Hidden death penalty in Japan
- We have a death penalty system in Japan.
- There are 7 detention centers with special chambers for executions. Since 1993, 39 prisoners have been executed.
- As of December 31, 2000, there were 53 prisoners whose death sentences had been finalized.
- They cannot communicate with their friends or journalists, only with their family members. Sometimes they are even prohibited from meeting with or writing to their family members.
- Most prisoners are isolated in solitary cells monitored by TV cameras 24 hours a day.
- Prisoners are not informed of their execution until the very day the execution is to be carried out. After the execution, only the family is told it has already been carried out.
- As described above, the Japanese death row prisoners live, and the death penalty is carried out, in isolation from society.
- Regarding matters we introduce below, not many people in Japan might know about them, even those who are interested in the death penalty.
1. The process of confirmation of the death sentence
1.1 From arrest to trial
1.1 From arrest to trial
The investigation decides within 23 days of the arrest whether the suspect should be charged as a criminal defendant or not. Under the Japanese system, no official defense counsel is available before charges are filed. Therefore, until the suspects are charged, they can be given legal advice only when they can manage to pay for a lawyer.
Nowadays, all regional bar associations in Japan have adopted a voluntary scheme of public solicitor. At the request of suspects, their family members, their friends or other prescribed persons, solicitors go to the police station within 24 hours of arrest to interview suspects and give them free legal advice.
However, the free legal advice only occurs once, upon being charged; thereafter, if suspects want to legal advice, they must pay for a lawyer. Moreover, many suspects are charged without knowing the existence of this service.
At the trial stage, the judges take very seriously a suspect's "confession," which is considered more valuable than objective evidence.
Once suspects give confessions and sign their written statements, even if they later complain that the confession is not genuine, at the trial, it is rare that such a complaint is accepted. This is why the investigation is so energetically devoted to getting a suspect's "confession" within 23 days. Suspects are isolated, using techniques such as interfering with their interviews with a counsel or permitting the interviews to last only about 15 minutes. And all of the letters between a suspect and a counsel are censored.
The Prison Act in Japan rules that suspects should be detained in detention centers. However, since the Act also has a provision that investigators may use cells in a police station as an alternative, they usually detain and interrogate suspects in these cells. The "Daiyo-Kangoku," substitute prisons located within police stations, makes it possible to carry out more than 10 hours of interrogation every day. It is a strong weapon of the investigation that is used to exhaust suspects and extract confessions from them.
We can point out that there are also problems on the side of mass media in Japan. Mass media do not care about "the rule of presumption of innocence" when they report incidents. Once the police arrest a suspect, they let that news be widely known, leading people to conclude that a suspect is guilty before trial. During an interrogation, an investigator uses news articles that show malice toward a suspect in order to disturb his state of mind. An arrested person must confront the investigator alone during often lengthy interrogations, without much legal assistance. Even though the accused is informed of "the right to silence," the person who keeps silent will be strictly condemned by police and prosecutor and also must endure various disadvantages, for example, denial of bail. "The right to silence" in Japan has become nominal. Many suspects agree to make statements whose contents are just what the police believe they should be, because they think such admissions are the only way to end their suffering. As a result, even though a suspect did not intend to kill (that is, injury occurred that resulted in death), he may just by accident appear on police statements as a person who killed with intent (that is, a murderer), by planning the murder in advance. This is how the police create confessions that are used against suspects.
Such a device accounts for Japan's high guilty rate, which is 99.8% once a suspect is charged.
In criminal trials, the statements taken at the investigation stage seem to be more important than evidence submitted in court. Therefore, frequently, the defense does not dare dispute the factual issues in a case, but instead seeks extenuation of his case. It takes about one year to reach the death sentence in many cases.
Without a "Mandatory Appeals System" against the death sentence, some defendants would not appeal and the death sentence would be confirmed at the first trial.
In cases where the defendants lack enough money or for other reasons cannot hire legal counsel, the court issues orders to choose official defense counsels. However, defendants don't have any right to choose or release these official counsels. The rule is that official defense counsels will be chosen each time at the first, second, and third trial. Therefore, defendants must prepare for the next trial without any counsel between the end of the last trial date and the day when the counsel at the next trial will be chosen. After sentencing, the official defense counsels can prepare appeals, but there are cases in which defendants, during the time between trials when they have no defense counsel, withdraw their appeals. The death sentences are consequently confirmed.
On the other hand, the prosecutors can make an appeal of the death sentence when the court rejects the death penalty they had requested. From 1997 to 1998, there were five cases in which the prosecution appealed to the Supreme Court to impose the death sentences after the Appeal Courts had sentenced defendants to life imprisonments.
The Japanese government considers the judicial process fair by maintaining, "Japan has a three-stage trial system and a prudent process of trials leading to death sentences." However, the Supreme Court in Japan is a court to hear and judge legal matters, not factual matters, making the Japanese system in reality a two-stage trial system. At the court of appeal, the defense usually insists, "the death penalty violates article 36 of the Japanese Constitution, which forbids cruel criminal penalties." The Supreme Court, however, has never accepted that line of reasoning, and has consistently rejected this view.
2. Treatment of defendants at the trial stage
2.1 The place they are detained
Defendants are detained in a detention center (Koci-syo). There is a system of release on bail at the court's discretion, but in cases involving a serious crime that may lead to a death sentence, there is no possibility of bail being granted. A detainee may have a very small space; the size of a solitary cell in which defendants are detained is about 5 meters square. Inside of it are a sink and a toilet stool, as well as bedding (futon), a desk, and other things. The detainee is not allowed to move freely inside of the cell in accordance with the regulations of a detention center.
Most detention centers lack heating in the area where detainees live. Many detainees therefore suffer from frostbite.
Detention centers also lack air conditioning equipment. Detainees may have prickly heat throughout the summer.
Especially in the case of defendants who are being considered for the death sentence, their movement is strictly controlled to prevent suicide attempts. They are monitored 24 hours a day by a video-camera, which requires that their cells be kept lighted even during sleep time. Cell windows are screened with iron bars and a panel that contains some holes. Therefore, the detainee in this "suicide prevention cell" has a window that is about one-200th the size of a window in a regular cell and that lets in about one-fifth as much sunshine.
2.2 Communication with the outside
Detainees can meet anyone until their sentences have confirmed. However, in almost cases, they can meet only once a day and maximally 3 persons together at same time. The duration of this meeting is about 10 to 30 minutes. There is a panel for screening between detainees and visitors in the meeting room. Prison officers attend at the meeting and record what the prisoners and visitors talk about. Detainees have no possibility to use telephone.
Detainees are not allowed to meet with journalists who have the purpose of collecting information or news materials.
Detainees may send letters to anyone, but in principle, they may send them only once a day. The number of pages per letter is restricted to 7. Detainees may receive letters from anyone. However, the officers censor all letters from/to detainees. If they judge that some sentences in a letter are not proper for detainees to write or read, they will either order detainees to rewrite them or they will blacken out the sentence with ink (Kuronuri). The same practice is used in the case of books and magazines.
Furthermore, the court may prohibit a detainee from meeting persons other than his/her attorney, when they judge there is the possibility of escape and destruction of evidence about the detainee. Under this order the detainee cannot meet with his/her friends and family members for a long time, and therefore must defend him/herself alone.
The quantities of the detainee's belongings are also restricted. Although this rule may be used to restrict prisoner's personal items, it can also be used to restrict legal documents relating to a prisoner's criminal or civil trial. As a result, detainees who are on trial for a long time will have difficulty fully defending themselves.
2.3 Living conditions
Even when defendants have not received confirmation of their sentence, they must adhere to a very strict time schedule at the detention center. Therefore, they do not have enough time to prepare for their trial.
Typical daily time schedule :
The detainees have meals 3 times a day. Regarding the taste and quantity of meals, each person will have a different evaluation. But as to nutrition, vitamins are insufficient due to lack of fresh vegetables. The detainees may buy fruit with their own money, but some detainees do not have the money to do so. Furthermore, it is harsh treatment to have 3 meals separated by only 9 hours.
2.5 Exercise and medical treatment
Detainees may have outdoor exercise twice a week in summer and three times a week in winter for 30 minutes each time. The detainee who is confined in a single cell, as in the case of a person whose death sentence has been confirmed, must exercise alone. The exercise area is about 2 meters wide and 5 meters long, made of concrete and located at the porch or on the roof. When the detainees exercise, they are monitored by an officer. They may only use a jump rope.
Regarding taking a bath, detainees may do so every exercise day as well as 3 times a week in summer and twice a week in winter. They are allowed about 15 minutes to bathe, including time for putting on and taking off clothes. Detainees who are confined in a single cell bathe alone, too.
They spend their time sitting in their own cell as well as meeting, exercise, and bathing.
Detainees who request to do are allowed to work while sitting. They may earn from 4 to a maximum of 5 thousand yen per month, but their income is restricted these days.
Because of lack of exercise, vitamins, and
medical care, detainees typically suffer from disease or injuries, for example, lumbago, tooth decay, pyorrhea alveolaris, weakened eyesight, and institutional psychosis.
3. Treatment after confirmation of death sentence
Prisoners whose death sentences are confirmed are confined in single cells of detention centers that have special chambers for the execution. The situation in such detention cells with regard to exercises, baths, and medical treatment is the same as for the defendants described above.
3.1 Communication with the outside
Communication with the outside after confirmation of death sentences is more restricted. Under article 9 of the Prison Act, prisoners whose death sentences are finalized receive the same treatment as other detainees and defendants. However, this regulation does not apply to prisoners.
In principle, they may only meet with and write to their family members. Many prisoners don't have anyone to meet, because they have divorced their husbands or wives, or have heard nothing from their parents, brothers, sisters, and children for a long time after they committed crimes. Some prisoners are adopted into the family of supporters whom they met in the course of their trial; but they are hardly ever allowed to meet with and write to their lawful family after their sentences have been finalized.
The authorities deprive prisoners of any hope for life. They do not permit prisoners to communicate with the outside, giving as the reason "for prisoners to achieve some peace of mind." In fact, the purpose is to make prisoners come to terms with their crimes.
Some national and international NGOs' members and Japanese Diet members have requested to meet prisoners, but all of these requests have been rejected. In March 2001, Mr. Jansson, who is a chairperson of the Human Rights Committee of the Council of Europe, visited Japan in order to study the death penalty system. He requested to the authorities that he be allowed to meet with a prisoner at his family members' request, but this request was also rejected. Some prisoners have been executed without talking with any outside persons until the day of the execution.
If prisoners wish, they are allowed to meet with chaplains once a month with being attended by prison officers. The chaplains attend at the execution. They must keep secret about the inside of the detention center and the situation of prisoners.
Even after the sentences are finalized, prisoners are allowed to meet with and write to attorneys concerning a retrial.
However, since officers attend the meetings with attorneys, it is difficult to keep anything secret regarding a prisoner's retrial. There are cases in which a meeting has not been permitted between a lawyer and prisoner who wants to request being defended at a retrial.
Only attorneys concerned with a retrial and family members can send anything to prisoners after a sentence has been confirmed.
3.2 Life after sentence has become final
At a prisoner's request, s/he may do easy work in the cell and receive a small income.
Lack of medical care is the same as in the case of defendants. In the case of prisoners whose sentences become final, since they have great difficulty communicating with the outside, it is quite possible that their condition will worsen. Thus, one prisoner lost his/her sight because of failure to treat a retina disease. Another prisoner had difficulty walking because of lack of treatment for a brain tumor. A third prisoner lost his/her ability to speak because they hardly ever had the chance to talk. And another prisoner suffered from institutional neurosis and ended up having a mental disorder. Even in these situations, prisoners are hardly ever moved to a hospital.
4. The rights of defense of death row prisoners
4.1 Appeal to retrial
It is difficult in Japan to gain a court's permission for a retrial. Such cases are rare: four death row prisoners were found innocent through retrials in the 1980s. These four prisoners had been tortured during interrogations in order to produce confessions. It took 28 to 34 years before they were found innocent. Mr. Sakae MENDA, who was the first to be found innocent, says that he has seen 70 prisoners who were executed, and that about 5 of them claimed to be innocent.
There were 53 death row prisoners in Japan at the end of December 2000. Among them, 25 people claimed that they were totally innocent or innocent of a part of charges and were making appeals for retrial. Another eight prisoners claimed to be innocent at their trial.
However, since the retrials at which the four prisoners to found to be innocent, no additional retrials of death row prisoners have been permitted. Even in cases in which many journalists decided that there was a miscarriage of justice, the door to retrial will not open. In the case of one particular prisoner, 40 years has passed since his arrest and 30 years since confirmation of his death sentence. In December 1999, two prisoners were executed. One was executed during his eighth appeal for retrial and while proclaiming his innocence, and the other was executed while appealing for habeas corpus. They were executed while considering various kinds of defenses. The government explains that appealing for retrial or habeas corpus are not grounds for suspending conditions of execution, since prisoners may use appeals for retrial to escape execution. But it is possible that executions are used to uphold the justice of the law. It is natural that prisoners who proclaim their innocence insist they did not kill anyone. The four who avoided execution 20 years ago claimed the same thing.
4.2 The request for amnesty
Prisoners or their lawyers can make requests for amnesty.
However, since 1975, there is not been any death penalty case in which a prisoner had his punishment reduced by amnesty.
Prisoners are informed orally of the result of their request for amnesty. The amnesty decision is not given to the prisoner's lawyer. It is impossible to raise an objection to the decision.
In December 1995, a prisoner who had been informed orally of rejection of his request for amnesty was given no time to take any measures against it. He was brought to the execution chamber and executed immediately.
5. Carrying out the execution
In Japan, no executions were carried out between November 1989 and March 1993.
In December 1989, "The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)" was ratified by the United Nations. We hoped the death penalty would be abolished if this situation continued. But in March 1993, executions began again.
5.1 The legal process
The Criminal Procedure Act in Japan states that the executors of judgment are prosecutors, but that the death penalty shall be carried out by order of the Minister of Justice (The Criminal Procedure Act, article 475). One of the main reasons there were no executions for three years or more as mentioned above was that the Minister of Justice during that time refused to issue an order. However, the Ministers of Justice since then have issued orders to carry out executions in the belief that the minister's role is to carry out penalties confirmed by trials.
The act only states, however, that the execution of the death penalty shall occur within 5 days of the date an order was issued (Criminal Procedure Act, article 476). There are no written provisions concerning how, where and by whom the executions shall be carried out. This is to say, there is no legal basis for the execution of the death penalty.
Moreover, prisoners who are to be executed are chosen arbitrarily. The aged, the mentally disturbed, and the person who was a juvenile at the time of committing a crime have all been executed.
In the past 6 or 7 years, executions have been carried out while the Diet was not sitting. In 1994, the "Diet Representatives Association for the Abolition of Death Penalty" was established. But because executions have been carried out while the Diet is not sitting, Diet members have been unable to demand explanations by the Ministry of Justice during parliamentary debate. The Japanese Minister of Justice has been changed about every 7 or 8 months. The Ministry of Justice has tried to create a system that will avoid the possibility that a minister will not order executions. This means that the executions are repeated arbitrarily once or twice a year without any relationship to the conditions of the prisoners.
5.2 Process leading to the execution
5.2.1 Before the execution
The prisoners, their family members, or their counsels will never be informed in advance of an execution. On the morning of the execution, prisoners will be called suddenly and informed that "the sentence of execution will now be carried out," and will be brought to the execution chamber. Prisoners will not permitted to say goodbye to their family members.
They will not be able to call their counsels and will not be given opportunities to have legal assistance.
The fact that executions are not known in advance makes the prisoners' condition of mind unstable. These days, executions are carried out 6 or 7 years after confirmation of the death penalty sentences. This situation forces prisoner who have spent 6 or 7 years after confirmation of their sentences to live each and every day in dread of the day the execution will be carried out. Some people are executed even though they are appealing for a retrial. Even if prisoners are appealing for amnesty, they may be informed of their executions at the same time they receive notice of rejection of their appeal.
If prison officers stop in front of a cell in the morning, it means the last moments of the prisoner's life have arrived. Even if prison officers do not stop this morning, who knows about tomorrow? In that case, we may say that each new day merely gives prisoners a 24-hour postponement of execution. Such a life continues until the day of execution.
5.2.2 Execution of the death penalty
At the execution chamber, the authorities perform certain ceremonies. A few minutes are given to the prisoners for writing their will and for saying goodbye to their chaplains.
Then they are handcuffed from behind, blindfolded, and brought onto the hanging place, whose floor is split in two. They are tied up while on their knees to prevent wounding the body in case they struggle. At the same time the hanging rope is placed around the prisoner's neck.
At a signal, the floor splits into two, and prisoners fall into the opening. Since the length of the rope has been adjusted in advance to take account of the height of prisoners, they continue cramping until their death, suspended in the air some 15 centimeters above the underground floor.
In the underground room, a doctor is standing by to take the prisoner's pulse and listen for a heartbeat. It is said that 15 to 20 minutes are needed to die.
After the execution, the prisoner's family will be informed about it. If within 24 hours the family asks to have the body, it is possible to comply. There have been 39 executions since March 1993 when the execution of death penalty was restarted, but on only two occasions were the bodies taken back. Mr. Norio NAGAYAMA was executed in August 1997. His lawyer wanted to take the body, but the authorities had it cremated and only allowed his bones to be taken. It is presumed that there were traces of NAGAYAMA's final struggling.
Belongings of the prisoner are returned to his family, except for "diary or documents as such" after confirmation of his death sentence. There is no way to identify belongings, however, other than a "diary."
6. The general situation of the Japanese death penalty system
6.1 The number of executions
The number of executions over the last 20 years is as follows: