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USA | It Is Time to End the Lethal Injection Mess

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On June 23, amidst all furor over its gun rights and abortion decisions, the Supreme Court handed down a little noticed death penalty decision, Nance v Ward . In that case, a five-Justice majority ruled that death row inmates could file suits using 42 U.S.C. Section 1983, a federal law that authorizes citizens to sue in federal court for the deprivation of rights, to bring suit alleging that an execution method violated the Eighth Amendment. Michael Nance, who was sentenced to death in 2002, will now be able to proceed with his suit contesting Georgia’s plan to execute him by lethal injection. Nance suffers from medical conditions that have compromised his veins. To use lethal injection, the only execution method now authorized by state law, prison authorities would have to “cut his neck” to establish an intravenous execution line. He also claims that his long-time use of a drug for back pain would diminish the effect of the sedative used in Georgia’s drug cocktail. Nance alleges that

Japan | "Conditions on death row are abhorrent"

In the latest of the DPRU's Q&A series with death penalty experts from around the world, Michael H. Fox, an anti-death penalty advocate in Japan, tells DPRU Research Officer Jocelyn Hutton about his current work and about how the death penalty disproportionately affects foreign nationals in Japan.

Can you tell us a little bit about the work that you do in relation to the death penalty?


Much of my work is researching, writing and speaking about the death penalty in Japan, in order to advocate for individuals' cases and in an effort to educate the public. I run the Japan Innocence and Death Penalty Information Centre which monitors every death penalty case in Japan. We also assist numerous defence teams fighting both wrongful convictions and the death penalty in general. My work in Japan also led me into the bowels of the American criminal justice system, and I have visited and supported many death row prisoners there - all of whom have now thankfully had their sentences reduced (and one, Debra Milke, has been exonerated!)

What led you to work on the death penalty?


In 1994, I attended a symposium by Etsuko Yamada, a wrongfully arrested woman who was charged with murder after the death of a child under her care at an institution. After her arrest, she was interrogated for two weeks from morning until night, and constantly threatened with the death penalty in order to force a confession. In that moment, I was awakened to the awful power of the death penalty to be used as a tool of the state to coerce confessions from detainees, both real and imagined. Since then, I have worked tirelessly to support those who have been wrongfully convicted, as well as those sentenced to death. As long as the death penalty continues, wrongful convictions and wrongful executions will occur again and again.

Can you tell us more about the extent of the use of the death penalty in Japan?


For the most part, death sentences have been decreasing year by year. Crime is falling, the population is ageing, and there is virtually no unemployment. In 2009, a mixed jury system was introduced, with three professional judges sitting together with six laypeople. As jurors tend not to want the responsibility of taking a life, prosecutors have been demanding the death penalty less and less, in order to ensure a guilty verdict is not avoided by the lay jurors. For example, in one case in 2010, soon after the system was introduced, the prosecution requested the death penalty but the jurors found the defendant not guilty, which is extremely rare. Usually in such cases, the conviction rate is 99.7%. If the death penalty is not requested by the prosecutor, jurors are more likely to find the defendant guilty as they will instead receive a ‘less risky’ prison sentence.

Since 1993, there have been 133 executions, which averages at about four to five executions per year. But in some years, there have been astronomical leaps in these numbers. The worst examples were in 2008 and 2018 - in both years 15 hangings were carried out. In 2015, 13 of those executed had been members of a cult that had carried out several murders and a gassing of the Tokyo subways in 1995. The justice minister wanted to wipe the slate clean with these executions before the succession of the new, current emperor.

Executions are completely at the discretion of the Minister of Justice, currently Yoshihisa Furukawa. In 2008, the then ‘hang-happy’ justice minister, Kunio Hatoyama, began holding press conferences to personally announce executions. He finally stopped after being called the ‘grim reaper’ by the Asahi Shimbun newspaper.

Why are foreign nationals considered a threat to Japan?


Japan is a fairly nationalistic country, which managed to successfully remain closed to much of the rest of the world for over 250 years. This legacy of exclusion has been exacerbated by the COVID-19 pandemic and has led to one of the more extreme closed border policies globally, that still continues today. There are about 2 million foreigners living in Japan, about 1.5% of the population, and yet foreigners are still considered a big threat to Japanese society. Whenever a social problem arises, for example, an increase in AIDS cases or a rise in crime, the blame tends to be put on foreigners. However, with an increasingly ageing population, millions more foreign workers are needed to support businesses and the economy.

How many foreign nationals are on death row? Are there any specific political and diplomatic issues that affect sentencing and executions in Japan?


There are currently six foreigners on death row out of a total death row population of 108. This means foreign nationals are overrepresented on death row, comprising about 5.5% of the death row population and only 1.5% of the general population. Five of the foreign nationals sentenced to death are from China and one is from Malaysia.

The Japanese government have found they must exercise caution when executing non-Japanese nationals, especially Chinese citizens. In 2009, a little while after Japan had executed a Chinese national, four Japanese prisoners accused of drug transportation were executed in China, in what was widely believed to be retribution. No Chinese nationals were executed in Japan for 10 years after this, until 2019, when a second Chinese national, Wei Wei, was executed in Japan. His two accomplices had fled to China and were caught and sentenced there. This time, the execution did not set off any alarms in Sino-Japanese relations, perhaps because the crime Wei Wei had been involved in was a particularly gruesome murder-robbery of a whole family, including two young children.

What are the conditions like in Japan for death row prisoners? Does the experience of prison differ for foreign nationals and nationals?


Compared to many places in the world, conditions on death row are abhorrent - for Japanese and foreign nationals alike. All death row prisoners are in solitary confinement, and only allowed out to shower and exercise. Exercise must be done in a solitary cage for 30 minutes only, and the prisoners may not speak to or see each other. There is no television or radio provided, music is pumped through the halls. Visits are limited to family members and only for 20 minutes at a time. There are no phone privileges.

Many prisoners are abandoned by their family after conviction, due to the massive stigma attached to those incarcerated, and so some prisoners change their names, or even get married ‘on paper’ in order to be adopted into new families, allowing those who are interested to visit them in prison.

What is current public opinion on the death penalty in Japan? Are there any aspects of abolition for which there is public support?


Public support for the death penalty remains quite high in Japan. In my opinion, the death penalty exists where it does because it fulfils a psychological and sociological need in certain populations. For example, in the US, it assuages white fear of black crime. Japan is somewhat more complicated. It is a very hierarchical society which espouses conformity and obedience, therefore those who violate social norms are considered pariahs. Such a rigid hierarchical society also requires scapegoats in order to vent pent-up frustrations. In the Middle Ages in Japan, the heads of those executed were put on display in village squares. The death penalty continues to serve society in this way; as a visceral satisfaction in the suffering of another. This is clearly observable in Japan; death sentences and executions often make front page headlines. Japan tends to look more to the US than to Europe for guidance and some activists believe if and when the US ultimately abandons the death penalty, Japan might follow suit.

Source: law.ox.ac.uk, Michael H. Fox, June 16, 2022. Michael H. Fox, an American citizen, has lived in Japan for over 40 years. He is the Director of the Japan Innocence and Death Penalty Project (JIADEP). JIADEP advocates against the death penalty and wrongful conviction cases in Japan and assists legal teams in their defence work. Michael also runs the Network for Innocent Arson Defendants and the Women’s Criminal Justice Network. A university faculty member for many years, he is now officially retired and devotes his time and resources to helping the wrongfully convicted and fighting against the death penalty.






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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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