Retention and Reform in Japanese Capital Punishment

This Article focuses on the failure of abolition and of death penalty reform in Japan in order to illustrate contingencies in the trajectory of capital punishment in the modern world. Part I describes three facts about postwar Japan that help explain why it retains capital punishment today: a missed opportunity for abolition during the American occupation of the country after World War II; the long-term rule of a conservative political party; and economic and geopolitical power that has enabled the country to resist the influence of international norms. Part II describes a few ways in which Japanese capital punishment has changed in recent years— and many ways in which it has not. Part III focuses on four causes of continuity in capital punishment in Japan: the rarity of exonerations in Japanese criminal justice; a jurisprudence that does not treat death as a special form of criminal punishment requiring extra safeguards for criminal defendants in capital cases; a high degree of secrecy surrounding executions and capital sentencing; and a society in which race is not regarded as a salient factor in the administration of capital punishment. Part IV suggests how reform in Japanese capital punishment might be accomplished by challenging some of the causes of continuity. Part V concludes by observing that the road to death penalty reform is not merely a positive path requiring leadership from the front in the face of public support for the institution. It is also a negative path leading away from beliefs and practices that present obstacles to the institution’s diminution and abrogation.