a view to a kill

(the following is an article from one of my favourite periodicals, foreign policy magazine, in which the author charles lane describes the surprising and often tragic differences between the treatment of state-sponsored murder on either side of the great pacific)

A View to a Kill
By Charles Lane

Unlike capital punishment in the United States, Japan’s death penalty is on the rise. Japanese officials keep state executions out of public view and shrouded in secrecy. Not even the condemned prisoners know the day they will die. Step inside the gallows for a rare look at how Japan takes a life.Tamaki Mitsui was a bit surprised one Friday when his boss gave him his instructions for the following Monday: to serve as a witness at two hangings. Mitsui, an official of the Nagoya High Court Prosecutor’s Office, which handles criminal appeals, had argued for the death penalty in three cases himself. He knew that Japanese law requires representatives of the prosecutor’s office to witness executions. But he had thought this duty would be assigned by lottery. Still, he accepted it. Part of the job, he thought.When Monday came, Mitsui took a subordinate with him to the Nagoya Detention Center. It is one of seven Japanese jails where capital offenders await execution—and then go to the gallows. Shortly after 9 o’clock in the morning, Mitsui, his deputy, the director of the detention center, and another prison official sat in a row behind a floor-to-ceiling glass barrier. On the other side of the glass was the death chamber: an empty room, about 18 feet square, with bare white walls and a polished floor of light brown Japanese cypress wood. Dangling from the ceiling, illuminated by floodlights, was a noose. The only sound was the prerecorded chanting of a Buddhist sutra. Mitsui found the setting oddly serene. “It’s bizarre to say this, but it was a beautiful place,” he recalls, “like a Noh theater.”

Then, a set of double doors on the far side of the execution chamber swung open. The prisoner, escorted by a pair of guards, walked in.

It was Nov. 19, 1998, and Tamaki Mitsui was about to see something very few people in the world ever have. In Japan, a high wall of secrecy surrounds the gallows—perhaps only the Imperial Palace is more insulated from public view. No member of the press is allowed to witness hangings. Nor are the families of either the condemned prisoner or his victims. No official descriptions or accounts are published. Executions are not announced until after the fact, and even then official spokespeople say only that they have occurred. (The names of the people hanged leak out from lawyers and family members.) Civil servants ordered to witness executions are required by law to keep silent. Even members of the Diet, Japan’s parliament, get no access. When a nine-person delegation from the Diet visited Tokyo’s gallows in 2003, it was the first such tour in 30 years. The lawmakers were forbidden to see a hanging or to take photographs.

I spent two months reporting on the death penalty in Japan during the summer of 2004, and Mitsui’s was the only eyewitness account of a relatively recent execution I could find. Mitsui, 60, is a trim, slightly nervous man with an officious air—and, it must be acknowledged, a controversial figure in Japan. He was arrested in 2002 on charges of accepting expensive entertainment from gangsters and falsifying a residency certificate in order to obtain an illegal tax break. But the arrest came on the very day he was about to tell a Japanese television program about rampant slush fund abuses in the prosecutor’s office. He pleaded not guilty, accusing his former colleagues of a politically motivated prosecution. In February 2005, the Osaka District Court acknowledged that his claims of selective prosecution should be investigated, but nonetheless convicted him on five of six bribery counts. He is free on bail pending his appeal.

Clearly, Mitsui has an ax to grind. And our meeting was arranged by Forum 90, Japan’s leading anti-death penalty organization. But his conflict with the Ministry of Justice is unrelated to capital punishment. Although he evinced some ambivalence about what he saw in the gallows, he indicated that he is not an active opponent of the death penalty. His account squared with the few details about the Japanese gallows that have trickled out through other sources. Nobotu Hosaka, a former opposition member of the Diet who joined the delegation that toured the Tokyo gallows in 2003, says the place he and his colleagues visited matches Mitsui’s description of the Nagoya death chamber, except that in Tokyo the floor was covered by a carpet. Government officials confirmed certain aspects of Mitsui’s description. “On the death penalty, he would seem to have no reason to lie or puff,” says David T. Johnson, a professor of sociology at the University of Hawaii who interviewed Mitsui as part of a long-term study of Japan’s criminal justice system.

Mitsui’s story has special relevance now. Not only is Japan the only member of the Group of Seven industrialized countries other than the United States to retain capital punishment, it is also increasing its use of the death penalty. Thanks to declining murder rates and concern over recent death row exonerations, death sentences are on the wane in the United States, reaching 130 in 2004—the lowest number in any year since the United States Supreme Court reinstituted capital punishment in 1976. But, in Japan, the authorities have responded to a recent surge in street crime, and to such events as the 1995 sarin poison gas attack on the Tokyo subway, by seeking more death sentences. The 18 death sentences issued by Japanese trial courts in 2002 were the most in a single year since 1961, when 29 people were sentenced to die. Brushing off criticism from the United Nations Human Rights Commission, the Council of Europe, and Amnesty International, Japanese trial courts sentenced 55 people to death between 2000 and 2003, as many as in the previous 11 years combined. Two men were executed in Japan in 2004, a typical rate for recent years, though two or three times that number is not unusual. This figure is far below the rate in the United States, where 59 people were executed in 2004. But it appears that, in the coming years, more and more people will be led to Japan’s gallows.

A Time to Die

Although the conflict between the United States and Europe over capital punishment is well known, Japan’s determined retention of the death penalty shows that the global death penalty debate is not strictly trans-Atlantic. There is also a wide gap between Europe and the democracies—established and emerging—of Asia. Of the Asian countries with freely elected governments, India, Indonesia, the Philippines, South Korea, Sri Lanka, Taiwan, and Thailand all have capital punishment. This list, to be sure, encompasses a range of death penalty policies. Taiwan is in the process of phasing out capital punishment, while in Thailand, a nation of 65 million people, there are almost 1,000 men and women currently under sentence of death, many for drug offenses.

The man stepping through the double doors on that November morning six years ago was 61-year-old Tatsuaki Nishio. In his younger days, he had been a gang leader. Between 1976 and 1977, he committed three crimes in the Nagoya area: He directed a subordinate to strangle a 48-year-old employee of a Nagoya construction company and attempted two other murders. The Supreme Court of Japan denied his last appeal in 1989. On the day of his execution, prison guards awakened him and informed him it was his time to die. In Japan, death row prisoners are not told in advance of their execution dates—a practice international human rights organizations condemn as a form of psychological torment.But the government argues that the process is compassionate and prudent, insisting that advance notice would create unnecessary anxiety when prisoners should be adjusting to the inevitable. “A death row inmate is every day waiting for death, so it is easily understood that he may easily be emotionally destabilized,” says Satoru Ohashi, an assistant director of the Ministry of Justice’s Correction Bureau. “And if he becomes emotionally destabilized, he may commit suicide, escape, or harm the prison staff.” Additionally, it is said, publicity about individuals on death row would invade the privacy of their families, who feel shamed or ostracized because of their criminal kin.

Death penalty opponents say the Ministry of Justice’s real purpose is to break the inmates’ will, to discourage extended appeals. “If you have no one to help you and you have access to clergy who say, ‘You committed a crime, so accept death,’ and you live every day staring at a wall, who wouldn’t begin to want to die?” says Yuichi Kaido, a prominent defense lawyer who represents capital defendants. “This kind of treatment induces them to give up retrial petitions.” Japanese opponents of the death penalty note that at least some death row inmates, or their families, were given notice of their pending executions until about 30 years ago. According to a 2001 article by Kaido, condemned inmate and murderer Kiyohachi Horikoshi was actually permitted to meet his mother the day before his execution in December 1975. But, a month later, Kiyoshi Okubo, another convicted murderer, was executed without warning, and no one else has been given advance notice since then. The timing of the change, opponents argue, shows that it was meant to counteract a 1975 decision by the Supreme Court of Japan that loosened the requirements that death row inmates must meet to win a new trial. The court decision encouraged many new retrial petitions, which were previously rare.

If that was the government’s true intent, it did not entirely succeed. The eventual result of the 1975 ruling was the exoneration and release of four men who had been on death row since being convicted of murder and sentenced to death in the decade after World War II—but who had always insisted on their innocence. In each case, there were serious questions about the handling of evidence and the methods authorities used to extract confessions. Perhaps the most notorious such miscarriage of justice involved Sakae Menda, who in 1948, at the age of 23, was convicted of a double ax murder. The conviction was based on the contradiction-riddled testimony of a prostitute and Menda’s own confession, extracted after spending 80 hours in a police station without sleep.

The Ministry of Justice tightened its procedures after those cases, which were part of the reason Japan suspended executions for 40 months between November 1989 and March 1993. Yet some problematic aspects of Japan’s death penalty system remain essentially unchanged. Perhaps the most basic—the authorities’ reliance on confessions—is not unique to capital cases.

Traditionally, Japanese courts have treated a defendant’s own admissions as more persuasive than other evidence, including circumstantial evidence or even forensics. Although suspects have a theoretical right to remain silent, they may also be held and questioned without access to a lawyer for up to 23 days. Even after they have contacted an attorney, they are not entitled to have counsel present during questioning. As a result, the Japanese criminal justice system has been plagued by allegations of physical and psychological abuse during interrogation. From an American perspective, it seems incredible that confessions are not given to the court as either tapes or verbatim transcripts. Rather, they are rewritten and summarized by the authorities themselves.

The Longest Minutes

As it happens, there was no serious question of Tatsuaki Nishio’s guilt, though the government waited to execute him until he exhausted his legal claims. That is standard Ministry of Justice policy; however, the authorities reserve the right to proceed with an execution if they feel an inmate is simply filing repetitive or baseless appeals. By the time Nishio appeared before Mitsui, he would also have been offered a final meal or some sweets, a cigarette, and a meeting with the clergy of his choice. The government says the condemned may draft a last-minute will, but anti-death penalty campaigners say this is sometimes nothing more than a few words hastily murmured to a guard.

When he stepped through the double doors, Nishio was blindfolded and dressed in a white cotton robe, Mitsui says. His hands were bound behind him. His feet were bare. The guards led him to a square marked in the middle of the floor, directly beneath the noose. One guard placed the noose around his neck. Nishio stood there for a moment, silent, seemingly calm, bathed in lamplight.

Then, without warning, the square beneath Nishio’s feet, a trap door, swung open. He dropped straight down. The noose tightened. Nishio’s neck snapped, and he stopped moving. His body now hung in a separate room downstairs.

As Nishio dangled there and the minutes dragged by in silence, Mitsui began to grow uneasy. What were they waiting for? Eventually, he turned to the director of the detention center and asked: “Why so long?” Japan’s prison law refers to a minimum hanging period of five minutes. But the director replied simply that this was the way things are done. The witnesses returned to their silent vigil.

Finally, after 30 long minutes, the director ordered Mitsui and a prison doctor to go downstairs and examine Nishio. On the lower level, Mitsui noticed that there was no theater-style floor, just bare concrete. With the guards’ help, Mitsui and the doctor laid Nishio down and stripped off his robe and blindfold, in accordance with the prison law, which provides that “the countenance of the dead shall be inspected after hanging.” They rolled the body back and forth, noting that it was unscathed except for a bruise on Nishio’s neck. There was no question: The sentence had been carried out.

As I listened to Mitsui, it was clear that he had been made extremely anxious and uncomfortable by that 30-minute wait, for reasons that he could not quite articulate. His disquiet made me wonder what the Japanese public would think if they knew, in detail, what he knows. Toyoko Ogino, an interpreter I worked with in the coal-mining town of Omuta, was surprised when I told her that prisoners were hanged. “I thought that was just an expression,” she said. Perhaps greater information would make no difference: Polls indicate that public support for capital punishment is even stronger in Japan than in the United States—more than 81 percent in a February 2005 survey.

Nor is the use of hanging as a method of execution controversial in Japan. It has been all but abandoned in the United States, in part because of fears it might subject prisoners to unnecessary suffering, especially if the noose fails to work as designed. But, apart from a 1961 decision by the Supreme Court of Japan, which found that hanging does not violate the postwar Japanese Constitution’s ban on “cruel” punishment, Japan has not reconsidered a form of execution first adopted by the Meiji-era Grand Council of State in 1873. Mitsui said he was untroubled. “They die instantly,” he assured me. “There is no agony.”

Indeed, Japan adopted hanging during the Meiji Restoration as a reformist alternative to decapitation. A new debate over hanging does not seem to be in the interest of either the Japanese government or the country’s small anti-death penalty movement. The former does not wish to hash out any aspect of the death penalty in public; the latter does not want to appear to accept the death penalty’s legitimacy by arguing over how it is carried out.

As Mitsui describes it, the hanging of Nishio seemed to happen all by itself. The man stood on the trap door; the trap door opened; he went down. This was by design. Ordinary prison guards operate the gallows. They may not refuse the job, even if they have a conscientious objection. Officials understand this system can create stress. “As you can imagine, it’s a very emotionally demanding task,” says Satoru Ohashi of the Correction Bureau. So, Ohashi said, a solution has been found. Five guards press separate buttons simultaneously. Only one of these is the button that actually opens the trap door. And all of this takes place outside the witnesses’ field of vision—offstage, as it were. There is a hanging, but no identifiable hangman.

For Mitsui, it was a long day at the gallows. After Nishio had been hanged, guards brought in Masamichi Ida, 56. Ida used to work for a car repair shop in Aichi Prefecture, near Nagoya. He took out a life insurance policy on a 20-year-old customer and then, in November 1979, went sailing with the young man and pushed him overboard. He was also convicted of two other murders near Kyoto in 1983. Ida was executed in exactly the same manner as Nishio, Mitsui says—including that excruciating 30-minute wait.

In the early afternoon, Mitsui returned to his office and wrote up a report to the Ministry of Justice in Tokyo, confirming that the prisoners had been duly executed. His officemates had thoughtfully spread salt on the floor before his return; in Shinto tradition, death is impure, and salt is thought to purify those who have had contact with the dead. But he and his coworkers did not actually discuss what he had seen. His boss gave him the rest of the day off. Returning home, he did not tell his wife about his day, either.

Even now, though, Mitsui muses about the strange beauty of the death chamber, that secret theater of polished floors and tasteful lighting. The condemned man enters blindfolded. “Why do they prepare such a beautiful place, but the prisoner is not able to see?” he wondered in our interview, then answered his own question: “Maybe it is for the benefit of the witnesses—to make them feel calmer.”

Charles Lane is a staff writer at the Washington Post. He was a 2003–04 Japan Society Media Fellow.