In July 2010, then-Justice Minister Keiko Chiba signed execution orders for two convicted murderers. At the time, she had just lost her Upper House seat but approved the hangings before the election, though that wasn’t what confused people. Chiba opposed the death penalty and said she approved the death warrants in order to create a “chance for the public to discuss capital punishment,” since the lay-judge system charged citizens with deciding such cases. In order to prove her seriousness, she attended the executions, becoming the first justice minister ever to do so.
Regardless of Chiba’s logic — sending two men to their deaths to spark debate over whether or not it’s the right thing to do — the conversation never happened because the media didn’t start one. They breathlessly cover murder trials and profile suspects who face the death penalty, but once a sentence is handed down, they fall back — until the execution takes place, and even then they just repeat what the Justice Ministry says.
A notable exception is Tokyo Shimbun’s long and detailed series — more than 40 articles — on Keiki Kano following his hanging in February 2013, which, in addition to explicating the condemned man’s life, endeavored to recreate what happened the day he died through interviews with those involved. What makes an impression is the contrast between Kano’s belief that he deserved to die for killing two women in cold blood and the anguish he went through of never knowing when his execution would take place, since it is the policy of the Justice Ministry to keep this information from death-row inmates until the morning they are to be hanged.
Still, the relatively liberal Tokyo Shimbun offers no views on capital punishment. The conservative Sankei Shimbun, however, is very opinionated. Last Oct. 16, it blasted Tokyo High Court judge Hitoshi Murase for commuting two death sentences to life in prison.
Then, on Feb. 17, the same paper reported on a petition sent to Justice Minister Sadakazu Tanigaki by 20 people who have served as lay judges calling for a moratorium on executions until the ministry explains what happens to death-row inmates after they are sentenced. The petitioners point out that they do not propose abolishing the death penalty and do not question its existence, but all passed down death sentences without satisfactorily understanding the situation, and they continue to “struggle” with their decision. “As long as capital punishment is legal,” says the petition, “we deem it appropriate, but we feel increasingly uneasy about the carrying-out of executions, since we have no information.” The man who started the petition, Masayoshi Taguchi, told Sankei that he feels citizen jurists are being used by the government to “dress up” the death penalty.
The petition calls into question the main reason for implementing the lay-judge system, which was to sanction penalties as conclusions reached by peers, rather than by elites and functionaries. The idea that citizens are handing down death sentences makes it more acceptable, though critics of the scheme say that average people are more likely to sympathize with victims regardless of legal niceties, especially now that victims are allowed to have their day in court. They also stress circumstances that professional judges play down, such as the age of the victim and the brutality of the crime. The petitioners are in favor of capital punishment, but they think they can only make an informed decision if they know everything about the process, and that’s something the government is reluctant to discuss in detail, because if more citizens understood how executions are carried out, they might have second thoughts.
Some attorneys are taking advantage of this aspect. In the early stages of a capital murder trial now going on in Osaka District Court, lawyers for the defense called as witnesses writer Toshio Sakamoto and criminal-psychology professor Shigeo Okamoto — both of whom have attended executions — to explain to lay judges what happens between the time a person is sentenced and the actual hanging. Since the defendant in this case has already confessed to two killings, the only real decision is with regard to punishment, and the defense is hoping that the reality of the system will sway the lay judges to opt for a life sentence instead. Defense lawyers for several pending capital cases say they will use the same strategy.
But the man who has generated the most media buzz with regard to the death penalty is Murase, a bête noire of the tabloid press. On Feb. 27, he again commuted a death sentence, this one handed down in Nagano District Court. The first two times he cited precedent, since there was only one victim in each case and no one had ever gone to the gallows for a single murder. Sankei cried foul, saying that if lay judges had to follow precedent, there’s no point in their participating. The February decision involved three victims and three murderers, all of whom received the death penalty. Murase changed only one of them, saying the convicted man’s culpability was not as great as that of his accomplices.
While the media in general have reported Murase’s decision, only Sankei and some of the weeklies have made an issue of it. They believe the death sentences should stand because commuting them would undermine the lay-judge system, which means such decisions are based less on fixed legal parameters and more on personal inclination. And since Murase seems to be the only high court judge who thinks that precedent should hold sway in capital cases, his decisions also come across as arbitrary within the larger scope of death sentence appeals — your fate depends on which judge or jury hears your case, and while that’s a given in any justice system, it’s one of the reasons most developed countries have done away with capital punishment: The system isn’t infallible enough for taking a person’s life.
What’s interesting is that Sankei, a publication that supports the death penalty, is the only major media outlet willing to debate it. Somebody should take up the challenge.