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Determining sentences seen as lay judges’ hardest task

by Natsuko Fukue and Mariko Kato

Third in a series

One of the hardest tasks awaiting members of the public who will join professional judges to preside over a defendant’s fate under the new lay judge system is expected to be determining a sentence for those who are found guilty.

The responsibility for deciding sentences is basically not borne by juries in the United States and the United Kingdom, but it is shared by jurors in the “mixed court” system in some European countries, including France, Italy and Germany.

Although lay judges are expected to bring their everyday common sense and judgment to bear in the new “saibanin” system that starts May 21, they are nevertheless expected to have a tough time deciding sentences. Observers say it is up to the legal professionals to provide pertinent information for the panel of judges and support them in reaching a decision.

“I’m worried that lay judges may determine the verdict and sentence based more on emotion than objective fact,” said Yukari Kurokawa, a 25-year-old company employee in Tokyo who said she is not ready for the new system yet. “I also feel uncomfortable judging people in a short time without legal knowledge.”

Kurokawa’s anxiety is shared by many Japanese. In fact, more than 60 percent of the respondents to both a 2008 survey by the Supreme Court and a 2007 survey by the Cabinet Office said that deciding a convicted defendant’s fate was their biggest concern regarding their new role in the criminal justice system.

Until now, professional judges have meted out sentences based on their legal knowledge and experience, said Masaya Kawamoto, a judge currently working in the administrative division of the Supreme Court.

“Legal professionals shared a scale of sentences in our minds,” Kawamoto said.

Possible sentences for particular crimes are stipulated by the Penal Code. But the code actually grants a wide range of choice. For example, murder can be punished by execution, life imprisonment with the possibility of parole or more than five years’ imprisonment, both with hard labor.

Meanwhile, someone found guilty of robbery causing injury can be sentenced to anywhere from six years to life, according to the Penal Code.

Typically, when prosecutors make their closing arguments, they demand a sentence based on the evidence and the nature of the alleged crime. If the accused has admitted guilt, defense lawyers ask the court to consider this as an extenuating circumstance and seek a lighter sentence than the one demanded by the prosecution.

Up to now, a single professional judge, or a group of three judges, have decided the penalty.

“We (judges would) know what sentence is appropriate based on past experience,” Kawamoto said, noting they reach their conclusion by assessing the nature and motives of crimes and the level of contrition on the part of defendants. For homicides, the number of people killed is also a factor.

But this will no longer be taken for granted when the six lay judges join the bench in deciding the sentence.

When Kawamoto participated in four of the more than 600 mock trials conducted nationwide in preparation for the new system, he noticed that lay judges leaned toward harsh sentences, and they needed to be reminded that they had to have absolute proof to convict.

“I told them that if they’re hesitating and can’t prove the defendant’s guilt, then (the accused must be acquitted),” he said. “But they insisted there was something ‘suspicious’ about the defendant.”

The lay judges tended to feel the defendant was guilty just because they had been arrested, he added, saying the de facto jurors have been influenced partly by media reports.

To provide points of reference for determining sentences, the Supreme Court will present graphs of past cases, drawn from a database on the rulings of more than 2,000 trials nationwide since April 2008, according to Kawamoto. The database will continue to expand as the lay judge system begins, he added.

The Supreme Court remains confident that showing past cases will help lay judges reach a fair decision. In a report, top court officials said they should not hesitate in showing material on past sentences as long as they emphasize that it is only meant for reference and not binding criteria.

Meanwhile, defense lawyers not in the habit of suggesting a sentence in the event their client is convicted have decided to do so with the aim of preventing lay judges from being too influenced by the professional opinions that, they believe, can be more rigid than those of the public.

“We need to offer them a clear point of discussion, and a possible conclusion,” said lawyer Shigehiro Kanaoka.

Bar associations nationwide are compiling their own databases of past rulings to be utilized by defense lawyers. “We need databases so we can be clear on what we want to say to the lay judges, and avoid situations where they are misled by past examples that were biased toward heavy sentences,” he said.

At the same time, lawyers will have to explain in detail which facts should be considered advantageous or not for leniency, and encourage lay judges to consider their opinions while reflecting on their own values, Kanaoka added.

Databases on rulings are referenced by judges in the United States and other nations, according to Steven Chanenson, a professor at the Villanova University law school. Speaking to defense lawyers at the Japan Federation of Bar Associations in early April, Chanenson said attorneys will need to give careful advice to lay judges to ensure individual justice in specific cases, as well as equal justice across all cases.

When the professional and lay judges convict, they will decide the sentence on a conditional majority. This means at least one of the three professionals must agree with the sentence suggested by the majority.

Take the example of a case where two lay judges want 20 years’ imprisonment and three demand 18, but two of the professional judges want 16 and the remaining professional and lay judges both request 14. Although adding those who want 20 and 18 years will create a majority, since that does not include a career judge, the sentence will be 16 years.

The hardest decision lay judges will ever have to make is sentencing someone to hang.

Kawamoto said professional judges have resorted to the death penalty when a crime is deemed extremely grave, weighing the motive, the sentiment of the victimized and the social impact of the case.

Because more than 80 percent of Japanese express support for capital punishment, lawyers are concerned more convicts will be placed on death row as lay judges might place greater weight on the feelings of the victimized.

However, Yuji Shiroshita, a professor at the School of Law of Hokkaido University, argues that the current “standard” won’t change dramatically because the judges will adjust the discussion, he said.

In addition, even if all six lay judges seek capital punishment, if the professionals favor a life sentence, that will be what is handed down.

“Professional and lay judges should discuss whether execution is unavoidable, based on arguments from both prosecutors and defense lawyers,” Kawamoto said.

But what will really happen is difficult to predict at this point. In fact, Kawamoto said there was no mock trial that dealt with a case that involved the death penalty.

“It is not possible to decide whether to hand down a death sentence without actually facing a real accused killer,” he said.