The Japan Times
Ending the secret life of the death penalty
The new lay judge system in Japan will force many citizens to think more deeply about capital punishment than ever before
By DAVID T. JOHNSON
Special to The Japan Times
Japan's former Justice Minister Keiko Chiba surprised many people when she ordered the hanging of two convicted killers at the end of July.
For one thing, Chiba is a death penalty abolitionist who, prior to becoming justice minister in September 2009, spoke openly and often about Japan's need to ban a punishment that has been abandoned in law or practice by 70 percent of the nations in the world. For another, Chiba observed these executions, making her the first justice minister to watch the state killings that only this official can authorize.
It is unclear why Chiba ordered these hangings. Perhaps she believed it was her legal duty to do so (though many scholars disagree). There is also evidence that she was pressured by prosecutors in her ministry, who in the past have pushed reluctant ministers to keep the machinery of death moving lest the country drift into another moratorium on executions like the one it experienced for 40 months between 1989 and 1993.
Whatever the reasons, Chiba used the occasion of these executions to stimulate a much-needed discussion of Japan's death penalty, which has long been surrounded by secrecy, silence and ignorance. Among other things, she allowed a handful of reporters to observe the gallows in Tokyo, and she created an insiders-only "study group" in the Ministry of Justice to consider issues related to the retention and use of capital punishment.
Chiba recently was replaced as justice minister by Minoru Yanagida, but before leaving office she stressed that she expects the study group to continue. Toward that end, this essay explores several central questions about capital punishment in Japan, none of which has received the attention it deserves. Transparency
First, what would it mean for the study group to do what Chiba intended it to do: encourage public discussion and debate about the institution of capital punishment?
Permitting a few carefully selected reporters to view the Tokyo gallows is one welcome step away from the thoroughgoing secrecy that surrounds executions in Japan, but it is only a baby step. Observing the gallows when they are not in operation reveals as much about how executions are administered as walking through an empty Tokyo Dome reveals about how the Yomiuri Giants play baseball.
For real information openness to occur, a limited number of journalists and at least a few family members and friends of the victims and condemned must be allowed to watch how the state kills.
Real information openness also requires much more disclosure about the conditions on Japan's seven death rows. A 2009 report by Amnesty International concluded that Japan's treatment of condemned inmates violates its obligations under the International Covenant on Civil and Political Rights. Because persons on death row are imprisoned in almost total isolation for years or even decades — they are socially extinguished before they are physically killed — many of them develop serious mental health problems.
More information openness should also be extended to the death row inmates themselves, both with respect to their communications with family, friends and supporters (which are highly restricted), and with respect to the timing of their own executions.
At present, inmates on death row are not notified of the date of execution until an hour or two before it occurs. Some inmates are even extracted from their cells on the ruse that they are "wanted in the office." At most, the condemned is given only enough time to clean his or her cell, write a final letter and receive last rites.
Officials in the Ministry of Justice say that the purpose of the sudden your-time- has-come policy is to maintain the "emotional stability" of the condemned, but this is a dubious claim. In reality, the current notification policy means that most inmates live for years on death row not knowing if the present day will be their last. It also means that officials in the ministry who maintain the present policy are shielded from outside scrutiny and criticism — and from last-minute appeals by the condemned. In this sense, the purpose of the present policy appears to be protection.
Transparency also requires officials in the ministry to explain how they choose who will be hanged next. At present, 107 persons (including seven women) have received a finalized sentence of death. Twenty-eight of these people have been eligible to be executed for at least 10 years, and one man has been on death row since 1970. By law, any of the 107 could be chosen to die next, leading some observers to conclude that prosecutors are "playing god" when they choose names to present to the minister of justice for the signature that authorizes hanging.
When Kazuo Shinozawa and Hidenori Ogata were hanged on July 28, they were pushed ahead of 60 men and women who were condemned to death before they were. In the absence of any explanation about the order of execution, decisions about who to hang seem arbitrary and capricious. Public opinion
Surveys show that more than 80 percent of Japanese adults support the death penalty, and many of these supporters believe that the continued use of capital punishment reflects democracy at work. But what is the relationship between public opinion and death penalty policy and practice?
And in the face of widespread public support, is it unrealistic to suppose that Japanese leaders could retire their hangmen and abolish a sanction that more than half of other Asian nations have already quit?
Not if there is political will. When jurisdictions abolish capital punishment, as Hong Kong did in 1993 and the Philippines did in 2006, they invariably do so despite widespread public support for the institution at the time of the policy change. The same is true when countries stop executing without changing the law, as South Korea did in 1997. Sometimes leaders need to lead from the front, not simply follow public opinion.
A related question is how much consideration should be given to the feelings of crime victims and the bereaved. For much of the postwar period they did not receive the regard or help that they should have, though in recent years the situation has improved. But solicitude for victims' feelings can also be taken too far, for in the end the criminal process is not merely a victim-service program. Saying this will not win me many friends among those who have had loved ones murdered, but it does need to be recognized. The criminal justice system must serve a wide array of interests and values.
What is more, when the death penalty is framed as a matter of satisfying victims and helping them to achieve "closure" — as is often the case in Japan and the United States — one important effect is to legitimate a sanction that has become increasingly difficult to justify on other grounds. It is no coincidence that the acceleration of "serving victims" rhetoric corresponded with death penalty increases in both Japan after 2000 and in the United States a decade earlier.
We also must ask how many victims and survivors feel served by capital punishment — and how many feel disserved. In Japan, a death sentence is imposed on only 1 or 2 percent of all homicide offenders — about the same percentage as in the United States.
If the severity of sentence is deemed to reflect how much a victim is valued, then the infrequent application of capital punishment encourages the perception that the vast majority of homicide victims are not fully respected. To prevent this perception, Japan would need to use the death penalty much more often than it does at present. Deterrence
If the death penalty deters better than a long term of imprisonment, then executing convicted killers might be considered a prudent approach to public safety, for fewer people would die in a system with capital punishment than in one without it.
One key question, therefore, is whether the death penalty deters homicide, which in practice is the only offense that leads to a capital sentence in Japan.
The available evidence demonstrates that capital punishment deters no better than a long prison term. In Japan, executions fell from an average of 25 per year in the 1950s to an average of 1.5 per year in the 1980s, yet the country's homicide rate dropped 80 percent over the same period of time.
Likewise, in 1997, the last year that South Korea executed, 23 persons were hanged on Dec. 30. South Korea's execution record is similarly "lumpy" for the previous 35 years, with mass executions on a single day interrupting long periods without any executions, yet there is no discernible difference in homicide between the months or years following mass execution and the months or years preceding it.
The most telling test of the capacity of capital punishment to deter homicide comes from a comparison of Hong Kong and Singapore. These two jurisdictions resemble each other in many ways — British colonialism, economic development, Sinocentric culture — but they have death penalty policies that are as divergent as any can be.
Hong Kong has had no executions since 1966 and formally abolished the death penalty in 1993, while Singapore went from no more than four or five executions a year in the late 1980s to the world's highest execution rates in the mid-1990s, before reducing executions by more than 90 percent in the subsequent decade.
Therefore, Singapore, in practice, has conducted two of the most dramatic death penalty experiments on record — a huge increase followed by an extraordinary decline. Since Hong Kong is execution-free throughout the same period, if the death penalty deters homicide, then we would expect to see major differences in these two cities' murder trends.
But that is not at all what we find. Instead, the murder rates in Hong Kong and Singapore have tracked each other closely for nearly four decades. Singapore's homicide decline started well before the execution surge of the mid-1990s and continued thereafter, leaving the city slightly safer in an era of five or fewer executions per year (2005-2009) than it was with 50 or more (1994-1996).
Hong Kong's homicide experience is so similar that the two cities' murder rates seem to be holding hands since the early 1970s. At present, Hong Kong — with no executions for 44 years — is every bit as safe a city as Singapore.
In 1994, at the peak of Singapore's execution surge, the city-state executed 76 people, which is as many as Japan (with a population 30 times larger) executed in the 30 years between 1978 and 2007. Yet compared to Hong Kong, Singapore received no extra deterrence from its aggressive execution policy. It would be folly to suppose that Japanese jurisdictions enjoy greater crime control benefits from their vastly less frequent use of the same sanction. Looking forward
Nobel Prize laureate Albert Camus observed that "instead of saying that the death penalty is first of all necessary and then adding that it is better not to talk about it, it is essential to say what it really is and then say whether, being what it is, it is to be considered as necessary." Japanese officials have long promoted a "better not to talk about it" policy.
The question they now ought to confront is why they want to keep a sanction that is not needed for crime control, especially when it is inconsistent with the country's best values.
Sometime soon Japanese citizens will be asked to make life and death decisions in lay judge trials. It is difficult to predict what the effects of this new form of lay participation will be.
On the one hand, there is much anxiety about crime in Japan, and there is plenty of room in the lay judge system to allow fear, fury and wishful thinking to shape sentencing decisions. Because of the lifetime confidentiality requirement imposed on lay judges, there is also no way for society to learn what transpired in sentencing deliberations.
On the other hand, there is some evidence suggesting that the more people know about the death penalty, the less they like it. Japan's lay judge system will force many citizens to think more deeply about the death penalty than they ever have before. But that is not enough. If the Ministry of Justice study group is serious about its mission, it will do everything it can to encourage informed discussion about an institution of punishment that is as unnecessary for crime control as it is impossible to administer in a manner that is fair, just and accurate.
David T. Johnson is professor of sociology at the University of Hawaii. His book "The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), received awards from the American Society of Criminology and the American Sociological Association. It has been translated into Japanese as "Amerikajin no Mita Nihon no Kensatsu Seido: Nichibei no Hikaku Kosatsu" (Springer-Verlag, 2004). Johnson is also coauthor, with Franklin E. Zimring, of "The Next Frontier: National Development, Political Change, and the Death Penalty in Asia" (Oxford University Press, 2009).
The Japan Times: Sunday, Sept. 26, 2010
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