Should Japan Kill the Death Penalty?

Daniel DOLAN (Professor, Tohoku University)

May 2007 brought to Japan two significant news stories, both good and bad. Good news: the unemployment rate dropped to a nine-year low of 3.8 percent in April. Bad news: The United Nation's Committee Against Torture and Amnesty International's (AI) annual report on human rights issues for 2007 have blasted Japan for its death penalty practices. The UN's 2007 report complains that "the Committee is deeply concerned about a number of provisions in domestic law concerning individuals sentenced to death which could amount to torture or ill-treatment." Earlier AI reports on the death penalty in Japan have called it "a major concern" and "cruel, inhuman and arbitrary punishment." In the 2007 report, AI notes that Japan and the USA remain the only "group of seven" largest industrialized countries not to have abolished the death penalty.

The key concern with Japan's death penalty system and practices expressed by the UN, Amnesty International and the Japan Federation of Bar Associations (JFBA) focuses on secrecy around the implementation of the death penalty. In January 2007 the JFBA released a report on the Japanese Government's Implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Complaints and recommendations made in the report include:
 (1) Death row inmates are not notified in advance when they are to be executed, which is clearly inhuman treatment.
 (2) A law should be enacted that broadens visiting and correspondence for death row inmates.
 (3) Solitary confinement of death row prisoners should be reconsidered to maintain their humanity.
 (4) Death row inmates should be guaranteed, in a clearly defined form, private meetings and uncensored correspondence with defense attorneys for retrials.

Incredibly, it is widely reported that death row inmates in Japan learn of their execution details as little as one hour before execution, with family members notified after the execution. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions argues in a report that "refusing to provide convicted persons and family members advance notice of the date and time of execution is a clear human rights violation. In the most extreme instances, prisoners have learned of their impending executions only moments before dying, and families have been informed only later, sometimes by coincidence rather than design. These practices are inhuman and degrading and undermine the procedural safeguards surrounding the right to life." The UN's Committee Against Torture says of this practice that "the Committee regrets the psychological strain imposed upon inmates and families by the constant uncertainty of the date of the execution," and concludes its report with an official recommendation that "the State should take all necessary measures to improve conditions of detention of persons on death row in order to bring them in line with international minimum standards."

Beyond the well-documented human rights issues associated with Japan's death penalty practices, there is an important question of logical consistency to be asked of death penalty provisions in any country. Recognizing that the death penalty is in most instances reserved for murder cases, how do we explain to our children (or to juries during penalty phases of trials) that because killing is wrong, those who commit murder should be killed?

Finally, there is the terrifying possibility that death row inmates might be serving time for crimes they did not commit. The Innocence Project has found that of the 201 post-conviction DNA exonerations in the United States since 1989, 15 of those involved death row inmates who almost certainly would have been executed unjustly.

Amnesty International data shows that since 1990, more than 45 countries have abolished the death penalty, including Liberia, Paraguay, the Philippines and Bosnia-Herzegovina. Japan, the world is watching.