Capital punishment in Japan

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 before sending Nagayama back on death row.

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.[5] Though technically not a precedent, this guideline has been followed by all subsequent capital cases in Japan.[6] 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 application of the death penalty 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 5 of 10 kidnap-for-ransom cases in which one person was killed, the defendants were sentenced to death.[7]

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.

Japan has a civil law legal system, therefore, 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. Ultimately, a five-member petty 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".[8]

In only three cases since 1945, the Supreme Court ruled a high court-imposed life sentence too lenient, and ordered a retrial for death sentence. Among them are Norio Nagayama and Takayuki Fukuda, both under 20 at time of crime. The third case was that of a man convicted of murdering an elderly woman for robbery shortly after being paroled from a life sentence imposed for a similar crime.[9]

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).[10]

Japanese death row inmates are imprisoned inside the detention centres of Tokyo, Osaka, Nagoya, Sendai, Fukuoka, Hiroshima and Sapporo. Despite having high courts, Tachikawa Detention Centre and Takamatsu Detention Centre are not equipped with execution chambers; executions administered by the Tachikawa and Takamatsu High Courts are carried out in the Tokyo and Osaka Detention Centres. 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 to communicate with their fellows. They are permitted two periods of exercise a week, are not allowed televisions and may only possess three books.[11] Prisoners are not allowed to exercise within their own cells.[12] Prison visits, both by family members and legal representatives, are infrequent and closely supervised.

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 business 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 on the morning of their execution. The condemned is given a choice of a 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 names, natures of crime, and ages of executed prisoners.[13]

The method of hanging is the long drop, causing instant unconsciousness by neck fracture and death by hypoxia resulting from strangulation.[14]

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.[15]

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.[26] However, it is more 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.[22]

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.[27] 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.[28] Within ten days, her petition was signed by 100,000 citizens.[29] 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.[30] About 318,000 citizens had signed her petition by December 2008.[28]

Although single murderers rarely face a death sentence in Japan, Takeshi Tsuchimoto, a criminal law scholar at Hakuoh University and former prosecutor 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.[29] Major national newspapers published editorials in support of this unorthodox judgment on the premise that capital punishment is retained.[31] 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 its support to it.[31] 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".[31][32] 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.[31] 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 would be started in May 2009.[31] 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.[27] 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.[33]

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.[34]

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.[34] 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.[10]

South Asia Human Rights Documentation Centre claims that the issuance 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 Center, to show that the harshest punishment could be administered to juveniles.[10] According to The New York Times, the execution of Tsutomu Miyazaki after the Akihabara massacre was claimed to be a similar case.[35] The Japanese Federation of Bar Associations also says that capital punishment should be abolished in Japan. Supporters note that Japan has the lowest murder rate in the world.[36]