States that practice capital punishment have a legitimation challenge: They need to distinguish how their killing differs from the criminal killing they aim to condemn.Footnote 15 In the United States, one major legitimation strategy has been the effort to kill more “softly” and “humanely.” This approach—to give the condemned a “kinder and gentler” death—helps explain the frequent changes in execution method that America has experienced over the last century or so—from hanging to electrocution to the gas chamber to lethal injection. The American quest to kill without imposing more pain than “necessary” is not so much about sparing the condemned from suffering as it is about convincing the administrators and spectators of death that capital punishment is “civilized.”Footnote 16
The Japanese state faces a similar legitimacy challenge but answers the call quite differently. There have been no significant changes in execution method in Japan since 1873, when a new gallows was introduced after an old-fashioned hanging was botched. Today, hanging remains the only method in each of Japan’s seven execution centers, and since a Supreme Court opinion in 1955 upholding the constitutionality of hanging, there has been little discussion of alternative methods of execution. The lack of debate is not because the Japanese way of hanging is humane. In Japan as in India, Pakistan, Singapore, Malaysia, Iran, and Iraq, the point of hanging is to cut or crush the spinal cord by tearing it from the brain stem. If the initial shock of the drop is not fatal, death is completed by strangulation.Footnote 17
Some hangings are botched in Japan, as they are in other countries. A former prosecutor once told me that a prison official told him that following one bungled hanging, a member of the execution team finished the job with a judo hold. But the secrecy surrounding capital punishment in Japan helps explain the absence of controversy over execution methods. In effect, “killing secretly” instead of “killing softly” has been the Japanese state’s legitimation strategy. If one meaning of lethal injection in the United States is that state killing is different than ordinary murder because it is done humanely, the message conveyed in Japan has long been that state killing is state business.
The U.S. Occupation (1945–1952) bequeathed two death penalty legacies to Japan. The first is the retention of capital punishment. As explained in Chapter 1, Occupation authorities could have abolished capital punishment in Japan as they did in Germany after World War II, but they elected not to, in large part because they were determined to put “war criminals” to death in the Tokyo War Crimes Trial.Footnote 18 The second Occupation legacy is a policy of “censored democracy” which has fostered a political consciousness of passive acquiescence to the silences dictated by Japan’s death penalty secrecy.Footnote 19 Viewed historically, Japan’s policy of secrecy and silence is partly an American invention.
The documents discovered by Professor Nagata Kenji on microfiche in Japan’s National Diet Library contain the records of 46 persons who were hanged between July 1948 and March 1951, a period during which Japan was occupied by the American military and ruled by General Headquarters (GHQ) and General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP).Footnote 20 The documents include execution planning papers (shikei shikko kiansho), execution reports (shikei shikko shimatsusho), and letters. Most of the documents were composed by prison wardens or by chiefs of the Japanese detention facilities where executions occurred. They are significant because they provide a peak behind the veil that has shrouded Japanese hangings since the policy of secrecy was established in the 1960s and 1970s. The 46 hangings are a little less than 40 percent of all the hangings that occurred during this 33-month period. They may be unrepresentative in some respects, albeit in ways one cannot know because no records have been discovered for the rest of the hangings carried out in this period. Still, the records that are available tell important truths about the age and social status of the condemned, their last words, and the duration of their executions.Footnote 21
The Occupation records show that the age of the condemned at the time of execution has increased dramatically since the 1950s. In the Occupation sample, the median age at hanging was 27, with the youngest person hanged being 23 and the oldest 63. By contrast, in recent decades the median age at hanging was 56—more than double the median age in the Occupation. In the 20 years between 1993 and 2012, almost 40 percent of all persons executed were over 60 years of age. It appears Japan has one of the most geriatric death rows in the world, and there seem to be two main reasons for this graying of its gallows. First, Japan’s homicide rate has dropped dramatically since the 1950s. The main proximate cause of the decline is a large decrease in the percentage of homicides committed by young men. As young killers have been vanishing, older killers have come to constitute a larger proportion of homicide offenders.Footnote 22 Second, in the 1940s and 1950s, executions in Japan were usually carried out within a few months of a finalized sentence of death. Today, by contrast, a sentence of death is often the prelude to a long appeals process. The secrecy that surrounds executions means little media attention gets focused on how senior citizens are hanged. On Christmas Day in 2006, for example, the two people hanged in Tokyo were ages 75 and 77, respectively. Neither could walk to the gallows on his own, and both were in the process of appealing for retrial at the time of execution. These facts passed almost unnoticed in the perfunctory media coverage that followed their executions.
The Occupation documents also provide evidence that in Japan as in other death penalty nations, persons who get executed tend to be poor and poorly connected. Seven of the 46 persons hanged were ethnically Korean (15 percent). Since Koreans constituted only about 3 percent of Japan’s total population at the end of the Pacific War, they are “overrepresented” in this execution sample by a factor of 5. In some capital cases, SCAP officials wondered whether Japanese judges discriminated against Koreans in sentencing and therefore performed a special “Review of Sentences Imposed upon Koreans” after judicial appeals had been exhausted. More broadly, the Occupation records provide reason to believe there was capital bias against other have-nots, for nearly 70 percent of the persons in the Occupation records (31/46) were unemployed at the time they committed their capital offenses, and more than 30 percent (14/46) were homeless. These are far higher percentages than the percentages of people in the general population who were unemployed and/or homeless.
In the Occupation records, communications between the condemned and their family and friends varied from case to case. Eight of the 46 men in the GHQ/SCAP sample received no letters or visitors between the time their conviction was “finalized” (kakutei) and their execution, whereas a man who was hanged in 1950 received at least 14 visitors and 66 letters in the 11 months preceding his execution (he also sent 280 letters of his own). It appears there was substantially more freedom for death row inmates to communicate with outsiders in the 1940s and 1950s than there is today. The secrecy that surrounds executions in Japan deepened in the 1960s and 1970s in response to the rise of an abolitionist movement, out of concern that the emergence of “support groups” for inmates on death row would make administering death more difficult for corrections officials, and out of a desire to prevent suicide by inmates who had been notified that soon they would be hanged.Footnote 23
In contrast to death rows in the United States, where the culture of capital punishment finds expression in “last words,” “final meals,” and other “farewell” expressions, little is known about what the men and women on Japan’s death rows think and feel before their execution. But the Occupation documents do provide some insight into the Japanese past that can inform our musings about the present. In the Occupation, death row inmates’ “final words” took four main forms. Some inmates expressed thanks to officials of the correctional institutions for treating them kindly. Some left warnings for family members, as did a man hanged in Nagoya in 1951, who said his child should avoid gambling offenses of the kind that led to his own capital offense (robbery-murder). Some offenders left haiku or tanka poems of the kind that have been composed by criminal offenders in Japan since the feudal period. A 33-year-old man hanged in Osaka in 1951 left the following forlorn poem:
The spring wind
Blew through the tree sprouts
But did not blow to this place
The last form of “final words” was the most common. In the Occupation records, 43 of the 46 persons (93 percent) expressed regret for their crimes. Regret, remorse, and apology have long been central values in Japanese culture and in Japan’s criminal court communities, but the extent of their presence in these Occupation documents is striking. The final words of the condemned were recorded by prison officials who may have omitted messages (“I am innocent”) they did not like and who may have highlighted messages (“Thank you, and I am sorry”) that were welcome, but the bias of the recorders probably cannot fully explain the widespread presence of regret in the final words of the condemned.Footnote 24
Finally, the Occupation records enable us to make several observations about time and executions. For one thing, executions during the Occupation were less concentrated in time than they have been in recent years. In 1950, for example, hangings occurred on at least 21 different days during the year, resulting in a total of 31 executions. By comparison, in 2008, when Japan executed 15 persons—the largest number of executions the country had carried out since 1975—all of the hangings occurred on only five days. Moreover, 27 of the 46 persons in the Occupation records (almost 60 percent) were executed alone on the day of their demise. In recent years, executions in Japan have almost always involved two or more persons who get hanged on the same day—often at the same gallows. The increased “lumpiness” of executions appears to be designed to minimize the number of occasions when hangings could attract public and media attention.
Hangings in the Occupation, like hangings in subsequent decades, usually occurred in the morning. In the Occupation records, the execution start times ranged from 9:19 a.m. to 2:39 p.m., but 42 of the 46 hangings occurred before noon, and the four that occurred in the afternoon all occurred in Osaka. Hangings in Japan tend to be scheduled for the morning in order to reduce stress on the execution team and minimize the possibility of leaks to the media. Members of Japanese execution teams are typically told of their job assignment the day before a hanging, they are ordered not to tell anyone about it, and they are expected not to refuse the assignment. In some cases, executioners are only told of their assignment on the morning a hanging occurs, apparently out of fear that if told in advance they might not show up for work.
The duration of hangings in the Occupation records ranged from 10 minutes and 55 seconds (in Miyagi in 1950) to 21 minutes (in Nagoya in 1951). Thus, the longest hanging was almost twice as long as the shortest. The average length of all 46 hangings, from the time of the “drop” to the time a doctor confirmed death, was 14 minutes and 15 seconds, with a median time of 14 minutes. In the United States, three criteria have been identified by courts to indicate whether an execution method provides “a death within constitutional limits”: the death must be painless, it must be non-lingering, and it must be instantaneous. Conversely, a death that is painful, lingering, or not instantaneous raises questions about “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution. It is difficult to discern whether Occupation executions were problematic in these ways, for the records are not exhaustive accounts of what transpired during executions, and they were written by state officials who may not have recorded certain problematic events. Some doctors may also have allowed inmates to hang for several minutes after all signs of life had disappeared before declaring the person dead. Still, the Occupation evidence is troubling, for all of the Japanese hangings exceed by at least a factor of five the “two minutes or less” American standard for a “non-lingering” death that has been used to assess executions, and the Japanese average is more than seven times longer than this American threshold.
Japan’s method of hanging has changed little since the Meiji period, so there is little reason to believe that execution lengths have become significantly shorter in the two-thirds of a century since the Occupation ended. If hangings in Japan are like executions in jurisdictions where state killings are more transparent, then some surely have been “botched” because of problems with the length or placement of the rope, or with the depth of the drop, or with the physiology of the condemned (among other possibilities). Research in the United States finds that botched executions take place with regular frequency. If we assume that hangings in Japan have been carried out no more and no less smoothly than executions in America (where research reveals a “botch rate” of 2.7–4.5 percent), then 19–32 of the 713 persons hanged between January 1946 and July 2017 would have had their executions botched. That would be, on the average, one botched hanging every two or three years. If capital punishment in Japan is “normal” in this respect, then the issue of hanging could be litigated under Article 36 of the Constitution, which declares that “cruel punishments are absolutely forbidden.”Footnote 25 The next section examines the only significant effort in recent years to challenge the constitutionality of hanging in Japan.