Japan hanging on to death penalty

JAPAN is one of only two industrialized democracies that use the death penalty.  Currently, there are 57 people on death row waiting to be executed, and approximately an additional 50 inmates whose death sentences are still under appeal.  Japan's death penalty practice has been called "inconsistent with the [ICCPR]" by the UN Human Right Committee, "a violation of the most fundamental human rights" by the Council of Europe, and tantamount to torture and cruel punishment by numerous independent observers. 

Japan's death penalty practice is cloaked in secrecy, and administered under antiquated, unreformed laws leaving near-absolute discretion in the hands of judges and the Justice Minister to decide who is sentenced to death and who among the sentenced are executed. This practice leaves little doubt about the practice's arbitrariness, and little confidence in it as a measure of justice.

Although the Japanese Penal Code provides capital punishment for 17 offences, it does not offer any criteria to guide the judge in deciding what punishment to impose. For instance, the penalty for homicide could be execution, life imprisonment, or a prison term of not less than three years, which may even be suspended.  Thus, luck or potentially discriminatory factors can determine what kind of punishment the defendant will receive. 

At trial, statements taken at the investigation stage are given considerable weight compared with in-court testimony.  Reliance on pre-trial confessions has led to many claims of coercion and false conviction.  Shizuka Kamei, head of the Diet (Parliament) Member's League for the Abolition of the Death Penalty, has said, "I used to be part of the police and I know that, although it's deplorable, there is such a thing as a false charge." The Washington Post reported in 2001 that a former Supreme Court Justice, Shigemitsu Dando, concluded that "[t]here is a high possibility that some [death row prisoners] were executed in spite of being innocent. I am afraid that the total number of such cases in the past has not been small." 

In fact, between 1983 and 1990, five inmates were declared falsely convicted and released. The acquittals were an extraordinary admission of prosecutorial fault - not seen since - considering 99.8 percent of those charged by police are convicted, and appeals courts rarely overturn lower courts. "There are probably more cases like that" currently on death row, former Minister of Justice Hideo Usui acknowledged according to The Washington Post. 

Four of the death row inmates that were found innocent on retrial had been tortured during interrogations in order to produce confessions.  It took 28 to 34 years before they were found innocent. In 1998, the Human Rights Committee expressed its deep concern that a "large number of the convictions in criminal trials are based on confessions" that may be "extracted under duress." The Committee strongly recommended that the interrogation of the suspect be "strictly monitored and recorded by electronic means." 

The Japanese government has yet to fulfil these recommendations. 

Once a death sentence is meted out, the Minister of Justice has broad and uncontrolled discretion to issue a death warrant.  Article 475 of the Japanese Code of Criminal Procedure indicates that the death penalty is to be executed upon an order from the Minister of Justice that shall be issued within 6 months of the prisoner's final appeal.  But, in practice, the Justice Minister's discretion when and whether to issue an order appears absolute, and is exercised without public justification. 

The Justice Ministry gives no explanation for the choice of inmates selected for execution.  Thus, this process appears to be entirely arbitrary - and sometimes appears politically motivated.  In 1997, during the sentencing phase of a high profile juvenile murder trial, a death row inmate who had committed his first of several murders as a juvenile was executed in what some commentators have said was an attempt to demonstrate the possibility for harsh punishment for juveniles. Under the current system, a convict can obtain a pardon or leniency if the Cabinet approves the application following a screening process at the National Offenders Rehabilitation Commission, a Justice Ministry panel.  But in practice, reduced sentences or pardons have rarely been granted since WWII, in part because convicts must confess and express remorse to a crime they may deny having committed.  No pardon has been granted since 1976.

While awaiting execution the death row prisoner is subjected to treatment that constitutes torture and cruel punishment.  (see box "Death Row")

The Government indicates that these restrictions are necessary to ensure the inmates mental stability; however, it tests the bounds of credulity to suggest that these depths of deprivation could enhance mental stability.  Are we to believe that in Japan contact with friends and family diminishes one's mental health?  Rather than enhance the prisoner's mental state, this cruel treatment leads to a well-documented, severe depression known as 'death row phenomenon.'  As Sayoko Kikuchi, head of the Japanese abolitionist group Rescue! has said: "It's inhumane.  They go through torture every day."

The life of the death row inmate is totally dominated by the uncertainty of whether and when his or her execution will be carried out.  Typically it takes 5-7 years between the death sentence and execution, but nearly 20 inmates have been on death row for more than a decade, and in some cases much longer.  Article 32 of the Japanese Penal Code provides for a 30 year period of limitation for the execution of the death penalty, but Japanese courts have interpreted the "execution" of a death penalty to begin at the time of execution of the judgment, therefore prisoners have languished on death row for more than 30 years.  Tsuneki Tomiyama, the oldest man on death row at age 85, has been on death row for 26 years, his sentence was finalised in 1976.  Sadamichi Hirasawa died in 1987 at age 95 while awaiting execution after 32 years on death row. Yukio Saito, put on death row death row at age 24, was acquitted on re-appeal in 1984 when he was 53.  The death penalty is carried out against the elderly (15 people executed since 1993 have been over age 60; currently there are at least 16 death row inmates over age 60), against those with mental illness, and those still appealing their cases.

Executions are carried out in the morning at one of seven detention centres (distinct from prisons) in Japan. Generally, the inmate is not notified until a few hours before the execution.  No notice is given to the inmate's lawyer or family until after the fact.  The inmate is blindfolded and taken from his cell.  In the execution room, the noose is secured and the inmate's knees are tied. A veteran prison officer has said, "The idea is to have a clean death. They aren't supposed to struggle and flop around." At most prisons, a separate room contains three to five buttons. On command, prison officers each push one button, one of which releases a trapdoor that drops the condemned convict about 10 feet to his death. There are no public witnesses.

Executions are shrouded in secrecy that seems aimed at minimising public scrutiny.  Families and lawyers are never told of the decision beforehand, but are later told that the prison "departed with the prisoner."  Japan carries out executions during periods when the Diet is not in session so that public debates are minimised. Executions are only announced after the fact, and even then the prisoner's name is not publicly released out of consideration for "the feelings of the criminal who gets the death penalty."  The Human Rights Committee stated in 1998 that the failure to give notice of the decision to execute is incompatible with ICCPR articles 2, 7, 10. Yet, Japan continues to flaunt its treaty obligations. 

In its communications with the Committee, the government justifies the practice of capital punishment on the seemingly strong public support it has in Japanese society; however, as the Japan Federation of Bar Associations has argued, the public is largely uninformed of the practice because of the secrecy that shrouds it, and as the Human Rights Committee has stressed in its communication with Japan, "human rights standards are not determined by popularity polls."  Indeed, as the Japanese representative to the Human Rights Committee said in 1988, "the implementation of protection of human rights [is] hampered in Japan by a number of deeply-rooted prejudices...." (emphasis added)  Government policies that provide a cloak of secrecy to death penalty practices seem aimed at ensuring that the public will continue to rely on these prejudices. Advocates for abolition of the death penalty were bolstered by the Council of Europe's First World Congress against the Death Penalty in Strasbourg (June 2001).  Following the meeting, the Council passed Resolution 1253 calling upon Japan to declare an immediate moratorium on executions and to take necessary steps to abolish the death penalty by 1 January 2003 or risk losing its Observer Status at the Council of Europe. The Council of Europe views "the death penalty as a violation of the most fundamental human rights, such as the right to life and the right to be protected against torture and inhuman or degrading treatment." 

This pressure may be having some effect. In November 2002, the Abolition of Death Penalty Diet Members League issued a report which outlined two draft bills due to be submitted to the current Diet session. One is an amendment to criminal code provisions to change the period to apply for parole; the other is a draft bill to establish a cabinet committee to deal with death penalty issues.  Also in November 2002, the Japanese Bar Association submitted recommendations to the Diet because of their concern that innocent people were being put to death and the realisation that the death penalty has little or no deterrent value. The Bar Association has called for a moratorium on executions, a public debate on the issue of the death penalty, and public disclosure on all information related to the death penalty.

In the past, the Human Rights Committee's dialogue with Japan has been "a somewhat formal exercise," in which "none of the Committee's recommendations" concerning, inter alia, "the death penalty have been implemented."  In the coming year, Japan will submit its 5th periodic report under ICCPR Article 40.  It is hoped that Japan will evidence a greater capacity to adapt the "deeply-rooted prejudices and practices" of its antiquated, feudalistic penal system to bring it into compliance with Japan's obligations under the ICCPR and other international human rights law.