America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Japan: legal reform unlikely despite erroneous convictions

Execution chamber at Tokyo's Detention Center
Execution chamber at Tokyo's Detention Center
Two elderly men fighting for decades to clear their names are poised to receive high-profile retrials in 2016 and yet their ordeals are unlikely to trigger wide-ranging reform to the country's justice system, experts say.

Even after being sent to prison for murder, Iwao Hakamada at first trained like the prizefighter he was. Fellow death-row inmate Kazuo Ishikawa used to watch him shadowbox and punch the walls of his cell till his knuckles turned bloody.

The pain seemed to mean little to him, Ishikawa recalls. "He was very strong."

Today, Hakamada, now a stooped, fleshy 79-year-old, strolls daily through the streets of his native Shizuoka Prefecture communing with ghosts. After 48 years in jail, the large majority of it in solitary confinement waiting for his execution, he is temporarily free but appears to have retreated deep inside his own head. He answers questions about his ordeal in the third person, if at all.

"The guy called Hakamada could not have committed a crime because he wasn't in Japan," he says during an interview at an apartment he shares with his sister. "He was born in Buckingham Palace, in Hawaii."

On his daily walks, he explains, he hears the souls of the dead from the surrounding buildings, pleading for help.

Hakamada was arrested in August 1966 on suspicion of murdering a family of 4. After years of appeals, Shizuoka District Court said in 2014 that police evidence against him was probably fabricated and revoked his death sentence. The prosecution disagrees and, as a result, Hakamada awaits retrial and the possibility that the police will return him to a 5-square-meter cell.

Flanked by his sister, Hideko, Hamakada still believes he is 22. He gives no clue that he entered the history books in 2011 as the world's longest-serving death-row prisoner.

"He has built a high wall around his heart to stay strong," says Nobuhiro Terazawa, a friend of the Hamakadas. "That's how he survived."

Where Hakamada is withdrawn and inarticulate, Ishikawa is angry and outspoken, demanding the state overturn his conviction for murdering a Saitama schoolgirl in 1963. His death sentence was later commuted to life. Since Ishikawa's parole 2 decades ago, he has relentlessly fought for a retrial. Justice, he believes, is finally near.

"I am not supposed to utter a word about my innocence but the police are withholding a mountain of evidence," he says, following a protest with his wife and supporters - his 120th - outside Tokyo District Court. "Once they disclose it, I will be proven innocent, no question."

Ishikawa reels off a handful of other cases where death-row inmates have had their convictions overturned: Sakae Menda, Masao Akabori, Yukio Saito and now Hakamada. The only reason these 4 lived and others didn't, he says, is because they fought until the state caved in.

"The police disclosed the evidence (they were concealing). They were all granted retrials," he says. "A prison guard once told me that I would be executed in a couple of years even if I were innocent. 'There is only one way you can be saved,' he told me. 'You need to study so that you can appeal your innocence to the people of Japan in a letter. There is no other way you can survive.' He (then) taught me how to read and write."

Hakamada and Ishikawa represent the country's highest-profile modern legal miscarriages. Hakamada's release made global headlines and briefly shook public confidence in the nation's justice system. Sometime in 2016, their cases are finally expected to get another legal airing. Reformers, however, are pessimistic that the system will change.

Judicial officials are fighting to protect the status quo, says Yoshihiro Yasuda, arguably the country's most famous death-penalty opponent.

"The prosecution and judges have not accepted they did anything wrong (in the Hakamada case)," he says. "They should be shocked that such a thing could happen and try to do better. Instead, they always try to prove that they were right."

Hakamada's freedom was soon followed by the release of Keiko Aoki, who had spent 20 years in prison for lighting a fire that killed her 11-year-old daughter in September 1995. Many now believe leaking gasoline in the family garage started the blaze.

The murky legal process that put all 3 in prison, largely on the basis of confessions extracted through intimidation and torture, has been under scrutiny for decades. Ishikawa endured 30 days of interrogation and signed a confession under psychological duress, although he was illiterate at the time.

Hakamada was interrogated for 20 days with no lawyer present, says Amnesty International. He later retracted his confession, claiming the police had beaten and threatened him. Still, Shizuoka District Court sentenced him to death in September 1968.

Aoki lasted a single day in a police station, where she had gone voluntarily, before putting her name to a statement admitting arson and murder. Detectives played on her grief by repeatedly screaming that she was responsible for the death of her child. She retracted the confession the next day.

Even critics of the country's justice system accept that it gets a lot right. Rates of recidivism are comparatively low and the emphasis is on rehabilitation. A lot of effort is made to keep young offenders out of the prison system.

Citizens are incarcerated at a far lower rate than in most developed countries: 55 per 100,000 people compared with 149 in Britain and 716 the United States.

Nevertheless, the entire system would collapse without confessions, David Johnson, a judicial expert on Japan at the University of Hawaii recently told The Economist. Confessions underpinned 89 % of domestic criminal cases in 2014.

With up to 23 days to interrogate a suspect, police have the legal means to extract confessions. Suspects are almost always convicted once indicted. And, like anywhere, bias can affect police procedure: Aoki's partner, who was convicted of the same crime, was ethnically Korean; Ishikawa came from the "burakumin" underclass; and Hakamada was poor and, to the eyes of the police, his supporters say, thuggish.

"I think there are many, many more wrongful convictions in Japan," says Kana Sasakura, an associate professor of law at Konan University.

Sasakura leads a movement in Japan, modeled on the U.S. Innocence Project, to right miscarriages of justice. Although nobody knows how many innocent people are in Japanese prisons, some experts believe 1,500 convictions a year may be flawed. More than 1/2 of the 131 people on the country's death row are challenging their convictions.

Iwao Hakamada, shortly after his release from death row
Iwao Hakamada, shortly after his release from death row
The postwar Allied Occupation modernized the country's courts by introducing legal protections for the criminally accused - most notably, the right to silence and the presumption of innocence. The reforms attempted to steer courts away from reliance on confessions and stop prosecutors appealing verdicts of not guilty.

As with so many of the Allied reforms, some were tolerated and took root, others tossed out or ignored. In practice, silence is deemed to be indicative of guilt and confessions are still treated "almost like a religion," Sasakura says. "The police believe that expression of remorse is a key part of the system."

If, as expected, Hakamada and Ishikawa are exonerated, the legal authorities will likely argue that the system has changed in the half century since their convictions. Physical abuse is rarer and lawyers more likely to be present.

The Justice Ministry says bills to revise criminal procedure are making their way through the Diet. "These include mandatory monitoring (voice recording and videotaping) of interrogations," says a ministry spokesman, who declined to be named in accordance with departmental policy.

Yasuda, however, is skeptical that much will change. The proposal to record interrogations may actually make things worse by forcing these abuses off camera, he says.

Police will still be in almost complete control. And in any case, the proposal - agreed after a string of miscarriages and years of discussion - will affect less than 3 % of all interviews conducted by the police.

Suspects still have very little protection from the police, says Fumito Morikawa, a defense lawyer who represented people arrested outside the Diet during summer protests against security legislation in 2015. Morikawa says abuses of suspects in the form of verbal insults, sleep deprivation and threatening behavior are "too numerous to mention."

"The key violence," he says, "lies in the length of detention."

Morikawa says miscarriages will continue until the extended use of detention cells in police holding areas is scrapped. The system, known as daiyo kangoku (substitute prison), is key to extracting statements from suspects because it gives police so much control over the interview process. He says he recently won just his 4th court victory in a legal career spanning 25 years.

"The fact is," he says, "my client would have lost had he confessed."

Critics campaigning for reform put their hopes in the country's lay judge system, which injected some civilian input into the cloistered professional world of prosecutors, lawyers and judges. Since 2009, more than 50,000 people have served in trials for serious crimes. Yet, the system has done nothing to lower the conviction rate or reliance on confessions. If anything, lay judges appear to hand down harsher sentences in serious crimes. In October 2013, for example, the Tokyo High Court overturned a death penalty handed down by a lay judge panel, calling the sentence an "error." It was the 2nd time a high court abrogated a death sentence rendered by a lay judge panel that year.

A possible reason why the introduction of lay judges has not changed the system is that decisions cannot be reached without the agreement of professional judges. "My view of the lay judge system is it exists to allow judges to continue generating similar results with less criticism of them," says Colin P.A. Jones, a professor at Doshisha Law School in Kyoto.

Public prosecutors drive the entire system and their careers sometimes take precedence over justice. Nearly 1/3 of prosecutors believe that a verdict of not guilty hurts their promotion prospects, according to an official survey in 2010 - 1 reason why many weaker cases are dropped. 1/4 of respondents said they had been instructed to write confession statements bearing no relation to what suspects actually said.

Misconduct often goes unchecked; prosecutors can block inquiries. They put pressure on the police to extract confessions. And, despite occasional high-profile releases from prison such as Hakamada, the media and the public largely back them because they appear to produce low rates of crime and recidivism. As a result, prosecutors are left secure in their self-appointed role of maintaining social order.

Reforming this system is a mammoth task, Yasuda says. At a minimum, he says, prosecutors should be forced to disclose all evidence to the defense - evidence that would help exonerate suspects such as Hakamada and Ishikawa. The length of detention should also be brought into line with international norms and Japan should introduce a third-party body to oversee miscarriages and free the unjustly convicted, he says.

The political motivation to push these reforms, however, has weakened. For one thing, Supreme Court justices are appointed by the Cabinet. For another, Sasakura says, the government is currently focused on the economy and larger political issues. "The justice system is the least of their priorities," Sasakura says.

In any case, reform has come too late for Ishikawa. "If I hadn't signed a statement, I'd never have been convicted of a crime," he says. "I was 24 at the time; I'm 76 now. I would have never said I'd done it even if I went through harsh interrogation because I didn't do it. However, I confessed to a crime I never committed. For that, I must apologize to the people of Japan. For that, I still blame myself to this day."

Kazuo Ishikawa was sentenced to death for the kidnap, rape and murder of 16-year-old Yoshie Nakata, whose body was found on a farm in Saitama Prefecture in May 1963. The crime shocked Japan and put enormous pressure on police and prosecutors.

Ishikawa confessed to the crime on June 20, 1963. He says the police told him if he signed a statement they wrote he would get a maximum of 10 years in prison and save his family from disgrace. Instead, he was sentenced to death and his family members were harassed out of school and work. Each morning in prison, he would wait for the executioner.

"In Japan, if you are not executed between 8 a.m. and noon, you are safe till the next day," Ishikawa says. "The inmates wait, seated with their legs folded and facing the wall. Every morning, I also waited as I sat properly with my legs folded."

He befriended other inmates, including Iwao Hakamada. "The rules are stricter today, but then, if you survived the morning, you were allowed to visit others in their cells freely," he says. "Now they can't even meet family members. I hear their cells are also locked."

That change in policy was designed to avoid disturbing the prisoners' "peace of mind," Justice Ministry officials say.

In fact, says Yoshihiro Yasuda, officials were worried inmates might attempt to cheat the executioner.

"There are no handles or bars (in their cells), nothing to allow them to hang themselves," he says.

Hakamada was monitored day and night in a 5-square-meter cell not knowing which day might be his last. Friends say he gradually become uncommunicative, at one point refusing all visits from his closest relatives, including his sister, for well over a decade.

Japan is 1 of 22 nations and the only developed country apart from the U.S. that retains capital punishment. It is one of the oddities of the system that a stricken conscience can bring it grinding to a halt.

Several justice ministers have refused to sign execution orders; Seiken Sugiura, a devout Buddhist, oversaw a 15-month gallows strike in 2005-06.

Gallows at Tokyo's Detention Center. The Control Room, with the three buttons controlling the trapdoor (in red), is on the left.
Gallows at Tokyo's Detention Center. The Control Room, with the
three buttons controlling the trapdoor (marked in red), is on the left. 
In 2009, Keiko Chiba, a lifelong opponent of capital punishment, became justice minister. She was expected to begin a new moratorium. Instead, she sat ashen faced through the hangings of Kazuo Shinozawa and Hidenori Ogata after being "persuaded to do her duty" by Justice Ministry bureaucrats, it was later reported. Chiba has never commented publicly about her about-face.

Moratoriums are always temporary. Despite falling crime rates, death sentences are increasingly common: the number of inmates on death row has nearly tripled over the past 2 decades. The government's coalition partner, the Buddhist-backed Komeito, reportedly opposes the death penalty but does little to stop it.

According to a rare book by Toshio Sakamoto, a former executioner, prison guards are rotated every 3 years to prevent them developing empathy with their charges. Like the prisoners, guards are also told on the day of an order when an execution is to be carried out. 3 guards wait with hands on buttons to release the bound and hooded prisoner, unaware of which one has been rigged to open the trapdoor beneath his or her feet.

Prisoners sometimes defecate themselves in death. Faces can be contorted or disfigured. Many bodies are not collected and are buried in the prison graveyard or donated to hospitals for medical research.

The mental wear and tear on prison employees is one reason why some officials reportedly want to replace hanging with lethal injection, a claim denied by the Justice Ministry.

"There is no concrete discussion on changing the method of execution," a Justice Ministry spokesman says.

However, Yasuda says switching methods would invite unwanted scrutiny of the details of execution.

The Justice Ministry bureaucrats who zealously protect the system, Yasuda says, "are absolutely opposed to starting a debate on the death penalty."

Source: Japan Times, January 16, 2016

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