In Japan, death row prisoners wake up every day wondering if it will be their last. Execution dates are not set in Japan so the prisoners don’t know when they will be executed until right before they are hanged (the only method Japan uses).
The Japanese government justifies this “ambush” based on the logic that if they know the plan, prisoners may commit suicide. And, they maintain that if there is advance notice, not just the prisoners, but also the corrections officials assigned to the execution will suffer psychologically from the stress.
But two death row prisoners have filed a lawsuit challenging the law, Reuters reports, arguing that the lack of notice means they don’t have the opportunity to file an appeal. They are also asking for 22 million yen ($193,594) in compensation.
“This is an issue that should have been settled out of court at some point before this,” says Takehiko Kawame. “Execution without any prior notice is a big problem with the Japanese death penalty legally. Many lawyers, scholars, and intellectuals point out that this is inhumane.”
Kawame, a DPF board member and Japanese lawyer currently representing a condemned prisoner on a post-conviction case in Japan, is also a member of the Death Penalty Abolition Committee of the Japan Federation of Bar Associations.
He says the timing of this lawsuit may not be entirely coincidental. “The international pressure against the death penalty is growing every year. The United Nations has called for its abolition, and an increasing number of countries are abolishing it. President Biden and the Democrats openly oppose capital punishment, or at least said they did before the election. This international environment may have pushed the plaintiffs to this phenomenal legal battle.
“Even the stubborn Japanese government, which says ‘Japan has its own criminal culture and way of thinking,’ cannot escape from international pressure and trends.”
Kawame says the request for compensation may be part of the plaintiffs’ legal strategy. A simple challenge to the execution procedure could bring “a fast and simple” dismissal by the court. “Multiple legal issues will take time” to deal with and during that time the plaintiffs will be protected from execution, he says, “because to kill them during this procedure will just create one more legal issue related to the right of access to the courts.
“This may sound horrible, but a short and simple battle may shorten their life span,” Kawame says.
This isn’t the first time Japan’s death penalty scheme has been challenged. In 2009, Dadato Goto challenged it on the grounds it was inhumane. “Goto raised the legal issue around hanging, saying the method was based on a criminal code that violated the Japanese constitution, which forbids cruel, inhumane punishment,” says Kawame. “He tried to prove this with [testimony from] foreign medical professionals,” but the court ultimately found it constitutional.
But Kawame thinks this challenge could be a breakthrough in how the government proceeds with future executions. “Many Japanese lawyers have been concerned about the legal issues related to capital punishment. I think this case may be a good opportunity to raise this issue under Japan’s new prime minister, Fumio Kishida. He is famous for his moderate character and his international sense, which he acquired during his career as a minister for Foreign Affairs.”
There are 112 people on death row in Japan. Its last execution was in December 2019.