A Secret Theater: Inside Japan's Capital Punishment System

2003-2004

If you ask someone who has been there to describe the death chamber in Japan, he might well say it is a surprisingly attractive place. A former prosecutor told me the room in the Nagoya Detention Center where convicted murderers are hanged is a spare, tastefully lighted space with a polished floor of Japanese cypress. "Like a noh theater," he said. During executions, a sound system pipes in the calming tones of a Buddhist sutra. An ex-member of the Diet who visited the Tokyo Detention Center's gallows told me he was struck by the reddish-purple floor covering--"like the carpet you see in the function rooms of a hotel," as he put it. A fellow visitor murmured to him: "It's nicer than I thought."



At the press of a button, a trap door directly under the prisoner swings open, and he drops through a square hole in the cedar, or the carpet. The noose at the end of a slender beige rope tightens, the prisoner's neck snaps, and he stops moving. His body dangles in a separate room downstairs, until the time comes for a doctor to verify that he is dead. On this lower level, the environment is unadorned concrete. There is a drain in the middle of the floor. "The world of death," the ex-Diet member called it.



The gallows are used about twice a year in Japan; the most recent executions, in Osaka and Fukuoka, occurred on September 14, 2004, just 11 days after I returned from my Japan Society Fellowship. This is far less frequently than death sentences are carried out in the United States, where 65 convicted murderers were put to death in 2003. Still, Japan and the U.S. are the only two industrial democracies that regularly carry out the death penalty. For societies thought to be radically different in most ways, this struck me as a remarkable point of convergence. And so, to the polite consternation of friends who wondered why I would want to devote my summer to such a grim topic, I made capital punishment in Japan the focus of my fellowship.



I came to realize that capital punishment, superficially just a matter of law and order, offered a unique window into the deeper logic of Japanese culture and politics--even religion. And it stands to reason: no society could organize itself to take the life of one of its members except on the basis of deeply-held beliefs about crime, morality, individual rights, state authority and death itself. To shine a light on the death penalty in Japan was to illuminate a wide range of unexpectedly related topics.



I learned, for example, that, when a Japanese prison guard is told to carry out an execution, he may not refuse, even if he has a conscientious objection to the death penalty. As a civil servant, he is legally required to accept the duty or lose his job. But, a high-tech answer, of sorts, has been found: Several different guards simultaneously press different buttons, all of which look as if they operate the trap door, but only one of which actually does. Prosecutors, too, are required to serve as witnesses if assigned to do so. Upon returning from this close encounter with death, however, a prosecutor may find the floor of his office strewn with salt, a co-worker's thoughtful act of ritual purification. One of the last faces the condemned man sees, before being blindfolded, is that of Kannon, the Goddess of Mercy. Her sculpted likeness sits tranquilly in the antechamber of the gallows. (In Chinese myth, as it happens, Kannon's father sentenced her to death for refusing to marry, but the executioner's sword broke without harming her.)



And then there's this question: In Japan, the prisoner enters the gallows with his eyes covered. So who are the soothing aesthetics--the carpet, the lights--intended to soothe?



I became critical of the Japanese death penalty. The dichotomy between that nice upper chamber and the chilly "world of death" below it seemed emblematic of the wider contrast between the shining, safe streets of which Japan is justifiably proud, and the sometimes troubling methods the authorities employ in the name of public safety. But any criticism I might have is tempered by this conclusion: the differences between the Japanese way of capital punishment and the American, though significant, are offset to a surprising degree by the similarities.



Probably the biggest difference between the death penalty in Japan and the death penalty in the U.S. is that the entire process in Japan is shrouded in secrecy. In the U.S., a death row inmate like Mumia Abu-Jamal can send messages from his cell in Pennsylvania to rallies of his supporters in Europe. But in Japan, death-row inmates are held in solitary confinement, visits limited to a bare minimum of family members and defense counsel. No press is allowed, ever. Indeed, it took a group of anti-death penalty members of the Diet five years to negotiate a visit to the Tokyo Detention Center gallows--not to see an actual execution, but just to see the place, which was, of course, built with money appropriated by the Diet. When the Ministry of Justice finally granted them access in 2003, it was the first such visit by non-Ministry personnel in three decades. The lawmakers were not permitted to take photographs.



Whereas American law requires the state publicly to announce an execution date well in advance, Japanese prisoners find out on the morning of their executions that it is their turn to be hanged. In other words, each of them lives for many years never quite knowing when death will come. And, of course, executions themselves are closed to the press and public. Until 1998, they were not even officially announced after the fact, except in a brief section of the Supreme Court's annual report; nowadays, the Ministry of Justice reports immediately that an execution has been held, though the actual name of the prisoner comes out unofficially, through leaks to the press.



It is a strange way to conduct a punishment designed to deter others. Yet all of this is done, officials told me, in the interests of the condemned themselves. According to the government, a blanket of isolation and quiet must cover death row to assist those who are to be executed in coming to terms with their inevitable fate. Any other policy, I was told, would result in psychological damage. Additionally, publicity about individuals on death row would invade the privacy of their families on the outside, who might feel shamed or ostracized by their communities.



Of course, critics of the death penalty told me that these are essentially pretexts for stifling criticism and debate regarding the government's handling of the condemned. In fact, critics argue, submitting prisoners to years of such uncertainty risks slowly driving them insane. Nobuto Hosaka, a former member of the Diet, has visited a man on death row at the Tokyo Detention Center who claims he is innocent. Hosaka found the prisoner, Iwao Hakamada, who has been under sentence of death for 35 years, raving that he was in charge of the prison, and that he had abolished the death penalty in Japan.



Perhaps less debatable from an American point of view is the fact that Japanese defendants in capital murder cases have far fewer procedural rights than do their U.S. counterparts. Indeed, flawed as death penalty prosecutions may be in places such as Texas or Virginia, I would much rather face Southern justice than Japanese justice. No Japanese suspect, even in an ordinary criminal case, has a right to the assistance of an attorney during police questioning, for example. Nor are there jury trials; the judges who sit on trials are employees of the same Ministry of Justice for which the prosecutors, products of the same law-school social network, also work. Nor must prosecutors disclose all information in their files to the defense. The conviction rate in Japanese criminal trials is 99 percent.



In the capital murder context, there are also tremendous differences between the post-conviction process available to defendants in Japan and the U.S. After trial, a Japanese defendant may appeal his death sentence to an intermediate court and the Supreme Court of Japan. (Of course, quite unlike the U.S., the prosecution may also appeal a trial court's refusal to impose capital punishment.) But if these appeals are denied, then the defendant's only hope for avoiding execution is to persuade the courts to grant him a new trial based on clear new evidence that he is actually innocent.



In the U.S., by contrast, a person who has been sentenced to death may raise constitutional challenges in the form of petitions for habeas corpus--an eye-glazing process known as "collateral review." In this litigation, a prisoner need not prove his innocence, only that his sentence was the result of one or more violations of his constitutional rights, such as the right to effective assistance of counsel at trial. Such appeals infrequently pay off, but they do consume many years. And, occasionally, as in the Supreme Court's 2002 ruling abolishing capital punishment for the moderately mentally retarded, they not only cancel a death sentence for one inmate, but also abolish capital punishment for an entire category of offenders.



Interestingly, too, the method of execution in Japan--hanging--has apparently never been controversial, at least not since 1961, when the Supreme Court of Japan ruled that it does not constitute cruel and unusual punishment. Prescribed by the penal code, hanging continues to be employed in Japan today despite the fact that the U.S. has all but abandoned the practice amid concerns that botched hangings could lead to unnecessary suffering by the prisoner. Today, almost all U.S. executions are by lethal injection--and capital defense lawyers in America are pressing creative new theories to have the courts declare that method "cruel and unusual." (*see note) Yet I was repeatedly told by Japanese, both pro- and anti-capital punishment, that there is no debate over hanging per se in their country. Perhaps this reflects a culturally determined view that, if one is to die anyway, it doesn't matter how. Or perhaps neither side has a political interest in such a debate: supporters are loath to expose any aspect of the death penalty to public scrutiny, and opponents do not wish to legitimize the punishment by arguing over how it should be carried out.



The most striking similarity, of course, is the one I have already noted: that both Japan and the U.S. regularly execute convicted murderers. (Incidentally, this took a number of my American friends by surprise; Japan's "pacifist" reputation seems to have created a notion that, in Japan, the death penalty must be a thing of the past as in Europe. One person even responded that he thought Gen. Douglas MacArthur had done away with executions!) To be sure, the small number of annual death sentences and executions in Japan relative to the U.S. is testimony to the fact that Japanese prosecutors are far from indiscriminate in recommending the death penalty. They are, in fact, guided by a 1983 Supreme Court opinion which urged that capital punishment be reserved for certain particularly heinous offenders, such as those who commit multiple murders at once. The prosecutors with whom I spoke insisted with some pride that their professionalism, as brought to bear on the extensive internal deliberations that go into each decision to pursue a death sentence, offers protections to defendants at least as real as the more openly adversarial processes in the U.S.



Small numbers of death sentences and executions can be misleading, though. Comparisons of crime rates between the U.S. and Japan are difficult because of differences in the way the two countries define and count various offenses. (For example, Japan's official reports of total homicides each year includes attempted homicides.) Still, there is clearly far less intentional killing in Japan than in the U.S. In Japan, there were 954 deaths caused by murder, armed robbery, arson and a crime known as "bodily injury" in the year 2002, according to the government. In the U.S., the FBI counted 16,200 "non-negligent" homicides in 2002.



Thus, when you calculate the rate at which Japanese courts currently sentence people to death per homicide, the result is within the same ballpark as the U.S.



In 2002, the most recent year for which figures are available, Japan sentenced 18 convicted murderers to death. If you divide that by the 2001 total of 1,036 deaths from murder, armed robbery, arson and bodily injury (the one-year delay is to account, roughly, for the lag time between crime and sentence), you get a ratio of death sentences to homicides of 1.7 percent. That is in between the rate at which Texas(2.0 percent) and Virginia (1.3 percent), two of the most pro-death-penalty U.S. states, sentenced people to death between 1977 and 1999. The overall U.S. rate for that period was 2.0 percent.



Moreover, Japan appears to be increasing its use of capital punishment, whereas the U.S. trend is moving the other way. In 1992, Japan sentenced just one person to death; 10 years later, as I mentioned, 18 people were condemned. By contrast, in 2003, the United States sentenced 143 convicted murderers to death, the lowest number since the death penalty was reinstated by the Supreme Court in 1976--and less than half the average number sentenced to death annually during the 1990s.



There are many possible explanations. The impact of death-row exonerations due to DNA evidence may have made U.S. prosecutors and juries more reluctant to seek or impose capital punishment. As the number of murders declines in the U.S., so will the number of death sentences. But, after interviewing dozens of people on both sides of the issue in Japan, I suspect the answer is simpler: crime in general is rising in Japan, while it is falling in the United States. And these broad trends have an impact on public attitudes toward crime and punishment, including capital punishment. While Japan is still much safer than America--so safe that I felt no qualms about letting my seven-year-old child run freely through the subway tunnels at all hours--it is, by all indications, far less safe than it used to be. According to the government's White Paper on Crime for 2002, since 1996 the number of reported crimes "has registered a new postwar high for six consecutive years." Meanwhile, the rate at which police close these cases reached a new postwar low in 2002. Whether Japan's decade-long economic downturn is the cause of this or not--and it probably plays some role--the sense of insecurity created by rising street crime, and accentuated by the lavish media coverage given to spectacular murders and other violent crimes, is real.



I hypothesize that, in their response to such a situation, Japanese are pretty much like Americans. Just as the massive crime wave of the 1960s and '70s led to a "get tough on crime" consensus in the U.S., including a surge in support for the death penalty, the crime wave of the '90s has led to a clamor for tougher measures in Japan. Anti-capital punishment activists in Japan told me that support for their movement seemed to peak in the early '90s, after four death-row inmates won retrials in the '80s and international anti-death penalty pressure, especially from Europe, a key trading partner, began. But, the 1995 sarin gas attacks on the Tokyo subway, in which 12 people were killed and thousands of others were injured, led many citizens to demand the execution of the perpetrators. The rise in street crime of subsequent years reinforced the sentiment. As a prosecutor in Tokyo told me: "There is pressure from organizations of crime victims in the context of rising violent crime [committed] by strangers. The public demands tougher sentences so prosecutors supply them."



And, when they plead for the death penalty, these Japanese crime victims can sound very much like Americans. In 2001, a Tokyo court sentenced the murderer of a two-year-old girl to 15 years in prison. This was predictable, since it was a single homicide as opposed to a multiple murder, but the girl's grandfather, a member of the influential National Association of Crime Victims and Surviving Families, has never reconciled himself to the result. "The death penalty is the only way for a murderer to compensate for taking a person's life," the grandfather, Tsuneo Matsumura, told The Japan Times this year.



This recent history suggests that, as unlikely as capital punishment is to be abolished in the U.S., abolition may be even less foreseeable in Japan. I was impressed by the dedication of anti-death penalty activists in Japan. In Kumamoto, on the island of Kyushu, I met Ryuji and Sayuri Furukawa, the son and daughter of Tairyu Furukawa, a Buddhist priest who, before his death in 2000, was one of the leaders of the anti-death penalty movement in Japan. At an early stage of his career, Furukawa had been assigned to counsel death-row inmates in Fukuoka--to encourage them to accept their fate and prepare for death. Instead, he got to know two men, Takeo Nishi and Kenjiro Ishii, who had been convicted of conspiring to rob and murder a black market merchant in 1947, during the social upheaval of the early American Occupation years--and became persuaded that they had been wrongly sentenced to death. Starting in 1961, he embarked on a campaign to save their lives that was to last 15 years; at one point, Furukawa went so far as to sell his possessions and beg for alms to finance the cause. The painfully mixed answer of the Ministry of Justice came in 1983, when Nishi was executed while Ishii's sentence was commuted to life imprisonment. Ishii was ultimately paroled in 1989.



Today, Ryuji and Sayuri's house is a shrine to their father, and the headquarters of their own campaign to get rid of the death penalty in Japan. They have networked with Sister Helen Prejean of "Dead Man Walking" fame--and with just about everyone else who comes to Japan seeking information about the death penalty there. They usher Mr. Ishii, now 87 years old and living in a nursing home, to interviews with the press. And they are still searching for any scrap of new evidence that could force the authorities to reopen Nishi's case and to grant him a chance to clear his name in court, albeit posthumously.



But, for all the moral fervor of such activists, the anti-death penalty movement in Japan is small and very divided. One interesting point of contention is the issue of life imprisonment without parole. U.S. anti-death penalty activists have basically united to press for life imprisonment without parole as a humane alternative to execution. In Japan, such a penalty does not exist. Indeed, the lack of it may marginally increase death sentences, since judges sentencing a brutal murderer face no middle option between death and a "life" sentence that, in practice, is never more than 20 years. Yet, among those pursuing the abolition of the death penalty, there is bitter dispute between those who favor pending legislation to create a life without parole penalty and those who see it as a capitulation to "tough on crime" politicians.



Perhaps the Furukawas' intergenerational, but, so far, mostly futile efforts illustrate the structural disadvantages death penalty abolitionists in Japan face in comparison with their U.S. counterparts. In the decentralized United States, those opposed to the death penalty cannot get rid of it, but they can at least chip away at it through lawsuits and lobbying. This has resulted in such events at the state level as Gov. George Ryan's recent commutation of 157 death sentences in Illinois, or, on the national level, the abolition of capital punishment for the moderately mentally retarded by the U.S. Supreme Court in 2002. But, in Japan, if capital punishment is to be abolished, or even significantly modified, that must be done all at once, through a national decision by the Diet. Given the state of public opinion, the pro-death penalty stance of the Liberal Democratic Party, the pro-prosecution orientation of the criminal justice system, and Japan's inveterate political inertia, there is little to suggest that such a decision will be taken soon.





United States-Japan Foundation Media Fellows Program