First, more than 140 countries have abolished the death penalty in law or have gone more than ten years in a row without an execution, yet in none of these countries did the change result from majority public opinion pushing for reform. There are few iron laws in socio-legal studies, but this may be one: when executions cease or the death penalty disappears, the primary proximate cause is leadership by political elites, despite public support for capital punishment at the time of the reform.Footnote 5 This pattern of “leadership from the front” suggests that efforts to convince a majority of Japanese people to oppose capital punishment are probably doomed to fail. In this sense, public education campaigns are a hollow hope—though of course they are not irrelevant. Their primary value is their influence on the views of elite decision-makers, who are the actors with the practical ability to secure abolition or a moratorium. Still, the main lesson from the rest of the world is that “the straightest road to abolition” often involves “bypassing public opinion entirely.”Footnote 6 A parallel lesson can be learned from Japan’s closest cousins, South Korea and Taiwan, both of which have experienced moratoria on executions in recent years (Taiwan from 2006 through 2009, and South Korea from 1998 to the present). In both countries, the cessation of executions had “little to do with public opinion, which generally favors retaining the death penalty.”Footnote 7 Executions ceased primarily because political leaders wanted to stop this form of state killing.
A second stubborn fact is that public support for capital punishment in Japan is rooted in sentiments about retribution and atonement.Footnote 8 As a result, the belief that death is deserved for certain heinous offenders is more a matter of emotion and intuition than reason or evidence. In this context, providing more information about capital punishment is unlikely to alter habits of the heart, for humans are adept at ignoring contrary evidence and discounting or denying its significance.Footnote 9 On hot-button issues such as capital punishment and immigration, facts can even be counter-productive, for research shows that the smarter a person is, the greater his or her ability to rationalize discordant information.Footnote 10 When people take the trouble to think about capital punishment at all, they often engage in post hoc justification, which tends to reinforce their bedrock beliefs in retribution and atonement.
Third, changing public opinion about capital punishment is always difficult and sometimes impossible. In a 1972 decision (Furman v. Georgia), U.S. Supreme Court Justice Thurgood Marshall famously stressed the importance of public opinion in settling questions about the constitutionality of capital punishment under the “cruel and unusual” clause of the Eighth Amendment. Justice Marshall made three connected claims: (a) most Americans lack knowledge about capital punishment; (b) the more Americans learn about capital punishment, the less they will support it; and (c) commitments to capital punishment that are rooted in retribution are especially difficult to change. In a subsequent death penalty opinion (Gregg v. Georgia in 1976), Justice Marshall stated that if the American people were better informed about capital punishment, “they would find it shocking, unjust, and unacceptable.” In his view, the key question about capital punishment is not whether “a substantial proportion of American citizens would today, if polled, opine that [it] is barbarously cruel, but whether they would find it to be so in light of all information presently available” (emphasis added). The Marshall Hypothesis (as it came to be called) has been the subject of much study, and results are “decidedly mixed.”Footnote 11 In some studies of American attitudes, more information about capital punishment does not lead to more distaste for it. In other studies, information alters opinion for a while, but opinion eventually rebounds back to its original position. In still other studies, information persuades some people to become more opposed to capital punishment while persuading others to become more supportive of it. Research has also been done to explore the relevance of the Marshall hypothesis in Japan. In one study, when Japanese citizens were given information about capital punishment and allowed to deliberate with other people about the issue, 11 out of 50 participants shifted their support from retention to abolition, while 9 of the 50 changed their attitude in the opposite direction.Footnote 12 More research is needed, but this finding suggests that “public discussion” (giron) may do little to alter overall support for capital punishment.
Before Japan’s lay judge reform took effect in 2009, some analysts predicted that the new trial system would result in fewer death sentences, because citizens on lay judge panels would be forced to think deeply about the death penalty, and because (some prognosticators supposed) the harder citizens thought about it, the more reluctant they would be to support it.Footnote 13 As explained in Chapter 5, this has not happened. In fact, since 2009, lay judge panels have actually been substantially more likely to impose a sentence of death when prosecutors seek one than panels of three professional judges were in the homicide trial system that operated until 2009.Footnote 14 The Marshall hypothesis also receives little support in America, where 80 percent of the citizens who serve as capital jurors do not change their mind about capital punishment, and where those who do change their mind are actually more likely to become more supportive of capital punishment than to become more opposed to it. In short, there is little empirical support for the premise about “public discussion” (giron) that motivated Minister of Justice Chiba Keiko to order executions in the summer of 2010.
Ironically, the strongest support for the Marshall hypothesis is found among the judges on the U.S. Supreme Court where Justice Thurgood Marshall served. Several American Justices who started their careers on the U.S. Supreme Court supporting capital punishment converted to anti-death penalty views after serving many years and considering many capital appeals.Footnote 15 Most notably, Justices Lewis Powell, John Paul Stevens, and Potter Stewart voted in favor of capital punishment in a 1976 case (Gregg v. Georgia) that helped restart America’s machinery of death after the country had gone nearly ten years without an execution. By the end of their tenures on the bench—after many years of applying the American jurisprudence of “super due process” and after the discovery of “capital error” in numerous death penalty cases—all three came to conclude that it is impossible to administer the death penalty in a manner that is consistent with the protections promised by American law. As Justice Powell remarked after his retirement, whatever attractions capital punishment might have in principle, its actual practice “serves no useful purpose and brings discredit on the whole legal system.”Footnote 16 Other Justices on the U.S. Supreme Court have learned a similar lesson: to love the law is to hate capital punishment.Footnote 17 Indeed, the growing recognition that supports for capital punishment is inconsistent with respect for law has led some American observers to predict that eventually the U.S. Supreme Court will “conclude that capital punishment and the promise of due process of law are incompatible”.Footnote 18
In contrast to the United States, there are three reasons why conversion against capital punishment seems unlikely to occur among Justices on Japan’s Supreme Court. For one, persons appointed to that Court tend to be more conservative and less ideologically diverse than their counterparts in America.Footnote 19 For another, Justices on Japan’s Supreme Court serve much shorter terms than American Justices do—an average of 6 years in Japan compared with 26 years in the United States. As a result, Justices in Japan encounter fewer capital cases—and fewer occasions to find flaws in the way capital punishment is administered. Most fundamentally, since death is not “different” in Japanese law, and since “super due process” is not a legal requirement, error is seldom recognized in capital cases (see Chapter 2). By contrast, capital cases have occupied one-quarter to one-half of all state criminal cases on the U.S. Supreme Court’s docket in recent years, and nearly half of American death sentences never result in execution because they are reversed on appeal for prosecutorial misconduct, ineffective assistance of counsel, flawed jury instructions, and a host of other errors. In this comparative light, Japanese jurisprudence seems to reflect a perverse principle, that if law aims low in death penalty cases, judges and the general public will seldom be disappointed.
Although “public discussion” (giron) does not drive death penalty reform, this truth must be qualified in two ways. First, the limited importance of public discussion does not mean the Japanese state should continue withholding information about capital punishment from its citizens, especially in an era when citizens are being asked to make life and death decisions in lay judge trials. As many former lay judges have observed, for saibanin to carry out their responsibilities properly, the Ministry of Justice must provide citizens with “all relevant information.”Footnote 20 As explained in Chapter 3, the secrecy surrounding executions in Japan is deeply disconcerting. It is also more rooted in discretion than law. Officials in the Ministry of Justice (the main architects and enforcers of this secrecy policy) can and should remove this wart from Japan’s body politic. The Japanese public deserves more information about how the death penalty is administered even if increased public oversight of executions will not end them, and even if increased transparency is unlikely to change many minds about the propriety of capital punishment. Increased openness is the right thing to do.
The second qualification is that education about the death penalty is not completely futile. As mentioned above, it is most effective when it is directed at the political elites who hold the fate of capital punishment in their hands. The best scholarly work on this subject finds that “the death penalty is always and everywhere an exercise of state power.”Footnote 21 In this sense, the trajectory of capital punishment is mainly determined by political actors and political processes. The cultural shifts that matter most are those that will influence the attitudes and beliefs of elites (politicians, bureaucrats, and business and legal professionals), by generating discourse among them, by weakening the intensity of support among those who favor retention, and by strengthening the intensity of opposition among those who favor abolition. To the extent that “public discussion” shapes elite opinion in these ways, it can contribute to death penalty reform. Chiba Keiko seemed to recognize this when she advocated the creation of an organ in Parliament to gather and discuss information about the death penalty. Unfortunately, she also saw political action as causally subordinate to “public discussion.” Evidence from the rest of the world suggests that she got the dynamic backward.