Life is precious. One human life is of more importance than the whole earth. The death penalty is certainly the grimmest of all punishments. It is the ultimate one and is indeed unavoidable. This is an excerpt from a decision issued by the Japanese Supreme Court on March 12, 1948.
In this decision the court ruled the death penalty to be constitutional based on its reading of Article 31 ("No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law"), declaring, "Though the life of an individual citizen is precious, it is clearly provided that criminal penalty depriving life may be imposed according to reasonable procedures established by law"; the court also declared that cap-ital punishment was not one of the "cruel punishments" forbidden under Article 36 of the Constitution ("The infliction of torture by any public offi-cer and cruel punishments are absolutely forbidden").
This decision, which continues to be cited frequently even today, was reached during the post - World War II Occupation of Japan, before death sentences were handed down at the Tokyo Trial [International Military Tri-bunal for the Far East]. If the Supreme Court had declared capital punish-ment unconstitutional at this point, the Occupation authorities might have intervened in some manner, and so we cannot exclude the possibility that the justices felt quite conflicted when they wrote this decision.
In addition, in a supplementary opinion the justices wrote: "However, the Constitution did no more than establish the above provision in reflection of public sen-timent at the time when it was adopted; it cannot be thought to authorise capital punishment forever. The determination of whether a punishment is cruel or not depends on public sentiment. Public sentiment, though, cannot avoid changing over time, so something that is not taken to be a cruel pun-ishment in one age may be judged the opposite in later ages.
Therefore, when the culture of the nation reaches an advanced level and a peaceable society premised on justice and order is realised, bringing an age in which the prevention of crime through the threat of capital punishment is not felt necessary for the sake of public welfare, public sentiment will doubtless judge capital punishment to be a cruel punishment.
In that case, the interpretation of Article 31 will naturally be limited, and capital punishment will be excluded as a cruel punishment that violates the Constitution" (emphasis added). This passage can be read to indicate that the Supreme Court justices of the time were expecting society to progress and the death penalty to be abolished in the future.
What sort of age are we living in now, about 60 years after this decision? The death penalty has not yet been abolished, nor is there any sign that it will be. In this article I will discuss the death penalty, but I will not focus on the topics that tend to be at the center of such discussions, such as value-laden arguments about human rights, the possibility of wrongful conviction, and retribution. Instead I wish to consider why the death penalty has not been abolished in Japan by looking at empirical data about the social con-ditions in which it exists.
A RISE IN HEINOUS CRIMES?
A newspaper reporter once told me about a statement that a prosecutor made in the closing arguments in a murder trial. Seeking the death penalty for the defendant, the prosecutor declared, "Recently crimes that make light of human life have been occurring frequently, and there are many problems relating to public safety in this country."
The prosecutor may have been try-ing to make the case that since there is now a widespread tendency to treat life lightly, we need to severely punish those who take others' lives by imposing the death penalty on them and thereby make people realise that if they treat others' lives lightly, their own lives will also be treated lightly. But if there is really a climate of treating human life lightly, it seems to me that this will only be exacerbated by capital punishment, under which the power of the state is used to deprive people of their lives.
At last year's meeting of the American Society of Criminology, Professor Frank Zimring of the University of California, Berkeley, received the prestigious Sutherland Award. In his address accepting the award he criticised one economist's assertion that increasing the number of exe-cutions would heighten the deterrent effect of the death penalty, declaring that his own reanalysis of this econo-mist's findings showed that the original method of assessing the deterrence and brutalization produced by the death penalty was arbitrary and contorted. He went on to say that criminologists should be more active in challenging such studies by economists. His remarks were greeted with vigorous applause. I wonder how the prosecutor I mentioned above would receive this message.
This has been a long introduction, but now I would like to examine the premise that crimes taking human life lightly have been occurring frequently. Under the Crimi-nal Code there are a number of crimes subject to the death sentence, but in practice this penalty is applied only in murder cases, including robbery, murders.
During the first decade or so after the end of the war the number of officially recognised murder cases increased, but since the mid-1950s the figure has been steadily trending downward. In subjective terms, with all the media talk about deteriorating safety and a rise in heinous crimes, the per-ceived level of public safety as measured by public opinion surveys has declined, but in objective terms the number of crimes subject to capital punishment has been decreasing; in that sense the conditions for abolition of the death penalty may be said to have been improving.
When I point this out, some people retort that even though this may be true in terms of the statistics, surely the numbers of frightening crimes without a clear motive have been increasing, and that crimes have been becoming more vicious. But these assertions are not correct either. The popular film Always: Sanchome no yühi (Always: Sunset on Third Street) is set in the latter half of the 1950s and depicts this as a time when human warmth and the ties of family and community still existed.
In fact, however, it was a period during which there was a rash of incidents in which entire families were killed over minor matters and in which children were kidnapped, sexually abused, and murdered. Though I do not have space to present the details here, a careful review of the newspapers of the time will readily confirm this.
Some members of the legal establishment assert that there has been an increase in the number of cases of heinous crimes for which capital punishment is the only option; there are elements of the situation, they say, that do not show up in the statistics. But, as I shall explain in more detail below, an analysis of the facts of the court cases in which sentences of death or indefinite imprisonment have been handed down does not support this assertion.
The reason that these legal professionals have this impression may be that the grievousness of the cases has become more readily visible as a result of changes in the way murder cases are discussed in court sessions and media reports, along with a shift in the way crimes are viewed, with more emphasis placed on the perspectives of the victims and of surviving family members.
Next let us look at the trends in the number of death sentences handed down and carried out. Over the past few years the number of final death sentences has risen, and so has the number of prisoners on death row. This is a reflection not just of changes in the Criminal Code implemented in 2004, which increased the severity of legally prescribed penalties, but also of the pronounced trend toward more severe handling on the procedural level, including prosecution demands for sentences and appeals calling for the death penalty, along with increasingly severe court decisions.
What I would like to make clear is that what has happened is not that the number of crimes sub-ject to the death sentence has increased but that the way the crimes are judged has changed.
How about sentences of indefinite imprisonment, which are often brought up in comparison with death sentences? Since 1998 the number of indefinite prison sen-tences handed down has increased sharply, and this has resulted in an increase in the number of such imprisoned convicts. Most of the convictions are for murder cases, in-cluding robbery, murders, as in cases for which the death sentence is handed down. Here I would note one more time that the number of people murdered has been de-clining in recent years.
In the case of indefinite sentences, convicts become legally eligible for release on parole after serving 10 years in prison. One often sees comments in the media that the gap between this and the death sentence is too wide; it is suggested that we need to introduce life sentences without parole. What is the actual situation?
The number serving such sentences has in-creased sharply, the number of those released has shrunk markedly in recent years. And now the release of such con-victs has effectively been frozen. Exceptions are very few, and are seen only in cases where the convicts have served nearly 30 years. It seems fair to say that even though indefinite sentences include the possibility of parole, in prac-tice they are becoming sentences of imprisonment for life. When people talk about introducing life sentences, they should understand this reality.
ONLY 6% FAVOUR ABOLITION:
Now let us turn to the results of public opinion surveys concerning the death penalty. The number who favour the death penalty has been increasing. The government's surveys on this subject have been criticised for using leading questions, asking people if they think the death penalty "should be abolished regardless of the case" or "cannot be avoided in some cases."
And it is true that the results of opinion surveys can change sub-stantially depending on the way the options are phrased. I was asked my own opinion about death penalty surveys when I was a civil servant in the Ministry of Justice, and at the time I consulted an authority in the field of statistical studies in Japan about this point; I recall that he dismissed this concern, saying that it was not a significant problem.
In 2006 I conducted my own survey of opinions regarding the death penalty, funded by a scientific research grant, and I divided the sample into two groups, using different sets of questions to see how the results might differ. One set offered exactly the same set of options as the Cabinet Office. The other set used the most orthodox sort of phrasing that would ordinarily be used in such a survey:
"There are various opinions about the death penalty. Do you think that it should be kept as a form of criminal penalty, or do you think it should be abolished?" The re-spondents were asked to choose among the following op-tions: (1) Absolutely should be kept. (2) Should be kept. (3) Cannot say. (4) Should be abolished. (5) Absolutely should be abolished. The use of the options I prepared resulted in a modest decline in the share of those saying they favoured the death penalty and a rise in those saying they were not sure.
But the share of those saying the death penalty should be abolished was little changed. The statistician I mentioned above may have spoken as he did based on his own experience based judgement that when people are asked about an issue like the death penalty, on which attitudes are clearly defined, their responses are unlikely to vary much regardless of the phrasing of the question.
In any case, it would seem that, however one expresses the question, the share of Japanese who support abolition of capital punishment is only about 6%. At the same time, though, we should note that public opinion has been formed with virtually no knowledge about the actual state of affairs relating to the death penalty.
What sort of people are in favor of the death penalty? We can find some answers by looking at the results of my 2006 survey, which also asked respondents about items other than the death penalty, such as personal experience of crime, views of criminal justice, social disparities, fears about crime, and trust in the government. I did a statistical analysis based on the results.
It is hard to come up with a statistically clear model for those who oppose capital punish-ment, since their number is so small, but cross tabulation produced some significant correlations for the following items: (1) accept social disparities and think that homeless people have themselves to blame, (2) worry about deterio-ration in public safety and are strongly concerned about crime, (3) believe in the deterrent effect of criminal penal-ties, (4) feel distrustful toward courts and elected legislators, (5) accept that privacy may have to be sacrificed in order to fight crime.
Those whose thinking matches these items are more likely to support the death penalty, and those who do not share this thinking are more likely to op-pose it. These findings resemble those from studies about capital punishment and more severe sentencing in Western countries.
John Pratt, a professor of criminology in New Zealand, has noted that countries that resist populist ap-peals for more severe sentences are countries where people have strong trust in their government and other people, where they are confident in the social security system, where worries about future financial security are slight, and where specialists maintain scientific attitudes toward crime pre-vention (with scientific criminology and criminal policy in-cluded in the curriculum for training members of the legal profession).
If we want to push public opinion in Japan to-ward support for abolition of the death penalty, we may need to work at strengthening Japanese people's trust in the government and each other, reform the social security sys-tem to make it more reliable, remove the sources of worry about financial security, and do a better job of training le-gal professionals to think scientifically.
Next let me present the results of my statistical analysis of the factors involved in cases where the death sentence and indefinite prison terms were handed down over the past five years. I used the database of court decisions, pick-ing out the cases where the prosecution requested the death sentence. I classified these according to the number of victims, their type (sex, age, etc), type of perpetrator (age, previous criminal record, employment and economic status, mental condition, membership in antisocial groups, etc), type of case (weapon used, premeditation, motive, accomplices, etc), and other factors (year of court decision, confessions, restitution, apologies, and relation- ships between perpetrators and victims).
Using variables based on these factors, I applied logistic regression analysis in a search for those factors most determinative of the division between death sentences and indefinite prison sentences. But despite my efforts, including reformulation of the variables, I was unable to come up with a valid model.
One major reason was the fact that court decisions are of only limited use as a source of data for this sort of analysis, since they are not presentations of objective facts and evidence presented to the court but are instead written declarations of the judge's reasons for the verdict and sentence handed down, be it the death penalty or indefinite imprisonment; furthermore, the decisions I examined were lacking in terms of explanations by the judges of their true thoughts in cases where they decided to apply the death penalty.
But at the same time it seems fair to say that the impossibility of constructing a valid model reflects the facts that the decisions were not based on objective factors (and were possibly affected by factors that cannot be reduced to objective elements), that the decisions varied greatly from judge to judge, and that chance played a major role.
The crime deterrent "faith":
One point that always comes up in debates about capital punishment is its effect as a deterrent to crime. In order to draw a clear conclusion on whether such an effect exists, one would have to conduct a random-allocation experiment by states in a country like the United States, where murders are numerous, but this is ethically impermissible.
Usually, when measuring the deterrent effect of criminal punishments, the specific deterrent effect (the deterrent effect on criminals themselves) is more amenable to statistic-cal analysis than the general deterrent effect (the deterrent effect on ordinary citizens). In the case of capital punish-ment, however, the existence of specific deterrent effect is indisputable, so the question concerns the general de-terrent effect.
Since it is impossible to investigate this ex-perimentally, the method that is used instead is regressive analysis of independent variables representing the number of executions carried out and other factors affecting murder, using the numbers of officially recognised cases of murder as a dependent variable.
In order to draw a scientifically valid conclusion with this method, a number of conditions must be met, including the following: (1) The sample must be adequately large. (2) The most statistically appropriate method of analysis must be used (a time axis is essential when inferring cause and effect). (3) Statistical controls must be applied to other factors affecting the number of recognised murder cases. Up to now, studies purporting to show that the death penalty has a deterrent effect have almost without exception been lacking with respect to conditions (2) and (3); problems with them include the deliberate exclusion from the analysis of economic and other factors with a high potential impact on murder.
When the results of these studies are reanalysed on the basis of more appropriate methods, the deterrent effect disappears. Among American and British criminologists the consensus is that the deterrent effect of the death penalty has not been scientifically demonstrated and that there is little prospect for it to be demonstrated in the future.
The problem in discussions of the deterrent effect of the death penalty is that it is difficult to prove that such an effect does not exist. Scientific efforts to disprove the existence of God by demonstrating the falsity of specific "miracles" around the world are unlikely to shake the faith of believers, and belief in religious scriptures is unlikely to be swept away by demonstrations that their contents are unfounded.
Similarly, the faith in the deterrent power of criminal punishments has been nurtured and handed down over a long period, and this faith cannot be easily shaken just by telling its believers that the most advanced statistical methods-such as multivariate analysis, which has a history of only 20-30 years find no evidence that capital punishment deters murder. For prosecutors and judges this faith, along with the "scripture" of the Crimi-nal Code, constitutes the foundation of their very exist-ence, and their faith is strengthened each time they seek or hand down a penal sentence.
It is known that faith is strengthened psychologically by the conduct of faith-related activities (in this case meaning seeking and hand-ing down penal sentences). It is true that the death penalty exerts a specific deterrent effect, as does imprisonment (while the criminal is in prison), and regardless of how much scientific evidence may be accumulated in the future showing that harsher sentencing does not deter crime, there is little chance that the faith in the deterrent effect held by members of the legal profession and others will waver.
CONCLUSION:
The death penalty is an extremely important issue for criminal policy. But it is also an issue that goes beyond criminal justice. The discussion of whether to maintain or abolish the death penalty involves a complex mix of other perspectives and interests, including human rights, the feelings of victims, the desire for retribution, politics, and religion.
The abolition of capital punishment in Western Europe was grounded in the idea of human rights and the belief that the state should not be given the power to kill citizens. Most of the countries in Western Europe abolished the death penalty in the years from 1948 to 1981-the period when support for the "cradle to grave" welfare state was strong, before the late 1980s rise of the victims' rights movement and of law-and-order campaigns based on fear of rising crime. Timing is a key element in legislating an end to the death penalty.
In the 1990s, after the Berlin Wall came down and the Cold War ended, countries in Eastern Europe abolished their death penalties. This was a condition for admission to the European Union. And recently there have been lively calls in South Korea and Taiwan for the elimination of cap-ital punishment. These involve both political calculations-the desire to be seen as more advanced than neighbour-ing countries in the area of human rights-and religious considerations.
With respect to the death penalty, even if various prob-lem points are resolved, the issue of the desire for retribution among the family members of victims remains. This is a natural human sentiment, and it is not something that can be resolved through a scientific approach. In Japan's case, though the human rights ideology and Enlighten-ment tradition of Western Europe are not present, in the 1980s there was a string of cases in which convicts who had been sentenced to death were found innocent in retrials, highlighting the danger of wrongful conviction, and for a period of three years starting in 1989 no death sentences were carried out.
This was probably the best timing for abolition of the death penalty, but the mood in favor of such a move rapidly dissipated with the bursting of the bubble economy at the beginning of the 1990s and the 1995 sarin gas killings by members of the Aum Shinrikyo cult on the Tokyo subway system. From the late 1990s on the movement to support crime victims gained momentum, and the myth of deteriorating public safety fostered fear of crime among the general public. Now we are in an age when the trend is toward imposing harsher criminal punishments.
Next year the saiban-in, or lay judge system will go into effect, meaning that panels of ordinary citizens will be asked to participate in determining verdicts and sentences for the most serious of criminal cases. How will such ordi-nary citizens' views change when they see criminals as human beings in front of their own eyes? Mock trials are now being conducted around the country in preparation for the introduction of this quasijury system.
Apparently in one such session, when the panel members were weighing whether to hand down a sentence of death or of indefinite imprisonment, a lay judge asked what sort of treatment the criminal would receive in prison, in the case of an indefinite sentence and how long it would be before the pris-oner's release on parole. None of the career judges present could answer these questions accurately. Ordinary readers may find this surprising, but in fact most members of the legal profession in Japan have virtually no involvement in what happens after a sentence is handed down-and care little about such matters.
Another upcoming change is that victims' family mem-bers will be allowed to participate in criminal court pro-ceedings. The American criminologist Jonathan Simon has pointed out that the move to harsher sentencing in the United States is the outcome of the use of criminal policy as a tool of governance based on fanning fear through news coverage of crime and political maneuvering to plant the idea that everybody is a potential crime victim.
And Pro-fessor David Garland of the New York University School of Law has pointed out that for crime victims' families the issue of sentencing is an issue of loyalty; for them, harsh sentences are an indication of how concerned the criminal justice system and those administering it are about the victims. As a result, they are liable to feel betrayed by the courts no matter how harsh a sentence may be by comparison with the legal precedents.
This may be what it means to have victims' family members participate in court pro-ceedings. In Japan, though the indexes of crime, such as the numbers of officially recognised cases, have been declining since 2002, the perceived level of public safety has re-mained at a depressed level, and sentences have been growing harsher. In cases like accidents due to drunken driving, even when the sentences are much more severe than in the past, surviving family members complain that they are not harsh enough in view of the life that has been lost, and the media follow along with stories saying that the courts are out of touch with public sentiment.
It is only natural that the members of victims' families feel this way. But what is the "public sentiment" that the media refers to? Consider, for example, the media coverage of the 1999 murder of a mother and her infant daughter in Hikari, Yamaguchi Prefecture: The defence counsel's claims were only reported in fragments, and almost all of the ex-onerating evidence painstakingly put together by the de-fense was ignored because it failed to match the media's narrative or because it was considered likely to upset audiences.
Ordinary viewers' sentiments are shaped by this sort of coverage, which makes them see the defendant as a de-mon, and so they want to see a harsh sentence and are an-gry when the court does not hand one down. Such public sentiments are not grounded in a clear view of the facts. The demonised picture of the defendant is a product of the media narrative. We do not get a full picture either of the defendant or of the victim.
I am a criminologist with specialised knowledge about such subjects as crime statistics, but at the same time I am a person with experience as a worker on the front lines of the prison system. Criminologically speaking, capital pun-ishment is not a deterrent to crime; in other words, it is meaningless as a form of criminal policy.
And from the perspective of a former correctional worker, I cannot approve of the death penalty, which is purely penal and leaves no possibility of correction and social rehabilitation of the criminal. But the purpose of this article is not to argue for abolition of the death penalty.
As I noted at the outset, when I hear discussions of capital punishment, I am struck by the frequency with which people advance emotional and abstract arguments that are not grounded in the facts. I do not know which way Japan will head in the future or how far the populist drive toward harsher sentencing will progress, but I earnestly hope that when people debate the death penalty or any other type of criminal punish-ment they will at least be careful to check the facts.
In Japan the road to abolition of capital punishment seems to have grown much longer, but when one looks at the rest of the world, a different sort of picture comes into view. Here in Asia, the Philippines has abolished the death penalty, and South Korea and Taiwan are moving in that direction. Even China, which has been a major user of the death penalty, has reined in executions out of consideration for international opinion. And in the United States, the only advanced coun-try other than Japan that continues to carry out death sen-tences, the number of executions has been declining in recent years.
Japan is exceptional as a country where the number of executions has increased. Japanese politicians and bureaucrats pride themselves on their ability to read public sentiment, but internationally the mood is heading toward abolition of capital punishment. As domestic sentiment pushes for harsher sentencing, how will our politicians and civil servants responsible for the legal system respond to this contrary movement on the global level?
-Courtesy Japanecho