FEATURED POST

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

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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…

An insider’s look at Japan’s death penalty

Gallows at Tokyo Detention Center
Gallows at Tokyo Detention Center
“Excessive bail shall not be required, or excessive fines imposed, nor cruel and unusual punishments inflicted,” says the Eighth Amendment of the U.S. Constitution. You will find similar language in the Japanese constitution, included at the order of the United States government after it defeated Japan in World War ll. Japanese Article 36 says “The infliction of torture by any public officer and cruel punishments are absolutely forbidden.”

These restrictions notwithstanding, both countries retain the death penalty, recommended by a jury (although Japan’s jury is composed of nine people, three judges and six citizens, and doesn’t require a unanimous vote for death) in spite of harsh criticism from the international human right community. But although there are similarities, the death penalty system in Japan is very different from that in the U.S.

In Japan there is only one execution method: hanging. Unlike the U.S., where there is much debate about various means of execution, especially surrounding the issues of lethal injection, Japan has continued to rely on hanging for over a hundred years — since 1880 — and there has been no real progress in finding a more humane method since then. Prior to 1880, there were various methods of execution including crucifixion, beheading, and burning at the stake. (A Tokyo Appellate Court ruled that hanging was not cruel punishment under Article 36 in 2013.)

Another difference is that in Japan, a death row inmate does not know the date of his execution until literally minutes before it occurs. The justice minister, who is responsible for the enforcement of his death sentence, gives the order, but death row inmates do not know the schedule. The Japanese government justifies this “ambush” based on the logic that if they know the plan, inmates may commit suicide. Additionally, officials maintain that if there is advance notice, not just the inmates, but also prison officers who are assigned the task of executing them, will experience intense mental pressure as well.

Nevertheless, the United Nations has criticized this practice as an inhumane method that inevitably traumatizes inmates to the point of causing severe mental illness, an argument supported by Amnesty International.

There is no public defender system for post-conviction cases in Japan, in contrast to the American system. Japanese criminal procedure obligates the court to assign a lawyer on most felony cases. But by contrast, the defendants in post-conviction capital cases have to lodge their review requests without an attorney unless they can find a lawyer who will take their case on a pro bono basis. This critical flaw deprives inmates of their most effective defense to avoid execution.

The privileges which defendants enjoy during the post conviction phase are denied during the appeals process. For example, the right to counsel, which provides the defendant with a private meeting with a lawyer in a trial phase, is not fully applied in a post-conviction case. If a defendant does have a meeting with a lawyer, prison officers may sit in on the meeting with the explanation that “We have to listen to this guy’s conversation to evaluate his mental situation.”

It is also noteworthy that discussion of the death penalty in Japan never includes cost. In the conservative Japanese culture, it is considered impolite to talk about cost considerations when debating the criminal justice system, especially for victims’ family members, who may feel such discussion is insensitive. And abolitionists also may not find it advantageous to talk about the cost of capital punishment because of the fact that in a system that doesn’t provide a public defender in the post-conviction phase, that issue may not work in their favor. Besides, the remarkable difference of budgetary scale in the two countries makes for two very different arguments.

Now, it is must be said that although there is a slim possibility that the Japanese government may abolish the death penalty at some point in the future, that seems unlikely without the alternative punishment of life without parole (LWOP), which is not a legal option at this point. But even with LWOP as an alternative, capital punishment will most likely remain the law in Japan until its close ally, the United States, repeals its death penalty.

Source: Death Penalty Focus, Blog, Takehiko Kawame, May 18, 2017. The author is a lawyer and partner in the Japanese firm, Mockingbird. He is currently representing a condemned inmate on a post-conviction case in Japan. Kawame also launched a program in Kawagoe Prison, outside Tokyo, in which volunteers teach job interview skills to inmates. He is a member of the Death Penalty Abolition Committee, Japan Federation of Bar Associations. He is also a visiting scholar at UC Berkeley.

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