With less than a year before Japan embarks on the lay judge system, some lawmakers are raising concerns that having to choose between the death sentence and the second most severe punishment — life with the possibility of parole after 10 years — will be too daunting a burden for the nonprofessionals presiding over criminal trials.
Liberal Democratic Party legislator Koichi Kato is a leading figure among Diet members trying to create another choice for the ordinary people who will be judging the innocence or guilt of their peers in serious crimes.
“The public will not be trying pickpockets, but will hear severe cases, and that is going to be extremely challenging,” said Kato, a former LDP secretary general who has also served as chief Cabinet secretary. “As legislators, we must consider preparing an alternative (to the death penalty) that the people can choose.”
Kato and dozens of other lawmakers from both the ruling coalition and the opposition camp are planning to propose a bill during the next Diet session to revise the Penal Code and introduce a penalty of life imprisonment with no parole.
Revising the Penal Code would require amending about 40 related legal articles, Kato said, and there are various technical hurdles to overcome when introducing such a proposal to the Diet.
Still, he believes there is a good chance of the bill’s passage because judicial committee directors from all parties in the Lower House, as well as lawmakers who once served as National Police Agency bureaucrats, who have some sway over the bill, support the move.
Kato is one of the small number of Diet members who believe the death penalty should be abolished, even though a vast majority of the public supports capital punishment.
As a major reason for his minority opinion, Kato said he is skeptical of the 99 percent conviction rate in criminal trials.
“Humans can make mistakes, so I’ve always thought this high rate was dangerous, that there are wrongful convictions,” he said, adding he also recognizes the global trend leaning toward the abolition of capital punishment.
Kato said he has much sympathy for former Supreme Court Justice Shigemitsu Danto, who at the age of 94 is strenuously continuing his campaign to abolish the death penalty. Kato said he has had a great deal of respect for Danto since he learned criminal law from the former justice at the University of Tokyo.
Under the new “saibanin” (lay judge) system that starts next May 21, six people randomly chosen from among eligible voters will take part in each criminal trial along with three professional judges.
The nine will render a decision in a majority vote, although a guilty verdict must be supported by at least one professional judge.
When the verdict is guilty, the panel will also determine the penalty, including in some cases whether capital punishment is warranted.
As a lawmaker who supported the bill in 2004 to establish the lay judge system, Kato is convinced that civic participation in the criminal trial process is a positive move for Japan.
“It will make the public think (about trials) not just as someone else’s problem. And public participation will also make sure the legal professionals stay sharp,” he said.
Yet at the same time he is uneasy that some lay judges will face the stressful situation of having to decide whether to hand down the death sentence.
Earlier this year, Kato discussed the issue with another nonpartisan group of Diet members calling for the abolition of capital punishment, led by Shizuka Kamei of Kokumin Shinto (People’s New Party).
At that time, Kamei’s group, which claims a membership of about 70 lawmakers, concluded that given the 80 percent public support rate for capital punishment, it was still unrealistic to push for an end to the death penalty.
Rather, the group opted for a more feasible target on the road toward achieving their ultimate goal — by pushing for legislation to make capital punishment possible only through a unanimous vote of the professional and lay judges, instead of a majority vote, and to introduce the new penalty of life in prison without parole.
When Kato initially began soliciting support for this bill among LDP members, he thought he would have a hard time because most Diet members favor retaining the death penalty.
To his surprise, many in the LDP welcomed the fact that the question has been raised, because despite the difference in their opinion on capital punishment, they had also been concerned about the vast difference between the death sentence and a life term with the possibility of parole, according to Kato.
Currently, inmates given a life term can technically be paroled after 10 years, although in reality most remain behind bars 20 to 30 years.
Many lawmakers told Kato they support adding an alternative between the two most severe penalties.
However, it was necessary to carefully avoid the question of the death penalty if the lawmakers who support capital punishment were to work with the abolitionists. Thus, a new group of politicians looking into the Penal Code was formed in May. Led by Kato, more than 140 members, including some from the abolitionist group, have joined the new league.
Participants in the inaugural meeting in May included some powerful lawmakers: former Prime Minister Yoshiro Mori, former LDP Secretary General Hidenao Nakagawa and Democratic Party of Japan Secretary General Yukio Hatoyama. Kamei also took part in the gathering.
Since then, Kato has been careful not to discuss the death penalty too openly to avoid upsetting members who favor retaining capital punishment. Kato also gave up on including the unanimous vote requirement for the death penalty that the abolitionists were pushing.
“I place great value on this solidarity that was created in a very short time for such an important issue,” Kato said. “We’ll take one step at a time.”
Some experts say that sentencing someone to life in prison without parole is even more cruel than capital punishment because the inmate must live without hope, and that it will not uphold the purpose of the correction system.
But Kato said members of his group are of the opinion that this depends on the conditions that inmates will face inside the prisons. Death row inmates, however, are never informed beforehand of their execution dates and thus have to live in suspense, waiting for that fateful knock on their cell door.
On the death penalty itself, Kato expressed his concern that the number of executions fluctuates depending on who is justice minister.
Kunio Hatoyama, who currently holds that post, has sent 13 inmates to the gallows, while Seiken Sugiura — also from the LDP — did not sign a single execution order during his 11-month stint from 2005 to 2006.
The issue “involves many elements, including one’s view of life and death and punishment, the possibility of wrongful conviction, doubt toward the current justice system. So I don’t think it is right that the number can sway from zero to 13 depending on the beliefs or personalities of each justice minister,” Kato said.
“In any event, introduction of the lay judge system has triggered the debate, and we may have entered a period where the entire public will have to think together (about executions),” he said.