Death penalty: Systemic failings add to risk of wrongful executions

by Jeff Kingston

Special To The Japan Times

Japan’s continued resort to the death penalty raises a number of troubling questions. In recent years a cascade of revelations about forced confessions, faked evidence and prosecutors withholding exculpatory evidence indicates that a number of people have been wrongly convicted for crimes they didn’t commit.

In some of these cases the incarcerated victim has been freed and found not guilty in a retrial. They have lost many years of their lives and for this there is no adequate compensation.

It is equally disturbing that prosecutors have failed to apologize for their wrongdoings and nobody in the judiciary has been jailed for abuse of power and infringement on civil liberties in securing wrongful convictions.

It is repugnant and tragic that in cases where the death penalty has been carried out, there is no second chance nor any possibility of undoing such mistakes.

In Japan, the state reserves the right to execute its citizens or others who commit certain crimes within its jurisdiction despite growing awareness of prosecutorial excesses and coerced convictions.

This means there is a risk that innocent people could be hanged, and it is this reasonable doubt about the possibility of error that is so alarming. Given Japan’s chilling 99-percent conviction rate, the odds of an irreversible miscarriage of justice are much higher than should be acceptable in any society.

However, the fact that in Japan many people confess to crimes they didn’t commit isn’t so surprising as it may appear. This is because people can be kept in detention and interrogated incessantly for 23 days without being charged. They have access to legal counsel, but it is not mandatory during interrogations.

Even more problematically, prosecutors can apply to a court to extend the initial 23-day detention multiple times, and in almost all cases judges approve.

Hence, knowing that the only way out of endless detention is to sign a confession drawn up by prosecutors, many browbeaten detainees finally capitulate.

In 2010, there was a case in which prosecutors held a government official, Atsuko Muraki, for 163 days, pressuring her to confess to crimes she did not commit. She heroically held her ground, denying the allegations until it came to light that the “ace” prosecutor in her case had doctored the evidence and witnesses had been forced to implicate her. Her lengthy detention and grilling demonstrates just how much pressure a suspect faces once in the maws of the justice system.

In March 2013, the British Embassy hosted a conference on the death penalty at which it was emphasized how Japan is in violation of its international treaty obligations and human rights norms. Presenters were authors of the highly recommended report titled “The Death Penalty in Japan,” sponsored by the Death Penalty Project and downloadable from the Internet.

Tokyo is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which came into force in 1979. Consequently, it is obliged to submit regular reports to the U.N. Human Rights Committee (UNHRC), but it has repeatedly failed to address issues raised by that body. Back in 1998, the UNHRC rebuked Japan over “conditions of detention and treatment on death row, the lack of procedural guarantees concerning pretrial detention, the high number of capital convictions based on confessions, and the limited recourse to habeas corpus.”

Since then, a succession of Japanese governments have failed to reform death penalty laws and practices and conform to minimum international legal standards that apply to all ICCPR signatories.

In 2007, the U.N. Committee against Torture reiterated concerns about the heavy reliance in Japan on confessions in securing convictions in criminal trials; “the lack of means for verifying the proper conduct of interrogations of detainees while in police custody”; and the absence of time limits on interrogations where, problematically, the presence of defense counsel is left to the authorities’ discretion.

In 2008, the UNHRC recommended full recording of interrogations and reliance on modern scientific evidence rather than confessions.

In fact both U.N. bodies, and legal scholars in Japan and overseas, assert that criminals here are denied due process and are not getting fair trials — and also that lengthy pretrial detention undermines the presumption of innocence. Moreover, detainees are not accorded the right to remain silent, nor the right not to self-incriminate or confess guilt.

“The Death Penalty in Japan” report recommends that Japan, inter alia, eliminates capital punishment for crimes that do not involve a deliberate intent to kill, does away with the opaque system of daiyō kangoku (police-cell detention) and institutes effective judicial monitoring of pretrial detention — with strict limits on duration.

Until such reforms are effected, and as long as the rights of those facing the death penalty are inadequately protected, Japan is called on to declare a moratorium on further executions.

This year, Amnesty International has slammed Japan for resuming executions in 2012 after a 20-month hiatus. In fact, since March 2012, there have been 12 hangings, including five since Prime Minister Shinzo Abe formed his government in December 2012.

Nonetheless, based on extensive scholarly research, Amnesty International asserts that there is no evidence that the death penalty deters serious crimes and concludes that it is the ultimate denial of human rights and a stain on Japan’s justice system.

The Japanese Federation of Bar Associations also calls for abolition.

Although the Japanese government defends retention by pointing to polls indicating 86 percent of Japanese of voting age support the death penalty, this is misleading.

Mai Sato, a researcher at Oxford University who is one of the authors of “The Death Penalty in Japan,” has conducted her own surveys, from which she found that the way questions are asked makes a big difference.

A 2009 government survey asked people whether: 1) The death penalty should be abolished under all circumstances; 2) it is unavoidable in some cases; 3) Don’t know/difficult to say. This wording, Sato argues, creates a bias in favor of the death penalty.

She tested her hypothesis in three empirical surveys that she conducted between 2008 and 2010. In contrast to the government survey, she gave respondents an additional “retentionist” option in order to get a better sense of the degree of public support.

So, they could choose between: 1) The death penalty should definitely be kept; 2) it should probably be kept; 3) it should probably be abolished; and, 4) it should definitely be abolished.

She found that 55 percent were undecided or had qualified views on retention, while 44 percent supported retention without qualification.

Sato also found that those who believed murder rates are on the increase (they are not) were more likely to support retention, suggesting that attitudes in favor might be influenced by misinformation about crime. She tested this hypothesis by conducting a survey among people who were provided accurate information about crime rates. Her results showed that 30 percent of such people favored abolition — while retention support dropped to 36 percent.

Sato concludes that public support is much weaker and more nuanced than the government suggests, and hence it is a shaky basis for justifying state executions — especially given the inquisitorial detention system and coerced confessions.

Jeff Kingston is Director of Asian Studies, Temple University Japan.