Wednesday, November 19, 2008

Explaining Japan's Death Penalty to a Texan

Early this morning, in between the hours of 3 a.m. and 4 a.m. local time, I was scheduled to be patched into an international conversation on BBC World Service. The discussion was about the death penalty, with the original discussion being between death penalty proponents and opponents in Texas. The announcer was then supposed to draw in other participants, waiting to offer views from various other parts of the globe.

The producers had asked me to explain in simple terms why Japan was one of only two advanced industrialized democracies, the other being the United States, that retains the death penalty--and why the death penalty enjoys broad popular support.

Unfortunately, due to technical difficulties, the producers were not able to patch me in from the wireless network I was on. The show went on without me.

C'est la vie.

My idealized script, written to an imaginary Texan interlocutor, went something like this:

"There are a number of reasons why the death penalty enjoys solid support in Japan.

I can think of two overarching ones.

First, Japan is not a country where the Ten Commandments apply. Japan is 1% Protestant; 1% Catholic. The Prime Minister is a Catholic, the first one in history.

For the remaining 98% of the population, however, the Biblical injunction "Thou Shalt Not Kill" has no meaning. Government is seen as having the right "to kill" and indeed in some instances to have the responsibility "to kill."

The second overarching reason is that the death penalty is applied intelligently.

What does that mean?

It means that first, death sentences are rare. Japan has 127 million citizens but only 101 men and women on death row. So far this year there have been 15 executions. This is an extraordinarily large number, the result of the appointment of three law & order politicians to the post of Minister of Law in the past calendar year. In most years, the number of persons executed is fewer than 10.

Second, prosecutors are cautious about asking for the death penalty and judges are cautious about handing them out. A case has to meet a set of strict criteria before prosecutors and judges will seek death. Interestingly, these criteria are both formal and informal.

1) the defendant has to be guilty--there can be no question that he or she committed the crime. There were a number of death penalty cases in the 1940s, 50s and 60s where it was unclear whether or not the defendant had indeed committed the crimes in question. Authorities realized quite quickly that handing out the death penalty in these ambiguous cases undermines support for the death penalty.

2) formally, the crime committed has to be murder and
3) informally, the crime has to be multiple acts of murder--mass murder, serial killings, or killing, going to jail, and upon release from jail, killing again.

Now this third criteria is not written down anywhere in the law. Nevertheless is it broadly understood and accepted.

A recent example can be seen in the different reaction to three executions that were carried out in September.

The first two executions were of two men who had each murdered a husband and a wife. Nobody questioned these executions.

The third execution, however, was of a man who had stabbed to death a 19 year old girl in the Osaka subway. He stabbed her multiple times in the chest, then ran away. When the authorities caught him, they realized he had been the culprit in a series of violent assaults on young women, including stabbings and beatings with a metal pipe.

Nevertheless, imposing the death penalty on this third man generated a great deal of discussion. He had killed only the one girl, and he had attacked his victims not in order to inflict pain but because he was trying to rob them. Executing this man seemed excessive, even though he had been given a fair trial and had been sentenced according to the law.

That is how strong this unwritten rule of "multiple acts of murder" is.

By imposing strict limits on the cases where the death penalty is imposed--where there is unquestionable guilt, there has been murder and then, almost exclusively, multiple acts of murder--by setting the bar very high, authorities have preserved the legitimacy of the death penalty as the ultimate sanction.

It should surprise nobody that opinion polls show public support levels for the death penalty at around 80%."
-----------------------------

"Keep it simple" was my mandate...and simple it is. Simplistic. A lot is left out.

Nevertheless, I believe the main gist correct.

Then again, when the competition is the lamentable Hatoyama Kunio, I was not in any real danger of making an incredible fool of myself, even at three in the morning...

I invite comment and criticism.


Later - This is serendipitous. David McNeill has released a magisterial article on the death penalty in Japan over at Japan Focus.

9 comments:

Janne Morén said...

Good points, and I agree that to the extent death penalty can ever be applied well, Japan does do so.

I am nevertheless an opponent, for two reasons. On occasion an obviously, clearly guilty - freely given confession and all - convict turns out not to have done the crime. They protect somebody, or they have their own, murky internal reasons for wanting to be found guilty. With a prison sentence you can annul the ruling after the fact. Not so with a death sentence.

The second reason is that careful analysis show that it has no deterrent effect compared to a "real" life sentence (comparisons, across times or societies, is murky and fraught with uncertainties but this seems to be the solid conclusion). And it can generate the opposite behavior, an indirect suicide by means of the judicial system.

As an addendum, it doesn't even seem costs are any lower than life imprisonment, since the incarceration time is long in either case, and the gravity of the punishment warrants extensive work in the judicial system and heavy security arrangements and upkeep of facilities.

I am largely against it for pragmatic reasons in other words.

Daniel S. said...

One argument against the death penalty in the U.S. is that life in prison is simply cheaper. I can not imagine this is the case in Japan.

OperationNorthwoods said...

Janne,

I'm not sure, but your logic seems to be implying that confessions shouldn't carry much weight. That's perfectly sensible, especially due to the temptation for the police to torture or unreasonably pressure a suspect into confessing to a crime he didn't commit. But your argument doesn't seem as strong in the situations that the post lists.

Anonymous said...

Unless I am mis-understanding your logic, I'm not sure that Christianity (either in countries that lack a separation between church and state or in countries where a majority of the population adheres to Christianity) has much relevance to a state-level policy such as this.
A quick single country across time comparison (of say, England) or a single country with a high degree of religiosity (say, the US) undermines the argument.
Although you'd probably find a correlation between death penalty and non-Christian countries, other factors probably account for this.
-Jill

MTC said...

Jill -

While a cross-time analysis makes me look foolish, an international comparative of the states that have abolished the death penalty would find a correlation between Christianity as the dominant religious tradition and abolition.

See the list of countries here:

http://asiapacific.amnesty.org/pages/deathpenalty-countries-eng

Herr Morén -

The lack-of-a-deterrent effect would be hard to argue. Polling shows that most Japanese citizens believe that the death penalty has a deterrent effect. If they believe that it is a deterrent, that makes it one, doesn't it?

Janne Morén said...

MTC,

About the confession thing, I was not thinking of things like forced confessions. The fact is, confessions are surprisingly often not true even when given completely voluntarily and unasked-for. Police tends to appreciate this; any time you have a high-profile murder they get dozens of people coming forward claiming they did it. There are any number of reasons, including but not limited to delusions, protecting someone, simple attention-seeking, "suicide by court" or any number of reasons.

Statistically it is inevitable that now and again somebody with an actual connection to the crime will also be prone to give a false confession. In some jurisdictions a confession is indeed not considered enough to convict somebody of a serious crime; other, corroborative evidence is needed.

Lack of a deterrent is a result based on actual outcomes, not on belief in its effectiveness. Yes, belief in something can make it effective, but effectiveness is shown to be lacking. Remember, it doesn't matter if most ordinary people say they are deterred; most ordinary people would not commit a heinous crime in the first place. And once you're in such mental dire straits that you are indeed capable of doing so, the dim prospect of a possible execution, as opposed to life in prison, is not likely to make any difference in your acts here and now. Again, it's the results that count, not the intentions.

Anonymous said...

The second part of your explanations is accurate, but the first part frightens me(Yes, literally it frightens me). What a balant paganophobia you display! Are you really Mr. Shisaku?

MTC said...

anonymous - re "paganophobia"

Please understand. My task was to explain, very quickly, what Japanese attitudes toward the death penalty are...and to do so to opinionated and agitated Texans.

Such "paganophobia" as you may detect is the result of my attempt, vain as it may have been, to speak using idioms and ideas my interlocutors could understand.

Anonymous said...

Good post.

I like to add the, for me, most cruel part of death penalty in Japan. That is that the moment your time has come remain unknown until a few hours before the execution. That's cruel to any human. Even a murderer in my view. Family is also informed afterwards. I wonder why this is done like this but even the friendliest Japanese I know have no problem with this.

Pat