Capital punishment in Japan

History

Beginning in about the 4th century, Japan became increasingly influenced by the Chinese judicial system, and gradually adopted a system of different punishments for different crimes, including the death penalty. However, beginning in the Nara period, cruel punishments and the death penalty were used less and less, likely as a result of the influence of Buddhist teachings, and the death penalty was abolished completely in the Heian period. The death penalty was not used for the next 300 years, until the Genpei War.

During the following Kamakura period, capital punishment was widely used and methods of execution became increasingly cruel, and included burning, boiling and crucifixion, among many others. During the Muromachi period, even harsher methods of execution came into use, such as upside down crucifixion, impalement by spear, sawing, and dismemberment with oxen or carts. Even minor offenses could be punished by death, and family members and even neighbors could be punished along with the offender. These harsh methods, and liberal use of the death penalty, continued throughout the Edo period and into the early Meiji period, but due to the influence of Confucianism, offenses against masters and elders were increasingly punished much more harshly than offenses against those of lower rank. Torture was used to extract confessions. In 1871, as the result of a major reform of the penal code, the number of crimes punishable by death was decreased and excessively cruel torture and flogging were abolished. In 1873, another revision resulted in a further reduction in the number of crimes punishable by death, and methods of execution were restricted to beheading or hanging.

Sentencing guideline – Nagayama Standard

In Japan, the courts follow guidelines laid down in the trial of Norio Nagayama, a 19-year-old from a severely disadvantaged background, who committed four separate robbery-murders in 1968 and was finally hanged in 1997. The Tokyo high court originally gave him a life term, but in 1983 the Supreme Court of Japan held it was an error, and quashed this sentence.

The court ruled that the penalty shall be decided in consideration of the degree of criminal liability and balance of justice based on a nine-point set of criteria. Though technically not a precedent, this guideline has been followed by all subsequent capital cases in Japan. The nine criteria are as follows:

1. Degree of viciousness
2. Motive
3. How the crime was committed; especially the manner in which the victim was killed.
4. Outcome of the crime; especially the number of victims.
5. Sentiments of the bereaved family members.
6. Impact of the crime on Japanese society.
7. Defendant's age (in Japan, the age of majority is 20).
8. Defendant's previous criminal record.
9. Degree of remorse shown by the defendant.

The number of victims killed is the most important criterion for imposition of the death penalty. A death sentence handed down for a single murder (previous convictions included) is considered "extraordinary".

In 2012, a research institute affiliated with the Supreme Court issued a report on death penalty appliance from 1980 to 2009. The study found that, while prosecutors very rarely demand capital punishment in cases of single murder, it was handed down in 32% of those cases. On the other hand, prosecutors seek the death penalty almost systematically in cases of multiple homicide, and it is handed down in 59% of cases of double-murder and 79% of cases where three or more victims have been killed.

The study also found that the death penalty was handed down in all cases of convicted murderers who killed again after being released on parole from life prison terms, and in all robbery-murder cases with three or more people slain.

Furthermore, in five of 10 kidnap-for-ransom cases in which one person was killed, the defendants were sentenced to death.

Judicial process

Since May 2009, district courts try capital cases using the lay judge system, where three professional judges sit with six randomly chosen citizens. Five votes of nine-member court, including at least one professional judge, are required for issuing a conviction and any punishment, including death.

Because Japan has a civil law legal system, appeal courts retry both facts and law. High courts retry cases with only three judges and no lay judges, and can either reduce a death sentence to life or raise a life sentence to death. Thereafter, a five-member petit bench of the Supreme Court has the final say on the penalty, Article 411 of Code of Criminal Procedure allowing it to remand the case or change the punishment if the one handed down by the high court is "seriously unfair".

Stays of execution

According to Article 475 of the Japanese Code of Criminal Procedure, the death penalty must be executed within six months after the failure of the prisoner's final appeal upon an order from the Minister of Justice. However, the period requesting retrial or pardon is exempt from this regulation. Therefore, in practice, the typical stay on death row is between five and seven years; a quarter of the prisoners have been on death row for over ten years. For several, the stay has been over 30 years (Sadamichi Hirasawa died of natural causes at the age of 95, after awaiting execution for 32 years).

Death row

Japanese death row inmates are imprisoned inside the detention centres of Tokyo, Osaka, Nagoya, Sendai, Fukuoka, Hiroshima and Sapporo. (Despite the city having a high court, Takamatsu Detention Centre is not equipped with an execution chamber. Consequently, executions administered by the Takamatsu High Court are carried out in the Osaka Detention Centre.) Those on death row are not classified as prisoners by the Japanese justice system and the facilities in which they are incarcerated are not referred to as prisons. Inmates lack many of the rights afforded to other Japanese prisoners. The nature of the regime they live under is largely up to the director of the detention centre, but it is usually significantly harsher than normal Japanese prisons. Inmates are held in solitary confinement and are forbidden from communicating with their fellows. They are permitted two periods of exercise a week, are not allowed televisions and may only possess three books. Prisoners are not allowed to exercise within their own cells. Prison visits, both by family members and legal representatives, are infrequent and closely supervised.

Execution

The execution warrant is signed by the Minister of Justice after internal consultations within the justice ministry. Once the final approval is signed, the execution will take place within five days.

By statute, the execution cannot take place on a national holiday, Saturday, Sunday, or between 31 December and 2 January.

The death penalty is carried out by hanging in an execution chamber within the detention centre. When an execution order has been issued, the condemned prisoner is informed in the morning of his/her execution. The condemned is given a choice of the last meal. The prisoner's family and legal representatives, and also the general public, are informed only afterwards. Since 7 December 2007, the authorities have been releasing the names, natures of crime and ages of executed prisoners.

The method of hanging is the long drop, causing a quick death by neck fracture.

As of August 2014, the number of inmates on death row was 126. Of them, 89 are applying for their cases to be reopened and 25 are requesting amnesty.

Death sentences for minors

Having signed both the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, which forbid any execution for crimes committed under the age of 18, Japan sets the minimum age for capital punishment at 18 (Juvenile Law § 51). Although death sentences for minors (defined in Japan as those under age 20) are rare, those who commit capital crimes at age 18 or 19 may be legally sentenced to death.

Nine juvenile criminals have received death sentences that were finalised since 1966: Misao Katagiri, Kiyoshi Watanabe, Mitsuo Sasanuma, Fumio Matsuki, Sumio Kanno, Tsuneo Kuroiwa, Norio Nagayama, Teruhiko Seki and Takayuki Mizujiri. Seven of them have already been executed and Watanabe and Seki, both of whom killed four people when they were 19 years old, remain on death row awaiting execution.

As of February 2013, the most recent juvenile death sentence was given to Takayuki Fukuda, passed by the Hiroshima High Court on 22 April 2008, and upheld by the Supreme Court on 20 February 2012. A month after his 18th birthday he raped and killed a woman, along with murdering her baby.

Public debate

Although the public has generally supported the death penalty, capital punishment is a contentious issue in Japan nonetheless. The government regularly monitors support for the death penalty, the last survey in 2015 showing 80.3% of the public believing that the death penalty is "permissible" and 9.7% that it should be abolished. At a 2003 trial, a Tokyo prosecutor presented the court a petition with 76,000 signatures as part of his case for a death sentence.

During the late 1980s, four death penalty that were waiting since the period just after World War II were quashed and exonerated by the Supreme Court. Charles Lane of Washington Post claim that this embarrassed the Ministry of Justice, whose officials sincerely believed that such mistakes by the system were almost impossible. Between 1989 and 1993, four successive ministers of justice refused to authorise executions, which amounted to an informal moratorium. Unlike in the U.S., where a state's governor can issue a pardon for any state crime and the president can pardon a federal crime, in Japan, the justice minister has to sign death warrants. It is not uncommon for a justice minister not to sign death warrants, some for political or religious convictions, others for personal dislike for signing death warrants. In theory, a justice minister cannot refuse to sign a death warrant due to personal belief, as that would amount to dereliction of duty. For example, Seiken Sugiura, Minister of Justice between October 2005 and September 2006, and a follower of Pureland Buddhism, publicly stated on 31 October 2005 that he would not sign death warrants. He said that "From the standpoint of the theory of civilizations, I believe that the general trend from a long-term perspective will be to move toward abolition." A few hours later, he retracted the statement, saying it represented his "feelings as an individual and (the comment) was not made in relation to the duties and responsibilities of a justice minister who must oversee the legal system". However, he never agreed to any executions as a minister of justice.

The British newspaper The Times claimed that the death penalty was effectively suspended on 17 September 2009 with the appointment of Keiko Chiba, who was a member of anti-death penalty MPs caucus group, as Minister of Justice. However, no official policy statement was made in this regard. Chiba only stated that "I will cautiously handle (the cases) based on the duties of the justice minister." The Times' speculation was conclusively disproved when Chiba signed two death warrants and personally witnessed the execution.

Support

Supporters say that capital punishment is applied infrequently and only to those who have committed the most extreme of crimes—a single act of murder does not attract capital punishment without additional aggravating circumstances such as rape or robbery. In the 1956 debate, Japanese serial killer Genzo Kurita, who engaged in rape and necrophilia, was cited by the Diet as an example of a murderer whose crimes were atrocious enough to merit death. However, it is more due to the rarity of extreme crimes in Japanese society rather than an unwillingness of the authorities to carry out executions that has caused so few executions to take place.

Since executions resumed in 1993, a rise in street crime during the 1990s, the sarin gas attack on the Tokyo subway in 1995 and several high-profile murders have hardened attitudes amongst the public and the judiciary. Since 1999, there have been a series of cases in which criminals sentenced to life imprisonment have been given the death penalty after prosecutors successfully appealed to High courts.

On 18 March 2009, a district court sentenced to death two men for the murder of Rie Isogai. Fumiko Isogai, who lost her only child in this crime, launched a campaign to call for the death penalty on the three murderers in September 2007. Within ten days, her petition was signed by 100,000 citizens. She presented her petition for the death penalty with some 150,000 signatures to the District Public Prosecutors' Office of Nagoya on 23 October 2007. About 318,000 citizens had signed her petition by December 2008.

Although single murderers rarely face a death sentence in Japan, Takeshi Tsuchimoto, a criminal law scholar at Hakuoh University and former prosecutors of the Supreme Public Prosecutors' Office, expected that the recent trend toward harsher punishments, backed by the growing public support for capital punishment, would encourage the court to sentence Kanda and Hori (of the Rie Isogai case) to death. Major national newspapers published editorials in support of this unorthodox judgment on the premise that capital punishment is retained. The Asahi Shimbun and the Mainichi Shimbun, both major national liberal newspapers, wrote in editorials that the general public favored the judgment, and the Nikkei lent his support to it. The Sankei Shimbun, a major national paper on the right, aggressively evaluated the judgement with a phrase "a natural and down-to-earth judgment of great significance". The Tokyo Shimbun expressed that capital punishment would be the inevitable sentence in consideration of the brutality of the murder and the pain that the victim's family felt. They also noted, however, that it would be difficult for citizen judges to determine whether death penalty would be appropriate in this kind of case under the lay judge system, which will be started in May 2009. Hiroshi Itakura, a criminal law scholar at Nihon University, said that this decision could be a new criterion for capital punishment under the lay judge system. However, one of the two men sentenced to death in the Isogai case had his sentence reduced to life imprisonment on appeal, and the Supreme Court refused to raise the punishment to death (but he was later sentenced to death in another murder case). The other defendant sentenced to death did not appeal and was hanged in 2015.

Criticism

Amnesty International argues that the Japanese justice system tends to place great reliance on confessions, even ones obtained under duress. According to a 2005 Amnesty International report:

Most have been sentenced to death on the basis of confessions extracted under duress. The potential for miscarriages of justice is built into the system: confessions are typically extracted while suspects are held in daiyo kangoku, or "substitute prisons", for interrogation before they are charged. In practice these are police cells, where detainees can be held for up to 23 days after arrest, with no state-funded legal representation. They are typically interrogated for 12 hours a day: no lawyers can be present, no recordings are made, and they are put under constant pressure to confess. Once convicted, it is very difficult to obtain a re-trial and prisoners can remain under sentence of death for many years.

Amnesty also reports allegations of abuse of suspects during these interrogations. There are reports of physical abuse, sleep deprivation and denial of food, water and use of a toilet. One of its biggest criticisms is that inmates usually remain for years (and sometimes decades) on death row without ever actually being informed of the date of their execution prior to the date itself, so inmates suffer due to the uncertainty of not knowing whether or not any given day will be their last. According to Amnesty International, the intense and prolonged stress means many inmates on death row have poor mental health, suffering from the so-called death row phenomenon. The failure to give advanced notice of executions has been stated by the United Nations Human Rights Committee to be incompatible with articles 2, 7 and 10 of the International Covenant on Civil and Political Rights.

South Asia Human Rights Documentation Centre claims that the issueance of death warrants by the Ministry of Justice may be politically motivated. In 1997, Norio Nagayama, a prisoner who committed the first of several murders as a juvenile was executed during the sentencing phase of "Sakakibara Seito" for the Kobe child murders, also resulting in a high-profile juvenile murder trial – an attempt, according to South Asia Human Rights Documentation Centre, to show that the harshest punishment could be administered to juveniles. According to The New York Times, the execution of Tsutomu Miyazaki after the Akihabara massacre was claimed to be a similar case.

The Japanese Federation of Bar Associations also says that capital punishment should be abolished in Japan.

Executions

For older executions, see List of people executed by Japan.

Note : Offenders noted with a * were sentenced to death for murder(s) committed while on parole for another murder