Japan
Last updated on November 12, 2013
General
Official Country Name
Japan. [1]
Geographical Region
Asia (Eastern Asia). [2]
Death Penalty Law Status
Retentionist. [3]
Methods of Execution
Hanging. [4]
Comments.
The execution takes place at an execution site within a penal institution, and may not take place on a weekend or on a public holiday. [5] The date of the execution is kept a secret, including to the condemned and his family. [6] The offender is only notified on the morning of his execution. [7]
References
[1]
[2]
[3]
[4]
[5]
[6]
[7]
Country Details
Language(s)
Japanese. [8]
Population
126,475,664 (2011 est.) [9]
Number of Individuals Currently Under Sentence of Death
157. The Japan Innocence & Death Penalty Research Center reports that as of October 2013, there were 157 people on death row, 132 of whom had their death sentences finalized by the Supreme Court of Japan. [10]
Annual Number of Reported Executions
Executions in 2015 to date (last updated on September 22, 2015)
1. [11]
Executions in 2014
3. [12]
Per capita execution rate in 2014
1 execution per 42,158,554 persons
Executions in 2013
8. [13]
Per capita execution rate in 2013
1 execution per 15,809,458 persons.
Executions in 2012
7. [14]
Per capita execution rate in 2012
1 execution per 18,067,952 persons.
Executions in 2011
0. [15]
Per capita execution rate in 2011
0 executions.
Executions in 2010
2. [16]
Executions in 2009
7. [17]
Executions in 2008
15. [18]
Executions in 2007
9. [19]
Year of Last Known Execution
2014. [20]
References
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
Crimes and Offenders Punishable By Death
Crimes Punishable by Death
Murder.
Killing another person is punishable by death. [21] However, as a matter of practice, Japan only imposes the death penalty for murder accompanied by other aggravating factors, including multiple victims and the commission of additional felonies.
Other Offenses Resulting in Death.
Robbery causing death at the scene of the robbery is punishable by death. [22] Rape during the course of a robbery that causes death is punishable by death. [23] Pollution of public drinking water causing the death of a person is punishable by death. [24] Causing the death of a person in the course of overturning or destroying a train or tram, or in the course of capsizing, sinking or destroying a vessel is punishable by death. [25] Endangering traffic, thereby overturning a train or tram or capsizing a vessel and causing death of a person is punishable by death. [26] Participating in a duel causing death is also death-eligible. [27]
Terrorism-Related Offenses Resulting in Death. [28]
Aircraft hijacking causing death [29] and destruction of airplanes resulting in death [30] are punishable by death.
Terrorism-Related Offenses Not Resulting in Death. [31]
Destruction by explosives and the illegal use of explosives are punishable by death. [32]
Arson Not Resulting in Death. [33]
Arson of a building, train, tram, vessel, or mine in which a person is present, or which is used as a dwelling, is punishable by death. [34]
Treason. [35]
Instigating foreign aggression against Japan [36] carries the death sentence. Assisting the enemy through direct military service or otherwise affording military advantage is punishable by death. [37] Leading an insurrection is punishable by death. [38]
Other Offenses Not Resulting in Death.
The following offenses are punishable by death:
- Causing a flood that damages a building, train, tram or mine that is used as a dwelling or where people are present is punishable by death. [39]
- Detonating an explosive and thereby damaging a building, train, tram, vessel or mine that is used as a dwelling or where people are present is punishable by death. [40]
- Causing damage to an inhabited structure by trespass. [41]
Comments.
Although many crimes are deemed “death-eligible” by various statutes, the application of the death penalty has been restricted by Japanese jurisprudence. In 1983, the Supreme Court of Japan ruled in the Norio Nagayama case that “selection of the death penalty by a court should be an option in extremely heinous cases when there is room for virtually no other penalty.” The Nagayama decision sets out the factors to consider in determining whether capital punishment is an appropriate penalty. Such factors include the number of victims, the motives of the offender, his age, criminal record and degree of remorse, and the brutality of the crime and its social impact. [42]
Johnson & Zimring confirm that “in practice it is only homicide offenders who now are sentenced to death.” [43] Our review of the available jurisprudence, literature on the topic, and the facts of crimes that have resulted in executions indicate that the only crime for which individuals are sentenced to death in Japan is murder accompanied by aggravating circumstances. Additionally, in recent years, the death penalty has been most frequently applied to individuals who killed during the commission of another crime or killed vulnerable people such as the elderly, females, or children. [44]
Does the country have a mandatory death penalty?
No. The Penal Code states that punishments may be reduced in light of extenuating circumstances, even if that punishment has been increased or reduced by another statute. [45] When a death sentence is reduced, it must be reduced to a term of imprisonment of no less than 10 years [46] and no more than 30. [47] Additionally, Article 71 of the Penal Code explicitly applies the rules of article 68 to the extenuating circumstances provisions found in articles 66 and 67. [48] This specificity supports the argument that there is no mandatory death penalty.
Moreover, in the Norio Nagayama case in 1983, the Supreme Court limited the application of the death penalty to cases where “criminal liability is extremely grave taking account of any and all [extenuating circumstances] including the nature of the crime, the motive, its features and in particular the tenacity and cruelty employed in carrying out the murder, the gravity of its consequences as reflected especially in the number of victims killed, the feelings of the bereaved family, its impact on the society, the age of the perpetrator, his criminal record, and grounds for leniency after the crime has been committed.” [49] This suggests that the Japanese death penalty is increasingly applied in a restricted way. It is the burden of the defense to bring forth evidence mitigating his criminal responsibility when the murder committed is “extremely grave.” [50]
Although Article 81 (instigating foreign aggression against Japan) contains mandatory language, Articles 66 and 67 provide for the reduction of any sentence in light of extenuating circumstances. [51]
For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?
None.
Crimes For Which Individuals Have Been Executed Since January 2008:
Murder.
All the executions which have taken place in Japan since 2008 have been for murder with aggravating circumstances.
2013:
On September 12, 2013, Tokuhisa Kumagai was hanged for felony murder. He robbed and killed the owner of a restaurant. [52]
On April 26, 2013, two executions were carried out. Yoshihide Miyagi and Katsuji Hamasaki were hanged. They were sentenced to death for murdering rival gang members. [53]
On February 21, 2013, three executions were carried out. Kaoru Kobayashi, a repeat sexual offender, had been sentenced to death for the abduction, sexual assault and murder of a seven-year-old schoolgirl. Masahiro Kanagawa was sentenced for a stabbing spree outside a shopping mall during which he killed one person and injured 7 others. Keiki Kano robbed and strangled a bar-owner. [54]
2012: On March 29, 2012 Yasutoshi Matsuda, Tomoyuki Furusawa, and Yasuaki Uwabe were executed. Matsuda was hanged for killing and robbing two women for money. Furusawa was hanged for murdering his 12-year-old stepson and his estranged wife’s parents. Uwabe was hanged for running over seven people with a car, killing two, and slashing seven other people with a knife, killing three. [55]
Two people were executed on August 3, 2012. Junya Hattori was convicted of rape and murder, and Kyozo Matsumura was convicted of killing two relatives for money. [56]
Two more people were executed on September 27, 2012. Yukinori Matsuda was convicted of a double murder. Sachiko Eto, the fourth woman to be executed in Japan since 1950, was convicted of murder and involuntary manslaugher. [57]
2010: On July 28, 2010, Kazuo Shinozawa was executed for killing 6 women in a fire. Hidenori Ogata was executed on the same day for a double murder. [58]
2009: On July 28, 2009, Hiroshi Maeue was executed for killing three people, Yukio Yamaji was executed for raping and murdering two sisters, and Chinese national Chen Detong was executed for killing three people and injuring three more. [59]
On January 29, 2009, Yukinari Kawamura and Tetsuya Sato were hanged for a double murder, and Tadashi Makino and Shojiro Nishimoto were executed for four murders in separate home invasion robberies. [60]
2008: On October 28, 2008, Michitoshi Kuma and Masahiro Takashio were executed. Kuma was convicted of kidnapping and strangling two seven-year-old girls. Takashio stabbed an elderly woman to death in a home robbery. [61]
On September 11, 2008, Yoshiyuki Mantani, Mineteru Yamamoto, and Isamu Hirano were executed for robbery causing death. Mantani was convicted of killing one woman and attempting to kill another. He had a prior conviction for an earlier robbery and murder. Yamamoto was convicted of robbing and murdering two people. Hirano was convicted of robbing and murdering his employer and employer’s wife. [62]
On June 17, 2008, Shinji Mutsuda, Tsutomu Miyazaki and Yoshio Yamazaki were executed. Miyazaki was convicted of kidnapping and murdering four girls between the ages of 4 and 7. Yamazaki was convicted of a double murder. Mutsuda was convicted of robbery and murder of two people. [63]
On April 10, 2008, Kaoru Okashita, Masahito Sakamoto, Katsuyoshi Nakamoto, and Masaharu Nakamura were executed. Okashita was convicted of killing two people, including an elderly woman. Sakamoto was convicted of raping and killing a high-school girl. Nakamoto was convicted of double murder during a robbery. Nakamura was convicted of a double murder by poisoning. [64]
On February 1, 2008, Masahiko Matsubara, Takashi Mochida, and Keishi Nago were executed. Mochida was convicted of murdering a woman whom he had raped 8 years earlier in revenge for testifying against him. Matsubara was convicted of killing, raping and robbing two women in separate home robberies. Nago was convicted of stabbing two women to death. [65]
Categories of Offenders Excluded From the Death Penalty:
Individuals Below Age 18 At Time of Crime.
Pursuant to Article 51(1) of the Juvenile Act, a person who commits a death-eligible crime when under the age of 18 will be sentenced to life imprisonment. [66] This is in conformity with Japan’s international obligations as a party to the ICCPR [67] and the Convention on the Rights of the Child, [68] which prohibit the execution of individuals who were under 18 at the time of the crime.
Note that under Japanese law, people under the age of 20 are considered “minors” in the criminal justice system, and may be sentenced to death of they were over 18 at the time of commission of the crime. [69]
Pregnant Women.
The execution of a pregnant woman is suspended until after she has given birth. [70]
Intellectually Disabled. [71]
The “weak-minded” are excluded from the death penalty, but the legal standard for mental incompetency is so restrictive that the Japan Federation of Bar Associations does not consider the intellectually disabled to be excluded from the death penalty. [72]
Mentally Ill. [73]
The Penal Code excludes crimes committed under insanity, [74] diminished capacity, [75] or lack of awareness of a greater crime while committing a lesser crime [76] from the death penalty. Executions may not be carried out on prisoners while they are suffering from insanity. [77] The Code of Criminal Procedure also provides that when a death-sentenced person is “in a state of insanity,” the Minister for Justice must issue an order suspending execution. [78] The execution may resume after the offender has “returned to a state of sanity.” [79]
Japanese case law shows a concern for the particular needs of mentally-ill defendants. A 1995 judgment by the Supreme Court determined that the mentally ill cannot withdraw their appeals when their mental state precludes them from protecting their own rights. In that case, a death row inmate suffering from delusions and paranoia requested to withdraw his appeal to escape the distress of legal proceedings. [80] In 1984, the Supreme Court affirmed the Court of Appeals’ determination that a defendant had diminished mental capacity. The Supreme Court also approved the lower court’s review of the defendant’s entire mental health evaluation, rather than simple reliance on its conclusions. [81]
However, it is reported that Japan has executed mentally ill persons. [82] For instance, in March 1993, the government proceeded with the execution of Kawanaka Tetsuo, who was reportedly mentally ill, and whose mental health had deteriorated in the months preceding the execution. [83] In December 2007, the government executed Seiha Fujima, who had been found legally incompetent at trial. In June 2008, Tsutomu Miyazaki was executed although he had been treated for schizophrenia for the previous decade. [84]
The Committee Against Torture has denounced “the absence of a review mechanism to identify inmates on death row who may be suffering from mental illness.” Inmates are not allowed access to their own medical records, and visits from non-prison doctors are prohibited. [85]
References
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46]
[47]
[48]
[49]
[50]
[51]
[52]
[53]
[54]
[55]
[56]
[57]
[58]
[59]
[60]
[61]
[62]
[63]
[64]
[65]
[66]
[67]
[68]
[69]
[70]
[71]
[72]
[73]
[74]
[75]
[76]
[77]
[78]
[79]
[80]
[81]
[82]
[83]
[84]
[85]
International Commitments
ICCPR
Party?
Yes. [86]
Date of Accession
Jun. 21, 1979. [87]
Signed?
Yes. [88]
Date of Signature
May 30, 1978. [89]
First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee
Party?
No. [90]
Date of Accession
Not Applicable.
Signed?
No. [91]
Date of Signature
Not Applicable.
Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty
Party?
No. [92]
Date of Accession
Not Applicable.
Signed?
No. [93]
Date of Signature
Not Applicable.
American Convention on Human Rights
Party?
Not Applicable.
Date of Accession
Not Applicable.
Signed?
Not Applicable.
Date of Signature
Not Applicable.
Death Penalty Protocol to the ACHR
Party?
Not Applicable.
Date of Accession
Not Applicable.
Signed?
Not Applicable.
Date of Signature
Not Applicable.
African Charter on Human and Peoples' Rights (ACHPR)
Party?
Not Applicable.
Date of Accession
Not Applicable.
Signed?
Not Applicable.
Date of Signature
Not Applicable.
Protocol to the ACHPR on the Rights of Women in Africa
Party?
Not Applicable.
Date of Accession
Not Applicable.
Signed?
Not Applicable.
Date of Signature
Not Applicable.
African Charter on the Rights and Welfare of the Child
Party?
Not Applicable.
Date of Accession
Not Applicable.
Signed?
Not Applicable.
Date of Signature
Not Applicable.
Arab Charter on Human Rights
Party?
Not Applicable.
Date of Accession
Not Applicable.
Signed?
Not Applicable.
Date of Signature
Not Applicable.
2014 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [94]
Vote
Against. [95]
Signed the Note Verbale of Dissociation
No. [96]
2012 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [97]
Vote
Against. [98]
Signed the Note Verbale of Dissociation
No. [99]
2010 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [100]
Vote
Against. [101]
Signed the Note Verbale of Dissociation
No. [102]
2008 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [103]
Vote
Against. [104]
Signed the Note Verbale of Dissociation
No. [105]
2007 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [106]
Vote
Against. [107]
Signed the Note Verbale of Dissociation
Yes. [108]
References
[86]
[87]
[88]
[89]
[90]
[91]
[92]
[93]
[94]
[95]
[96]
[97]
[98]
[99]
[100]
[101]
[102]
[103]
[104]
[105]
[106]
[107]
[108]
Death Penalty In Law
Does the country’s constitution make reference to capital punishment?
There is no explicit mention of capital punishment. [109]
Article 13 of the Constitution guarantees that the “right to life, liberty, and the pursuit of happiness shall…be the supreme consideration in legislation and in other governmental affairs” unless this right interferes “with the public welfare.” [110] Article 31 implies the existence of capital punishment: “No person shall be deprived of life or liberty…except according to procedure established by law.” [111]
Does the country’s constitution make reference to international law?
The Japanese Constitution does not directly indicate that Japanese courts are to consider international law in protecting fundamental human rights. [112] However, the Constitution does provide that “treaties concluded by Japan and established laws of nations shall be faithfully observed.” [113] This provision could be interpreted to require that human rights treaties and customary human rights protections have force in domestic law.
Have there been any significant changes in the application of the death penalty over the last several years?
The 2009 appointment of Keiko Chiba as Justice Minister was predicted to halt the use of the death penalty. [114] The Justice Minister is responsible for signing execution orders, and Chiba was opposed to the death penalty. [115] However, Chiba, who belonged to the left-of-centre Democratic Party of Japan, signed the execution orders for two men hanged on July 28, 2010. [116] There was speculation that Chiba’s authorization of the executions was linked to the loss of her Parliamentary seat in the Upper House. [117] Chiba also called for national public debate on the death penalty [118] and established a committee to investigate the transparency and fairness of Japan’s pre-trial daiyo kangoku system (allowing for extended pre-charging detention in police stations and leading to lengthy interrogations). [119] Following the July 28, 2010 executions, Chiba “ordered the formation of a study group on capital punishment,” [120] and allowed select members of the media to view the gallows in Tokyo, [121] stating that she strongly felt the “need for a fundamental discussion about the death penalty.” [122] The group was disbanded in January 2012 without reaching any conclusions. [123]
After Chiba, Justice Ministers Minoru Yanagida, Yoshito Sengoku, Satsuki Eda, and Hideo Hiraoka did not sign any execution warrants. [124] Hiraoka also encouraged widespread debate on capital punishment, sparking criticism from death penalty supporters. [125] However, Justice Minister Toshio Ogawa, who served until June 4, 2012, took a different stance, stating, “Signing off on executions is part of the Justice Minister’s job description.” [126] Ogawa cites public support for the death penalty as one of the reasons for signing execution warrants: “With 130 inmates on death row and public opinion showing 85% of Japanese support the death sentence, it is inexcusable not to sign off on executions.” [127] Prime Minister Yoshihiko Noda, who assumed office in September 2011, also indicated that he did not intend to suspend executions despite a 2009 policy index prepared by the Democratic Party of Japan which demonstrated a willingness to hold public discussions on death penalty issues including a temporary suspension of executions. [128] Seven executions were carried out under his leadership. [129]
In February 2013, three executions were carried out under the leadership of Prime Minister Shinzo Abe of the conservative Liberal Democratic party, who took power in December 2012. Justice Minister Sadakazu Tanigaki has stated that he would not hesitate to sign execution orders, and following his appointment three men were executed in early 2013 . [130] At its Universal Periodic Review, Japan’s government made it clear that “the immediate abolition of the death penalty was inappropriate.” [131]
Prior to Chiba’s appointment, an increase in death sentences and executions since the mid-1990s had characterized a “resurgence” in the death penalty. [132] The Legal Training and Research Institute, affiliated with the Japanese Supreme Court, attributes this renewed vigor of capital punishment at least in part to the mass murders committed by members of the Aum Supreme Truth cult in Tokyo in 1995. [133] Johnson and Zimring identify several other causes, including a general trend toward harsh punishments, a tough-on-crime attitude among citizens (itself attributable to increased crime rates and greater attention paid to victims of crime), and the United States’ own resurgence of capital punishment post-Furman. [134]
The resurgence of the death penalty continued to accelerate in the 2000’s. In 2008, Japanese human rights organizations noted that the number of death row inmates had doubled since 2003. [135]
Furthermore, numbers published in July 2012 by the Legal Training and Research Institute, affiliated with the Supreme Court, indicated that death sentences were issued by trial courts in 0.99% of murder cases in 2005-2009, as opposed to 0.2% of cases between 1955 and 1995 – representing a 4-fold increase. The report, designed to provide guidelines on capital punishment to lay judges, also emphasized that in recent Japanese jurisprudence the death penalty had mostly been reserved for cases involving multiple murders. The report noted that between 1980 and 2009, capital punishment had been imposed in 32% of cases with one victim, 59% of cases with 2 victims, and 79% of cases with 3. Murder in the context of a kidnapping for ransom resulted in a death sentence in 50% of cases. Convicted murderers who had killed again after being released on parole were sentenced to death in 100% of cases. [136]
In December 2007, then minister of justice Kunio Hatoyama began disclosing certain information to the public about executions: the identities of those executed and their crimes. [137] In addition, a lay judge (saiban-in) system – incorporating six lay assessors together with the judicial bench – was instituted in May 2009. [138] Both reforms may be indicative of a trend toward greater governmental transparency. [139] Finally, a Freedom of Information request by the Mainichi, a major Japanese newspaper, produced documents that disclosed information about the administrative procedures that take place between a death sentence and execution, helping to further increase transparency. [140]
There have been reports that since the lay judge system began in 2009, courts have restricted the evidence that can be adduced at trial, requiring in particular extremely abbreviated forms of expert testimony, in order to reduce the burden on citizens who serve as lay judges. As a result, there is a concern that defendants’ psychological and developmental problems are not considered as carefully as they should be. [141]
Is there currently an official moratorium on executions within the country?
No. [142] While there were no executions in 2011, there were seven executions in 2012 [143] and six in 2013. [144]
The 2009 appointment of Keiko Chiba as Justice Minister had been predicted to halt the application of the death penalty. [145] However, on July 28, 2010, two Japanese death-sentenced inmates were hanged pursuant to Chiba’s execution orders, [146] indicating that her stance against the death penalty would not halt executions during her term. Subsequent justice ministers, including minister Makoto Taki (who authorized 5 executions in 2012) and current Justice Minister Sadakazu Tanigaki have stated their support for executions. [147]
Japan’s capital punishment history includes a number of brief de facto moratorium periods. Seiken Sugiura, minister of justice from 2005 to 2006, imposed a brief de facto moratorium by refusing to sign execution orders. [148] From November 1989 to March 1993, a de facto moratorium followed a series of four exonerations from death row in the 1980s. [149] This moratorium fostered an anti-death penalty movement, which declined after the 1994 and 1995 Aum Shinrikyo toxic gas attacks. [150] From 1993 to 2008, 76 people were hanged. [151] Seven more were executed in 2009 before Chiba’s appointment in September 2009. [152]
Have there been any significant published cases concerning the death penalty in national courts?
In 1983, in the Norio Nagayama case, the Japanese Supreme Court issued a judgment restricting the application of the death penalty to cases where “criminal liability is extremely grave taking account of any and all extenuations.” [153] The factors to be considered to determine whether capital punishment is appropriate include “the nature of the crime, the motive, its features and in particular the tenacity and cruelty employed in carrying out the murder, the gravity of its consequences as reflected especially in the number of victims killed, the feelings of the bereaved family, its impact on the society, the age of the perpetrator, his criminal record, and grounds for leniency after the crime has been committed.” [154] The Nagayama standards were applied, for instance, in a 1996 case in which the Supreme Court struck down a death sentence in light of the offender’s prior criminal record, his social life, the fact that only one person was murdered, and the defendant’s limited role in the crimes (he devised the murder scheme but did not carry out the crime). [155]
In 2011, in sentencing Japanese citizen Sunao Takami to death, an Osaka District Court ruled that death by hanging was Constitutional. The Court rejected the argument made by Takami’s counsel that hanging constituted cruel punishment and was forbidden by the national charter. [156]
Where can one locate or access judicial decisions regarding the death penalty?
There are few online resources freely available regarding Japan’s judicial decisions. Among them is the website of the Supreme Court of Japan (http://www.courts.go.jp/), which publishes the Court’s cases since 1947 in Japanese. Well-known cases are published in English as well. There are no websites for lower court cases in criminal matters.
Two subscription-based online databases exist as well (http://www.tkclex.ne.jp/ and https://www.d1-law.com/cgi-bin/d1w2_portal/d1wp_mlogin.exe), offering a more comprehensive listing of cases. Both websites are in Japanese.
The Asian Legal Information Institute posts English-translation Supreme Court opinions at http://www.asianlii.org/resources/232.html. We do not know whether this is an exhaustive translation of Supreme Court jurisprudence.
A comprehensive selection of Japanese legislation translated into English can be found on the website Japanese Law Translation, created by the Japanese Ministry of Justice: http://www.japaneselawtranslation.go.jp/law/?re=02
What is the clemency process?
Only the warden, chief probation officer, or a public prosecutor – not the accused – may petition for clemency to the National Offenders Rehabilitation Commission. [157] Whoever submits the petition to the National Offenders Rehabilitation Commission must include his or her opinion in the matter. [158] Additionally, “a request for pardon does not…suspend the execution.” [159]
The petition for clemency is reviewed by the National Offenders Rehabilitation Commission, which may grant or dismiss the petition. [160] If granted, the Minister of Justice then issues the pardon or commutation. [161]
No commutation has been granted since 1975. [162] Many experts have concluded that there is no real possibility of clemency in Japan, in violation of the country’s human rights obligations. [163]
Are jury trials provided for defendants charged with capital offenses?
Yes. In July 2009, Japan’s judiciary implemented a lay judge system for certain criminal cases. [164] This system allows six randomly selected lay citizens to sit alongside three professional judges to determine guilt or innocence and the appropriate sentence. [165] Guilt may only be pronounced when the citizens “are certain…that ‘there is no room for doubt.’” [166] If a unanimous verdict cannot be reached, a majority decision decides the result, provided that the majority decision includes the vote of at least one lay citizen and one professional judge. [167] As a result of individuals being unfairly accused, the Japan Federation of Bar Associations has proposed that death sentences be handed down unanimously. [168]
The purpose of the lay judge system is to create a “faster, friendlier, and more reliable justice system” and to “increase the understanding and trust of the general public toward the justice system.” [169]
In practice, in comparison to conventional criminal trials (when cases were decided solely by professional judges), the lay judge system has produced harsher sentences on defendants found guilty of sex crimes as well as those who inflicted injury resulting in death. [170]
The lay judge system was to undergo a mandatory evaluation in 2012 with the main topics of discussion being whether citizens should be allowed to preside over death penalty cases and confidentiality agreements. [171]
On July 23, 2012, the Legal Training and Research Institute, affiliated with the Supreme Court, issued a long report summarizing sentencing precedents in murder cases, and designed to serve as guidelines for lay judges. The report endorsed the standards laid out by the Supreme Court in the Nagayama case, and emphasized that in the past, the death penalty had predominantly been reserved for cases with multiple murders. [172]
There have been reports that since the lay judge system began in 2009, courts have restricted the evidence that can be adduced at trial, requiring in particular extremely abbreviated forms of expert testimony, in order to reduce the burden on citizens who serve as lay judges. As a result, there is a concern that defendants’ psychological and developmental problems are not considered as carefully as they should be. [173]
Brief Description of Appellate Process
District courts are the courts of first instance in death penalty cases. [174] Once a court hands down the death sentence, the defendant has the right to appeal to the High Court, and then to the Supreme Court, after which the sentence is finalized. [175]
After the defendant is definitively condemned to death, the minister of justice must sign an execution order within six months (this period does not include time for a retrial request, an extraordinary appeal, or a request for pardon). [176] While the Criminal Procedure Code stipulates that executions should be performed within six months of a finalized sentence, executions often take much longer. [177] According to law, the execution takes place within 5 days of the Minister of Justice authorizing it. [178]
There is no mandatory appeal from a death sentence, in violation of international human rights norms, [179] and there are reports of inmates who were executed without exercising any right to appeal. [180] The Committee Against Torture expressed concerns in 2007 regarding the absence of a mandatory appeals process. [181] Japan’s position before human rights bodies has been that a mandatory appeal is unnecessary because most death-sentenced inmates exercise their right to appeal. The numbers, however, paint a different picture: 30% of the death sentences carried out between 1993 and 2012 were never reviewed by the Supreme Court. [182]
Prosecutors may also appeal sentencing decisions and have in the past procured a death sentence on appeal. [183]
References
[109]
[110]
[111]
[112]
[113]
[114]
[115]
[116]
[117]
[118]
[119]
[120]
[121]
[122]
[123]
[124]
[125]
[126]
[127]
[128]
[129]
[130]
[131]
[132]
[133]
[134]
[135]
[136]
[137]
[138]
[139]
[140]
[141]
[142]
[143]
[144]
[145]
[146]
[147]
[148]
[149]
[150]
[151]
[152]
[153]
[154]
[155]
[156]
[157]
[158]
[159]
[160]
[161]
[162]
[163]
[164]
[165]
[166]
[167]
[168]
[169]
[170]
[171]
[172]
[173]
[174]
[175]
[176]
[177]
[178]
[179]
[180]
[181]
[182]
[183]
Death Penalty In Practice
Where Are Death-Sentenced Prisoners incarcerated?
Death-sentenced prisoners are imprisoned until their execution date or until they win an appeal. [184] There are seven detention centers [185] which are equipped with gallows (in Tokyo, [186] Nagoya, [187] Sapporo, [188] Sendai, [189] Osaka, [190] Hiroshima, [191] and Fukuoka). [192]
Description of Prison Conditions
Death-sentenced inmates are kept in solitary confinement in tatami cells of about 8 square meters. The cells are equipped with toilets and a sink. The inmates remain isolated during periods of exercise and meal times. Attorneys and relatives are virtually the only people who can visit or correspond with death row inmates. Inmates’ reading material is controlled. [193]
Solitary confinement can be imposed upon death row inmates for lengthy periods. As of May 2008, 25 inmates had been on death row for over 10 years, and there were 4 death row inmates in their 80s. [194]
Death row inmates’ correspondence with the outside, including defense counsel, is censored. By law, death row inmates may correspond and accept visits from persons who are neither relatives nor lawyers, if these persons contribute to inmates’ mental stability. In practice, however, prisons limit such relationships to about 3 per inmate. [195]
Prison and detention centers have reported overcrowding, lack of heating or air conditioning, inadequate access to potable water or food, insufficient clothing or blankets to protect inmates against the cold, and lack of or insufficient medical care . [196] The lack of medical care is a serious problem, because many institutions in Japan lack a full-time doctor and restrictions relating to the amount of water that can be used by each prisoner frequently affects their hygiene. [197] Japanese inmates on death row are forbidden from watching TV and listening to radios and receive no telephone privileges. [198]
Death-sentenced prisoners and their family members are not informed of execution dates. [199] The death-sentenced inmate himself is only informed of the execution a few hours before it takes place. [200] The government argues that this policy is “compassionate and prudent;” [201] the secrecy “spare[s] the prisoners the anguish of knowing” when they will die. [202] Human rights NGOs and human rights bodies have strongly condemned this practice, arguing that the failure to notify death row prisoners of the date and time of their planned execution causes extreme mental anguish and constitutes cruel, inhuman, and degrading treatment or punishment. [203] Enduring the constant fear of execution for years has also led prisoners on death row to develop severe depression or mental illness. [204] A survey conducted among death row inmates in December 2012 reported that a majority of prisoners wanted to be notified of their execution in advance and wished for a review of the method of execution. [205]
In 2011, Forum 90, Japan’s leading citizens’ group against the death penalty, conducted a survey of over 90 inmates on death row asking them about their living conditions and whether they would like to say anything to the public. [206] Some inmates communicated a desire to be informed of execution dates prior to the execution day. [207] One inmate said she wanted to be informed so she could “get [her] affairs in order and try to prepare emotionally.” [208] Still others indicated a desire for more contact with individuals outside the prison as well as with fellow inmates. [209] Many inmates also indicated that meeting with visitors and exchanging letters with loved ones were among the activities that provided them with the most relief. [210]
Are there any known foreign nationals currently under sentence of death?
Yes. [211]
What are the nationalities of the known foreign nationals on death row?
The Japan Death Penalty Information Center reports six foreign nationals on death row that have had their sentences finalized by the Supreme Court of Japan: five Chinese and one Malaysian. [212]
Are there any known women currently under sentence of death?
As of November 11, 2013, it is reported that there are six women currently on death row who have had their sentences finalized by the Supreme Court of Japan. [213] Two additional women are under a death sentence but have not yet exhausted their appeals. [214]
Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?
No. Under Japanese law, people who were under 18 at the time of the offense may not be sentenced to death. [215] People under the age of 20 are considered “minors” in the Japanese criminal justice system, [216] and 6 persons who were under the age of 20 at the time of the offense are currently on death row (6 of whom have exhausted their appeals). [217] However, there is no record of a person being sentenced to capital punishment when he was under 18 at the time of the offense.
Comments regarding the racial/ethnic composition on death row
The Japan Death Penalty Information Center reports six foreign nationals on death row that have had their sentences finalized by the Supreme Court of Japan: five Chinese and one Malaysian. However, almost all death-sentenced prisoners in Japan are Japanese. [218]
Foreign defendants face a language barrier, which the government takes little to no action to overcome; trials and interrogations reportedly take place whether or not interpreters or translators are available. [219]
Are there lawyers available for indigent defendants facing capital trials?
Yes. All defendants are guaranteed a lawyer for all proceedings following indictment. [220] The Code of Criminal Procedure provides that when an offense is punishable by death, a trial may not be convened without the attendance of counsel. If counsel does not appear, the presiding judge appoints one ex officio. [221] Since amendments to the Code of Criminal Procedure in 2004, indigent suspects under investigation for a death-eligible offense are appointed counsel before indictment. [222]
Once a death sentence has been finalized, however, no legal aid is available for retrials or other collateral appeals. [223]
Are there lawyers available for indigent prisoners on appeal?
Yes. All defendants are guaranteed a lawyer for all proceedings following indictment. [224] Once a death sentence has been finalized, however, no legal aid is available for retrials or other collateral appeals. [225]
Comments on Quality of Legal Representation
Defendants’ access to counsel has been described as “insufficient.” [226] Defense counsel is sometimes unable to gain access to possibly exculpatory evidence, including exculpatory DNA evidence. [227] Evidence is sometimes destroyed by the police after initial trials. [228] The inability of defense counsel to gain access to critical evidence has limited the effectiveness of legal representation.
Presence of defense counsel is not mandatory during interrogations. [229] While theoretically there is no limitation on meetings between detained suspects and their lawyers, in practice such meetings will be delayed if they would interrupt the investigation, for example if the suspect is in the middle of an interrogation or present at a crime-scene search. [230]
There is also no guarantee of lawyer-client confidentiality, as prison officials may observe meetings between death row inmates and their lawyers. [231] Additionally, correspondence between death row inmates and the outside, including defense counsel, is censored. [232]
The prosecutor is not required to state whether he is seeking the death penalty until the penultimate day of the trial, after all the evidence has been adduced and before the defense begins its closing statement. This severely limits defense counsel’s ability to properly represent his client. [233]
There are no legal provisions requiring effective assistance of counsel, and a recent report by the Death Penalty Project notes a worrying tendency to finalize death sentences despite inadequate legal representation. For instance, in a 2005 decision, the Third Petit Bench of Japan’s Supreme Court declined to take any corrective measures in a case where a defendant in a murder case retracted his confession in the middle of his trial and claimed complete innocence, but where defense counsel continued to base his defense on his client’s previous admissions of guilt. [234]
More generally, experts note that the quality of defense lawyering is hindered not only by procedural advantages granted to law enforcement, but also because defense training is rudimentary and because the culture of defense lawyering sometimes discourages the aggressive representation of the client’s interests. While there have been improvements since the lay jury was introduced in 2009, there remains much room for improvement. [235]
Other Comments on Criminal Justice System
Only since 2007 has the Ministry of Justice begun disclosing information about executions to the public. [236] The ministry has traditionally held a “policy of secrecy”; today, the secrecy surrounding execution dates bears witness to this long-standing tradition. [237]
Notably, seeking the death penalty in Japan is not left to the prosecutor’s sole discretion. Prosecutors submit cases to government lawyers to review the case and decide whether the death penalty may be pursued. [238]
The Code of Criminal Procedure states that a person may only be detained if informed of the case against him and afforded the opportunity to make a statement. [239] However, judges routinely grant prosecutors’ applications to extend the pre-indictment custody; custody may be extended up to two consecutive ten-day periods, in addition to a five-day extension for certain crimes “such as insurrection, foreign aggression, and disturbance.” [240] The daiyo kangoku system is a pre-trial “substitute prison” system that allows suspects to be held in police station cells rather than in prisons. [241] This system is thought to be problematic because it leads to lengthy interrogations (a possible cause of false confessions) and a lack of medical care for the accused. [242] The daiyo kangoku employs harsh interrogation tactics, often leading to false charges. [243] A 1989 Japanese Supreme Court decision ruled that a ten-hour interrogation did not transgress “permissible limits of non-compulsory investigation.” [244] The U.N. Committee Against Torture expressed concern that the daiyo kangoku system violates human rights, and recommended that Japan bring the system “into conformity with international minimum standards.” [245]
In January 2008, the National Police Agency created new guidelines following reports of torture during interrogations. [246] In April 2008, the National Public Safety Commission created regulations preventing police officers from “touching suspects…, exerting force, threatening them, keeping them in fixed postures for long periods, verbally abusing them, or offering them favors in return for a confession.” [247] However, NGOs report that police continue to use “aggressive questioning techniques.” [248]
Foreign defendants face a language barrier, which the government takes little to no action to overcome; trials and interrogations proceed whether or not interpreters or translators are available. [249]
The formal pre-trial procedure introduced in 2005 does not require that prosecutors disclose all of the evidence in their possession to defense counsel, thus putting defense counsel at a significant disadvantage compared to the prosecution and violating the right to a fair trial. [250]
References
[184]
[185]
[186]
[187]
[188]
[189]
[190]
[191]
[192]
[193]
[194]
[195]
[196]
[197]
[198]
[199]
[200]
[201]
[202]
[203]
[204]
[205]
[206]
[207]
[208]
[209]
[210]
[211]
[212]
[213]
[214]
[215]
[216]
[217]
[218]
[219]
[220]
[221]
[222]
[223]
[224]
[225]
[226]
[227]
[228]
[229]
[230]
[231]
[232]
[233]
[234]
[235]
[236]
[237]
[238]
[239]
[240]
[241]
[242]
[243]
[244]
[245]
[246]
[247]
[248]
[249]
[250]
Decisions of International Human Rights Bodies
Decisions of Human Rights Committee
In 2008, the Human Rights Committee stated its concern that Japan’s statutes contain a great number of crimes punishable by death, and recommended reducing these statutes to only the most serious crimes. [251] The Committee also noted that in practice, the death penalty is only applied for crimes involving murder. [252]
Decisions of Other Human Rights Bodies
At its 2012 Universal Periodic Review, the Japanese delegation’s position was much the same as it had been in 2008. It stated that a majority of Japanese people considered the death penalty unavoidable in cases of vicious crime, and that given that such crimes would continue to be committed, immediate abolition would be inappropriate. [253] The delegation also rejected the idea of a moratorium on executions as “inappropriate.” [254] The delegation further stated that it had “taken seriously the recommendations from treaty bodies regarding the treatment of inmates sentenced to death and [would] also continue its effort to treat them appropriately.” [255] Finally, the delegation stated that solitary confinement of death row prisoners 24 hours a day, as Japanese law stipulates, is not a violation of their human rights as it is imposed with a view to ensuring the prisoners’ emotional stability. [256] Most of the recommendations offered by participating countries had invited Japan to consider abolishing the death penalty and/or instituting a moratorium on executions. [257]
At its 2008 Universal Periodic Review before the Human Rights Council, the Japanese delegation similarly stated that abolition was inappropriate because a majority of the Japanese people consider the death penalty “unavoidable in case of extremely vicious crimes” such as multiple murders and abduction-murders. Consequently, the Japanese government did not support the UNGA’s moratorium resolution or recommendations to institute a moratorium or abolish capital punishment. The delegation emphasized that the death penalty was only handed down after “very cautious trials.” [258] The government further stated that the practice of informing death row inmates of their execution on the day of the execution was “inevitable” as it was necessary to maintain inmates’ emotional stability and secure custody. [259]
In 2007, the Committee Against Torture stated that Japan’s death penalty law may allow torture and ill-treatment, noting in particular lengthy solitary confinement and the unnecessary secrecy surrounding execution dates. CAT also expressed serious concern about the lack of a mandatory appeal system for capital cases, the fact that a retrial procedure or a request for pardon does not lead to suspension of the execution of sentence, the large number of convictions based upon confessions, the absence of a review mechanism to identify inmates on death row who may be suffering from a mental illness and the fact there had been no commutation of a death sentence in the past 30 years. [260]
The High Commissioner for Human Rights, on 7 December 2007, expressed concern over the execution of three prisoners in Osaka, including one prisoner aged 75. The executions were reportedly carried out without advance warning to either the convicts or their families. [261]
In March 2004, the Special Rapporteur on extrajudicial, summary or arbitrary executions sent a communication raising concerns regarding the execution of Mukai Shinji, who reportedly suffered from a mental health condition, and whose lawyer was preparing an appeal for retrial at the time of the execution. [262]
References
[251]
[252]
[253]
[254]
[255]
[256]
[257]
[258]
[259]
[260]
[261]
[262]
Additional Sources and Contacts
Direct member(s) of World Coalition Against the Death Penalty
Center for Prisoner's Rights (CPR)
Mrs. Maiko Tagusari
c/o Amicus Law Office
Raffine Shinjuku #902
1-36-5, Shinjuku
Shinjuku-ku, Tokyo 107-0052
Japan
Tel: +81 3 32 59 15 58
Fax: +81 3 32 59 15 58
m-tg@mwa.biglobe.ne.jp
www.cpr.jca.apc.org
Forum 90
Mr. Yoshihiro Yasuda
2-24-13, Akasaka
Minato-ku, Tokyo 107-0052
Japan
jyonasan@symphony.plala.or.jp
Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty
Reprieve
PO Box 72054
London EC3P 3BZ
United Kingdom
Tel 020 7553 8140
Fax 020 7553 8189
info@reprieve.org.uk
http://www.reprieve.org.uk
Center for Prisoners’ Rights
Mrs. Maiko Tagasuri, Secretary General
c/o Amicus Law Office
Raffine Shinjuku #902
1-36-5 Shinjuku
Shinjuku-ku, Tokyo 107-0052
Japan
Tel : +81 3 32 59 15 58
Fax: +81 3 32 59 15 58
m-tg@mwa.biglobe.ne.jp
www.cpr.jca.apc.org
Forum 90
Mr. Yoshihiro Yasuda
2-24-13 Akasaka
Minato-ku, Tokyo 107-0052
Japan
jyonasan@symphony.plala.or.jp
Japan Innocence & Death Penalty Research Center (http://www.jiadep.org/)
Mr. Michael H. Fox, Director
Hyogo University 675-0195
Kagogawa, Japan
jiadep.org@gmail.com
Tel: +81 78 946 8871
Fax: +81 78 946 8871
www.jiadep.org
Helpful Reports and Publications
The International Federation for Human Rights published a report entitled The Death Penalty in Japan: A Practice Unworthy of a Democracy in May 2003. [263] A follow-up report was published in October 2008, entitled The Death Penalty in Japan: The Law of Silence. [264] Both reports were the result of fact-finding missions on Japan’s death penalty, and provide information such as the application of the death penalty, detention center conditions, and abolition efforts.
Amnesty International published a report entitled Hanging by a thread: Mental health and the death penalty in Japan in September 2009. [265]
Other useful publications include:
Leah Ambler, The People Decide: The Effect of the Introduction of the Quasi-Jury System (Saiban-In Seido) on the Death Penalty in Japan, Northwestern Journal of Intl. Human Rights, Vol. 6, No. 1, 2007.
Amnesty Intl., “Will This Day Be My Last?”: The Death Penalty in Japan, ASA 22/006/2006, Jul 6, 2006.
Anti Death Penalty Asia Network, When Justice Fails: Thousands Executed in Asia After Unfair Trials, https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/ASA0102311?CMD=VEROBJ&MLKOB;=30222190000, Jan. 23, 2011.
Anti Death Penalty Asia Network, Lethal Injustice in Asia: End Unfair Trials, Stop Executions, http://www.amnesty.org/en/library/asset/ASA01/022/2011/en/8277f110-4b73-45f6-b735-c0df044af69c/asa010222011en.pdf, Jan. 22, 2011.
Center for Prisoners’ Rights Japan, The Alternative Report on the Fifth Periodic Reports of the Japanese Government Under Article 40 of the International Covenant on Civil and Political Rights, http://www2.ohchr.org/english/bodies/hrc/docs/ngos/Center_Prisoners_Rights_Japan94report.pdf, Sep. 2008.
Death Penalty Information Center, Podcast with Michael H. Fox, http://www.deathpenaltyinfo.org/podcasts#jpn, May 1, 2012.
Death Penalty Project, The Death Penalty in Japan: A Report on Japan’s legal obligations under the International Covenant on Civil and Political Rights and an assessment of public attitudes to capital punishment, http://www.deathpenaltyproject.org/wp-content/uploads/2013/03/DPP-Japan-report.pdf, Mar. 2013.
Intl. Federation for Human Rights, The Death Penalty in Japan: The Law of Silence, N°505a, http://www.fidh.org/IMG/pdf/japon505a2008.pdf, Oct. 9, 2008.
Intl. Federation for Human Rights & Center for Prisoners’ Rights, Stakeholder’s Information Report for the 14th Session of the Working Group on the UPR: Prison and the Death Penalty in Japan, p. 3-4, Apr. 2012.
David T. Johnson, Japan’s Secretive Death Penalty Policy, Asian-Pacific Law and Policy Journal, Vol. 7, No. 2, 2006.
David T. Johnson, Progress and Prospects for Law Reform in Japanese Capital Punishment, Conference on “Capital Punishment in Asia”, City University of Hong Kong, Nov. 5, 2011.
David T. Johnson & Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia, Oxford University Press, 2009.
Setsuo Miyazawa, The Politics of Increasing Punitiveness and the Rising Populism in Japanese Criminal Justice Policy, Punishment and Society, Vol. 10, No. 1, 2008.
Petra Schmidt, Capital Punishment in Japan, Koninklijke Brill, 2002.
Maiko Tagusari, Death Penalty in Japan, East Asian Law Journal Vol. 1 No. 2, 2010.
A number of useful and regularly updated databases are available from the Japan Innocence and Death Penalty Research Center at http://www.jiadep.org/index.html.
Additional notes regarding this country
Several reports indicate that there is strong public support for the death penalty in Japan, [266] but a recent study challenges those findings. [267] Polls show that public support for the death penalty increased after the terrorist attacks on the Tokyo subway in 1995. [268] Communal values also contribute to support for the death penalty with many Japanese citizens believing that such a penalty is a proper way to maintain the social order and others expounding the philosophy that “those who succeed are those that make the fewest mistakes.” [269] However, other reports indicate that the government has never properly measured public opinion. [270] For example, the Cabinet Officer’s February 2010 opinion poll regarding the death penalty indicated that more than 85% of respondents were in favor of the death penalty. [271] However, respondents were given only three options: “1st: the death penalty should be abolished unconditionally, 2nd: in some cases, the death penalty cannot be avoided, 3rd: I don’t know/It depends, resulting in 85% of respondents choosing option two. [272] Additionally, Japanese citizens do not receive information about the administration of the death penalty, making it difficult for them to develop well-informed opinions. [273]
Polling conducted by Dr. Mai Soto from the Institute of Criminal Research Policy at Oxford University has revealed that Japanese public opinion is much more nuanced. Her polling revealed that only about 56% of the population can be considered “hard core” in its support for the death penalty. Moreover, when those hard core supporters of the death penalty are subjected to “deliberative polling,” which solicits their views after they have discussed the application of the death penalty with experts, about half of them change their minds.
The media plays a large role in shaping both Japanese public opinion of and the government’s stance toward the death penalty. [274] The media sympathizes strongly with victims’ family members and sensationalizes particularly horrific crimes. [275] This may be why the public – and the government – continues to strongly support the death penalty. [276]
The International Federation for Human Rights 2008 report describes a cultural belief that the punishment of death is the ultimate form of atonement for wrongdoing; this view was held by government officials, parliamentarians, and media personnel covering executions. [277]
References
[263]
[264]
[265]
[266]
[267]
[268]
[269]
[270]
[271]
[272]
[273]
[274]
[275]
[276]
[277]
