Stephen Givens is a corporate lawyer and an adjunct professor at Keio University Law School in Tokyo.
By Stephen GIVENS
U.S. Senator Mike Lee is threatening Japanese Prime Minister Fumio Kishida that he will put Tokyo's security arrangements with Washington under congressional review unless an imprisoned Navy officer is released and allowed to return home by the end of the month.
Put aside the recklessness of a threat, by Twitter post no less, to upset security arrangements with America's strongest Asian ally over the alleged mistreatment of an individual citizen. Ignore the arrogance of assuming it is in the power of the prime minister to overturn a verdict reached by an independent court.
The underlying premise of the Utah Republican's salvo - that Lt. Ridge Alkonis is unfairly and discriminatorily serving a three-year sentence for negligent driving when a Japanese citizen would have escaped prison time - is mistaken. Lee, a former U.S. Supreme Court clerk with a distinguished career as a litigator and federal prosecutor, should get his facts right.
In May 2021, Alkonis, then a 33-year old U.S. Naval Academy graduate stationed to a ship based at Yokosuka Naval Base, fell asleep at the wheel and drove his car, in which his wife and three children were passengers, into the parking lot of a soba restaurant at the base of Mount Fuji, 120 meters above sea level.
Alkonis' vehicle piled into parked cars and struck and killed an 85-year-old woman and her 54-year-old son-in-law. The woman's daughter was also injured.
Under Japanese law, traffic accidents resulting from simple negligence can be, and frequently are, criminally prosecuted.
When an accident results in death, the likelihood of criminal prosecution rises dramatically. In 2020 Japan recorded 2,839 traffic-related deaths, compared with 38,324 in the U.S.
Over a third of those fatal Japanese accidents resulted in criminal prosecutions for simple negligence. Another 247 involving aggravating factors such as alcohol, high speed or running a red light were prosecuted under a different statute.
Lee and some of his colleagues have asserted in letters to Kishida that Alkonis suffered discrimination as a foreigner, citing the statistic that "95% of similarly charged defendants [who are Japanese nationals] get a suspended sentence, meaning they do not serve prison time."
That statistic, as far as it goes, is accurate. Of the 1,071 drivers charged with criminal negligence in fatal cases in 2020, 1,001, or 94%, were given suspended sentences.
What Lee overlooks, however, is that the vast majority of those granted suspended sentences, unlike Alkonis, were in accidents that killed a single victim. When driver negligence leads to multiple deaths, the odds of a suspended sentence sharply decline. Conversely, as a general rule, the larger the number of victims, the longer the prison sentence.
A highly publicized fatal car accident in Tokyo in 2019 provides context. In that case, an 87-year-old retired civil servant mistakenly hit the accelerator instead of the brakes of his Toyota Prius. He then struck and killed a mother and child and injured nine in a crowded area in front of Ikebukuro Station.
The elderly driver's claim that his car drove into the crowd on its own as a result of "sudden acceleration syndrome" failed to convince the court. Despite the defendant's advanced age and the absence of criminal intent, the court imposed a prison sentence of 5 years that the defendant chose not to appeal and is still serving today.
It may strike Lee and others brought up in the Anglo-American legal tradition as arbitrary that criminal punishment of unintentional negligence in Japan is a function of the number of deaths that happened to result, quite apart from the culpability or degree of negligence involved.
To many Westerners, it will seem unjust that Alkonis would likely be a free man today if he had been "lucky enough" to have limited the damage from his conduct to a single death.
Japan's criminalization of negligence without criminal intent reflects an ancient "eye for an eye" morality like that found in the Old Testament and the Code of Hammurabi. Lee may not like it, but it happens to be the law in Japan.
Another factor that may have tipped the balance in the direction of a prison sentence was Alkonis' claim that he fell asleep at the wheel as a result of a sudden and unexpected attack of altitude sickness after driving in the foothills of Mount Fuji, a claim that both the trial court and appeals court found unconvincing after extensive examination of the evidence.
Whether his drowsiness was the result of a lack of oxygen - at an altitude of a mere 120 meters - or simple fatigue, the evidence was clear that he was swerving in the lane for some time before the fatal crash but continued to press on. Under Japanese law, failure to pull aside and stop in such circumstances is an aggravating factor that often leads to the imposition of a criminal sentence.
Alkonis' supporters, though, say he was denied a complete medical examination after his arrest that might have supported his claim of illness and have protested the conditions under which he was detained and questioned. To many Japanese, however, his complaints would likely sound like an expectation of preferential treatment.
Meanwhile, his case has been getting attention from the highest levels of the U.S. government.
Vice President Kamala Harris personally raised it with Kishida last September, a White House official told the Stars & Stripes newspaper. Alkonis' wife took it up with President Joe Biden in an apparently impromptu encounter at the U.S. Capitol after he completed his State of the Union address to Congress two weeks ago, with a supporter tweeting a video afterward of Biden telling her, "I promise you, we're not giving up, OK?"
Congress also included a special measure continuing Alkonis' pay and benefits during his imprisonment in a spending bill passed at year-end.
But the facts simply do not support the charge that Alkonis was the victim of a double standard of justice stacked against foreigners. The reality is that there are dozens of Japanese serving time for similar instances of unintentional negligence behind the wheel.
Lee should be ashamed for bullying an ally based on an ill-informed smear against its justice system.