Victims’ Families Marginalized Under Japan’s Capital Punishment System

The State Versus the Victims

Japan for years has viewed the victims of crimes as little more than a piece of evidence in criminal trials. It has only been the last 10 years that the framework for victim participation in the legal process has been expanded, leading to stronger sentencing. However, even with new conventions in place, the legal system does not adequately reconcile survivors’ desire for retribution. Overall, the systems and laws in place favor the rights of offenders and little has changed from the days when the involvement of victims and surviving family members in legal proceedings was tightly restricted, and even viewed with hostility.

The recent introduction of the lay judge system may have introduced greater public sentiment into Japan’s legal system. However, it has conversely worked to reduce the ability of family members of murder victims to push for stronger sentences. This is because defending and prosecuting attorneys and the court decide on evidence and a trial scenario during pretrial proceedings, summarily playing these out in the courtroom. Sentencing is primarily determined by the bench rather than lay judges, and while the initial punishment is in principle expected to hold up against appeals, this has often proven to not be the case.

Most critically, Japanese defense attorneys still cannot break away from the traditional state-versus-the-defendant model. Under this mindset, lawyers see elevating the rights of victims as undermining a defendant’s right to a fair trial.

This state of affairs further fans the fury of family members. The Japan Federation of Bar Associations has even created a manual advising lawyers in capital cases to do everything possible to keep the relatives of victims from speaking up in court, prevent their participation in cases, and block them from voicing opinions so as to protect the rights of defendants. To be fair, the JFBA’s campaign against capital punishment does not reflect the thoughts of every lawyer in Japan, but the assertions about justice by defense lawyers who avidly adhere to these guidelines enrage crime victims and family members .

The arguments for avoiding the death penalty at all cost or for abolishing it outright may reflect humanistic sympathy for the life of the perpetrator. Contrarily, sympathy among proponent of the death penalty for the lives of victims is either cursory or lacking altogether.

Strengthening Victims’ Rights

The decisiveness of the death penalty places the onus on the state to ensure that those prisoners it executes are guilty beyond a shadow of doubt. While concern of wrongful conviction voiced by death penalty opponents is valid, such arguments are also true of other types of crime. Family members of murder victims certainly find the prospect of a killer going cheerfully about their lives while an innocent person was punished unbearable, and as much as anyone they want to see an end to wrongful convictions.

I also recognize that certain conceptual arguments for abolishing the death penalty—arguments driven solely by legalistic logic —are more persuasive than those for keeping the system of capital punishment in place. The risk of false convictions and the question of whether the death penalty acts as a deterrent against violent crime are issues that defy simple answers. Likewise, there is a lack of transparency in the way the current system is implemented. In fact, it has only been a few years since the media was finally allowed to document the interior of an execution chamber. There is still no press coverage of executions, however, and the lives of death row inmates and their final moments remain shrouded in an impenetrable veil. From the outside, there is no way to ascertain what is actually taking place inside the system.

Japan is in the minority of countries left in the world today that retain capital punishment. European and other nations have taken the lead in abolishing the death penalty and providing for the rights of both victims and criminals. These countries have a history of guaranteeing public trust in the criminal justice system by making the victims of crime participants in criminal procedures. Japan took its first steps in this direction in 2004 with the enactment of legislation that promotes comprehensive and systematic measures to support the rights of crime victims. Before Japanese debate whether to keep the death penalty, though, it is more important that we clearly establish the rights of victims and their families to participate in the criminal justice system.