Victims’ Families Marginalized Under Japan’s Capital Punishment System

Questions of Atonement

I first began interviewing the surviving family of murder victims in the late 1990s. Over the decades I have spoken with more than 100 people, and I have to the best of my ability tried to share their voices with broader society. However, one troubling question that has arisen in each interview is the issue of redemption.

It is difficult to say whether a person convicted of murder is capable of making amends for their crime. Even suggesting that murderers should atone for their sins not with their lives, but through the act of repentance and carrying the weight of their actions for the rest of their days poses a direct challenge to the core arguments against capital punishment. During interview, people invariably would ask in frustration what this concept of atonement even means. While the question concerned the broader death penalty debate, there is no denying they also wished to know which side of the argument I fell on. Unable to provide an answer, I often simply fell silent. I have no doubt that my conversations with surviving family members were vital in shaping both my thoughts and doubts about Japan’s system of capital punishment.

I remember speaking with the family of an elementary school girl who had been abducted and murdered. A man pretending to ask for directions had snatched the young girl off the street, then abused and brutally killed her before dumping her body. I vividly remember her mother and father, both of them younger than I was at the time, telling me in voices trembling with rage how ludicrous it was to think that a killer could atone for their crime in their lifetime. It was impossible, they argued, without experiencing such a devastating loss to even comprehend how preposterous a supposition this was. In their view, most people are unable to understand that the first step along the path to redemption begins with the family of the victim.

During my years of reporting on the case I saw the couple direct their fury not only at the perpetrator, but also at the lawyers and anyone else trying to prevent the death sentence from being handed down. This included people calling for the end of capital punishment and society as a whole. Japanese overwhelmingly support capital punishment, but I suspect that many family members of murder victims are skeptical of this support, feeling it is not grounded in any serious consideration of their plight.

Few Executions Carried Out

We tend to loosely and carelessly bandy about the idea of redemption. Somehow we have come to believe that criminals will naturally come to regret their crimes. Maybe this is because we hold in the back of our minds a picture of an inmate writing and sending and endless stream of letters of apology, repeatedly copying out Buddhist sutras, or living out their days as a model prisoner. However, none of these images are correct. Redemption for murder is an academic fantasy, not something that exists in the real world. I believe it is a myth cooked up by those of us lucky enough not to have had our lives transformed by a brutal homicide. The more family members of murder victims I meet, the more certain of this I become.

First off, the majority of family members have no interest in redemption for the perpetrator. They do not want apologies, which sound to them as false regrets. What they want is for the killer to be dead. This feeling, particularly in the most heinous cases, never diminishes, even if the murderer serves their sentence, turns over a new leaf, and becomes a saint. A victim’s family does not merely want the perpetrator to pay with their life, but longs for them to be wiped from the face of the earth. In this sense, capital punishment allows them to achieve at least a modicum of closure.

I recognize that there is no way to bring an end to the mental and emotional duress of family members. However, only in knowing that the murderer no longer haunts the world can they finally direct all their attention at remembering their lost loved one. In reality, though, such longing for vengeance is rarely appeased as death sentences are handed down in only a handful of murder cases.

Lessons From the Hikari Murders

In April 1999 an 18-year-old man committed the shocking murder of a young mother and her 11-month old child in Hikari, Yamaguchi Prefecture. The youth broke into the woman’s home, raped and killed her, and then strangled her baby daughter. The assailant was initially sentenced to life imprisonment, but in a 2008 retrial the Hiroshima High Court condemned him to death. After several appeal attempts, the Supreme Court eventually upheld the sentence in February 2012.

I interviewed Motomura Hiroshi, the husband and father of the victims, soon after the incident, and have written several books about the case. Motomura, who has gone on to become one of Japan’s leading proponents of capital punishment, boldly declared during the trial that if the murderer was not to be sentenced to death then he wanted him set free so he could do the deed himself. As the appeal process drug on, Motomura came to believe that the facing execution is only way a criminal can be truly repentant. He spoke to me about his grim resolution to bear the responsibility for the loss of his wife and daughter, and in seeking the death penalty, the life of the 18-year-old who had killed them. In reaching this conclusion, he had repeatedly questioned whether he, as someone who knew the pain of having his own family murdered, could justly seek the death of another human being.

I believe what Motomura really sought was a seat at the table in deciding the ultimate fate of the young murderer. He wanted to have a say that was equal to that afforded the state and the defendant. I also feel that he harbors hope of a crime-free society someday where there is no longer any need for capital punishment.

An Issue of Justice

It is instinctive human reaction to seek retribution when a loved one is murdered and experts intensely debate whether reprisal should be considered a natural right of victims and their families. If surviving family member’s hopes for enacting retribution on a murderer are restricted by the state to the death penalty, then we should be careful not to dismiss it as cruel, inhumane, or violating of human rights.

Capital punishment, as critics point out, is in essence state-condoned murder. However, it is predicated on a fundamental asymmetrical relationship between victim and killer. Can we easily dismiss executing a person guilty of homicide as a one-sided act by the state? It is natural that families of victims should long for retribution and look to the state to carry this out. Can we simply dismiss such a system as barbaric and misguided? I have misgivings about justice being served if capital punishment was abolished as there would no longer be a legal way to pay heed to the feelings and thoughts to victims of violent crime, including surviving relatives.

I feel the strong support for the death penalty among family members of murder victims in Japan stems not only from the harrowing experience of losing a loved one but also a profound dissatisfaction and distrust of the criminal justice system.

In the end, all forms of punishment are merely ways for the state to make criminals pay for their unlawful deeds. In reality, the state can carry out punishment without the defendant uttering a single word of apology. Victims and their families, of course, will do their utmost to ensure that the state levies the harshest punishment possible on their behalf. They cannot, however, settle the score with the perpetrator on their own. Even though they suffered at the hands of the offender, there is no legal way for them to join in determining and meting out punishment. Survivors harbor distrust and suspicion about the criminal justice system because it does not allow them to participate.

The State Versus the Victims

Japan for years has viewed the victims of crimes as little more than a piece of evidence in criminal trials. It has only been the last 10 years that the framework for victim participation in the legal process has been expanded, leading to stronger sentencing. However, even with new conventions in place, the legal system does not adequately reconcile survivors’ desire for retribution. Overall, the systems and laws in place favor the rights of offenders and little has changed from the days when the involvement of victims and surviving family members in legal proceedings was tightly restricted, and even viewed with hostility.

The recent introduction of the lay judge system may have introduced greater public sentiment into Japan’s legal system. However, it has conversely worked to reduce the ability of family members of murder victims to push for stronger sentences. This is because defending and prosecuting attorneys and the court decide on evidence and a trial scenario during pretrial proceedings, summarily playing these out in the courtroom. Sentencing is primarily determined by the bench rather than lay judges, and while the initial punishment is in principle expected to hold up against appeals, this has often proven to not be the case.

Most critically, Japanese defense attorneys still cannot break away from the traditional state-versus-the-defendant model. Under this mindset, lawyers see elevating the rights of victims as undermining a defendant’s right to a fair trial.

This state of affairs further fans the fury of family members. The Japan Federation of Bar Associations has even created a manual advising lawyers in capital cases to do everything possible to keep the relatives of victims from speaking up in court, prevent their participation in cases, and block them from voicing opinions so as to protect the rights of defendants. To be fair, the JFBA’s campaign against capital punishment does not reflect the thoughts of every lawyer in Japan, but the assertions about justice by defense lawyers who avidly adhere to these guidelines enrage crime victims and family members .

The arguments for avoiding the death penalty at all cost or for abolishing it outright may reflect humanistic sympathy for the life of the perpetrator. Contrarily, sympathy among proponent of the death penalty for the lives of victims is either cursory or lacking altogether.

Strengthening Victims’ Rights

The decisiveness of the death penalty places the onus on the state to ensure that those prisoners it executes are guilty beyond a shadow of doubt. While concern of wrongful conviction voiced by death penalty opponents is valid, such arguments are also true of other types of crime. Family members of murder victims certainly find the prospect of a killer going cheerfully about their lives while an innocent person was punished unbearable, and as much as anyone they want to see an end to wrongful convictions.

I also recognize that certain conceptual arguments for abolishing the death penalty—arguments driven solely by legalistic logic —are more persuasive than those for keeping the system of capital punishment in place. The risk of false convictions and the question of whether the death penalty acts as a deterrent against violent crime are issues that defy simple answers. Likewise, there is a lack of transparency in the way the current system is implemented. In fact, it has only been a few years since the media was finally allowed to document the interior of an execution chamber. There is still no press coverage of executions, however, and the lives of death row inmates and their final moments remain shrouded in an impenetrable veil. From the outside, there is no way to ascertain what is actually taking place inside the system.

Japan is in the minority of countries left in the world today that retain capital punishment. European and other nations have taken the lead in abolishing the death penalty and providing for the rights of both victims and criminals. These countries have a history of guaranteeing public trust in the criminal justice system by making the victims of crime participants in criminal procedures. Japan took its first steps in this direction in 2004 with the enactment of legislation that promotes comprehensive and systematic measures to support the rights of crime victims. Before Japanese debate whether to keep the death penalty, though, it is more important that we clearly establish the rights of victims and their families to participate in the criminal justice system.