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Correction to This Article
A Jan. 16 Outlook article on Japan's death penalty incorrectly described France's abolition of capital punishment in 1981. The law was not changed by presidential decree. Then-President Francois Mitterrand, who had pledged during his campaign to end executions, drafted legislation soon after taking office. It was then approved by his Cabinet and later the National Assembly, where Mitterrand's supporters were newly in control.

Why Japan Still Has the Death Penalty

By Charles Lane
Sunday, January 16, 2005; Page B01

There is a place in the advanced industrial world where people are regularly sentenced to death, and executed, for their crimes. Some of the condemned deny their guilt -- and there are confirmed cases of mistakes in sentencing. But government officials say the system delivers retribution and deterrence fairly and efficiently.

This place is not Texas. It is Japan -- the only industrial democracy other than our own that still regularly executes convicted murderers. In 2004, the Japanese conducted two executions by hanging, the sole method employed there. In some years, the rate is double or triple that. This is nowhere near the rate in the United States, where 59 convicted murderers were put to death in 2004. But there are many more murders in the United States than in Japan, and our population is 295 million people compared to Japan's 127 million. When you adjust for those facts, Japan has recently been about as likely as Texas and Virginia to sentence killers to death.

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Covering the Supreme Court, which has the final say in every capital case, I have gotten used to seeing the United States as a loner on this issue. The European Union, Canada, South Africa and a growing portion of Latin America have abolished the death penalty. The United States regularly absorbs condemnation from human rights organizations because it hasn't. But the United States is joined in continuing the practice by an officially pacifist country that many Americans think of as the cradle of Pikachu and Hello Kitty. How come? My best guess, based on reporting I did there this past summer: Basically, Japan's leaders are giving their people what they want.

To be sure, democracy in Japan is not usually thought of as highly responsive. Since World War II, Japan's government has been dominated by a single party, the Liberal Democratic Party (LDP), which is closely allied with unelected bureaucrats who make policy behind the scenes. The government forbids the release of basic information about the death penalty, so public opinion is poorly informed. Executions are conducted in secret; as former justice minister Hideo Usui told me, they are scheduled during parliamentary recesses, so as to deprive opposition politicians of any opportunity "to cause a big public row over the death penalty."

Still, not even capital punishment's opponents in Japan question the basic validity of a survey conducted by the government in 1999, which found that 79.3 percent of the public backs the death penalty. In 34 polls taken between 1953 and 1999, abolition of capital punishment has never garnered a majority. Letters published in the Japanese press reflect the surprisingly intense feelings behind the polls. "I believe execution is the best punishment for felons, especially murderers," a citizen named Hajime Ishi wrote to the Yomiuri Shimbun in July 2003. "Controversial as my opinion may be, I would like to see all murderers -- regardless of their age, gender and nationality -- put to death." In a 2003 trial, a Tokyo prosecutor made his case for a death sentence by handing the judge a petition signed by 76,000 people.

Japanese frequently invoke culture to account for these sentiments. One theory, of which I heard several variants, is that the Japanese, group-oriented and with ancestral roots in village life, have a long tradition of isolating and eliminating evildoers. Authoritarian tenets of Confucianism, a Chinese import, may have reinforced this. Several people told me that Japanese Buddhism, too, provides support for capital punishment. "A basic teaching is retribution," says Tomoko Sasaki, a former member of the Diet (Japan's parliament), an ex-prosecutor and a leading advocate of the death penalty in the LDP. "If someone evil does something bad, he has to atone with his own life. If you take a life, you have to give your own."

But cultural norms, though powerful, are not immutable; capital punishment has ebbed and flowed in Japan, both historically and in modern times. Buddhism, famously a nonjudgmental, nonviolent doctrine, can easily be interpreted as incompatible with the death penalty. And a ban on capital punishment prevailed in Japan during the Heian Era (794 A.D. to 1185 A.D.), which coincided with Buddhism's introduction to the country from China. One of the country's most prominent anti-capital punishment activists since the war, the late Tairyu Furukawa, was a Buddhist priest. During the early '90s, Megumu Sato, a former Buddhist priest serving as minister of justice, refused to sign execution orders for the year he was in office, citing his religious beliefs.

Sato was one of four ministers who served during a 40-month de facto moratorium on executions that began in November 1989 and ended in March 1993. The moratorium followed a period of increasing concern about capital punishment, both inside and outside the Japanese government. The key events were the exonerations during the 1980s of four death-row prisoners, all of whom had been sentenced to hang in the chaotic period just after World War II and then spent years pursuing appeals.

The exonerations were deeply embarrassing to the powerful Ministry of Justice, which handles all criminal prosecutions in Japan. Ministry officials sincerely believe that such miscarriages of justice are all but impossible under the Japanese system, because prosecutors rarely bring charges unless the defendant confesses and only seek the death penalty in selected cases involving multiple victims, or where murder is combined with rape or robbery. But the exonerations forced the country to acknowledge that several men had been sentenced to death based on confessions squeezed out of them in prolonged custody, that the police had mishandled key evidence -- and that such practices have not disappeared. Amid the soul-searching, the anti-death penalty movement, traditionally marginal, gained strength and coalesced into an umbrella organization known as Forum 90, the first of its kind in modern Japan.

Yet, just as death-row exonerations based on DNA evidence have dented but not overturned the basic consensus in favor of the death penalty in the United States, the pro-death penalty consensus in Japan proved resilient. In time, concerns about crime and violence came to trump concerns about the rights of defendants. After an internal review of the exonerations, which concluded mainly that authorities needed to do a better job of ensuring truthful confessions, the Ministry of Justice resumed executions in March 1993.

Then, on March 20, 1995, a cult known as Aum Shinrikyo released nerve gas in the Tokyo subway, killing 12 people and injuring thousands. Citizens demanded that the perpetrators pay with their lives, and the authorities responded. "Politicians listen to voters' views," Yuji Ogawara, a lawyer who represents capital defendants, told me. "In that sense, it has become more difficult to talk about abolishing the death penalty since Aum. It was a watershed event." Of the 50 death sentences issued between 1999 and 2002, nine went to Aum conspirators. The cult's founder, Shoko Asahara, was sentenced to death last year.

Something else happened in the mid-1990s: street crime rose. Japan is still much safer than America. But what Japanese notice is that it is less safe than it used to be. According to the government, reported crimes registered a postwar high for six consecutive years between 1996 and 2002 before leveling off in 2003. Causes include Japan's steep and socially disruptive economic downturn in the '90s, as well as post-Cold War freedom of movement among Japan, Russia and China, which brought some foreign gang activity to Japan's shores. While the number of murders hasn't risen rapidly, several brutal and highly publicized killings -- including a massacre of eight schoolchildren in 2001 -- fed the public's growing sense of insecurity.

Whereas 1990 saw the founding of Forum 90, 1999 marked the founding of the National Association of Crime Victims and Surviving Families, an influential pro-death penalty lobby. Its founder, Isao Okamura, is a lawyer and former vice chairman of the Japan Federation of Bar Associations, which advocates a moratorium on executions and greater legal protections for death row inmates. But after Okamura's wife was brutally stabbed to death in 1997, his views hardened.

The courts, which had led the way in re-examining capital punishment two decades earlier, now were following the public mood. On Dec. 10, 1999, Japan's Supreme Court overturned the life sentence imposed on a man convicted of robbery and murder in Hiroshima prefecture. It was the first time since 1983 that the Supreme Court had recommended that a life sentence be replaced with death. This decision had a "great influence" on trial judges, says Satoru Shinomiya, a law professor at Waseda University in Tokyo. It has been followed by several other rulings in which appeals courts have granted prosecution requests to overturn life sentences in favor of the death penalty. (Such requests are not allowed in the United States.)

Judges sentenced one person to death in 1992 (there are no jury trials in Japan); they sentenced 18 people to death in 2002. There are currently 60 people on death row whose sentences have been finalized (as of Sept. 15, 2004), an increase of 10 from 1999 and more than double the level, 24, of 1986. Meanwhile, a bill calling for a three-year moratorium on executions and a top-to-bottom review of the capital punishment system was shelved last year by its sponsors in the Diet, because of its poor prospects for success.

To expect Japan to abolish the death penalty through normal democratic processes is to expect it to do something that Europe itself did not exactly accomplish. Germany and Italy got rid of the death penalty immediately after World War II, when the drafters of their new constitutions banned it. (Japan's 1946 constitution, promulgated under U.S. occupying authorities who were also hanging Japanese war criminals, bans "cruel" punishments; in 1948, the Japanese Supreme Court ruled that the death penalty was not cruel.) In France, then-president Francois Mitterrand abolished the death penalty by decree in 1981; most French citizens supported it, but Mitterrand imposed his will thanks to the power of the French presidency, which has no equivalent in consensus-oriented Japan. Even now, large percentages in most European nations favor the death penalty, according to polls. More countries continue to abolish it to meet a condition of inclusion in the European Union. Poland, for example, abolished the death penalty in 1997, despite surveys showing that more than 60 percent of Poles wanted to keep it.

But opponents of the death penalty in Japan, international and domestic, have no such leverage. Europe is not about to slap economic sanctions on the world's second-largest economy. The strongest punishment threatened so far is revocation of Japan's observer status on the Council of Europe, a human rights organization made up of representatives from 44 governments -- and the council has hesitated to impose even that. For Japanese officials, resistance to foreign critics of the death penalty may be a relatively cost-free way to savor a little old-fashioned national sovereignty. "We believe that the decision whether to keep or abolish the death penalty should be the decision of each individual country, and should be based on the public sentiment of each country, and the crime situation in each country," says Hideo Takasaki, a senior official of the Ministry of Justice's criminal affairs bureau.

Unless something leads Tokyo to change that attitude, the United States won't be totally isolated. At least on this one issue, in these two countries, East meets West.

Author's e-mail:

lanec@washpost.com

Charles Lane covers the Supreme Court for The Washington Post. He spent the past summer studying the Japanese criminal justice system on a fellowship from the Japan Society.


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