The Death Penalty Debate in Japan
A Heterogeneous Phenomenon
Volume 19, Issue 1 (Article 1 in 2019). First published in ejcjs on 7 May 2019.
Capital punishment has been conducted in Japan since 1948 and governmental institutions have commonly depicted it as a legal measure widely supported by the public opinion. However, the death penalty debate is a complex phenomenon in the country, as there is a heterogeneity of narratives and actors are intertwined with one another. Through frame-transformation, supporters and detractors of the punishment have been using the same arguments in order to defend their stance. Over the years, internationalisation and the development of mass and social media have also transformed the death penalty debate. Moreover, it has been kept alive through its connection with other measures of the penal system as well as through its own new approaches. Although it is widely believed that there is a homogenous approach to capital punishment in Japan, the research conducted in this study proves that its discussion is conditioned by very different arguments, voices and interests.
Keywords: Death penalty, capital punishment, atonement through dead, human rights, Japan
Capital punishment was declared constitutional by the Japanese Supreme Court on March 12, 1948 and it has been carried out steadily since then with the only exception of the recent moratorium periods (Obara-Minnitt 2016, p. 20). During such episodes, the Minister of Justice continued justifying the necessity of the system and not even with the change of power in 2009 there were any strong initiatives from the Government for its abolition. The Democratic Party of Japan declared at the time that it ‘“stands abreast” with the former ruling party—the conservative LDP—in its commitment to the continuation of capital punishment’ (Kita and Johnson 2014, p. 2). Nevertheless, since the exoneration cases of falsely-accused death row inmates in 1982, the death penalty has increasingly gained public coverage in the country (Futaba 1984). Moreover, its connection with other argued measures of the penal system, such as the saiban-in and the daiyō kangoku, has kept the discussion on its adequacy alive.
On October 7, 2016 the Japan Federation of Bar Associations proposed to the Japanese Government the replacement of capital punishment with the imprisonment without parole (The Asahi Shimbun 2016). This event not only has opened a new path of discussion, but it has also put again the death warrant debate in the spotlight, making it more necessary than ever to understand this phenomenon. It is generally believed that the debate consists of a dialogue between two well defined groups—those opposing the perpetuation of the measure and those defending it. However, in this paper an attempt is made to prove that the main characteristic of the death penalty debate in Japan is its heterogeneity in the narratives and narrators which take part in it.
In the first section of this article, the different actors and their supposed standpoints are introduced in order to show the state of affairs of the Japanese death penalty debate in general terms. Subsequently, the main dialogues are analysed, followed by a discussion of the practical implications that they might have for future developments of the legal measure in the country. In a final section, the different discussions are brought together in order to show how there is not a consensus among the Japanese society over the death penalty, as it has been often claimed. The diversification of arguments and actors over the years has weakened the mainstream narratives of the Japanese Government and the mass media, opening the possibility for the reform of the measure.
The Different Actors In The Death Penalty Debate
In debates which allow a pro and con approach, it seems only natural to regard in such terms their different actors. The discussions concerning the death penalty and its maintenance in Japan are not free of such analysis, which tend to distinguish specially between two kinds of narrators: the Japanese Government and human rights organisations. According to professor Mika Obara-Minnitt (2016, p. 186) the Government and the NGOs are the ones that hold stronger positions in the debate and ‘tend to consider that they are at different ends of the spectrum’, and it seems that they also regard themselves in such terms: Susumu Murakoshi (2016), president of the Japan Federation of Bar Associations (JFBA), reproached the ruling party in an official statement for disregarding the institution’s demands for the abolishment of the capital punishment. He claimed that ‘the JFBA once again strongly protests such executions’. This assessment shows that the JFBA members have a defined position in the debate and that the lack of understanding between the institution and the Government is not a recent concern. However, other sources provide data that cast doubts about the uniformity of the approaches within both sectors of the discussion.
The claim that the Japanese Government holds a single and solid position in the death penalty debate loses strength the moment the moratorium periods are acknowledged. Although during these short episodes the ministers of justice tried to justify the maintenance of the measure, as it was mentioned before, they manifested their personal opposition to it. For example, during the moratorium between 1989 and 1993, Minister Sato Megumu stated that his ‘personal beliefs’ did not allow him to authorise any execution (Obara-Minnitt 2016, p. 227). Moreover, according to Amnesty International Japan (2006a, p. 2), at the time ‘senior former officials and hundreds of Diet members also expressed opposition to the death penalty’.
After this moratorium, other relevant figures of the government have made similar statements. It is especially relevant the case of Sugiura Seiken: in his first official speech as Minister of Justice, he declared that he was not going to authorise any execution due to his commitment to the Jodo Shinshu’s teachings and his philosophical beliefs (Obara-Minnitt 2016, p. 191). Although he retracted himself in the end, his case and the former ones show how individuals within the Government do not always support the death penalty and how they sometimes act in accordance to their own standpoint rather than as it is expected of a government official.
In a broader sense, there are also parties and non-governmental organisations within the Japanese political world which oppose the Liberal Democratic Party in the capital punishment debate. The Social Democratic Party is a good example: in 2013 it urged the Government to revise the law for the final abolition of the death warrant in line with international human rights standards (Fukushima 2013). Moreover, according to FORUM 90 (2016)—an NGO for the abolishment of judicial executions—200 parliamentarians oppose the practice. Thus, the Government’s statement that it is homogenously accepted within the political world is, to say the least, inaccurate.
Discrepancies are not something exclusive of the Government’s officials: they also occur within the associations that seek the end of the capital punishment. Recently, these disagreements have arisen within the JFBA regarding the introduction of life term without parole in the judicial system. Some members argue that such measure will go against the principle of social reintegration and thus cannot be considered as a good replacement for the death penalty (Sato 2013). The fact is even more controversial that the former vice-president of the JFBA was Okumura Isao, the founder of the National Association of Crime Victims and Surviving Families (NAVS). This association for the defense of the rights of victim’s families supports the maintenance of the capital punishment, using similar arguments to those of the Government (Miyazawa 2008, p. 67). Thus, there is not a collectively conformed and shared standpoint on the death penalty debate even in organisations which are supposed to be clearly against the legal measure. The discussions about it evolve with time due to the appearance of new arguments and measures, which makes difficult for the actors to frame their position even in general terms.
Other crucial participants in the death penalty debate are lawyers, victim’s families, scholars and media. The press has specially provided a fertile ground for dialogue about the legal measure, even if journals tend to be ‘uniform, with modest differences in editorial slant, and sanitised, with coverage that often makes the government look good’ (Kita and Johnson 2014, p. 3). As it will be later addressed in this paper, some of them tend to be more critical towards the capital punishment and make it their topic more frequently, like The Asahi Shimbun. Moreover, discrepancies sometimes originate within journals as their editors have difficulties in reaching an agreement with the newsroom on which should be its position on the debate. Thus, the nature of the articles varies according to their author’s beliefs in many cases (ib., pp. 5–6).
Public Support vs Secrecy And Passiveness
In his first news conference, Justice Minister Iwaki Mitsuhide stated that ‘since a majority of the public says capital punishment is unavoidable, it is not appropriate to abandon the system’ (The Japan Times 2015). His discourse was based on the general belief that in Japan most people support the death penalty, which seems not to be just an assumption if the results of the Opinion Survey Concerning the Fundamentals of the Legal System are taken into consideration. According to this study conducted in 2009 by the Cabinet Office, 85. 6% of the Japanese citizens consider capital punishment as an unavoidable measure (JFBA 2012). Consequently, the conclusion that has been drawn from this research is that the death warrant counts with a major approval in the country. This narrative has been frequently used by those who support its maintenance; however, the groups in the opposition have greatly responded to such argument.
On November 27, 2012, Yamada Fumiyasu, a professor at the Faculty of Informatics of Shizuoka University and expert in data analysis, was invited by the JFBA to conduct a lecture evaluating the mentioned governmental poll. He not only stated that its results had been wrongly interpreted by the institution, but he also pointed out that ‘questions leaned towards comprising misleading or facilitating questions’ (JFBA 2012). Therefore, according to Professor Yamada the opinion survey had been carried out in a biased way. As Professor Sato Mai (2011, p. 188) has pointed out, respondents were forced to take either a retentionist or an abolitionist position in the debate because they could not indicate in which degree they supported or rejected the legal measure. Questions were too crudely phrased to capture the opinion of those who were undecided or lacked a well-formed opinion in the matter. Furthermore, according to the scholar the survey’s results were conditioned by the demographic characteristics of its respondents. Thus, the percentage of participants that supported the measure was far greater than the one that should have been obtained if the poll had been correctly conducted (ib., pp. 71, 189–190). In order to show the misleading aspects of this opinion survey, some non-governmental bodies have conducted their own polls to back up their claims against it with quantitative data (Obara-Minnitt 2016, p. 118).
If those who support the death penalty use the ‘strong will of the public’ to defend their standpoint, its detractors claim exactly the opposite. They denounce that the Japanese public has a passive attitude towards the measure due to the lack of open debate that the Government has induced with its secrecy policy and its control of the media (Obara-Minnitt 2016, pp. 110, 223). In fact, some surveys have proved that when information on the judicial execution is provided its public support decreases significantly. It is on the interest of the Government to avoid the diffusion of such information as it could entail a social movement for the abolition of the death penalty.
According to professor Sato Mai (2011, p. 184), the institution persuades the under-informed public ‘by asserting that death penalty support is a majority opinion’, which reinforces ‘the view that there is consensus on death penalty opinion’. The Japanese Government would be therefore manipulating public opinion and creating an artificial consensus that makes difficult to have access to dissenting voices. As Kita and Johnson (2014, p. 1) point out, it has not only avoided the debate on the legal measure but also obstructed it, as ‘since the1950s, it has discouraged open discussion of the judicial execution through its policies of secrecy and silence’, secrecy and silence that have also been denounced by institutions such as Amnesty International or the JFBA, whose president Murakoshi Susumu requested ‘openly disclosing information of the death penalty system and the operation thereof to the general public’ (Futaba 1984, p. 6; Murakoshi 2016).
The Government has tried to get rid of these accusations using the emotional load involved in mentioning the families of the victims of those who were condemned. For example, after applying the sentence, the Ministers of Justice have commonly avoided the press questions by asserting that information regarding the matter would only hurt the victims’ relatives (Kyodo 2016; Obara-Minnitt 2016, p. 183). This type of claims is very effective as the carceral system is meant to make punishment a private part of the state apparatus in contrast to its previous dramatisation in the public scaffold (Foucault 1977, p. 115–116). The demands for an open discussion on the death penalty are therefore accused to be unnecessarily sensationalising a measure that was created by the government for the society’s wellbeing. The constitutional right of freedom of speech is indirectly denied through an emotional discourse that posits the detractors of the legal measure as disruptors of individual and public peace.
Mass media is also one of the actors behind the lack of knowledge and opinion towards the death penalty within the Japanese public. According to Kita and Johnson (2014, p. 2, 6), social and mass media have a great impact on this matter, specially newspapers, as they purposely avoid criticising the Government or taking any particular position. Moreover, the scholars defend that even if most articles provide arguments both for and against the capital punishment, they do so just to seem neutral to the public when in fact they are not (The Asahi Shimbun 2016; Ito 2015; Kita and Johnson 2014, pp. 3-5). However, this is an oversimplification as such assertion makes incomprehensible The Asahi Shimbun’s editorial covering the JFBA’s call for the end of the capital punishment. This editorial shows a clear support to the abolishment of the death penalty as it states that ‘we should solidify that pathway by sharing the results of the JFBA discussion in our society’ (The Asahi Shimbun 2016).
It can be concluded from this section that it is wrongly believed that in Japan there is a strong public support to the judicial execution. Thanks to the results obtained through a biased poll conducted by the Cabinet Office, the Government spreads this assumption and makes popular its standpoint towards the death penalty. Therefore, there is a vicious circle: the general public supports the measure because the Japanese Government convinces it that it supports the measure. Those who are against the punishment argue that the unreliability of the poll proves the incongruence of such assertion and try to break this self-fulfilling prophecy. Moreover, they denounce that the public lacks a well-formed opinion towards the measure due to the secrecy in which it is regarded by the Government and the mass media. What seems to be at stake is not only the development of the death penalty but also the public’s right to freedom of speech and thought.
Japanese Culture vs International Trends
Tradition versus modernity. Looking behind or looking forward. In such terms has also been conducted the death penalty debate in Japan. The concept inochi wo motte tsugunau makes reference to the need of paying with your own life for your crimes. It has been used by those who support the punishment as an unquestionable argument due to its ‘Japaneseness.’ However, this statement has been strongly contested by those who oppose the death warrant, who have tried to grasp the same sense of tradition and irrefutability while also making a call for internationalisation and progress.
How effectively embedded is this concept of ‘atonement through death’ in the Japanese society? According to NAVS (2013), it is not only a crucial point for expiating one’s crimes but also part of the spirituality of the Japanese people. The association claims that ‘among the Japanese spirituality, there is the moral view that if you deprive others of their lives you should compensate them with your own one’ (NAVS 2013). Such a statement seems to be true for some inmates who have talked in similar terms when interviewed during their confinement: The Mainichi (2015), for example, has greatly covered these cases, portraying them as a general trend within inmates. It seems also that ‘victims stressed “atonement by death” or “retribution” in more than half of their utterances [to the media]’ (Kita and Johnson 2014, p. 5). Nevertheless, the supposed wide acceptance of inochi wo motte tsugunau can be contested if the concept of ‘atonement through living’ used by those who oppose the death penalty is considered.
Even though ‘atonement through death’ is a cultural belief that is strongly hold by some offenders and other actors (Miyazawa 2008, p. 60), it could be destabilise by a notion of ‘atonement through living’ and modification of behaviour that is deeply engrained in the carceral system (Foucault 1977, p. 128). According to Kita and Johnson (2014, p. 8), this notion of ‘atonement through living’ could be used in such way as it ‘aims to avoid the death penalty (and subvert it) not by directly challenging the more dominant frame of “atonement through death” but rather by articulating an alternative version of it’. Therefore, it would reshape the frame of the discussion without being regarded as threat to more traditional understandings of punishment in the country. Considering the general public’s indecisiveness towards the death penalty, advancements in its abolition could be achieved through this different narrative. Moreover, this notion of ‘atonement through living’ is bound to be crucial for the new developments towards the implement of the imprisonment without parole (Murakoshi 2016). An undeniable proof of this is the fact that there have been already cases in which the Court has made use of such arguments to justify more benevolent sentences (Miyazawa Setsuo 2008, p. 61).
Meanwhile, those who oppose the death penalty in Japan also make use of another argument which indirectly contradicts the one of ‘atonement through death’: the need to follow international trends. Even if such assertion makes use of political means rather than spiritual ones for supporting its standpoint, it seems to be a powerful tool for those who oppose the maintenance of the judicial execution system. In 2013, the former leader of the Social Democratic Party Fukushima Mizuho (2013) claimed that ‘while the abolition of the death penalty is becoming a common intention of the international community, the Japanese government is turning away from the repeated indications and continues to ignore the flow of the world towards the end of the death penalty system’. In an editorial, The Asahi Shimbun (2016) concluded its plea to the Japanese Government for further discussion on the abolition of the death penalty by defending its necessity as a mean of avoiding the ‘risk of lagging behind changing times and global trends’. Moreover, institutions such as FORUM 90 or Amnesty International Japan have made statements which do not differ much to the ones made by the mentioned newspaper (Murakoshi 2016). In the latter’s 2006 report, special attention must be paid to Suki Nagra’s assertion that ‘by abolishing the death penalty Japan would provide leadership to the Asia-Pacific region, which is currently bucking the global trend towards abolition’ (Amnesty International Japan 2006b).
This statement not only conveys the need of internationalisation but also the supposed leadership of Japan in East Asia. Such an appealing argument has been repeatedly used by the detractors of the death penalty: Juan Masiá (2016), chairperson of the Japan Catholic Council for Justice and Peace section for the Abolition of Capital Punishment, wrote an appeal to the Government in which he even implored it to ‘protect life and human rights in the world’. The relevance that this kind of arguments could have in the development of the debate on the death penalty in Japan should not be underestimated. The rushed execution of the last Aum Shinrikyo cultists in July 2018 only half a year after the conclusion of the Aum-related trial has been regarded as a strategy of the Government to avoid its coincidence with the 2020 Tokyo Olympics (The Asahi Shimbun 2018). Host countries are expected to fulfil some provisions on human rights and the executions could have negatively affected the celebration of the Games if they had been conducted in the proximities to the event (Olympic.org 2018).
The conclusion that can be drawn from this section is that the discourse of the death penalty’s maintenance or abolishment is also conducted in terms of tradition and modernity in the Japanese context. While those who defend its necessity make use of the spirituality behind the concept of ‘atonement through death’ to defend their posture, the opposing group has been trying to disable such argument by frame transformation through the inverted concept of ‘atonement through living’. Moreover, they have also called for Japanese modernisation and leadership in the Asian region in which regards the capital punishment debate. This argument could be reinforced in the context of the 2020 Tokyo Olympics, as executions could be regarded by some participant countries and the organising committee as a practice against basic human rights. Political and economic interests could be therefore effectively mobilised by the detractors of the death penalty in Japan.
Human Rights vs The Rights Of Victim’s Families
According to professor Obara-Minnitt (2016:223) ‘capital punishment has been dealt with as an issue of law and order, not as an issue of human rights in Japan’. However, there is considerable evidence that ethical and moral discussion on the death penalty has had a major relevance in Japan for its supporters as well as for its detractors. In this section, it is proved that both groups have had difficulties in portraying their personal criteria as a globally-shared and morally correct approach to the issue.
Those who defend capital punishment in the country have used scientific surveys—like the one conducted by the Cabinet Office in 2009—in order to defend their stance with supposedly objective arguments. Nevertheless, the different actors of the death penalty debate are not oblivious to the fact that subjective arguments can also be very powerful due to their emotiveness. In some sense, they make use of them when discussing the concepts of atonement through death and life that have been already mentioned. However, it must be mentioned that they go a step further by taking a moral and ethical approach to the issue. It might seem that the detractors of the capital punishment have the upper hand in this kind of approach to legal measure, but the analysis of different sources shows that they have encountered strong counter-arguments from its supporters.
In the report Will this day be my last? The death penalty in Japan, Amnesty International Japan (2006a, p. 3) claimed that that the measure is a ‘violation of the right to life and the ultimate cruel, inhuman and degrading punishment’. The organisation also denounced the conditions under which inmates live until their last moments and which considered crucial for the ‘re-humanisation’ of the sentenced. Therefore, it was questioning the nature of the carceral system as a system of re-education rather than mere punishment. Other actors, like FORUM 90 and the Social Democratic Party, have also covered emotively inmates’ thoughts while giving little detail of their crimes. This kind of bias resembles in a reverse manner that of the Government’s de-humanising efforts when regarding the same inmates after their execution. In a similar way, most journals have covered their crimes in great detail along with the feelings of the bereaved families (Hirano 2015).
The debate of the capital punishment has also been employed by some scholars for larger and more complex ethical discussions. This strategy could lead more effectively to future advancements in the derogation of the legal measure, as it was mentioned in the previous section. According to professor Igarashi Futaba (1984, p. 2), death penalty is just one example of the abusive penal system in Japan, which should be reformed as it goes against human rights. Other detractors of the measure have used their religious beliefs in addition to their call for universal ethics. This was the case of JCCJP’s chairman Juan Masiá (2016), who claimed in his plea to the Government that ‘every person, even if he or she is a criminal, has an inviolable right to life, which is a gift from God’. However, some inmates have cast doubts on the supposed humanity of substituting the death penalty with life imprisonment and, therefore, they have indirectly refuted the validity of this argument on human rights of the executions’ detractors.
A survey conducted by the Social Democratic Party among inmates on death row revealed that out of 78, only 37 were in favour of implanting life imprisonment without parole—even if it would mean the reconsideration of the capital punishment. When interviewed by The Japan Times, inmate Okamoto Keizo claimed that ‘I think [a life term without parole] is even crueler than the death penalty. For what purpose should we continue to live?’ (Sato 2013). The condemned to death considered that dying was a reward when compared to life imprisonment. Thus, Japanese prisons’ harsh conditions can be used as an argument by those who demand the abolishment of the death warrant but also by those who support it (Obara-Minnitt 2016, p. 83). They “re-humanise” the inmates claiming their right to die, obscuring the fact that carceral institutions can be reformed while executions cannot be reversed. Morality and human rights are more subjective in the death penalty debate than they could seem to be.
If detractors of the capital punishment claim that inmate’s rights should be equal to the ones of any other human being, its advocates flip the argument when talking about the victims’ family rights. This kind of narratives are of great significance in the death penalty discussions considering the innate support of the public to this group. In a complain about the new debates on it brought by the JFBA, psychiatrist and executive director of NAVS Takahashi Yukio (2016) stated that ‘if the JFBA, cherishing the life of criminals, were to abolish the death penalty, perpetrators and victims would not be treated equally as the life of the victims who were killed would not be restored.’ Thus, she was implying that capital punishment is a mere matter of justice to the victims. Moreover, she affirmed that ‘supporting the victims must consist on re-stablishing their and their family’s humanity and contributing to their participance in a free society and social inclusion.’ This asseveration points out that victim’s families cannot recover their position in society until the death warrant is sentenced, which is a crucial matter if we consider the cultural concept of ba in Japan (Takahashi 2016).
The respect for the relatives of the victims is an argument commonly combined with the one of ‘atonement through death’ previously discussed on this article. For example, according to Takahashi Masato—a lawyer specialised in crime victims’ rights—it is necessary for the victim’s family to have a sense of closure and ‘the murderer should atone for his crime with his or her life’ (Ito 2015). The similarity between her assessments and the previously mentioned proves that victims’ families and lawyers usually work together in the defense of the death penalty in Japan, with the latter helping the former to constitute their narratives. Thus, as ‘the aims of punishment become “expressive and victim-oriented”,’ the emotional defense of the rights of the bereaved families constitutes a strong narrative (Miyazawa 2008, p. 72). The detractors of the death penalty are heavily criticised when they try to push forward a debate on the matter due to the emotional burden that entails for the relatives to be reminded of the issue. However, the latter instrumentalise their mourning in order to sustain their defense of the measure.
Due to their great appealing to the common public, this kind of victim-related arguments have seldomly been responded by the supporters of the abolition of the death penalty. Only those who also belong to the victims’ family group have been able to raise their voice against them, thanks to their privileged position in the debate. In its report of 2006, Amnesty International stated that the relatives of the victims in Japan were sometimes against capital punishment despite their loss (2006a, p. 22). Thus, even if this group is be generally portrayed as being supportive of the conduction of executions, some of its members believe that ‘is it more important to educate the offender as a person so that he will be able to live his life in atonement’ (Miyazawa 2008, p. 54). Such assessment is clearly linked to the concept of ‘atonement through life’ previously discussed, which shows its interaction with the argument of human rights in the death penalty debate. Moreover, it seems to indicate that the argument of ‘atonement though life’ and the educational function of the carceral system could be effectively mobilised by the detractors of the death penalty to seek the support of the victims’ families in their cause.
As regards the mass media, it seems to be a major problem for it to cover the debate of the death penalty in ethical terms from a supportive standpoint of its abolition without being strongly criticised by the audience. Professor and expert on Juvenile Law Goto Hiroko believes that the problem is that ‘by sympathising, the general public is trying to identify itself with the victims’ (Ito 2015). Thus, journals—to set an example—tend to emphasise their respect for the victims’ relatives and their right to have justice through the execution of the perpetrators, even if they are trying to be supportive of the death penalty’s abolition. If the argument of ‘atonement through life’ were to be reinforced, mass media could avoid the backlash from their readers.
To sum up, detractors of the death penalty in Japan are not the only ones who commonly resort to global values and human rights for the defense of their stance in the debate. The supporters of the legal measure also use them, along with the concept of ‘atoning through death,’ to demand equality for the victim’s families. Thus, they claim that victims and bereaved families receive justice only when the perpetrators’ life is taken, as it gives them a sense of closure. This argument has been contested by those who defend the abolition of the executions because some of these victims’ relatives, by contrast, have supported imprisonment without parole as a mean of ‘atonement through living.’ Nevertheless, many inmates have supported their own execution as a matter of human rights, due to the bad living conditions in Japanese prisons. Detractors of the capital punishment should ask more vehemently for the improvement of the carceral conditions of the condemned in order to gain their support in the debate. Finally, the mass media coverage of the capital punishment debate has been greatly affected and limited by this complex ethical discussion due to the great sensibility that the public shows towards victims’ families.
Deterrence Effect vs The Possibility Of Reform
One of the most used and contested arguments of the death penalty debate in Japan is the supposed deterrence effect (yokushiryoku) that it has. As a notion, it is connected with the two concepts of genbatsuka—increasing the severity of punishment—and taikan chian—the public security as perceived by citizens. According to professor Miyazawa Setsuo (2008, p. 69), the death warrant is regarded as a necessary genbatsuka measure for those cases in which the crimes are too hideous or there is no possibility of rehabilitation. The legal measure would be a response to the worsening of the taikan chian: there is a rising belief within the Japanese society that crime is increasing, even if murder rates have remained level (Sato 2011, p. 183). Due to this phenomenon, the claim that the death penalty has a deterrence effect has gained supporters within the country, who have argued in different ways its veracity.
Professor of criminal law at Tokyo Metropolitan University Maeda Masahide believes that the increase in juvenile crime in general, and in heinous juvenile crime in particular, is real. Moreover, the scholar claims that ‘genbatsuka on juvenile crime in the USA has contributed to a decrease in juvenile crime’, suggesting that similar measures should be applied in Japan (Miyazawa 2008, p. 54). Executive director of NAVS Takahashi Yukio (2016) also mentioned the situation overseas in his complain to the Government. He stated that EU countries were not only in a chaotic state but also ‘two or three times more unsafe’ than Japan due to the abolishment of the death penalty. Furthermore, he even suggested that the deterrence effect of the measure lies in its condition of social rule—when in fact, the current carceral system was designed to take punishment from a public realm to one private. According to Foucault (1977, pp. 115–116), the public theatre of the scaffold ‘was replaced by a great enclosed, complex and hierarchised structure that was integrated into the very body of the state apparatus.’ Thus, the exemplary value of the death penalty that some of its supporters defend turns out contradictory.
The pitfall of this kind of argument has been noted by the Japanese Government: it has defended its support to the capital punishment in terms of its good effect on the taikan chian rather than in its supposed deterrence effect. As a means to gain the general public’s favour and calm victims’ families, the Government defends the application of harder measures (genbatsuka), even if it does not imply a decrease in crime rates (Miyazawa 2008, p. 60). It can readily be seen that this line of argumentation does not attend to the appropriateness of the legal measure but to a different matter. By addressing the suffering of the relatives of the victims, the discussion on the death penalty is distorted from its original intentions. Once again, the Japanese Government mobilises the emotive discourse of the families’ victims to gain the support in the society in its standpoint on the capital punishment debate.
This kind of argumentation has been supported by victims’ associations such as NAVS, which have also commonly denounced the dissatisfaction that lenient sentences cause in the victims’ families. The organisations claim that these people ‘express disfavour toward mitigation by limited responsibility and statute of limitation; further, they expect permanent surveillance’ (ib., p. 68). Therefore, it seems that in fact not only taikan chian has worsened in Japan, but also that it is generally believed that death-row inmates cannot be rehabilitated. According to NAVS executive director, their doings are a consequence of their biological antisocial behaviour which would make necessary the death penalty as rehabilitation cannot be possible (Takahashi 2016). Therefore, there is at play a kind of circular argument very similar to the one stating the strong public support to the judicial execution in Japan. Harder measures are defended as necessary because taikan chian is said to have worsened in Japan. However, this negative perception of public security is only a consequence of the narratives of increasing crime that the supporters of the capital punishment mobilize to justify these same measures.
All in all, those who oppose the maintenance of the death penalty have strongly argued against both the deterrence effect of the punishment and the impossibility of rehabilitating the inmates. As regards the former, they have claimed that there are no means to prove it empirically. Nevertheless, a flaw in this argument is that it can also be applied the other way around: it is very difficult to prove that the legal measure has no deterrence effect at all. The rehabilitation of the inmates is normally discussed by making use of the already mentioned argument of ‘atonement through living’ in narratives of exemplary prisoners (The Asahi Shimbun 2016; Fukushima 2013). Journals have sometimes covered the redemption of inmates after their sentence to death was reduced and some detractors of the death penalty go as far as to claim that inmates want to be granted the opportunity to atone for their crimes (Sato 2013). This kind of argumentation could be mobilised more effectively that the denial of the deterrence effect of the measure, as it could be appealing to the victims’ families and the general public.
To sum up, the spread of the assumption that public security in Japan is decreasing has led to an increasing demand of harsher legal measures, which has become a useful tool for those who support the maintenance of the death penalty. Towards those who defend the lack of prove of its deterrence effect and the possibility of rehabilitating death-row inmates, the concerns of the relatives of the victims over their release have been instrumentalised in order to support the contrary. Thus, it seems that a major part of the Japanese population has been made to believe in the deterrence effect of the death penalty. Those who oppose this legal measure have taken little action yet in what regards this statement, which could be effectively contested through the notion of ‘atonement through life.’
Infallibility Of The Penal System Vs Law Miscarriages
The death penalty debate is also part of a larger discussion on the Japanese penal system, in which its accuracy is contested by some parties. Those who oppose the capital punishment sometimes denounce that there are cracks in the system that can lead to cases in which innocent people are executed, an irrevocable measure. However, those who support it argue that the Japanese justice system is flawless, so the sentenced to death always deserve their punishment. The fairness and accuracy of the Japanese penal system has been therefore another ground for discussion in the death penalty debate.
Among the supporters of the measure, judges and prosecutors are crucial actors in what accounts for its legal side. According to Kita and Johnson (2014, p. 6), they ‘rarely mention human rights and miscarriages of justice’. Moreover, if they do show some kind of self-criticism, it is only as regards the so-called grey innocence. Nevertheless, after 1982’s exoneration cases, the Minister of Justice at the time issued an exceptional directive and called for ‘self-criticism over laxity in investigation’. This was meant to be ‘a rebuke to the investigating authorities for having allowed verdicts of “not guilty”’ (Futaba 1984, p. 10). In other words, they wanted to reassure the public opinion that the Government and the penal system were committed to make fair (accusatory) judgments—which reveals the general standpoint of the members of the judiciary in the death penalty debate. This predisposition to take harder measures should be seriously regarded as a threat to the constitutional right of every man and woman to have a fair trial. Furthermore, supporters of the death penalty have taken advantage of the developments in forensic science over the years in order to claim that there are no law miscarriages (NAVS 2013). It would seem that, as the law has become ‘infallible,’ the execution of inmates should be ethically acceptable.
The main argument against the Japanese penal system of those who defend the abolition of the capital punishment is that ‘judges are only human, and mistakes do occur’ (The Asahi Shimbun 2016). Concerns over the irreversibility of the punishment are raised by the main human rights organisations through mediatic exoneration cases that have proven to be useful for defending their stance (Amnesty International Japan 2006a; Murakoshi 2016). Moreover, it seems that the problems with the relationship between the legal measure and wrong judgments goes even beyond. According to Amnesty International Japan (2006b) ‘death sentences are often handed down after unfair trials, with suspects having “confessed” to crimes they did not commit after lengthy interrogations, threats and violence’. The threat of being charged with greater crimes punishable with the death penalty could have been used also by interrogating officials to compel suspects to confess a crime they have not committed (Futaba 1984, p. 25). Therefore, capital punishment is instrumentalised as a threat, helping to speed up the processes by achieving ‘voluntary’ confessions. The dubiousness of the legal measure would not only concern its direct application but also its extended effects over the whole Japanese legal system.
The complains over the inadequacy of the judiciary and the conduction of court cases have become even stronger after the introduction of the lay judge system (saiban-in-seido) in May 2009, which has also revitalised the discussions on the death penalty debate. The system consists on the participation of randomly selected Japanese citizens as lay judges in the trials of cases in which severe crimes were presumably committed. These people do not only have to ‘decide on defendants’ innocence or guilty but also on the severity of sentences’ (Sato 2011, p. 27). The introduction of citizens without formation in law in court cases has aroused new doubts towards the accuracy of the legal system between judges and lawyers, who find difficult to not waver over the decisions (The Mainichi 2015). As it has been previously discussed, public opinion is normally more influenced by emotive arguments. Thus, lay judges are more inclined to accept this kind of arguments rather than more scientific or pragmatic ones. According to professor Sato Mai, ‘if they are swayed by victims’ families’ grievance, there would be serious consequences for the principle of proportionality’ (2011, p. 183). The shadow of the miscarriages of justice that was cast away by scientific development takes a new form.
Another aspect of the saiban-in system that those who oppose the death warrant in Japan emphasise is the psychological load or psychological burden that lay judges normally suffer after the trials, as it tends to be greater if the final judgment is judicial execution (The Mainichi 2015). This controversy over the lay judge system could be in fact very positive for those who desire the abolition of the death penalty, as the debates over the two penal measures are not isolated from one another. Professor Obara-Minnitt (2016, p. 231) believes that ‘the more lay assessors express their feeling of guilt as an accessory to state killing, the more opportunities emerge for the convergence of the goals of the anti-saiban-in-seido movement and the antideath-penalty movement’.
Judges, lawyers, and political figures have not directly responded the accusations previously mentioned and they have kept ensuring the reliability of the penal system in their own narratives. Among those who support the maintenance of the death penalty, the discussions over the infallibility of the Japanese judicial system have been addressed only by professors and the victims’ families. According to Takahashi Yukio, the executive director of NAVS, misjudges are not something exclusively characteristic of the capital punishment but of the penal system in general. He has claimed that the problem lies in the operation and not in the system, thus implying that the death penalty is not what should be reformed (Takahashi 2016). This kind of self-explanatory argumentation is highly questionable, as it does not really deny the fact that the capital punishment can be wrongly applied due to miscarriages of justice.
In what accounts the saiban-in system, rather than being problematic for the defence of their standpoint, supporters of the death penalty have regarded it positively. Professor of Penal Code Funayama Yasunori, to set an example, believes that the lay-judge system allows the participants from the public to increase their ‘sense of reality about the death penalty by participating in trials’, enhancing the debate and citizen’s understanding of law (Sato 2011, p. 27). Nevertheless, this kind of argumentation proves also to be contradictory if we consider that lay judges attend to court cases with preconceptions about the legal measure: they have been already influenced by the biased information provided by the Government and the mass media.
In conclusion, it has been observed through this section how the reliability of the penal system as a whole is discussed by those who are in favour and those who are against the death penalty to support their different standpoints. The former group emphasises the cases in which there were law miscarriages to appeal emotively to the public in the same way the latter does with the narratives of victims’ families. The new saiban-in system has opened a new channel of debate as it implies the participation of the public—who lacks judicial formation and is easily influenced by the previously mentioned narratives of the families—in trials. Detractors of the death warrant defend that this reform enhance the pronouncement of wrong judgments, while supporters of judicial executions claim that the new measure will be positive for public debate. Moreover, they consider that there is not a problem with the system to begin with, as all the decisions are carefully made.
In the previous sections, some of the main arguments and actors of the death penalty debate in Japan were introduced in order to show the heterogeneity that characterises it. The complexity with which the dialogue between the different groups has developed—especially with the recent reforms of the penal system—makes it a very difficult task to establish a single discursive line and also to link narratives to specific actors. The same arguments have been utilised by those against the maintenance of the death penalty as well as by those who support it, as these narrations have undergone continuous frame-transformations in order to serve different political interests. Moreover, the debate has been kept alive over the years through its connection with other measures of the penal system, as well as through its own new approaches. The inclusion of the system of lay judges and the discussion on the possible substitution of the executions with imprisonment without parole has been of special relevance.
While many actors in the death penalty debate claim that Japanese society is supportive of it—either because of the Cabinet poll’s result, the cultural belief of ‘atonement through death’ or its deterrence effect—some others defend that it shows a general lack of knowledge and passiveness towards it. From the analysis conducted in this study, it can be concluded that both abstractions are not adequate as they are formulated in terms too broad. There is not a ‘Japanese’ approach to the death penalty debate nor a mainstream position towards it. Nevertheless, it is clear that the main sectors of the Government and other supporters of the maintenance of capital punishment mobilise this narrative in order to justify their standpoint and silence the demands for a more open debate in the public arena. On an ultimate basis, this does not only endanger the rights of the inmates and those who are standing on trial, but it could be considered also a threat to the liberty of thought and speech of the whole public.
Many aspects of the Japanese society have experimented great changes with the development of mass and social media and with the internationalisation of the country. The former has opened up new opportunities for the development of a better-informed population: despite the Government’s influence over mainstream mass media, those dissenting against the capital punishment have new platforms in which they can raise their voice. The latter is bounded to become a major factor determining the development of the legal measure in the country. As it has been discussed in this paper, the Government has to consider now more than ever the negative impact that the executions have in its international image. The political and economic costs can be too great to be disregarded.
The discussion of the capital punishment in Japan has evolved to include a wide range of approaches and actors. As the legal measure is not only a matter of law and order but a question that affects more complex issues like civic rights, it is incongruent to asseverate that the debate around it is only held by an elite of politicians, law officials and the human right associations. As it permeates from political and economic interests to religious beliefs and emotive discourses on basic human rights, rather than being homogenous, the death penalty debate in Japan is a complex phenomenon in which heterogenous voices, arguments and interests are inextricably intertwined.
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Article copyright Carla Labat de Hoz.