Sentenced to death for killing a farmer to claim an insurance payout in 1963, Tsuneki Tomiyama played his last card in early December when he and his support group filed a clemency plea.

At 85, Tomiyama is the oldest man on Japan’s death row. As of the end of December, there were 57 people waiting for the day their death sentences would be carried out.

“We were preparing to seek a retrial (for the third time), but since Tomiyama was moved to a prison hospital and his health is getting worse, we thought we would rather apply for clemency,” said Michio Shinohara, who has supported Tomiyama for more than 35 years because he believes he is innocent.

Tomiyama’s supporters are hoping that judicial authorities will approve the leniency petition and reduce his sentence. This would allow Tomiyama to leave prison before his health completely deteriorates.

Experts say it normally takes five to six years between sentencing someone to death and the execution, but after more than 26 years on death row Tomiyama is still in Tokyo Detention House, awaiting his final day.

His supporters have now framed the question in humanitarian terms — will Tomiyama even have to face the death penalty at his age?

Tomiyama’s fate — whether he walks free or is detained until he dies — is in the hands of the judicial authorities. Their decision is expected to affect the fate of other elderly death row inmates in Japan.

His death sentence was finalized by the Supreme Court in 1976. Tomiyama did not confess to the killing and the evidence was not convincing, Shinohara said, adding that the judgment was based purely on circumstantial evidence.

Shinohara visits Tomiyama once a month. He described Tomiyama’s health as critical, saying he complains of headaches, poor eyesight and no appetite, and is confined to a wheelchair.

In reply to an inquiry about Tomiyama’s health, prison officials said he has high blood pressure, suffers arteriosclerosis and renal insufficiency and is undergoing dialysis, adding that he can no longer stand.

His supporters and lawyers hastily prepared the petition because they feared Tomiyama might end up like other inmates on death row who ended up dying of old age.

Although those deaths have triggered debate over what should happen to elderly inmates on death row, there has been no change.

“The government should have learned from past experiences and taken the appropriate measures” when they faced a similar situation more than a decade ago, said Chuo University law professor Toyo citing the case of Sadamichi Hirasawa, who died in 1987 at the age of 95 while still awaiting execution.

Hirasawa’s case attracted a great deal of public attention because he was convicted of the 1948 Teigin (Teikoku Bank) robbery and murders that ended with 12 people dying of poisoning — one of Japan’s most unforgettable and heinous crimes.

Hirasawa and his supporters maintained his innocence, seeking a retrial 18 times and petitioning for leniency five times.

Even though justice authorities denied every appeal, Atsumi believes the continuous appeals were effective in forcing the Justice Ministry to hesitate before giving the final go-ahead for his execution.

The Code of Criminal Procedure stipulates that the justice minister must give the order for a prisoner to be hanged within six months after a death sentence is finalized.

However, the law also says the ministry can delay execution pending any retrial or clemency appeals.

This clause does not stop the justice ministry from carrying out a death sentence, but it is widely acknowledged that seeking a retrial or appealing for leniency affects the ministry’s attitude, Atsumi said.

On the other hand, Atsumi added, Hirasawa and his supporters’ continuous appeals for a retrial were dismissed because they were unable to provide new evidence that could overturn his conviction.

The case was effectively in limbo, leading to Hirasawa being detained in prison until he died, 32 years after his death sentence was finalized.

“No one would have expected a death-row prisoner to be detained for such a long period of time, and this is a case that goes beyond the limits of the rule of law,” argued Chuo University’s Atsumi.

Atsumi is convinced that the only way to break the impasse is to have authorities reduce the convict’s sentence by acting on a clemency plea.

Under the current system, a convict can obtain a pardon or leniency if the Cabinet approves the application following a screening process at the National Offenders Rehabilitation Commission, a justice ministry panel.

But, in reality, since World War II it has been extremely rare for inmates on death row to obtain a reduced sentence or a pardon.

Meiji University law professor Koichi Kikuta, who campaigns for the abolition of the death penalty, points out a paradox involving retrial appeals and leniency petitions that keeps authorities from approving clemency.

“If a convict is to obtain leniency, the prisoner must confess and express remorse” because it is usually understood by justice authorities that a leniency petition is accepted only if the convict admits to the crime and expresses remorse, Kikuta said.

Though Kikuta dislikes this standard, it is widely acknowledged that it would be logically inconsistent for the condemned person to apply for leniency while still claiming to be innocent.

This is apparently another reason why Hirasawa’s petitions for clemency were denied, Kikuta added.

This theory is what concerns the supporters of the nation’s oldest convict on death row.

“When I suggested to Tomiyama to apply for clemency about three years ago, he said he would not do it because he is innocent,” said Shinohara.

Some of Tomiyama’s supporters are less than optimistic that the appeal will succeed.

They even say that campaigning instead to abolish or suspend the death penalty might be easier, Shinohara added.

A group of Diet members opposed to the death penalty is now working on a bill that would place a moratorium on hangings, with the eventual aim of ending the death penalty altogether.

But Tomiyama’s lawyers and supporters finally decided to apply for leniency because they believe Tomiyama’s declining health means there is little time to lose.

Lawyer Toshiyuki Satake, who is involved in Tomiyama’s application for leniency, says it is not legally binding for a prisoner who petitions for clemency to plead guilty.

The U.N. Economic and Social Council adopted a resolution in May 1989 urging member states that still retain the death penalty to establish a maximum age beyond which a person may not be sentenced to death or the execution carried out.

Although Japan does not set a limit on a criminal’s age for execution, experts believe Tomiyama is too old to be hanged.

They also claim that detaining a person of such advanced years is cruel from a humanitarian point of view.

“The clemency system should be a remedy for an aging criminal on death row (like Tomiyama), whose health is declining and is facing death in prison,” said Satake.

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