Review Essay: THE DEATH PENALTY IN JAPAN: Will the Public Tolerate Abolition?, by Mai Sato (Springer Press, 2013)

This review essay puts Mai Sato’s book, which I enjoyed reading enormously, in the context of Japan’s apparent commitment to the death penalty despite its declining use around the world.

Declining use of the death penalty around the world

As of the end of 2013, the proportion of countries that were ‘actively retentionist’ (i.e. those which had carried out at least one judicial execution within the past 10 years and which had not subsequently declared a permanent moratorium on executions) had fallen to 20%. The proportion that had refrained from carrying out any executions for at least 10 years - and so could be regarded as abolitionist de facto - was 26%, and the number that were completely abolitionist had increased to 50%, with another 4% abolitionist for ordinary crimes. So, only one fifth of the countries in them world are now actively retentionist.

The enforcement of capital punishment in retentionist countries has also been declining. Whereas in 1998 37 countries carried out a judicial execution, the number doing so in 2012 was just 21. With very few exceptions, such as Iran, Iraq, and Saudi Arabia, the number of executions annually recorded appears to be falling almost everywhere. Singapore which had in the mid-1990s the world’s highest execution rate per head of population – carrying out 74 executions in 1994 — has reduced the number drastically: only 5 in 2009, none in 2010, four in 2011, and none since. Malaysia, which executed between 13 and 15 people a year between 1970 and 2000, has carried out very few executions since 2002 and none between 2010 and 2013, despite the fact that the death penalty remains the mandatory punishment for certain offences. Thus, Malaysia is now a sporadic or occasional executioner, as is Thailand, where there have been no executions since 2009, and Indonesia where there were none between 2008 and 2013. Pakistan, which had executed at least 135 people in 2007, has since adopted a policy not to carry out executions (although one did occur under military jurisdiction in November 2012). India also had a lengthy period with no executions between 2004 and November 2012, since when two people accused of murders committed during terrorist attacks were executed. These examples don’t demonstrate that executions are coming to an end in these countries, but they do suggest a commitment to progressive restriction; to using the ultimate penalty only for the most egregious cases. There are signs of change in Asia, but also even in the Middle East and North Africa.

Resistance to change?

On the other hand, there has been some strong resistance to the political movement to force change ever since the Second Optional Protocol to the ICCPR was adopted by the UN General Assembly in 1989. While 59 countries had voted in favour and 48 had abstained, 26 voted against the Protocol, including Japan and the United States.

But since 1994, there have been attempts by abolitionist nations at United Nations Congresses, in the General Assembly, to press for a resolution calling for a moratorium on the imposition of death sentences and executions (and since 1997, calls have been made annually at the Commission on Human Rights). These initially met with hostility from many of the retentionist nations. In 2005, it was opposed by 66 countries on the grounds that there was no international consensus that the death penalty is a violation of human rights. But opposition has weakened as each subsequent vote was taken in 2008, 2010 and 2012, when 111 countries (60%) voted in favour and just 41 against.

Not surprisingly, Japan has consistently voted against the resolution. Like China, India and the United States, it regards the death penalty as a matter for national criminal justice policy, to be determined by the political, social and cultural circumstances of the country. So despite ratifying the ICCPR without any reservations, Japan is not moving towards abolition, insisting that retention is a sovereign criminal policy issue, the nature and operation of which should be decided by the national government informed by the wishes of the people, as elicited by public opinion polls.

Current DP policy and practice in Japan?

Asia is responsible for anything between 85 and 95% of the world’s executions. While China accounts for most of these, most years over the past decade Japan has had a steady, if relatively low rate of executions, at about 6 or 7 a year, though this rate is higher than the previous decade. While terrorist offences are subject to the ultimate penalty, most death sentences are for aggravated murder. Until fairly recently these were mostly multiple killings, but now a few are for aggravated murder of just one person.

The 2009 appointment of Keiko Chiba as Justice Minister was predicted to halt the use of the death penalty, as the Justice Minister is responsible for signing execution orders, and Chiba was opposed to the death penalty. However, she signed the execution orders for two men hanged in July 2010. And while she called for national public debate on the death penalty, established a committee to investigate the transparency and fairness of Japan’s pre-trial system, and ordered the formation of a study group on capital punishment, it all came to little. The group was disbanded in January 2012 without reaching any conclusions, and under the current right-of-centre party, death sentences and executions seem to be on the rise.

Is Japan exceptional?

In the West, the US is described as ‘exceptional’ in its reluctance to abolish the death penalty, given that it is a rich and powerful democracy. In which case, might we expect Japan to have abolished the death penalty by now? Unlike most other countries in Asia, Japan is a fully functioning democracy. Furthermore, as it’s thought that economic development encourages political and criminal justice reform, why do Japan and Singapore actively retain the death penalty? What influence does pressure from outside jurisdictions have? The Council of Europe and the EU were forces to be reckoned with in persuading countries from the former Eastern bloc to abolish the death penalty in order to take advantage of the benefits of being part of Europe. But there is no similar transnational force for reform in Asia. The Association of Southeast Asian Nations (ASEAN) has little influence or power; indeed, it is largely impotent and fails to call members to account for human rights breaches. And those countries in the wider region that have abolished the death penalty, such as Cambodia, Bhutan and the Philippines are not considered to be role models for economic or political development; they have little influence over their powerful neighbours.

Democratic will

The roots of the movement to abolish capital punishment across Western Europe were the liberal utilitarian and humanistic ideas that swept through Europe at the end of the eighteenth century. While Enlightenment ideals were reformulated as human rights notions following the Second World War, the message remained that the political elites would decide what was right and lead their citizens in that direction. Across abolitionist jurisdictions, and within supranational and national bodies that oppose the death penalty, abolition is now established as a matter of principle, with the doctrine of inalienable human rights – such as the right to life – drawn on to provide the absolute justification for abolition. However, governments in many retentionist countries argue that total prohibition is not yet established as a human rights norm, and that international treaties can only be binding to those that choose to be bound by them. They cling to their sovereign right to determine their own laws and criminal justice practices, often citing in their defence popular support for the ultimate punishment. In the US the notion of human rights has little traction and political elites are expected to follow the masses, not lead them. Is the same true in Japan?

All statements from the judiciary or the executive in Japan justify retention on grounds of public support. They argue that a democratic government can’t ignore public opinion without endangering public confidence in, and support for, the criminal law. In this, they draw on the officially sponsored government survey on the death penalty, which has been conducted since 1956, approximately every five years. The most recent Government Survey, conducted in 2009, found that 86% of respondents favoured retention. Following this survey, in 2010 the Minister of Justice said that this high level of support should be taken seriously, and respected as an expression of “the voice of the people”.

But what is “the voice of the people” based on? Very little, it would seem. Secrecy surrounds Japanese death penalty practice. Until 2007 the Japanese government didn’t even announce the names of prisoners and the crimes they’d committed after executions. And as a powerful Amnesty International report pointed out, death-sentenced prisoners and their family members are not informed of execution dates. The death-sentenced inmate himself is only informed of the execution a few hours before it takes place. Amnesty International reports that a man named Hakamada, who is now 77, has been on death row in Japan for 45 years, and is therefore the world’s longest-serving death row prisoner.

What is more, there is still no official information regarding the selection process of which prisoners, and how many, are to be executed, their treatment on death row, or the cost of executions. Japan currently has about 157 people on death row - probably double that at the turn of the millennium, as the number of death sentences has risen – and they are kept in solitary confinement. This kind of information is only available informally through those who are involved in the execution process, and through somewhat speculative secondary sources. The government doesn’t ensure the publication of accurate information on the process or outcomes.

This situation has led scholars to state that “the secrecy that surrounds capital punishment in Japan is taken to extremes not seen in other nations” and that the public only has very “abstract” ideas about the punishment. This inevitably poses the question: on what grounds does the public support the death penalty? And this is the question that this new book can answer.

What is known about public support for the death penalty in Japan?

While countless scholars and international organisations – particularly outside the US – approach the death penalty primarily from a human rights perspective, Sato attempts to engage with the justifications for retention that follow a socio-legal approach, based on subjective legitimacy: in other words, popular support. She argues that, although the Japanese justification for retention may be theoretically coherent, it requires reliable evidence about how retention actually affects public perceptions of the system’s legitimacy. In other words, the Japanese government can defend its approach to the death penalty only if the surveys it relies on capture public attitudes on the subject accurately. The question addressed by this book is: Is the retention of the death penalty so central to popular trust in the criminal justice system that abolition would result in the erosion of political and judicial legitimacy?

Sato carried out three different types of surveys with methodological rigour and resourcefulness and demonstrates that the government’s interpretation of its survey – and its contention that it reliably reflects the views of the public as a whole – is seriously flawed. Her findings suggest that the depth of opposition to abolition of the death penalty is neither as strong nor as unalterable as the government claims. Given more information and greater transparency about how the death penalty system works in practice, and some reliable evidence on whether or not the rate of executions has any deterrent effect on the rate of murder, a truer reflection of the Japanese public’s support for the death penalty would emerge.

This book brings together – persuasively and eloquently – a wide literature on survey methods, public opinion, trust, legitimacy, and the death penalty, as well as original public opinion research. Its power is in demonstrating that, in Japan, government rationale for retention is based on very shaky grounds. Replication of Sato’s work in other jurisdictions that present public support for the ultimate penalty as an obstacle to abolition - such as China - may show that Japan is not alone in this regard.

It leaves the reader wondering what might happen in Japan or China did abolish despite apparent popular enthusiasm? Well of course, the example of Europe and other regions suggests that once the death penalty is abolished, the public gradually turns against it. Indeed, the majority of a new generation growing up without it comes to regard capital punishment as just one more cruelty of the past, especially when they have access to information about the criminal process that precedes it. Over the years that Roger Hood and I have conducted research into the death penalty, it has become absolutely clear that no system of capital punishment has or can be devised that does not inevitably, and however administered, violate human rights: specifically, the right not to be arbitrarily deprived of life and the right not to be subjected to a cruel, inhuman, or degrading punishment. And that, ultimately, is the message that citizens in retentionist jurisdictions should hear before they decide if they support judicial executions.