Leo Tolstoy’s Anna Karenina (1878) begins by observing that “All happy families are alike, but each unhappy family is unhappy in its own way.” On this view, for a marriage to be happy it must succeed in several ways, while failure in a single respect may mean a marriage is doomed. The “Karenina principle” has been applied in many fields, from business entrepreneurship and the domestication of animals to ecology and ethics. In some human activities, success requires avoiding many separate causes of failure.

There is a parallel with respect to capital punishment, for “abolitionist nations all seem alike, but every death penalty nation is retentionist in its own way.”Footnote 1 On this version of the Karenina principle, abolition can fail for many reasons. Much has been written about why the United States retains capital punishment—and about why abolition has failed in this Western democracy when it has succeeded in every other one.Footnote 2 Some analysts emphasize the legacy of slavery and the role of “vigilante values,” especially in the American south, where capital punishment is most commonly used.Footnote 3 Others stress the decentralized nature of American government, which makes it difficult to exercise national leadership on controversial questions of law and policy.Footnote 4 Still others argue that death penalty decisions by the U.S. Supreme Court diverted the country from the path of human rights that was followed by the developed democracies of Europe.Footnote 5 From this perspective, America would be abolitionist today if the Supreme Court had not declared in Furman v. Georgia in 1972 that capital punishment was unconstitutional because law failed to provide jurors with adequate guidance about how to exercise their sentencing discretion in life-or-death cases. The Furman decision also held that if states revised their laws to give jurors better guidance, the new capital punishment regimes could be constitutional. In this way, Furman triggered legal reforms and the resurgence of capital punishment in many American states. Conversely, if the U.S. Supreme Court had not intervened in this way, American capital punishment might have continued to wither away (there were no executions in the country from 1967 until Furman was reversed by the Supreme Court’s Gregg v. Georgia decision in 1976). On this view, there is nothing inevitable about America’s continued commitment to capital punishment. Retention has been a contingent outcome, and history could have turned out differently.Footnote 6

This book focuses on how Japan is “retentionist in its own way.” It is based on my fieldwork in Japan over the past 30 years and on my reading of many works by journalists, legal professionals, and scholars about the death penalty in Japan and other countries.Footnote 7 My analysis of Japan’s culture of capital punishment reveals that this developed democracy handles the gravest issue in criminal law in ways that are deeply problematic. The rest of this chapter explains why Japan retains capital punishment, and it debunks the belief that capital punishment in Japan deters homicide better than long terms of imprisonment do. Chapter 2 then shows that Japan’s jurisprudence of capital punishment does not treat death as a “different” (tokubetsu) form of punishment requiring special procedures and protections for criminal defendants. Chapter 3 explains how and why the Japanese state kills in secret. Chapter 4 examines a culture of denial in Japanese criminal justice that produces wrongful convictions but makes their discovery difficult. Together, Chapters 24 help explain why there has been little reform in Japanese capital punishment over the past several decades.Footnote 8 When death is not deemed to be a different form of punishment, judges seldom find reason to worry about how the death penalty is administered, and legislators see little need to push for reform. When the state kills in secret, few people learn about the awful realities of execution, and fewer still perceive a need to change execution methods. And when the possibility of error in criminal justice decision-making is denied, complacency reigns supreme. After providing this account of stasis in Japanese capital punishment, Chapter 5 explores the prospects for change that could be stimulated by two new forms of citizen participation in the criminal process: the lay judge reform, and the victim participation system. Both of these reforms are less than a decade old, so it will take more time to discern their full effects, but so far the evidence suggests they may be doing more to entrench capital punishment than to dismantle or downsize it. Chapter 6 concludes by analyzing the loose links between public opinion and political leadership in Japanese capital punishment. It argues that a “democratic” approach to death penalty policymaking requires more than majority rule. Humans are not good at predicting the future (and experts are little better than amateurs),Footnote 9 but my own view is that in the long run there will be reforms which permanently deprive the Japanese state of the authority to kill its own citizens. If this happens, a variety of benefits will likely follow, as the concluding pages of this book suggest.

The Puzzle of Japanese Retention

In worldwide perspective, the most striking death penalty trend is decline.Footnote 10 As of 2019, more than two-thirds of the countries in the world have abolished the death penalty in law or practice, and the large majority of executions take place in only a handful of countries—China, North Korea, Iran, Iraq, and Saudi Arabia. A few countries have been carrying out executions more frequently in recent years (including Iran, Pakistan, and Vietnam), and a few others have been sentencing more people to death (Egypt and Nigeria), but the overall trend toward abolition is clear. In the United States as well, nine states have abolished capital punishment since 2007, and death sentences and executions have fallen to their lowest levels in a quarter-century.Footnote 11 In Texas, which has carried out more executions since 1976 than the next six most frequent executing states combined, executions have dropped dramatically, there have been fewer than 5 death sentences per year in recent years, and the size of the state’s death row has declined by more than 40 percent since 1999. In 2017, just 3 counties out of more than 3000 in the nation accounted for more than 30 percent of America’s 39 death sentences. In the same year, Harris County (Houston), Texas, which long was known as the “capital of capital punishment,” imposed no death sentences and carried out no executions for the first time in 40 years.

In the context of all this death penalty decline, Japan’s retention of capital punishment is puzzling in several respects. For starters, Japan is, with the United States, one of only a few developed democracies that retain capital punishment and continue to carry out executions on a regular basis. Most other rich and democratic countries have abolished the death penalty in law (Canada, Australia, New Zealand, and all the countries of Europe except the dictatorship of Belarus) or practice (South Korea last executed in 1997, and the last execution in Hong Kong occurred in 1966). But Japan does not have a decentralized democracy of the kind that has made abolition difficult in the United States, nor does it have a history of race relations like that which has shaped the death penalty in America. Conversely, Japan does have many of the structural characteristics that help explain the abolition of capital punishment in European countries such as Germany, France, and the United Kingdom, including a centralized state, a uniform penal code, a multi-party parliamentary system which helps insulate elected representatives from public opinion, and a civil law system with bureaucratic professionalization of the judiciary and the procuracy.Footnote 12 Despite these significant similarities, Japan has not converged toward abolitionist Europe in death penalty policy or practice.

The puzzle of Japanese retention deepens when one considers the two political circumstances that precipitated abolition in Western Europe after World War II, for those circumstances can also be found in recent Japanese history. In Germany, Italy, Portugal, and Spain, the fall of an authoritarian leader (Hitler, Mussolini, Salazar, and Franco) led to the abolition of the death penalty in 1944, 1949, 1976, and 1978, respectively. But after Japan’s authoritarian political system collapsed in 1945, the death penalty did not disappear. Similarly, in Austria, Great Britain, and France, the election of a left-liberal government led to the abolition of capital punishment in 1950, 1965, and 1981, respectively.Footnote 13 But after the Democratic Party of Japan (DPJ) took control of Japan’s central government in 2009, the death penalty was neither abolished nor significantly reformed.

Japanese retention also seems strange in light of two social facts connected to capital punishment in studies of the United States. First, Japan’s homicide rate is about one-tenth the homicide rate for the United States and is lower than the homicide rates in all the abolitionist countries of Europe. In transatlantic comparisons, America’s high murder rate is often invoked to explain why it retains capital punishment while European nations do not. On this explanation, the fear and outrage that murder inspires and that fuel public support for capital punishment are far more prevalent in the United States, where homicide is more common.Footnote 14 Yet this logic cannot explain retention in Japan, a country that has long had one of the lowest homicide rates in the world.Footnote 15

The other social fact concerns inequality. In Japan, socioeconomic inequality grew after the economic bubble burst in 1990, but Japan remains more equal than America, where racial and social disparities help explain several death penalty facts, including the retention of the institution, the number of capital sentences and executions, and their geographical distribution.Footnote 16 Japan is like the United States and other death penalty nations in that the people most likely to be condemned to death and executed are poor and poorly connected, but inequality cannot explain the failure of abolition in this country.

The Politics of Japanese Retention

What, then, does explain the retention of capital punishment in Japan? The most persuasive explanations for the death penalty’s trajectory focus on state institutions and the political and cultural processes that bear on state action.Footnote 17 The death penalty is always and everywhere an exercise of state power, and one must attend to the nature of the state and the contexts of state action in order to understand stability and change in any death penalty system. In the present case, a focus on the Japanese state produces three insights about the puzzle of retention in Japan.

First, Japan has the death penalty now partly because it missed a major opportunity for abolition in the postwar Occupation.Footnote 18 As described above, the death penalty was abolished in several nations of Europe shortly after authoritarian regimes fell. Similar abolitions have occurred in Asia too: in Cambodia after the fall of the Khmer Rouge (1989), in the Philippines after Marcos was overthrown (1987), and in East Timor after it gained independence from Indonesia (1999). In these countries, abolition was a way of symbolically distancing new governments from the state killing performed by their predecessors. Japan experienced regime change following its surrender in 1945, but the death penalty endured throughout the subsequent process of state transformation even though the reform agenda in the America-led occupation was highly ambitious. That agenda included land reform, gender equality, new rights for criminal suspects and defendants, and the downsizing of the emperor from god to a mere mortal. But capital punishment was not a reform priority. This distinguishes the occupation of Japan from the parallel occupation of Germany (which abolished the death penalty in 1949), and it also helps explain why Japan remains retentionist today. One key part of this retentionist story is the desire of American officials to condemn Japanese “war criminals” to death in the Tokyo War Crimes Trial (seven persons were executed in 1948). When a country is defeated in war, the desire to exact revenge against leaders of the losing regime can cause capital punishment to become more durable than it otherwise would be. The hanging of Saddam Hussein in 2006 and the subsequent resurgence of executions in Iraq illustrates the continued relevance of this possibility.

Second, the persistence of capital punishment in Japan after the occupation ended can be explained by the long and conservative hegemony of the Liberal Democratic Party and by the inability of other political parties to change death penalty policy and practice when they briefly controlled government.Footnote 19 The LDP gained control of Japan’s central government in 1955, three years after the Occupation ended. Over the following 60 years it maintained control for all but 50 months. The first interregnum lasted only 8 months (in 1993–1994), and the coalition government of seven parties was too brief and fractious to enable reform of capital punishment. The second interruption of LDP rule started in August 2009, when the Democratic Party of Japan gained control of central government and kept it until it lost power in the landslide election of December 2012. In this period, too, there was no move toward abolition or a moratorium on executions despite DPJ promises to proceed more cautiously with capital punishment than the LDP had done. In 2010, after signing two execution warrants and attending those executions, DPJ Minister of Justice Chiba Keiko opened the gallows in Tokyo to select members of the media and formed a death penalty study team in her Ministry, but the gallows were not in use when reporters visited, the research team produced no concrete proposals for action on capital punishment, and Chiba provided no clear explanation for her decision to order executions after having publically opposed capital punishment during the quarter-century or so that she served in the Diet before becoming Minister. I will return to this episode in Chapter 6, where I discuss the relationship between public opinion and political leadership in death penalty policymaking. Two of Chiba’s seven successors as Minister of Justice under the DPJ (Ogawa Toshio and Taki Makoto) also authorized executions. In total, these three Ministers ordered 16 executions during the 40 months of DPJ rule. European experience suggests that abolition is more likely to occur under the leadership of a liberal party than a conservative one (see Austria, Great Britain, and France), and something similar can be said of the recent moratoria on executions in South Korea and Taiwan.Footnote 20 In the United States as well, abolition has seldom occurred in conservative states, though in 2015 Nebraska did become the first predominantly Republican state to abolish the death penalty in 40 years. In comparative perspective, the durability of Japan’s death penalty reflects not only the long-term hegemony of its ruling party but also the fact that the other parties that have held power were almost indistinguishable from the conservative LDP in their policy preferences and commitments. In short, conservative politics has contributed to the conservation of capital punishment in Japan.

The third aspect of my explanation of Japanese retention stresses the state’s geopolitical position, especially in the years after 1980, when Japan emerged as an economic power. Like the United States, China, and India, Japan has sufficient size, economic influence, and political clout to make it difficult for external forces such as international law, human rights norms, and United Nations resolutions to impose meaningful sanctions for noncompliance.Footnote 21 Powerful states seldom cede to supranational entities; they tend to endorse international norms that serve their own purposes and reject those that do not. There are many examples of this selectivity: the United States’ use of torture in the “war on terror,” China’s limits on freedom of expression, Japanese whaling, caste-based discrimination in India, and the retention of capital punishment in all of these countries. In these large nations, it is more difficult for the “human rights dynamic”Footnote 22 that has been driving abolition in many parts of the world to influence death penalty policy and practice than it is for the same dynamic to have an effect in Gabon, Latvia, Bolivia, Congo, Fiji, Madagascar, Suriname, Benin, Nauru, and Guinea, ten countries that have abolished capital punishment since 2010.

In many respects, Japan remains committed to a model of law and government that considers “self-sufficiency” a virtue and that resists and resents attempts at outside influence. Japan is also ruled (once again) by a Liberal Democratic Party, some of whose members believe that human rights are not universal. Of course, Japan does follow America’s lead in some matters of foreign policy. Indeed, Japan’s subordination in this sphere is sometimes so extreme that it has been called a “puppet state.” In this sense, Japan’s retention of capital punishment may depend on American retention, for when a superpower that sees itself as the archetypal liberal democracy continues to kill its own citizens, it provides cover and legitimacy for other nations that want to do the same. If the United States abolishes capital punishment, as some analysts predict,Footnote 23 Japan could continue to resist pressure to conform to the emerging norm of abolition, as it has done with respect to whaling ever since the International Whaling Commission’s moratorium on commercial whaling went into effect in 1986. But in my view, a more likely response to American abolition would be for Japan to do what it has often done in its modern history: adapt to the changing circumstances of its external environmentFootnote 24—and abolish capital punishment. But of course, this possibility is premised on the big “if” of American abolition. As of 2019, that has not happened, and Japanese leaders perceive little pressure to abolish, either from foreign actors and abolitionists or from their own domestic constituencies. Unlike Europe, Asia has no regional organizations to nudge Japan toward abolition, as the European Union and the Council of Europe did to countries in Central and Eastern Europe after the Cold War ended. In the geopolitics of capital punishment, Asia is not Europe, and Japan is not Latvia or Lithuania.

Does the Death Penalty Deter Homicide in Japan?

Prosecutors, politicians, and the public frequently claim that the death penalty must be retained in Japan because it deters homicide.Footnote 25 But does it really perform this function?

In the United States, a blue-ribbon panel of scholars reviewed dozens of peer-reviewed studies on this subject, and they concluded that there is no good evidence that the death penalty deters homicide.Footnote 26 In Japan, a recent study focused on the period 1990–2010.Footnote 27 The study has two main strengths. First, it employs monthly homicide statistics instead of annual figures, which enables us to discern the consequences of death sentences and executions over time. Without monthly homicide data (which Japan’s National Police Agency seldom releases), associations between fluctuations in homicide and capital punishment cannot be reliably discerned. Without monthly homicide figures, the annual homicide total (one number per year) provides too few data points to satisfy the assumptions of statistical models. And without monthly homicide data, statistical models of the death penalty and deterrence can only generate crude annual estimates.

The second strength of the Japan study is that it employs separate statistics for homicide and robbery-homicide, two kinds of killing that differ in crucial respects. In Japan, robbery-homicide is about 15 times less common than homicide. In Japan, robbery-homicide offenders are about 7 times less likely to know their victims. In Japan, robbery-homicide offenders are about 15 times more likely to be motivated by greed. And in Japan, persons convicted of robbery-homicide are about 15 times more likely to be sentenced to death than persons convicted of homicide. These differences in frequency, motivation, context, and the severity of punishment make robbery-homicide the best possible crime candidate for finding a deterrent effect from the death penalty. Yet even for this thin slice of heinous murder, there was no discernible deterrent effect from death sentences or executions—nor was there a deterrent effect on homicide more generally.

In short, the best available evidence suggests that death sentences and executions do not deter homicide or robbery-homicide in Japan. This double-negative is striking because Japanese criminal justice punishes robbery-homicide harshly, and because robbery-homicide is a crime of calculation. This finding is also consistent with findings about the death penalty and deterrence in other countries—including Singapore, which long was the world’s most aggressive executing stateFootnote 28—and with crime and capital punishment patterns in postwar Japan.Footnote 29 Japan’s homicide rate has declined by more than 80 percent since the 1950s.Footnote 30 Over the same period, Japan’s annual execution average dropped from 25 hangings per year in the decade of the 1950s to less than 5 per year in the 2000s—a decline of more than 80 percent during a period in which the country’s population grew more than 50 percent. Killers have been vanishing in Japan, especially young male killers, who currently commit (per capita) approximately one-tenth as many homicides as their youthful counterparts did in the 1950s.Footnote 31 In fact, at present Japan’s homicide rate is higher among men in their 50s than among men in their 20s—an age-crime distribution seldom seen in other societies. It may be possible to construct an explanation for Japan’s vanishing young killer that posits capital punishment as a signal to which young males are especially sensitive, but such an explanation would seem to contradict the general criminological truth that criminal risk-taking tends to decline with age.

There are two more points to emphasize about the death penalty and deterrence. First, after publication of the article cited in footnote 27, Japanese officials cannot credibly claim there is empirical evidence to support the view that the death penalty deters homicide—though they might continue to contend that “common sense” leads to their preferred conclusion. Once upon a time, “common sense” also held that the earth is flat. Second, in abolitionist countries, evidence about deterrence has been largely irrelevant to the ultimate decision about whether to retire the executioner. Decisions to abolish are determined mainly by political developments and moral sentiments, not by utilitarian considerations. Japan does not need the death penalty in order to prevent homicide. The question its leaders and citizens need to confront is why they want a sanction that is unnecessary for public protection. Is it to reflect public opinion, which is ill-informed by the policies of secrecy and silence that surround capital punishment? Is it to serve victims, which makes application of the ultimate penalty depend on the intensity of survivors’ anger? Or does Japan retain the death penalty mainly to achieve retribution, which is often a form of vengeance-in-disguise? Calls for revenge form one of the least discussed but most powerful forces in Japan’s continued use of capital punishment. Should its political leaders indulge demands for vengeance, as they have increasingly done in recent years, or should they try to tame such impulses because they are dangerous and undemocratic? I will return to these questions in the final two chapters of this book.


There is a triumphalist tone in much writing about capital punishment. Some of it is in response to the truly remarkable progress toward abolition that has occurred in the world, and some of it is in anticipation of a future that is believed to hold the certainty of abolition everywhere. According to some prominent analysts, “great progress” has been made toward worldwide abolition of capital punishment,Footnote 32 and “it seems nothing can stop continued progress towards universal abolition.”Footnote 33 I would like to see abolition spread further, and I favor reforms that would restrict the scope and scale of capital punishment in Japan. I also believe that, eventually, Japan will abolish. But in death penalty scholarship there have been few serious studies of failures of abolition.Footnote 34 This chapter has explained the failure of abolition in Japan, one of three major democracies in the world that retain capital punishment (along with the United States and India). I have stressed the importance of state institutions and the political and cultural processes that bear on state action. I do not claim that Japan retains capital punishment because Japanese people support it, for as explained in Chapter 6, the experience of other countries shows that public opposition to capital punishment is not a necessary condition for abolition. When the leaders of a country decide to abolish the death penalty, they do so despite majority public support for the institution—and they do so to get on “the right side of history.”Footnote 35

The case of Japan suggests that abolition might not be near in some societies. This insight is instructive in two ways. For one thing, there are contingencies and complexities in the future trajectory of capital punishment. For the foreseeable future, all roads do not necessarily lead to abolition. For another, a focus on Japan’s failure of abolition may help death penalty opponents discern how to move toward reforms they favor by identifying obstacles to change. One challenge for Japanese abolitionists is how to make the language of “human rights” more relevant in a society where this framework is not as salient as in nations that have already abolished (as in Germany and South Africa) or moved toward abolition (as in South Korea and Taiwan). A second challenge is how to overcome the presumption among Japanese politicians that the public would not tolerate abolition. Research suggests that the Japanese public would accept abolition, and with little or no damage to legal legitimacy or political authority.Footnote 36 The third challenge for Japan’s abolitionists is how to persuade politicians—especially those who are conservative—that Japan does not need the death penalty, for one lesson from developed democracies that have abolished the death penalty is that shifts in elite opinion are key. Public opinion on capital punishment is largely resistant to abolitionists’ attempts to change it, and the straightest road to abolition may involve “bypassing public opinion entirely.”Footnote 37

Focusing on how Japan “is retentionist in its own way” should also create curiosity about the positive effects of capital punishment, which many abolitionists ignore. The notion that capital punishment “represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes”Footnote 38 may be inspiring rhetoric to opponents of the death penalty, but it is bad sociology. So is the sweeping claim that “even when its aims are modest, capital punishment fails to achieve them.”Footnote 39 As New York University Professor David Garland demonstrates in his masterful account of American capital punishment:

If we insist…on a positive account of capital punishment’s uses and utilities, even those that at first seem marginal or unimportant, then a picture emerges that turns the [abolitionists’] conventional wisdom upside down. What becomes apparent is that the state’s power to kill is actually productive, performative, and generative – that it makes things happen – even if much of what happens is in the cultural realm of death penalty discourse rather than in the biological realm of life and death (emphasis in original).Footnote 40

In Japan, too, capital punishment persists partly because it performs positive functions. For prosecutors, it is a practical instrument that enables them to harness the power of death in the pursuit of criminal convictions, harsh punishments, and public support. For politicians, it is a way to gain votes, stay in office, and receive publicity—that is, it is a tool to be used in electoral games that are played before viewing and voting audiences. For the media, it is a prurient entertainment and a morality play that pits good against evil. For the public, it is an opportunity to express emotions (such as anger, hatred, and vengeance) that normally are prohibited. And for victims and survivors of crime, capital punishment is believed to be a mechanism for achieving retribution, atonement, and deterrence. Although these beliefs are founded as much in faith as in fact, they are sociologically and practically significant because they are subjectively meaningful to the believers.Footnote 41

In short, the retention of capital punishment in Japan stems partly from the positive functions it performs for various actors and audiences. Opponents of capital punishment would be wise to recognize this reality. At the same time, Japanese retention reflects what is not found in and around the institution of capital punishment. As I will show in the rest of this book, Japan has not operationalized the principle that death is a different kind of criminal punishment requiring special procedures and protections (Chapter 2). A lay judge panel can convict and condemn a defendant to death by a vote of 5 to 4. Does this reflect the “caution” about capital punishment that Ministers of Justice routinely emphasize in their post-execution pronouncements? Similarly, the Japanese state is not open about how it kills (Chapter 3). In fact, the main purpose of the secrecy surrounding Japanese executions is the protection of capital punishment from protest and criticism that would occur if executions were announced in advance. Is this transparent and democratic? And Japan has not discovered many wrongful convictions (Chapter 4). Is this because Japanese criminal justice produces few of them, or because the system is ill-equipped to find them? In all of these respects, what Japan does not do can be contrasted with the United States, where markedly more death penalty reform has occurred as the result of concerns about due process violations, botched executions, and the revelation of wrongful convictions.

Although Japan is retentionist “in its own way,” there are some ways in which other retentionist countries resemble it. In Singapore, which long has employed one of the most aggressive death penalty systems in the world and which is far from a model of due process, an article in the country’s leading law journal claims that “no sweeping reforms are necessary” to reduce the risk of wrongful conviction.Footnote 42 That claim is claptrap. In Taiwan, where the number of executions dropped dramatically as the country democratized but where executions have rebounded in recent years, death is not different as a matter of law or practice, and major mistakes have been made in the administration of capital punishment—including the wrongful execution of an innocent man (Chiang Kuo-ching), which Taiwan’s government acknowledged in 2011.Footnote 43 And in the People’s Republic of China, the world’s biggest user of capital punishment, debate about the death penalty has deepened in recent years, yet its death penalty system remains shrouded in secrecy, including a prohibition on disclosing how many executions are performed each year.Footnote 44

The Karenina principle suggests that success at abolishing capital punishment requires avoiding many separate causes of failure. It also implies that the road to abolition is not merely a positive path embracing the “human rights dynamic” and “leadership from the front” in the face of public support for capital punishment, though these have been important causes of change in many death penalty nations. The road to abolition is also a “negative path”—what the ancient Greeks called via negativa—leading away from doctrines and practices that present obstacles to ending the death penalty.Footnote 45 As in the pursuit of happiness and professional success, so too, perhaps, in the pursuit of a world free from state killing: negative knowledge (what not to do) can be as potent as positive knowledge (what to do). In the end, thinking about what makes Japan “retentionist in its own way” might have the welcome effect of improving our understanding of why the death penalty endures in one of the world’s most developed countries.