On July 30, the Osaka District Court sentenced a 42-year-old man to 20 years in prison for killing his sister. That’s the maximum term for the crime, but it’s also four years more than what prosecutors demanded. The reasoning behind the decision of the court, which included lay judges, has provoked an unusually pointed editorial response from the media. The Asahi Shimbun bluntly called the ruling “wrong.”
The convicted man, Kazuhiro Ohigashi, was diagnosed with a developmental disorder after he was arrested. His family never sought any treatment for his condition, and may not have thought he had a condition. At the age of 11 he stopped going to school because he didn’t like the one he was attending. He asked his parents to move so that he could go to a different school and they refused. For some reason he blamed his younger sister for his parents’ intransigence and developed a grudge against her. For the next 30 years he kept to his room. Even after he expressed a desire to commit suicide in his twenties his family didn’t seek help.
A year ago, while Ohigashi’s mother was not at home (news reports say she was “at an institution”), his sister, now married and living elsewhere, came by to check up on him. She tried to talk him into being more independent, and left a note saying he should contribute to household expenses. It wasn’t the first time she had made such a suggestion, and it angered Ohigashi. The next time she came he stabbed her repeatedly with a kitchen knife.
Experts hired by the court confirmed that Ohigashi has Asperger syndrome. Technically not an illness, AS is an autism spectrum disorder characterized by an inability to empathize with others and a lack of communication skills. Most AS individuals lead relatively normal lives, though many have problems with social adjustment and independent living. The defense didn’t argue against the prosecution’s claim that Ohigashi was “responsible” for his actions, but, taking his “disorder” into consideration as a mitigating circumstance, his lawyers believed the judges would not send him to prison. However, since the defense didn’t bring up Ohigashi’s potential rehabilitation, it’s not clear what they expected the outcome would be.
The possibility of rehabilitation turned out to be at the heart of the decision. After finding Ohigashi guilty, the judges sentenced him to the maximum prison term because, in their reasoning, there is no other place for him. His surviving family have said they want nothing to do with him and there are “no available facilities in Japan” that address Ohigashi’s “particular disorder.” He could commit a similar crime again, the judges said, so it is necessary to keep him in jail “as long as possible,” not only to “assure public safety,” but also to give him sufficient time to reflect on the gravity of his crime and develop the proper sense of remorse.
In an editorial, the Asahi Shimbun summed up the reaction of the media when it questioned whether or not the judges, amateur and professional alike, understood the meaning of the term “developmentally disabled,” and wondered if the decision would lead to greater discrimination against people with DD. Do the judges know that the reason such rehabilitation facilities are scarce is that authorities have been slow to approve them and local governments are reluctant to build them in their communities? In any event, that’s not a reason to stick a man in a hole. The Asahi urged the defense team to file an appeal.
Even according to the court’s own logic, the sentence is problematic. Ohigashi’s lawyers told reporters afterward that all of the defendant’s resentments were fixated on his sister. If the judges understood this aspect of his condition, they’d also understand that he is incapable of committing “a similar crime again” simply because his sister is already dead. And as Tokyo Shimbun pointed out in a long piece about the trial, in prison he will not receive any special treatment, so it is difficult to imagine how he can develop the empathy required to feel remorse. The court cited his disorder as the central reason why he cannot be rehabilitated, and yet refused to acknowledge that the same disorder may have diminished his ability to understand the seriousness of his actions.
In the not too distant past, the media followed an unspoken policy of not specifying that a criminal suspect had a developmental disorder, since the term (hattatsu shōgai) carries a strong social stigma. Statistically, people with DD commit violent crimes at a smaller rate than people in the general population, but it was believed that social bias against DD would be exacerbated if such circumstances were reported. Nevertheless, one expert interviewed by Tokyo Shimbun estimates that as much as 50 percent of the Japanese prison population may have developmental or cognitive disorders, thus bringing up the possibility that courts either don’t acknowledge such disabilities as having an effect on a person’s “judgment” or assume that isolating people with such disabilities from the general population is the best means of addressing the issue.
Last week, the Nagoya High Court upheld a 30-year sentence for a man convicted of killing two members of his family. A lower court had found the defendant “mentally disabled,” so the question was, should that be a mitigating circumstance? The judge believed it wasn’t, that the defendant was capable of understanding the “nature of his acts.” To some people, this rationale is the opposite of discrimination. Persons diagnosed with AS who are integrated into society — and most are — say they do not like the term “disability” and want to be treated the same as everyone else. What makes the Osaka case special is that the defendant was given a longer prison term because he has AS. That’s as clear-cut an example of discrimination as you’re ever going to get.