The Death Penalty in Japan

The Death Penalty in Japan

Mai Sato The Death Penalty in Japan Will the Public Tolerate Abolition?

Mai Sato London, United Kingdom King s College London, UK, 2011 ISBN 978-3-658-00677-8 DOI 10.1007/978-3-658-00678-5 ISBN 978-3-658-00678-5 (ebook) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de. Library of Congress Control Number: 2013952718 Springer VS Springer Fachmedien Wiesbaden 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer VS is a brand of Springer DE. Springer DE is part of Springer Science+Business Media. www.springer-vs.de

Dedicated to Toto & Cha-chan

Foreword In The Death Penalty in Japan: Will the Public Tolerate Abolition?, Mai Sato provides a significant theoretical contribution to the debate on the death penalty. While countless scholars and international organisations particularly outside the US approach the death penalty primarily from a human rights perspective, Sato attempts to engage with the justifications for retention that follow a sociolegal approach, based on subjective legitimacy: in other words, popular support. Across abolitionist jurisdictions, and within supranational and national bodies that oppose the death penalty, abolition is seen as a matter of principle, with the doctrine of inalienable human rights such as the right to life drawn on to provide the absolute justification for abolition. However, governments in many retentionist countries argue that total prohibition is not yet established as a human rights norm, and that international treaties can only be binding to those that choose to be bound by them. They cling to their sovereign right to determine their own laws and criminal justice practices, often citing in their defence popular support for the ultimate punishment. Japan s official justification for the retention of the death penalty is public opinion, with the government claiming that it cannot abolish the death penalty while the public strongly supports it. Sato argues that, although this approach may be theoretically coherent, it requires reliable evidence about how retention actually affects public perceptions of the system s legitimacy. In other words, the Japanese government can defend its approach to the death penalty only if the surveys it relies on capture public attitudes on the subject accurately. The question addressed by this book is: to what extent can the Japanese government defend its approach to the death penalty based on popular support? Is the retention of the death penalty so central to popular trust in the criminal justice system that abolition would result in the erosion of political and judicial legitimacy? Building on the theoretical framework of trust and legitimacy, the book makes an important empirical contribution both quantitative and qualitative to our understanding of the drivers of support for the death penalty. Sato carried out three different types of surveys with methodological rigour and resourcefulness. The first a conventional large-scale online survey (N=20,000) conducted in Japan measured the drivers of punitive responses to the death penalty by

8 Foreword focusing on socio-demographic indicators. The second was an experimental survey, involving two sub-samples (N=500x2) of the first larger survey. The experimental survey focused on two possible drivers of punitivity: information and retributive attitudes. Following the research conducted in the US on the Marshall Hypothesis, and the broader cognitive deficit literature in the UK, she explores the role of information about this punishment in particular, how it is applied in support for the death penalty. This part of the empirical endeavour also attempted to test whether support for the death penalty is merely a reflection of broader retributive attitudes. The third empirical component comprised an innovative methodology, inspired by deliberative polling, aimed at measuring the influence of deliberation on punitivity. Participants were assembled and instructed on the Japanese death penalty system, encouraged to discuss what they were learning and exchange opinions on the issue, answer pre- and post-consultation surveys, and finally take part in a follow-up interview. Most UK research on public opinion and punitivity has either argued that public opinion is insulated from penal policy, or revealed public ignorance about penal policy and identified cognitive deficit as one driver of penal populism. While Sato s second empirical project was based on the cognitive deficit model, the third project attempted to go one step further by paying particular attention to dialogue and the deliberation process, creating what Habermas called a public sphere. Public opinion scholars, and academics with an interest in legitimacy, will find much to appreciate in this book. It brings together persuasively and eloquently a wide literature on survey methods, public opinion, trust, legitimacy, and the death penalty, as well as original research. While the book adopts Japan as a case study, it is applicable to most retentionist countries that present public support for the ultimate penalty as an obstacle to abolition. It should therefore be of interest to death penalty scholars worldwide, and to NGOs and international organisations, who may find it useful to employ arguments other than those based on human rights to engage in dialogues and démarches in various countries, whose elites profess to be ready for abolition or reform, but claim to resist such change due to public opinion. Ultimately, though, the power of this book is in demonstrating that, in Japan, government rationale for retention is based on very shaky grounds. Replication of Sato s work in other jurisdictions, such as China, may show that Japan is not alone in this regard, and that this more prag-

Foreword 9 matic approach, alongside a continuing plea for governments to respect the human rights of their citizens, might just persuade further countries to embrace abolition in the next decade or so. Professor Carolyn Hoyle Director, Centre for Criminology, University of Oxford

Acknowledgement This book is largely based on my PhD thesis. Many people helped me during my time as a doctoral student at King s College London. First, my biggest thank you goes to Professor Mike Hough. Without Mike s guidance and encouragement throughout the three years of my PhD, I would not have been able to start and more importantly finish my thesis. The time and attention you gave away generously in reading and commenting on my work were invaluable in helping me see it through to completion. You have been the best supervisor any PhD student could wish for! Sincere thanks are also due to Dr Takeshi Honjo, Mr Masato Kimura, and Ms Tomoko Maeshima for their collaboration in carrying out the deliberative consultation. My thank yous continue into my post-phd phase, when I felt as if the thesis was being most useful as a stand beneath my computer screen. My heartfelt thanks are due to Professor Carolyn Hoyle and Professor Ian Loader at the Centre for Criminology, University of Oxford, for taking their time in carefully reading through my work. I am truly grateful to Professor Helmut Kury for his advice and enthusiasm for the book. I am also grateful to Dr Michael Kilchling at the Max Planck Institute for putting me in touch with Springer. Professor Roger Hood, Professor David Johnson, Dr Borge Bakken, and Professor Koichi Hamai, have all given me their valuable time by commenting on the whole or part of this book. A very special thank you to Mr Tom Ellis for his kindness and patience: I would not otherwise have met so many scholars in this field at such an early stage of my PhD, and I am sorry I have still not produced the response chapter Many thanks to Anita Wilke at Springer for her helpful suggestions and patience; and to Ian Hearnden for his relentlessly efficient and detailed editing, and for spotting my Japanese accent and making it sound just right. Thank you to my parents for their continued support and understanding of a daughter who is always away from home, and for air-mailing me without fail newspaper cuttings whenever executions occurred in Japan. Thanks are also due to my lovely friends (you know who you are) who kept me company whenever the writing-fairy was away. Thank you also to Dr Thomas Tapmeier for all the time you spent in getting the book template to work with your ancient laptop.

12 Acknowledgement Lastly, I am grateful to the following institutions for funding my surveys: Suntory Foundation, Research Foundation for Safe Society, Great Britain Sasakawa Foundation, Daiwa Anglo-Japanese Foundation, University of London and King s College London. Dr Mai Sato

Contents List of Figures... 17 List of Tables... 19 1 Introduction: Vox Populi, Vox Dei?... 21 1.1 Background: Increasing Executions, Majority Support and Secrecy 21 1.2 The Main Focus of the Book... 26 1.3 Human Rights vs. Popular Consent... 27 1.4 Methodology in Brief... 31 1.5 Outline of Book... 32 1.6 Delimitations... 33 2 Public Attitudes towards the Death Penalty... 37 2.1 Introduction... 37 2.2 Demographics... 37 2.3 Symbolic Factors... 41 2.4 Instrumental Factors... 47 2.5 Measuring Change through Exposure to Information... 51 2.6 The Japanese Public s Attitudes to the Death Penalty... 56 3 Critical Examination of the Japanese Government Survey... 63 3.1 Question Wording... 63 3.2 Other Supplementary Questions... 65 3.3 Sample Bias... 68 3.4 Increasing Majority Support?... 71 3.5 Access to Data... 76 4 Methodology... 77 4.1 Introduction... 77 4.2 Preliminary Survey... 79 4.2.1 Justification for Methodology... 79 4.2.2 Population and Sample... 82

14 Contents 4.2.3 Measures and Analysis Method... 84 4.2.4 Limitations... 84 4.3 Experimental Survey... 85 4.3.1 Justification for Methodology... 86 4.3.2 Population and Sample... 86 4.3.3 Intervention... 88 4.3.4 Measures and Analysis Method... 89 4.3.5 Limitations... 91 4.4 Deliberative Consultation... 93 4.4.1 Justification for Methodology... 94 4.4.2 Population and Sample... 95 4.4.3 Flow of Deliberative Consultation... 96 4.4.4 Pre-Survey and Post-Survey... 97 4.4.5 Information... 98 4.4.6 Group Discussions and Expert Session... 99 4.4.7 Follow-Up Interviews... 100 4.4.8 Limitations... 101 5 The Preliminary Survey... 105 5.1 Introduction... 105 5.2 Demographic Variables... 108 5.3 Perception of Crime Rates... 112 5.4 Trust in Institutions and People... 114 5.5 Predicting Definite Retentionists: Trust and Other Variables... 117 5.6 Discussion and Conclusion... 123 6 The Experimental Survey... 127 6.1 Introduction... 127 6.2 Effect of Information on Attitudes... 127 6.3 Attitudinal Change without Intervention?... 130 6.4 Change in Direction... 133 6.5 Commitment to Retention: Can you Sentence a Defendant to Death?... 137 6.6 Differences in Justifying Retention... 141

Contents 15 6.7 Government Survey on Trial... 145 6.8 An Uninformed Public... 147 6.9 Marshall Hypothesis: Information vs. Retribution... 151 6.10 Discussion and Conclusion... 155 7 The Deliberative Consultation... 157 7.1 Introduction... 157 7.2 Changes in Attitudes: Quality over Quantity?... 157 7.3 Changes in Reason: Retention and Abolition... 161 7.4 Cherry-Picking Information... 167 7.5 It s all about the Victims Families... 172 7.6 Infallible Courts: Factors behind High Trust... 173 7.7 Remorse not Retribution : Revisiting the Marshall Hypothesis... 176 7.8 Discussion and Conclusion... 179 8 Conclusion... 181 8.1 The Death Penalty in Japan: How the Book Approached the Issue... 181 8.2 Taking Stock of the Methodology... 181 8.3 The Relationship between Information and Death Penalty Attitudes 183 8.4 The Effect of Deliberation on Death Penalty Attitudes... 185 8.5 Validity of the Government Survey... 188 8.6 The Relationship between Trust and Punitivity... 188 8.7 Taking Stock: The Main Research Question... 189 8.8 Policy Implications... 190 Bibliography... 195 Appendices... 207 Index... 255

List of Figures Figure 1 Response Rate by Sex... 69 Figure 2 Response rate by age group... 70 Figure 3 Death penalty attitudes... 71 Figure 4 Abolitionists by age... 72 Figure 5 Response rate and death penalty attitudes... 73 Figure 6 Process of experimental survey... 87 Figure 7 Distribution of sex and age... 87 Figure 8 Distribution of death penalty attitudes before intervention... 88 Figure 9 Drawing of the execution room... 91 Figure 10 Flow of the deliberative consultation... 96 Figure 11 Photo: discussion group... 99 Figure 12 Comparing results: preliminary survey and Government Survey... 107 Figure 13 Perception of murder rates... 113 Figure 14 Trust in institutions... 115 Figure 15 Proportion of definite retentionists by level of trust... 116 Figure 16 Definite retention: predictors per block... 121 Figure 17 The effect of information... 128 Figure 18 Pre- and post-intervention diagram... 130 Figure 19 Matrix sample: changes in direction... 134 Figure 20 Commitment to retention: three scenarios... 138 Figure 21 Government Survey question... 146 Figure 22 Distribution of knowledge scores... 148 Figure 23 Levels of knowledge about the death penalty... 149 Figure 24 Reasons for support ( retentionist in pre- and post-surveys)... 162 Figure 25 Reasons for support ( abolitionist in pre- and post-surveys)... 165

List of Tables Table 1 Confidence intervals for retentionists... 75 Table 2 Trust in institutions: 2006 JGSS and preliminary survey... 81 Table 3 Sampling framework... 83 Table 4 Sample distribution against population survey... 83 Table 5 Sample distribution discussion groups... 95 Table 6 Follow-up interviewees... 100 Table 7 The demographics of death penalty attitudes... 110 Table 8 Death penalty attitudes by type of newspaper readership... 111 Table 9 Predicting definite retentionists... 122 Table 10 Changes in direction: macro movements... 135 Table 11 Changes in direction: micro movements... 136 Table 12 Preparedness to pass a death sentence... 140 Table 13 Reasons for retention... 142 Table 14 Reasons for abolition... 144 Table 15 Knowledge score by death penalty attitudes... 150 Table 16 Retributive attitudes by death penalty attitudes... 152 Table 17 Marshall Hypothesis: retribution scores... 153 Table 18 Predicting no change in retentionists... 155 Table 19 Changes in opinion between pre- and post-survey... 158 Table 20 Changes in retribution scores... 177