Unifying Incarceration: Japan's 2025 Criminal Law Reform and the New "Custodial Sanction"

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

A significant reform to Japan's Penal Code is set to take effect on June 1, 2025, fundamentally altering the landscape of its custodial punishments. The traditional distinction between "imprisonment with labor" (懲役, chōeki) and "imprisonment without labor" (禁錮, kinko) will be abolished, replaced by a new, unified "custodial sanction" (拘禁刑, kōkin-kei). This change is more than a mere terminological adjustment; it signals a noteworthy shift in Japanese penological philosophy, particularly concerning the role and purpose of labor within the penal system, and invites a deeper reflection on the theories of punishment itself.

The Traditional Dual System: Chōeki and Kinko

For over a century, the Japanese Penal Code has maintained two primary forms of imprisonment for adults:

  1. Imprisonment with Labor (Chōeki): This has been the more common form of custodial sentence, applied to a wide range of offenses. As stipulated in the former Article 12, Paragraph 2 of the Penal Code, chōeki involved "detention in a penal institution and performance of assigned work." The crucial element here was that labor was an integral and compulsory component of the punishment itself, intended as an additional hardship beyond the mere deprivation of liberty. It was often seen as reflecting a retributive element, where the offender "paid their debt" through toil.
  2. Imprisonment without Labor (Kinko): This form of imprisonment involved detention in a penal institution without the mandatory imposition of labor. Historically, kinko was typically reserved for offenses arising from negligence (e.g., negligent homicide) or for certain political offenses. The rationale was that for crimes not involving malicious intent or moral turpitude deemed to warrant the additional punitive element of forced labor, simple deprivation of liberty was considered sufficient. Inmates sentenced to kinko could, however, volunteer for work.

This dual system reflected a hierarchy of severity, with chōeki generally perceived as the harsher penalty due to the obligatory labor component.

The 2025 Reform: The Unified "Custodial Sanction" (Kōkin-kei)

The upcoming reform eliminates this long-standing distinction. The new Article 12, Paragraph 2 of the Penal Code will define the unified "custodial sanction" (kōkin-kei) simply as "detention in a penal institution" (刑事施設に拘置する, keiji shisetsu ni kōchi suru).

The most profound substantive change lies in the elimination of compulsory labor as an inherent part of the punishment. While work will still be a feature of prison life, its legal basis and purpose are being fundamentally redefined. The new Article 12, Paragraph 3 states: "For those sentenced to the custodial sanction, necessary work may be imposed, or necessary guidance may be provided, for the purpose of achieving reformation and rehabilitation" (改善更生を図るため、必要な作業を行わせ、又は必要な指導を行うことができる, kaizen kōsei o hakaru tame, hitsuyō na sagyō o okonawase, mata wa hitsuyō na shidō o okonau koto ga dekiru).

This explicit linkage of any work or guidance to the goals of "reformation and rehabilitation" (kaizen kōsei) marks a clear departure from the punitive nature of labor under the old chōeki system. Labor is no longer a retributive add-on to the deprivation of liberty but a tool to be used, where deemed necessary and appropriate, for the offender's eventual reintegration into society. In its essence, the new kōkin-kei structurally resembles the former kinko, with the potential for work and guidance programs focused on rehabilitation.

Penological Shifts: From Retributive Labor to a Rehabilitative Focus

This unification and redefinition reflect a significant evolution in the underlying penological philosophy in Japan. By detaching labor from its traditionally punitive role, the reform signals a stronger emphasis on the rehabilitative potential of custodial sentences. This aligns with broader international trends in corrections that prioritize offender rehabilitation and successful societal reintegration over purely retributive or deterrent models of punishment.

The shift prompts a reconsideration of why society punishes and what it aims to achieve through incarceration. The old chōeki system, with its element of forced labor, carried a certain intuitive, albeit perhaps unsophisticated, retributive logic for many. As some legal commentators have noted, for crimes committed out of self-interest or for illicit gain—which constitute a vast majority of offenses—the imposition of unpaid labor could be seen as a symmetrical form of justice: the offender, having selfishly burdened others or society for their own benefit, was in turn made to bear the burden of labor for the (notional) benefit of the state or society. This "reversal" of the criminal act's dynamic resonated with a basic sense of "balancing the scales."

This intuitive view of punitive labor can be linked to two broader ideas:

  1. The notion, prevalent in Japanese legal consciousness, that the presence or absence of illicit gain (不法な利得, fuhō na ritoku) significantly influences societal and even judicial assessments of an offense's wrongfulness and the offender's culpability. For example, a lack of self-enrichment is often considered a mitigating factor in sentencing.
  2. A traditional understanding of retribution, often termed a "harm-responsive retributive theory of punishment" (実害対応型応報刑論, jitsugai taiō-gata ōhōkeiron). This theory posits that punishment is, at its core, a direct and proportionate response to the concrete harm inflicted by the crime. The abolition of compulsory punitive labor can be interpreted as a move away from this direct, almost physical, form of "harm-for-harm" retribution.

Alternative Theories of Retribution: The "Norm-Protective" View

In contrast to the "harm-responsive" model, contemporary Japanese legal philosophy, influenced by thinkers like Professor Ida Makoto, has explored a more nuanced "norm-protective retributive theory of punishment" (規範保護型応報刑論, kihan hogo-gata ōhōkeiron). This perspective offers a different lens through which to understand the purpose of punishment and, potentially, the significance of the new kōkin-kei.

According to this theory:

  • The primary "harm" that criminal punishment addresses is not merely the concrete damage to an individual victim (e.g., the loss of life in a murder, or property in a theft) but the broader damage inflicted upon the authority and validity of the legal norm that was violated. A crime, by transgressing a legal prohibition, "shakes the efficacy of the legal norm" (刑法規範の効力を動揺させ) and expresses a "negation of the law."
  • Punishment, therefore, serves to "re-negate this negation." By holding the offender accountable, the state reaffirms the breached legal norm, restores its authority, and protects its continued efficacy as a guide for societal behavior.
  • From this viewpoint, the ultimate "victim" that criminal law seeks to vindicate is the legal order or the specific norm itself, more so than the individual who suffered direct harm. This conceptual shift aims to decouple the justification and measure of punishment from raw victim emotions or purely utilitarian calculations of deterrence, grounding it instead in the more abstract, societal need to uphold the rule of law.

The abolition of chōeki and its inherently punitive labor component can be seen as a step away from the direct, tangible retribution of the "harm-responsive" model. The new kōkin-kei, by centering detention and then allowing for work and guidance explicitly for "reformation and rehabilitation," de-emphasizes the infliction of suffering through labor as a primary punitive goal. This may align more comfortably with a "norm-protective" understanding of retribution, where the core of punishment lies in the authoritative condemnation of the norm violation and the reinforcement of that norm, rather than in the meting out of a specific quantum of physical hardship equivalent to the crime's perceived severity.

Practical Implications of the Unified Sanction

The transition to a unified custodial sanction will necessitate significant adjustments in prison administration and inmate management:

  • Individualized Programming: With labor no longer compulsory for all (as it was under chōeki), there will likely be a greater need for individualized assessment of inmates to determine what kind of work, educational programs, or therapeutic guidance is "necessary" and most conducive to their "reformation and rehabilitation."
  • Resource Allocation: Resources previously dedicated to managing universal prison labor may need to be reallocated or repurposed for more diverse and tailored rehabilitative programs.
  • Maintaining Order and Purpose: While punitive labor is being removed, structured activity remains crucial for maintaining order within penal institutions and providing inmates with a sense of purpose. The challenge will be to design and implement work and guidance programs that are genuinely rehabilitative and engaging, rather than merely Cccupational.
  • Sentencing Practices: Courts will no longer choose between chōeki and kinko. They will sentence offenders to kōkin-kei for a specified term. The focus will then shift to the correctional authorities to determine the content of the inmate's term, guided by the principles of Article 12, Paragraph 3.

Some commentators suggest that this reform, by de-emphasizing direct physical retribution like punitive labor, might have subtle, long-term connections to broader debates about the nature and limits of punishment in Japan. For instance, if the primary justification for punishment shifts more decisively towards norm protection and rehabilitation rather than inflicting a quantum of suffering proportionate to the harm caused, it could influence how society views other severe sanctions, including the death penalty. If punishment's main goal is to uphold legal norms, arguments about the necessity of the ultimate physical sanction (death) might be framed or received differently in future discussions. The abolition of punitive labor is a significant step in recalibrating the symbolic and practical meaning of incarceration.

Conclusion

The introduction of the unified "custodial sanction" (kōkin-kei) in Japan, effective June 2025, represents a landmark reform in its criminal justice system. It moves beyond a simple merger of previous forms of imprisonment by fundamentally re-characterizing the role of labor in penal servitude. By explicitly linking work and guidance programs to the objectives of reformation and rehabilitation, the law signals a departure from the tradition of compulsory punitive labor inherent in chōeki.

This shift can be interpreted as aligning Japanese penology more closely with modern rehabilitative ideals and potentially with more abstract, norm-focused theories of retribution. While the long-term effects on correctional practices, inmate outcomes, and broader societal attitudes towards punishment remain to be seen, this reform undeniably marks a pivotal moment in the evolution of Japan's approach to incarceration. It will be closely watched by legal scholars and practitioners both domestically and internationally as Japan navigates the philosophical and practical implications of this new chapter in its penal history.