Retention vs Abolition: Japan's Capital Punishment Policy Under Dispute

The recent change of leadership in Japan may affect the penal system, in particular, the system of capital punishment.

In Japan, there is capital punishment for heinous crimes such as homicide[1] or treason.[2] In the postwar period, more than 800 defendants have been sentenced to death; more than 600 prisoners have been executed. As of Jan 2010, there are more than 100 death-row convicts in several jails.

However, no execution has taken place since the DPJ government came to power in Sep 2009. Many DPJ members have reservations about capital punishment. Although the party did not make the review of death penalty a campaign promise, it was vaguely expected that the DPJ government should have a negative attitude to the death penalty.

Moreover, the newly appointed Justice Minister Keiko Chiba, who has the ultimate authority of execution order, has made no secret of her role as opinion leader of the “abolitionist” movement. During her term of office, Chiba will likely follow convictions and give no order of execution at all.

Some conservative forces fear that such circumstances may lead to the breach of legal order and social calm. In this way, the change of government in 2009 causes more bitter arguments between “abolitionists” and “retentionists.”

Moves toward Abolition

At one time, death penalty was common throughout the world. Capital and corporal punishment have been the most commonly-seen kind of penalties since the dawn of history.[3] In ancient or medieval times, burning, crucifixion or decapitation was a popular method of execution; in the modern or current era, more painless methods such as hanging or electric chair have been widespread around the world.

However, in postwar days, many countries have abolished death penalty for various reasons.[4] Now, 139 countries have abolished death penalty in law or practice; on the contrary, the “retentionist” countries tally only 58.[5] It is clear that there are rising global tides of the “abolitionist” movement in our time. Under the present circumstances, Japan is one of the few advanced countries that stick to capital punishment.

Why Capital Punishment?

Why, in the first place, is capital punishment needed? There are several reasons. The first is the social contract theory, which is famous as a theoretical base for modern democratic state. Some historical contractualists such as Thomas Hobbes, John Locke or Immanuel Kant pointed out the need for death penalty because of social order’s conservation. From the standpoint of the social contract theory, murder means contract-out; therefore, a murderer's right of life can be deprived by the state.

The second is crime prevention. Some scholars of criminal law argue that a punitive sanction aims at preventing crime; that is to say, the threat effect of penalties has crime deterrent power. Some retentionists posit that death penalty poses the greatest threat to criminals or would-be criminals. Whether capital punishment actually serves as a deterrent have not been examined sufficiently. Nonetheless, this “deterrent theory” is often adduced as a main reason for the retention of death penalty.

The third is victim protection. In murder cases, bereaved relatives often suffer mental distress and arouse desire for revenge. Death penalty can function as a deterrent to lynch law and as a vicarious execution of revenge by the state. Capital punishment can alleviate the discontent of bereaved relatives. Such a way of thinking can be called “retributivism” and stems from the belief that a crime deserves a suitable punishment.

Constitutionality

Turning now to more constitutional perspective. In Japan, is capital punishment constitutionally permissible?

Article 13 of the Constitution of Japan stipulates that the people’s “right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”

On ground of this provision, abolitionists argue that the government must not infringe on the “right to life” even if the right holder is a remorseless murderer. However, this Article 13 adds the proviso of “public welfare.” If homicide means the interference with this “public welfare,” the right to life can be limited or deprived legitimately.[6] Therefore, Article 13 cannot be used to discredit capital punishment.

Next, Article 36 of the Constitution of Japan stipulates that “[t]he infliction of torture by any public officer and cruel punishments are absolutely forbidden.” Some abolitionists recognize that capital punishment is one of the “cruel punishments” and therefore unconstitutional. However, the Supreme Court of Japan states that the phrase “cruel punishments” stipulated in Article 36 refer to, for example, burning or crucifixion.[7] In postwar Japan, an execution takes place by hanging in the detention center. According to the Court, death by hanging is construable as not “cruel” in comparison.

The high point of this constitutional matter is Article 31 of the Constitution of Japan. It stipulates that “[n]o person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” At first glance, this provision can be interpreted to take a negative stance toward the deprivation of human life by the state. However, a second look confirms that this provision can be read as follows: “If there is a due process established by laws, life or liberty can be deprived by the state.”

Miscarriage of Justice

As stated above, we have nothing left except to recognize capital punishment as constitutionally permissible. In addition, crime prevention and victim protection seem like stringent arguments to some extent. Nevertheless, there is another compelling reason against the death penalty. It is the false charge or miscarriage of justice.

So long as investigation or judgment is always of human origin, it is not always true. Human errors are unavoidable. The problem is criminal indemnity. Article 40 of the Constitution of Japan stipulates that “[a]ny person may, in case he is acquitted after he has been arrested or detained, sue the State for redress as provided for by law.” In sum, if the false charge against a convict is finally cleared up, he or she deserves compensation from the government.

However, after the capital punishment is already carried out, the compensation for the convict himself or herself becomes impossible. This “compensability” is maybe the prime reason against death penalty. So long as there is always a potential possibility of false charge, the compensability for wrongly convicted persons themselves must be guaranteed to a maximum extent.

Japan’s Criminal Proceedings

There is also a more serious point: Japan’s criminal proceedings. In this country’s criminal cases, a confession is recognized as the most crucial evidence. Therefore, investigating authorities sometimes obtain confessions by asking leading questions or coerce a crime suspect into making a false confession. Moreover, if a criminal defendant pleads innocence in a trial, he or she is often considered to be unrepentant sentenced to a more severe punishment. Such a judicial practice leads to a false confession in a trial.

The additional problem is the term of custody. In Japan, an investigating authority can take a crime suspect into custody for questioning up to a maximum of 23 days. This is exceptionally long as comparison with other advanced democracies as in the following table.

Generally, a crime suspect is committed to daiyo kangoku (lit. substitute prison) placed in a police station, and undergoes an intensive interrogation that lasts from day to night, or days on end. At this point, a suspect is practically considered as convicted prisoner. If a suspect does not make a confession, he or she faces treatment discrimination within daiyo kangoku. This rugged condition often brings about a false or forced confession.

UN Human Rights Commission has urged Japan to abolish this daiyo kangoku system; however, the country has sought only the partial improvement. The DPJ government copes with the making of the bill for the video recording of interrogation in order to prevent false or forced confessions; however, this draft doctrine now encounters strong resistance from investigating and procuratorial authorities.

As symbolized by daiyo kangoku, investigation and prosecution processes in Japan are faced with a mountain of problems. Capital punishment is a serious issue, of course. At the same time, the whole criminal policy must be reviewed comprehensively in order to introduce more due diligence into Japan’s criminal proceedings.

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[1] Article 199 of the Penal Code (Keiho, Act no.45 of 1907, amended by Act no.54 of 2007) stipulates that “[a] person who kills another shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years.”

[2] In regard to treason or insurrection, Article 77 of the Penal Code stipulates that “[a] ringleader shall be punished by death or life imprisonment without work”.

[3] It is after 18th century that imprisonment became commonly seen around the world.

[4] In particular, many of the European countries have recently abolished death penalty. This stems from the fact that a moratorium on death penalty is one of the conditions of membership in the European Union.

[5] See Abolitionist and retentionist countries | Amnesty International http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-co... retrieved 17 Apr 2010.

[6] See e.g. Sup.Ct.. 12 Mar 1948. Keishu 2[3]:191.

[7] See e.g. Sup.Ct.. 6 Apr 1955. Keishu 9[4]:663.