were convicted.

March 17, 2017 – For the first time, a courtorders TEPCO and the Japanese government topay compensation (38.6 million yen, or about$340,000) to some of the residents who hadfled their homes after the nuclear disaster. Atotal of at least 30 civil lawsuits have been filedagainst TEPCO and the Japanese governmentover their failure to anticipate and prevent the2011 meltdown. As of September 2019, eight

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judgments have been rendered, and TEPCO haslost all eight (Dooley, Yamamitsu, and Inoue,2019).

June 30, 2017 – In the first session of theircriminal trial at the Tokyo District Court, thethree former executives plead “not guilty.” Allclaim they “do not recognize any predictabilityin the disaster.” Over the next 27 months, 37more trial sessions are held. In the penultimatetrial session on March 12, 2019, the designatedattorneys asked the Court to impose a prisonsentence of five years on each of the threedefendants.

September 19, 2019 – The three TEPCOdefendants are acquitted. Presiding JudgeNagafuchi Kenichi takes nearly three hours toread the court’s decision, which acknowledgesthat the executives were aware that a massivetsunami could strike the Fukushima plant, butconcludes that there was not enough evidenceto find that the executives should havesuspended the plant’s operation in order toavoid a nuclear accident. The court-appointedprosecutors appealed on September 30, 2019,and the appeals process is expected to take atleast a year or two.

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Zimring, Franklin E. 2017. When PoliceKill. Harvard University Press.

David T. Johnson is Professor of Sociology at the University of Hawaii. His most recentbooks are Amerikajin no Mita Nihon no Shikei [An American Perspective on CapitalPunishment in Japan] (Iwanami Shinsho, 2019), and The Culture of Capital Punishment inJapan (Palgrave Macmillan, 2020), available through Open Access.

Hiroshi Fukurai is Professor of Legal Studies and Sociology at the University of California,Santa Cruz and President of the Asian Law and Society Association (ALSA). He has publishedseven books and more than 100 articles on citizen participation in justice systems, race andinequality, Asian law and politics, and indigenous approaches to international law.

Mari Hirayama is Professor of Criminal Procedure and Criminal Justice at HakuohUniversity in Oyama, Japan. She does research on lay participation in Japanese criminaljustice, focusing on sex crime cases and the lay judge system. With David T. Johnson sherecently wrote “Japan’s Reformed Prosecution Review Commission: Changes, Challenges, andLessons,” which was published in Asian Journal of Criminology in 2019.

Notes1 More precisely, the three former executives were charged with “causing death or bodilyinjury through negligence in the pursuit of social activities” (gyomujo kashitsu chishisho),

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which is defined by Article 211 of Japan’s Penal Code as follows: “A person who fails toexercise due care required in the pursuit of social activities and thereby causes the death orinjury of another shall be punished by imprisonment with or without work for not more than 5years or a fine of not more than 1,000,000 yen. The same shall apply to a person who throughgross negligence causes the death or injury of another”.2 A discussion of the health effects of radiation is beyond the scope of this essay. Forsummaries, see Thomas and Symonds (2016) and Hooper (2015).3 The number of civil lawsuits brought against TEPCO “is far fewer than the number broughtin similar cases in the U.S.,” such as the Deepwater Horizon BP Gulf of Mexico oil spill of2010 (Yamaguchi and Muto, 2012, p.5).4 We define white-collar crime as “an illegal act, punishable by law, committed by anindividual or organization in the course of a legitimate occupation wherein a public … trust isviolated” (Walters, 2002, p.129).5 On the perils of forgetting past tsunamis and neglecting their implications for the present,see Bonnie Henderson, The Next Tsunami: Living on a Restless Coast (2014), about a tsunamithat struck the Oregon coast on March 27, 1964, after a magnitude 9.2 earthquake in Alaska.As geologic oceanographer Chris Goldfinger observes in this fine book, “It seems that themore ‘advanced’ a society becomes, the shorter its memory.” Two-and-one-half centuriesearlier, on January 26, 1700, another massive tremor in the Pacific Northwest caused atsunami that devastated coastal regions in Japan, some 5000 miles away. In a fascinating andfrightening essay, Kathryn Schulz (2015) has summarized science that shows anotherearthquake and tsunami – “the really big one” – will sooner-or-later “destroy a sizable portionof the coastal Northwest” of the United States. In her view, the only question is when – andnorthwestern North America is utterly unprepared for it.6 The story of the nuclear meltdowns at Fukushima is closely tied to Japan’s pursuit of rapideconomic growth in the postwar period. Indeed, one fundamental cause of this disaster is “theboundless appetite for power needed to drive [Japan’s] economy” (Repeta, 2011, p.192).7 A recent review of worldwide nuclear accident data found that “Japan has had more nuclearaccidents of greater severity than other countries” (Behling, Williams, and Managi, 2019,p.308).8 Unlike the selection of jurors in the United States and of lay judges in Japan, there is no voir direfor selecting PRC members, though some citizens are excluded by law from participating,including ex-convicts and elected officials. Each member of a PRC serves for six months, and aforeperson is selected to lead it. The PRC system is administered by a government office known asthe Prosecution Review Commission Office, and each PRC is largely reliant on secretaries(jimukan) in the judiciary for assistance in managing and processing its caseloads (Fukurai, 2013).9 In addition to corporate and white-collar crime, at least two other types of crime are under-prosecuted in many societies, including Japan and the United States: sexual assaults, anddomestic violence. In the United States, shootings by police are seldom charged as well(Zimring, 2017, ch.9). On the tendency of law (“governmental social control”) to more oftenbe directed “downward” (toward persons who lack wealth, power, prestige, and influence)than “upward,” see Donald Black, 1976, pp.11-36. On the same tendency in Japan, see DavidT. Johnson (1999), which echoes Jonathan Swift by noting that criminal laws in Japan “are likecobwebs, which may catch small flies, but let wasps and hornets break through.”10 One question concerns how much influence legal advisors have on PRC decision-making.

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More research is needed on this subject, but three things seem clear. First, the legal advisor’srole is important. Second, many legal advisors are unsure how proactive to be in theirinteractions with PRC members, and some believe they should not lead a PRC to deliberate orvote in a certain way. Third, final authority for making a charge decision rests with the PRC.Note, too, that requests for PRC review come from ordinary citizens (not from legal advisors),and that in high-profile cases (such as TEPCO and Rikuzankai), the citizens who serve on aPRC are often aware of relevant facts and issues. For more on legal advisors, see JFBA(2016).11 In most cases of mandatory prosecution, the designated attorneys are not well paid. In theTEPCO case, for example, each designated attorney was paid less than 1,000,000 yen peryear, which is less than $10,000 (Nishimura, 2019). In 2016, the Japan Federation of BarAssociations published a 15-page report recommending a number of PRC reforms, includingpay increases, “management improvements,” and other “system reforms” (see JFBA, 2016).12 Japan’s PRCs are not the only legal institutions that have failed to produce many criminalconvictions. In nearly two decades, the highly publicized International Criminal Court “haswon only four convictions, and its caseload has consisted mainly of African leaders” (seeLondono, 2019).13 Death and serious injury are common in Japanese judo classes. From 1983 to 2011, at least 118students died as a result of judo class exercises (an average of 4 deaths per year). In the Naganotrial, Kojima Takeshima, the father of one judo victim (Kojima Musashi) and the vice president ofthe Judo Accident Victims Association, testified about the frequency of judo deaths and injuries.14 The figures for 1949 to 2001 come from unpublished studies by former prosecutorYamashita Terutoshi. We are grateful for his assistance. For the decade from 2002 to 2011,Yamashita found that the charge rate by prosecutors after a PRC “kicked back” a case was 25percent.15 The five white-collar crime indictments are: (1) professional negligence by the Deputy Chiefof the Akashi Police Department in the Akashi Pedestrian Bridge incident; (2) professionalnegligence by three railway company presidents in the JR West Amagasaki Rail Crash case;(3) insider trading by a company president in the Okinawa Unlisted Stock Fraud case; (4)political funding violations by Democratic Party of Japan (DPJ) leader Ozawa Ichiro in theRikuzankai case; and (5) corporate and professional negligence by three executives in theTEPCO case.16 Article 2 of Japan’s Code of Criminal Procedure states that “The territorial jurisdiction of courtsis determined by the place where the crime was committed, the place where the domicile or theresidence of the accused is located, or the place where the accused is at present.” In the TEPCOcase, the second and third provisions were deemed to trump the first one, though the process bywhich this occurred warrants additional study (Articles 17, 18, and 19 of the CCP are alsorelevant).17 More precisely, control of the TEPCO case shifted from Fukushima to Tokyo throughshobun seikun (“request for instructions as to steps to be taken”), which is “less a form ofconsultation and approval than a complete ‘takeover’ of the case by prosecutor executives”(Johnson, 2002, p.131).18 Some analysts believe prosecutors did not want to indict TEPCO executives because aformer Prosecutor General (kenji socho, which is Japan’s top prosecutor) had “descendedfrom heaven” (“amakudatte iru”) to be an auditor (kansayaku) for the company (Kawai, 2015).

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On this view, corruption and/or old-boy influence caused prosecutors not to charge.19 Summaries of each TEPCO trial session and of the judicial decision are available here.20 Trials before lay judge panels need to be more concentrated in time than trials beforepanels of professional judges because the citizens who serve as lay judges have work andfamily responsibilities.21 If the TEPCO executives really believed that a severe nuclear accident was impossible, theirbelief must have been the product of considerable “confirmation bias” (the tendency toovervalue evidence that supports a pre-existing belief and undervalue evidence thatcontradicts it). Responsibility for the failure to recognize and resist this bias can be located inmany actors and institutions, but much of it surely belongs in TEPCO’s safety-secondorganizational culture (Diet Report, 2012) and in Japan’s lax system of regulation (Kingston,2012). The next sub-section suggests that Japanese judges in the TEPCO trial may also havebeen influenced by confirmation bias in their evaluation of evidence about safety andreasonable care.22 Of course, even after 3/11, the “myth of safety” was not always acknowledged to be a fairytale, even in the United States (Pascale, 2017).23 A legal “duty of care” is the requirement that a person act toward other people and thepublic with the watchfulness, attention, caution, and prudence that a reasonable person in thecircumstances would use. If a person’s actions do not meet this standard of care, then his orher acts are considered “negligent.”24 The Tokyo District Court also disregarded evidence that TEPCO had repeatedly concealednuclear plant safety incidents. As explained in the Timeline in our Appendix, TEPCO admittedin August 2002 that it had submitted false technical data at least 200 times between 1977 and2002, and in 2007 it announced that an internal investigation had revealed still moreunreported safety problems.25 In civil cases in Japan, nuclear victims “have to overcome high hurdles to make use ofjudicial remedies,” and most lawyers have not been educated to employ innovative strategieswithin their practice (Suami, 2015, p.184). More generally, on the consequences ofFukushima in Japanese civil and administrative law, see Matsui (2018) and Jobin (2019).26 Princeton University philosopher Harry G. Frankfurt believes one of the most salientfeatures of modern cultures is that “there is so much bullshit,” and he argued that “bullshit isa greater enemy of the truth than lies are” (Frankfurt, 2005, pp.1, 61). For similar views, seeMichiko Kakutani’s (2018) account of “the death of truth,” “the decline and fall of reason,”and the rise of “propaganda and fake news” in the modern world.27 The common view is simplistic and misleading. A Japanese criminal justice system thatconvicts almost all defendants is actually quite protective of the interests of criminal suspects,because many suspects who would get charged in similar circumstances in other criminaljustice systems (including those in the USA) do not get charged in Japan (Johnson, 2002,p.214; Foote, 1992, pp.346-350; Bazelon, 2019).28 The acquittals in the TEPCO trial were not only important to Japan’s nuclear industries and theAbe administration, which has long supported nuclear power. They were also welcomed byproponents of nuclear energy around the world, including GE, Westinghouse, Areva, and theuranium mining industry.29 For an insightful critique of two contrasting views of Japan’s judiciary (“Political Lackeys orFaithful Public Servants?”), see Frank Upham (2005).

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30 A spokesman for TEPCO declined to comment on the acquittals but said the companyexpressed its “sincere apologies for the great inconvenience and concern that the TEPCOFukushima nuclear accident has caused on the people of Fukushima prefecture and society asa whole” (quoted in Dooley, Yamamitsu, and Inoue, 2019). He might just as well have said:“Sorry about the radiation, folks. We know it is inconvenient.” 31 John G. Kemeny was the President of Dartmouth College. The complete text of the KemenyCommission’s report (1979, pp.1-178) is available here.32 There are, of course, other cases that could be compared to TEPCO. One is the DeepwaterHorizon (British Petroleum) oil spill of April 2010, which was the largest marine oil spill onrecord and one of the biggest environmental disasters in American history. The originalexplosion killed 11 workers, and nearly 5 million barrels of oil (210 million gallons) werespilled in the Gulf of Mexico. In November 2012, British Petroleum and the U.S. Departmentof Justice settled federal criminal charges, with BP pleading guilty to 11 counts ofmanslaughter, two misdemeanors, and a felony count of lying to Congress. BP also agreed tofour years of government monitoring of its safety practices and ethics, and the EnvironmentalProtection Agency announced that BP would be temporarily banned from new contracts withthe US government. In 2014, a U.S. District Court judge ruled that BP was primarilyresponsible for the oil spill because of its “gross negligence” and “reckless conduct.” As of2018, cleanup costs, charges, and penalties had cost the company more than $65 billion(including $18.7 billion in fines, the largest corporate settlement in U.S. history). Bycomparison, the Japan Center for Economic Research has estimated that cleanup costs forFukushima will reach at least $470 billion.33 The most urgent example of the perils of “business as usual” is global warming, which is“worse, much worse” than most people think (Wallace-Wells, 2019). Without major change inhow corporations conduct business (and how billions of people conduct their lives), parts ofplanet earth could well become “close to uninhabitable” by the end of this century, and otherparts will surely become “horribly inhospitable” (Wallace-Wells, 2019). We do not claim thatsolutions to this problem are simple, and we thank Japan Focus editor Mark Selden forpointing out the importance of considering the possibility (and necessity?) of “slower growthin a redistributive world economy” (email of December 25, 2019). We also recognize thatsome analysts believe nuclear energy is a “viable and practical solution to global warming”(Cravens, 2008). Even Adam Higginbotham (2019), author of a terrifying history of thenuclear meltdown at Chernobyl, observes that from a statistical point of view, nuclear poweris safer than alternative sources of energy such as coal and oil.