Justice versus Conscience

Sentenced to death on September 11, 1968

Mass murderer March 10, Stabbing with knife Shimizu, Shizuoka Prefecture, Japan Sentenced to death on September 11, 1968

Iwao hakamada was 30 years old in 1966. The erstwhile sixth-ranked featherweight in Japan had retired from the ring and was working in the town of Shimizu, Shizuoka Prefecture, at a plant that manufactured miso, a soybean paste used in soups and other foods.

On June 30, 1966, police found the bloody bodies of the plant’s managing director, his wife, and their two children. Their house had been robbed of 200,000 yen and set on fire. In August, police arrested Hakamada and charged him with murder, robbery, and arson. While in custody, he confessed.

On September 11, 1968, a three-judge panel of the Shizuoka District Court (there are no jury trials in Japan) convicted him and sentenced him to death.

But is Iwao Hakamada actually a quadruple murderer? He and his supporters say he’s innocent. They claim that Hakamada’s confession was forced out of him, and that the police planted crucial evidence, including a pair of bloodstained trousers that were supposedly worn by Hakamada but do not fit him. Even though he will no longer receive them at his prison cell, Hakamada’s lawyers are continuing to fight, against long odds, for a new trial.

When it sentenced Hakamada to death, the court imposed a penalty that enjoyed wide public support in Japan. It still does. In a February 2005 government survey, 81 percent of respondents agreed that the death penalty is still necessary in at least some cases. This is even more support than capital punishment currently enjoys in the United States. Japanese on both sides of the issue attribute the pro-death penalty tilt of contemporary public opinion partly to deep-rooted cultural and religious norms.

During the Heian era (794 ad to 1185 ad), which included the introduction of Buddhism from China, Japan’s rulers observed a moratorium on the death penalty. But in the centuries since, the imperatives of state authority and social order have tended to trump humanitarian qualms. As in the West, death was the punishment for a host of crimes in Japan, ranging from theft to murder, right up to modern times. After the Meiji Restoration of 1868, the list of capital offenses was narrowed to include only various forms of homicide and threats to the emperor, and decapitation and crucifixion were replaced by hanging — still the exclusive means of execution.

I was told repeatedly in Japan that even the gentle doctrines of Buddhism, as interpreted by the Japanese, encompass notions of justified retribution through capital punishment. These are buttressed by the widespread folk belief that the soul of a murdered person cannot rest until the murderer is put to death. “When a death penalty is given to someone,” says Futaba Igarashi, a professor of law at Yamanishi Gakuin University near Tokyo, “the rest of the people heave a sigh knowing that the order of society has been restored.”

There does not appear to have been much consideration given to abolishing the death penalty in the postwar constitution, which was, after all, drafted in large part by American occupiers who were hanging Japanese war criminals. When the death penalty was challenged in 1948 as a violation of the new charter’s ban on “cruel” punishment, the Japanese Supreme Court upheld it in terms of the traditional Japanese emphasis on communal stability over individual rights.

“Human life is precious. The life of a single person is worth more than the entire world,” the court acknowledged. But it added that the death penalty, “through its power of intimidation, provides general deterrence; the execution of death sentences eliminates a certain form of social evil; and in these ways the death penalty seeks to protect society. Moreover, the death penalty gives priority to a collective view of morality over an individual view of morality.”

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That opinion could serve as a summary of the Japanese government’s case for capital punishment today. Current law prescribes death for 17 offenses, from insurrection to murder. In practice, however, almost everyone now under sentence of death was convicted either of multiple murders or of murder in combination with another serious crime, such as rape, kidnapping, or robbery.

Though not laid down in statutory form, these criteria were suggested in a 1983 Japanese Supreme Court ruling. The court said capital punishment should be reserved for cases in which it is warranted by the “persistency and brutality of the act of killing,” “the number of murder victims,” “the effect on society” of the crime, the feelings of the victims’ families, and the defendant’s age and prior record. Prosecutors and courts treat these guidelines as binding.

The Ministry of Justice in Tokyo, which exercises central control over prosecutors across the country, often points to Japan’s adherence to the 1983 criteria as evidence that it proceeds selectively and consistently in capital cases — in implicit contrast to the United States, where similar crimes may or may not qualify for the death penalty depending on the state in which they occur. Prosecutors I spoke with in Japan said proudly, sincerely, and, no doubt, accurately that they never seek the death penalty before submitting the case to probing review by government lawyers who are in turn guided by the 1983 Supreme Court decision.

The crimes of which Hakamada was convicted qualified for the death penalty in 1966 — and would still have qualified after 1983. But he insists that he did not commit them. At his trial, he recanted the confession prosecutors had put before the judges. He described 23 straight days of daily 12-hour interrogations, punctuated by threats and beatings. “I could do nothing but crouch down on the floor trying to keep from defecating,” he later wrote to his sister. “At that moment one of the interrogators put my thumb onto an ink pad, drew it to a written confession record and ordered me, ‘Write your name here!’ [He was] shouting at me, kicking me and wrenching my arm.”

In convicting Hakamada, the Shizuoka court took note of his claims, dismissed some of his confession, and even chided the police for their tactics. But it said that there was nonetheless enough evidence to find him guilty and sentence him to death.

His efforts to overturn the verdict were rejected first by the intermediate court of appeals, known as the High Court, and then by the Supreme Court, which ruled on November 11, 1980. At that point, his death sentence became “final,” as the Japanese put it. Accordingly, Hakamada was transferred from a regular prison cell to solitary confinement on death row in the Tokyo Detention Center.

But the questions about his confession have not gone away. Nor have the legal structures that may have encouraged the police to wring it out of him. Under Japanese law, courts have traditionally treated a perpetrator’s own admission as more persuasive than other evidence, including circumstantial evidence or even forensics. Suspects may be held and questioned without access to a lawyer for up to 23 days.

Even after that, police are not required to let defense counsel sit in on their clients’ questioning, and the defense is not entitled to look at all the evidence in the files of police and prosecutors. The great pressure on police and prosecutors to produce confessions and the great latitude to question suspects behind closed doors have yielded recurring credible allegations of physical and psychological abuse during interrogations.

In the 1980s, such concerns led to the first death-row exonerations in Japan’s postwar history. Under Japanese law, the only way for a prisoner to escape execution after his conviction and death sentence have been upheld by the Supreme Court is to obtain a new trial based on new evidence that he is actually innocent. (There’s no exact counterpart to the habeas corpus review of the United States, under which death-row prisoners sometimes win new sentencing hearings because courts find that their constitutional rights were violated at trial.)

Until 1975, that rule had been interpreted narrowly, and no one had actually been awarded a retrial. But in 1975, the Japanese Supreme Court relaxed the interpretation. It said that to obtain a retrial, a prisoner must present clear new evidence that creates a reasonable doubt as to his guilt, rather than clear new proof of innocence.

Armed with this ruling, four death-row inmates who had been protesting their innocence since the early postwar years won new trials — and were acquitted. The most notorious of these miscarriages of justice involved Sakae Menda, convicted and sentenced to die for a double ax-murder in 1948 at the age of 23. The guilty verdict and death sentence had been based on the self-contradictory testimony of a prostitute and on Menda’s own confession, which had been extracted after he had spent 80 hours in a police station without sleep. After a retrial, he walked out of prison in 1983.

The four exonerations shook Japanese society and reverberated within the powerful Ministry of Justice. There were no executions between November 1989 (shortly after the last of the exonerations) and March 1993. During that time, the civil servants who wield behind-the-scenes power at the ministry conducted a review of the embarrassing acquittals. But it did not produce any fundamental changes.

According to leaked excerpts of the internal report, the ministry concluded that the four wrongful convictions reflected unique postwar conditions, such as flaws in prosecutors’ supervision of the police, that had since been corrected. The main lesson the authorities learned, David T. Johnson wrote in his study of Japan’s prosecutors, The Japanese Way of Justice (Oxford University Press, 2002), was that they must redouble their efforts to guarantee the accuracy of confessions.

The unofficial moratorium on executions ended on March 26, 1993, when three men were hanged. By that time, Iwao Hakamada was pursuing his own effort at exoneration. After the Supreme Court confirmed his conviction and sentence in 1980, a new team of lawyers, headed by Kazuo Itoh, the vice-chairman of the human rights committee of the Japan Federation of Bar Associations, stepped into the case.

In 1981, the lawyers filed a petition for retrial on Hakamada’s behalf. Itoh’s team asked doctors to conduct a reexamination of the physical evidence in the case, which resulted in the finding that the alleged murder weapon was the wrong size to produce the deep stab wound in one of the murdered children.

The lawyers were also able to show that a door through which police said Hakamada had entered and exited the victims’ home was locked at the time of the crime. And perhaps most important in the lawyers’ eyes, they showed that a pair of bloodstained pants the police said they had recovered at the scene 14 months after the crime were too small for Hakamada.

The gathering and presentation of this new evidence took the better part of 13 years. On August 9, 1994, the Shizuoka District Court rejected Hakamada’s petition. A subsequent appeal to the Tokyo High Court failed almost exactly 10 years later, on August 27, 2004.

“New evidence presented by the defense lacks clarity and contains nothing new as required to open a retrial,” Judge Fumio Yasuhiro wrote for the High Court, “and it cannot be said that it will generate reasonable doubt about the final judgment.” dna testing of the bloody pants was inconclusive, and Judge Yasuhiro agreed with prosecutors that Hakamada had been wearing them at the time of the crime. Itoh is appealing the case to the Supreme Court.

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Trends in japanese law and politics are not favorable to such an effort. During the two decades Hakamada’s lawyers have been seeking a retrial, the pro-death penalty consensus in Japan, which had been shaken by the exonerations of the 1980s, has solidified anew.

The principal cause may have been the deadly sarin gas attack launched by a terrorist cult on the Tokyo subway in March 1995, killing 12 people and injuring thousands. The public clamored for the conspirators to pay with their lives. And the government responded. Of 50 death sentences handed down in Japan between 1999 and 2002, nine went to the conspirators, and the cult’s founder was sentenced to death in 2004.

There’s an additional reason for the increasing public support for the death penalty. For the past decade, street crime has been on the rise in Japan. Most of the upsurge is due to theft, but the crime wave has included several sensational, brutal murders and rapes. Prosecutors are seeking the death penalty more often now because of “pressure from crime victims in the context of rising violent crime committed by strangers,” said a senior Tokyo prosecutor who spoke with me on condition of anonymity.

In 1999, a new victims’ rights lobby was established to support the death penalty and other tough-on-crime measures. When a three-person delegation from the leftist International Federation for Human Rights met the lobby’s representatives in October 2002, it found that “all the family members expressed the desire or willingness to personally ‘push the button’ for the execution.”

Though most current death-row inmates have petitions for retrial pending, not one such petition has been granted since 1989. Meanwhile, appeals courts have frequently overturned life sentences imposed by trial courts and replaced them with death sentences.

In one such case decided in 2004, the Supreme Court appeared to push the boundaries of its own landmark 1983 ruling slightly by upholding a death sentence in a murder case in which there was a single victim. The case involved the slaying of a 44-year-old woman in 1997 by Takashi Mochida. Mochida had stalked the woman after his release from prison, where he had served seven years for raping her. In revenge for her reporting him to the police, he stabbed her repeatedly, took her purse, which contained the equivalent of less than $100, and fled.

A Tokyo trial court sentenced Mochida to life imprisonment with eligibility for parole after ten years (there is no “life without parole” option in Japan). But after prosecutors appealed the sentence, as permitted under Japanese law, the High Court imposed death, and the Supreme Court agreed. Chief Justice Shigeo Takii wrote, “The motive [of vengeance] leaves no room for leniency. There was considerable premeditation and cruelty. With a prior murder conviction, there was no option but to hand out the death sentence.”

One should not exaggerate Japan’s use of the death penalty, especially in comparison with its use in the United States. In 2004, the United States executed 59 people, and Japan just two. The 118 people under sentence of death in Japan are a small fraction of the U.S. death-row population of 3,471.

Of course, Japan has both a much smaller population than the United States (128 million versus 295 million) and far fewer violent crimes (954 crimes resulting in death in 2002, according to the Japanese government, versus 16,200 non-negligent homicides that year in the United States, according to the fbi).

Still, Japan’s use of the death penalty is growing at a time when both crime and capital punishment are on the wane in the United States. The number of Japanese prisoners whose death sentences have been finalized, 68 as of December 31, 2004, represents a 36 percent increase over 1999, and almost three times the level of 1986. In contrast, the current U.S. death-row population is down 4.2 percent from 1999.

The comparison is perhaps most interesting when you calculate the rate at which Japanese and U.S. trial courts sentence people to death per homicide, a rough measure of a given jurisdiction’s propensity to punish intentional killing with capital punishment. In 2003, the last year for which figures are available, Japanese trial courts sentenced 11 convicted killers to death.

Dividing that number by the 954 deaths caused by intentional crimes in 2002 (the difference of a year reflects, roughly, the lag time between crime and sentence) produces a ratio of death sentences to homicides of 1.2 percent. As a nation, then, Japan was slightly more likely than the state of California to sentence a killer to death during that time frame — but slightly less likely to do so than Virginia, which is considered one of the most pro-death penalty U.S. states.

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How many of the convicted killers now under sentence of death in Japan might actually be innocent? Amnesty International, which is probably the harshest critic of the Japanese death penalty, says it has “received reports” that eight of the 118 people currently facing death sentences in Japan are innocent. But as the 1980s cases showed, even one would be a shock to the system. It’s a simple matter of statistics that as Japan imposes the death penalty more frequently, the chances of a wrongful death sentence increase too.

Thus, the Hakamada case remains a sensitive matter. The Ministry of Justice has a policy of not executing prisoners while their retrial petitions are pending — the main reason Hakamada has remained alive on death row for so long. But this rule is a matter of the ministry’s discretion, not a legal requirement.

In fact, a prisoner was executed in 1999 while his lawyer was preparing a new petition for retrial. Meeting with defense attorneys afterward, a senior Ministry of Justice official explained that the ministry does not ordinarily support executions of inmates still seeking retrial, but it reserves the right to do so if it considers a retrial petition repetitive or insubstantial.

A pardon is available in theory, either through a majority vote of the Japanese cabinet or at the recommendation of the National Offenders Rehabilitation Commission. In practice, however, pardons are rare. Since 1954, the cabinet has not issued a single pardon to a condemned prisoner; the rehabilitation commission granted one amnesty in each of 1965, 1970, and 1975.

Hakamada’s attorneys, not wanting to concede his guilt, have so far refrained from requesting a pardon. I asked Itoh last summer whether, given Hakamada’s age and the prospect of extended litigation at the Supreme Court, the most likely outcome is that he will die in prison. “I couldn’t deny the possibility,” he shrugged.

If their retrial petition fails, Hakamada’s lawyers could also ask a court to declare him ineligible for execution under a Japanese law that forbids imposition of the death penalty on the insane. According to those few people who have seen Hakamada recently, long-term solitary confinement for a crime he denies having committed has gradually driven him mad.

The only recent visitor he accepted was Nobuto Hosaka, an anti-death penalty activist and former member of the Diet. Hosaka, accompanied by a member of the ex-boxer’s legal team, used a ruse to induce Hakamada to receive him on March 10, 2003, the prisoner’s 67th birthday.

When Hosaka said, “Happy birthday,” Hakamada replied, “For me, there is no age; my age is infinite.” Hosaka told me the prisoner described himself as “the omnipotent God,” saying he had “absorbed” Iwao Hakamada, taken over the prison, and abolished the death penalty in Japan. There is no longer any such person as Iwao Hakamada, he told Hosaka. “Therefore, Iwao cannot be executed.”