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%."

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"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.