Discussing the Constitutionality of the Death Penalty in Japan

Toward More Humane Methods of Execution

Abstract

Japan employs the death penalty as part of its criminal justice system, and a majority of the Japanese people support the use of the death penalty. While there is a clear global trend to abolish the death penalty, Japan has no legal obligation to obey the trend. The constitutionality of the death penalty rests on stable precedent issued by the Supreme Court of Japan (SC). Although many constitutional law academics have criticized the reasoning behind the constitutionality of the death penalty as stated by the SC, there is little possibility that their claims will be accepted by the SC. There is no prospect of the death penalty being abolished in the near future. However, in this article, I present a way to raise the unconstitutionality of the death penalty, not by criticizing the court’s decisions, but by accepting its reasoning and instead focusing on the cruelty of the method of execution in Japan, namely hanging. Article 36 of the Japanese Constitution prohibits the imposition of “cruel punishment,” and courts think an execution method should be considered a “cruel punishment” when it causes unnecessary and/or intentional psychological and physical suffering. Based on modern medical standards and comparison to other, more humane methods of execution, such as lethal injection, this article argues that hanging could be found unconstitutional in the future even if we accept the SC’s current body of rulings. This argument may be rejected by those calling for the complete abolition of the death penalty system. However, this path is, at the least, more realistic than continuing to argue for the unconstitutionality of the death penalty, a position which has no chance of being accepted by the SC. Such an argument could be the first step in the thousand-mile journey that ends with the abolition of the death penalty in Japan.