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…

Death penalty highlights wider injustices in Japan's legal system

Iwao Hakamada and his sister, shortly after his release from death row
Iwao Hakamada and his sister, shortly after his release from death row
Japan's justice system is under increasing scrutiny following a historic declaration from the country's largest legal association to bring to light the country's high conviction rate and continuing use of executions.

The Japanese Federation of Bar Associations went further and called for the abolition of the death penalty, a move human rights activists hope will open a dialogue about this issue in the country.

Proponents argue that the use of capital punishment is reserved for only the most extreme cases - multiple murders, or terrorist attacks such as the 1995 Aum Shinrikyo sarin gas attack that killed 12 people in the Tokyo subway system. On average, just 1 or 2 people are executed in Japan each year, making its use far more exclusive than in many countries that still apply capital punishment.

However, there are major issues with even this limited use. According to Atsushi Zukeran, chairman of the Japan Association for Social Justice and Human Rights (Kyuenkai), there have been four cases of people being wrongly convicted and then sentenced to death in Japan - and this is something he believes that can happen again.

"There is still the possibility to kill the wrong person in the Japanese death penalty system," said Zukeran to Equal Times, adding that this is worrisome for Japan's human rights records. "If someone is falsely charged - and then executed - there is no way to go back."

The most recent case - that of Hakamada Iwao, who was on death row for 47 years before DNA evidence led to his release 3 years ago - shows just how difficult justice can be. Evidence that could have exonerated him during his trial was withheld from the defence, and even today, he is still awaiting retrial as the Japanese Prosecutor's Office refuses to accept that he is innocent.

Wider issues with the justice system

Another 130 inmates are still on Japan's death row, notorious for its harsh treatment of inmates and gross human rights violations. Death row inmates in Japan are killed by hanging and the date of the execution is kept a secret to everybody, including to the condemned person, until the morning of the execution.

Japan has a very high sentencing rate. More than 99 % of criminal trials result in a guilty verdict. While part of this can be attributed to the relatively low number of cases that go to trial, some of it is also connected to strong systematic challenges that make proving one's innocence exceedingly difficult.

According to Zukeran, these challenges start from the moment that a defendant is suspected.

"Once they are arrested, they are detained for 23 days - from morning to night in a police station jail, and they do interrogations without the presence of a lawyer, and in a closed room," he said. "There, they can make false statements, and that could be the base, or foundation, of a guilty death penalty sentence."

"From there it does not get any better," says Yoshihiro Yasuda, a prominent lawyer who defends those facing the death penalty. According to him, the trial itself is stacked in favour of prosecutors, making it incredibly tough to prove someone's innocence.

"We cannot see the same evidence that the public prosecutor has," Yasuda told Equal Times. "Also, they can hire freely many experts, and they can use the public science research institutes, whereas the defence has to pay."

Kyuenkai is calling for three changes that they believe will make the system more fair: altering the system of interrogation and moving prisoners from police to judicial detention centres; giving fair access to all evidence to both sides; and prohibiting appeals of not guilty charges by the prosecution.

Public discussions, not opinion polls

Despite these glaring issues, the death penalty enjoys wide support among the Japanese public, with recent surveys showing that 80 % of people are in favour of its use.

For Yuji Ogawara, a lawyer who has worked on several death penalty cases, this is more symbolic of the fact that there has not yet a real, national discourse on the use of the death penalty in Japan.

"Personally, I think that we should not decide the...death penalty by the results of opinion polls. It should be decided by public discussions," said Ogawara.

"Until now, for people in Japan, there were not many opportunities...to discuss either abolishing, or keeping the death penalty."

Still, the trend is worrisome. According to Yasuda, Prime Minster Shinzo Abe may be looking to use the death penalty as a tool to protect the country against terrorist attacks ahead of the forthcoming 2020 Tokyo Olympics.

"Since Abe became prime minister, in total, 21 people have been executed," said Yasuda." This is the biggest number among any prime minister.

Awareness of the use of the death penalty in other countries, such as the United States, China or Indonesia, remains much higher than Japan, and cases there often get international attention. Many advocates believe that greater media attention, and pressure, could aid the fight to both abolish the death penalty, and reform Japan's justice system.

"A long time ago, in France, Catherine Deneuve, the actress, once protested and threw a bag at the American embassy," said Yasuda. "I want to see people do that to the Japanese embassy. Then I think Japanese will be woken up."

Ogawara agrees that international attention can help - but cautions that it must be constructive, as harsh criticism could have unintended consequences.

"Simple foreign pressure will just cause Japanese people's resistance," said Ogawara.

"That why [it's better] for the international community to give us advice, as a friend who shares common values."

Source: equaltimes.com, April 12, 2017

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