The Death Penalty in Japan


More generally, death is not deemed a different form of punishment in Japan. As a result, there are few special procedural protections accorded to suspects and defendants in potentially capital cases53 Consider three consequences that follow from the assumption that death is not different.


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First, Japanese prosecutors make no advance announcement as to whether they will seek a sentence of death; the disclosure is only made on the penultimate day of trial, after all the evidence has been presented and immediately before the defence makes its closing argument. Tis non-disclosure policy makes it difficult for Japanese bar associations to provide institutional support of the kinds that American capital defenders take for granted. Te non-disclosure policy also means that while Japan has a system of capital punishment, it does not have anything that can be called a “capital trial” because nobody except the prosecutor knows until the trial ends whether the defendant’s life is at stake. Tis significantly handicaps the defence attorney’s ability to prepare a decent defence.


Second, capital trials in Japan are not bifurcated into separate guilt and sentencing phases, even when the defendant denies guilt. Hence, when a defendant denies the charges against him or her, the court often hears little mitigating evidence, for such presentations by the defence might undermine its arguments for acquittal. In this way, protestations of innocence in Japan may increase the probability of receiving a sentence of death.


Tird, in Japan there is no requirement that all judges and lay judges agree that a death sentence is deserved, nor is there even a requirement that a “super-majority” of six or seven or eight of the nine people on a panel agree before the ultimate penalty can be imposed. In Japan, a bare “mixed majority” – five votes, with at least one from a professional judge – is enough to condemn a person to death. By contrast, in all American jurisdictions that retain capital punishment (save for Florida, where the state legislature is ignoring the state supreme court’s directive to conform with death sentencing practice in the rest of the country), a death sentence can only be imposed if all 12 jurors agree that death is the appropriate sanction. In America, therefore, in 33 of the 34 retentionist states, a death sentence can be prevented if a defence attorney convinces a single juror to oppose the ultimate punishment, whereas defence attorneys in Japan can convince four decision-makers to avoid a capital sentence and still see their client condemned to death. It is difficult to square Japan’s mixed majority rule with the claim often made by Japanese officials that the country is extremely “cautious” (shincho) about capital punishment.54


Effective legal assistance Article 14(3)(d) of the ICCPR states that a person shall be entitled:


to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing… and to have legal assistance assigned to him where the interests of justice so require…


53


David T. Johnson, “Capital Punishment without Capital Trials in Japan’s Lay Judge System”, Asia Pacific Journal, Vol. 8, Issue 52 (December 27, 2010),


pp.1-38. Available at http://www.japanfocus.org/-David_T_-Johnson/3461 54


David T. Johnson, “Progress and Problems in Japanese Capital Punishment”, in Confronting Capital Punishment in Asia: Human Rights, Politics, Public Opinion, and Practices, edited by Roger Hood and Surya Deva, Oxford University Press, 2013 (forthcoming)


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