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The Culture of Capital Punishment in Japan
This title was first published in Japanese by Iwanami Shinsho, 2019 as “アメリカ人のみた日本の死刑”. [Amerikajin no Mita Nihon no Shikei]
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In July 2018, 13 former members of Aum Shinrikyo were executed in Japan, including Asahara Shoko, the guru of the new religion whose crimes killed at least 29 people and injured 6500 more. Aum’s offenses were as heinous as any the country has seen. There was the premeditated slaughter of attorney Sakamoto Tsutsumi , his wife Satoko, and their infant son Tatsuhiko in Yokohama in 1989. There was the sarin gas attack in Matsumoto in 1994, which targeted judges overseeing a lawsuit involving Aum , and which killed eight people and injured more than 500. And there was Japan’s crime of the century: a terrorist attack in which five coordinated releases of sarin gas in the Tokyo subway on March 20, 1995 killed 12 and injured more than 5500—and which (but for a bit of luck) could have killed many thousands.
No one was surprised when those Aum killers were condemned to death. In February 2004, I interviewed 30 of the people gathered on the sidewalks around the Tokyo District Court where Asahara was about to be sentenced to death. Everyone received the same question: “If Asahara is convicted, what sentence do you think is appropriate?” The ensuing conversations lasted six hours, with all but one respondent concluding that this serial killer deserved to die. The exception was an office lady who said she preferred a life sentence because “death would be too easy for him.”
Fourteen years after Asahara was condemned to death, few Japanese objected when he and 12 of his henchman were hanged. Soon after those executions, Murakami Haruki (a well-known Japanese novelist) published an essay in a national newspaper which built on his moving accounts of the subway gas attacks that had been published two decades earlier. 1 In this essay, Murakami noted that “as a general argument, I adopt a stance of opposition toward the death penalty” but then said “I cannot publicly state, as far as this case is concerned, ‘I am opposed to the death penalty’,” because he had acquired “a painful awareness of the feelings of some bereaved families.” 2
By arguing that he opposes capital punishmentbut not in this case , Murakami is articulating a sensibility—the death penalty is “unavoidable” (yamu o enai )—that is ubiquitous in Japan’s culture of capital punishment. Prosecutors use this expression to explain their charge decisions, to justify their demands for a death sentence, and to persuade Ministers of Justice to sign death warrants. Victims and survivors use it to lobby for the ultimate punishment. Reporters and editors use it to forecast capital outcomes and to interpret death sentences. Judges and lay judges use it—often—to explain and justify the death sentences they impose. And Japan’s government uses it to ask citizens whether they support capital punishment (a typical survey question asks “Do you agree that the death penalty is unavoidable in some cases?”). The “unavoidable” expression simultaneously suggests that the death penalty “cannot be helped” and that the speaker is ambivalent about this purportedly “inescapable” outcome. The reservations wrapped in the expression suggest that Japanese capital punishment continues to operate because agents of the state (prosecutors, judges, politicians) and citizen-onlookers represent themselves, to themselves and others, as cogs in a machine over which they have little control.
Sociologically speaking, the view that capital punishment is “unavoidable” is a fiction—but it is a fiction that performs important functions. Claims that capital punishment “cannot be helped” provide comfort and deniability, both to those who participate in state killing, and to those who support and acquiesce to it. In this way, the linguistic formula reflects “bad faith ” of the kind lamented by philosophers and sociologists, for it “pretends something is necessary that in fact is voluntary.” 3 The frequent use of this fiction also illustrates how Japan’s death penalty is kept “smothered under padded words,” which modern societies frequently do in order to discourage debate about the subject. 4
Systems of capital punishment ask normal people to perform extraordinary, prohibited acts—acts of bureaucratic, premeditated killing. 5 To facilitate such acts, and to foster support for this form of state killing, Japan’s culture of capital punishment provides a handy linguistic mechanism of moral disengagement. By framing capital punishment as “inevitable and unavoidable” (yamu o enai ), this fiction disavows personal responsibility while lubricating the machinery of death and legitimating executions. In this era of abolition, when it has become increasingly difficult to defend capital punishment, these are noteworthy functions.
The Aum executions foreclosed many avenues for learning the truth about how promising young scientists became hardened killers.
The executions leave lasting questions about why Hayashi Ikuo — the Aum executive who hoped to kill hundreds by releasing sarin gas on the Chiyoda subway line—escaped the ultimate punishment (he received a sentence of life imprisonment). Did his killings not qualify as the “worst of the worst”?
The Aum executions failed to create “closure” for victims and survivors. For those whose bodies and souls have been brutalized, a renewed sense of meaning and connection will only come (if it comes at all) from outside the law—from attachments with other people.
The executions, which took place 23 years after the last Aum offenses, hardly send a credible message of deterrence to potential offenders who (research shows) are far more sensitive to the certainty and speed of punishment than to its severity.
The executions leave lingering doubt about important legal issues, including the mental health of Asahara, who drooled and defecated on himself for years preceding his hanging, and whose appeal was never heard by Japan’s Supreme Court. 6
The executions and the narrow focus on the individual responsibility of those who were hanged deflected attention from questions about the colossal failure of Japanese police to prevent the subway gas attack, despite an abundance of evidence that Aum was manufacturing sarin gas (among other weapons of mass destruction), and that Aum had used it some nine months before the attacks in Tokyo.
And in a sharp and unexplained break from the customary practice of shrouding Japanese executions with secrecy and silence, the Aum executions were covered in real time by Japan’s mass media, with reporters broadcasting from outside the gallows at the Tokyo Detention Center on the morning of July 6, and with television celebrities providing breathless hanging-by-hanging commentary for millions of viewers who tuned in on that day to sensationalistic stories about Japan’s most notorious offenderswho -are -right -now -while -you -are -watching -finally -being -kicked -off -the -planet (“and now a word from our sponsors”). That surreal media coverage maximized public enjoyment of death penalty discourse while minimizing public exposure to actual state killing, for no private citizens, no reporters, no victims, no survivors, and no family or friends of the condemned were allowed to attend any of the Aum executions.
In short, the seemingly exemplary execution of 13 Aum offenders in the summer of 2018 actually revealed much that iswrong with capital punishment in Japan. 7 It also raised a question that has long been ignored. The novelist Murakami wrote that he was willing to allow capital punishment for individuals who have committed heinous crimes, and many of his readers surely had a “me too” reaction. But acquiescence to the death penalty for a select few offenders seems myopic and naïve, for to employ the penalty of death at all is to presuppose the existence of asystem of capital punishment that has far-reaching consequences. The pivotal question about capital punishment is not whether Aum offenders such as Asahara Shoko and Nakagawa Tomomasa deserve to die. The pivotal question is whether it is possible to construct asystem of capital punishment that reachesonly the rare right caseswithout also condemning the innocent or the undeserving. 8 This book argues that the answer is no.
I have been doing research about capital punishment in Japan for 15 years, and about criminal justice in Japan for 30. Thanks to all who have helped. You are a multitude. I have benefitted especially from the words and works of these scholars, journalists, attorneys, and friends: Adrienne Birch, Malcolm Feeley, Daniel H. Foote, Taku Fukada, Sayuri Furukawa, David Garland, Sadato Goto, Makoto Ibusuki, Naoko Iwakawa, Takeshi Kaneko, Koichi Kikuta, Setsuo Miyazawa, Kenji Nagata, Tomomasa Nakagawa, Kana Sasakura, Satoru Shinomiya, Maiko Tagusari, Akiko Takada, Takashi Takano, Masahiro Takeda, Scott Turow, Yoshihiro Yasuda, and Franklin E. Zimring. At Palgrave, I thank Josie Taylor and Liam Inscoe-Jones for their editorial support, and three anonymous reviewers who provided helpful comments. A Japanese version of this book was published by Iwanami Shinsho in May 2019, asAmerikajin no Mita Nihon no Shikei [“An American Perspective on Capital Punishment in Japan”, translated by Kana Sasakura]. I would especially like to thank Professor Sasakura for her many valuable contributions, and Iwanami editors Noriyuki Shimamura and Yukiko Hori for their help during the years this project was in gestation.
“This superb book, by an eminent scholar of criminal justice, provides many original insights about capital punishment in Japan. I welcome its publication, and I hope it moves Japan closer to abolition by informing readers in the rest of the world about the problems that afflict the death penalty in my country, and about the impossibility of administering capital punishment in a manner that is fair, just, and accurate.”
—Koichi Kikuta,Professor Emeritus, Meiji University
“There is a saying in the board game ofGo that ‘on-lookers see more than players.’ In this insightful book, David Johnson analyzes Japanese capital punishment from a variety of external perspectives. He also identifies obstacles to abolition, and he illuminates a path forward as well.”
—Sadato Goto,Attorney at Law, Osaka
“David Johnson brings two rare capacities to this masterful essay—a deep and sympathetic knowledge of the law and culture of the Japanese criminal process, and an expert’s understanding that civilizing state killing as a legal punishment is an impossibility in Japan or any other nation.”
—Franklin E. Zimring,Simon Professor of Law, University of California at Berkeley, USA
“This brilliant book sheds light on many mysteries concerning Japan’s machinery of death. It is the most interesting and provocative work on the subject. By combining empirical and sociological analysis, it shows how Japan’s death penalty is peculiar in its own way, and it reveals troubling truths about Japanese criminal justice more generally.”
—Kana Sasakura,Professor of Law, Konan University
“Japan’s death penalty is shrouded in secrecy, because the Japanese government refuses to disclose many details about it. But this book lets the world know many disturbing realities. Its greatest achievement is that it reveals the reality of barbarous hangings in Japan—and of many other problems that plague Japanese capital punishment. Our NGO, ‘Forum 90’, recommends that this book be read widely in the United States and around the world. We have been calling for the abolition of Japanese capital punishment since 1990, and we request support from the rest of the world in pursuing this objective.”
—Forum 90 for the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty ( http://forum90.net )