JAPAN – Will new ‘plea bargaining’ result in greater miscarriage of justice and even death penalty?

 

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Japanese-style plea bargaining debuts but authorities fear spread of false testimony

by Sakura Murakami

Staff Writer

Japan on Friday introduced a bargaining system as part of an overhaul of its criminal investigation and trial systems, while battling concerns the new practice could encourage suspects or defendants to make false statements that lead to miscarriages of justice.

The new bargaining system, which resembles what is known as plea bargaining in the West, allows criminal suspects to negotiate deals with prosecutors in exchange for information on another criminal.

Prosecutors can reward informants who snitch with a variety of benefits, such as a recommendation for a lighter sentence or a promise to drop his or her case altogether.

Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.

Prosecutors hold most of the bargaining power, barring some specific cases that involve the police, and deals can be made before or after prosecutors file formal charges.

The Japanese bargaining system is unique in that it permits deals only when the accused snitches, said Kana Sasakura, a professor at Konan University who specializes in criminal law.

“Bargaining systems around the world are usually based on rewarding suspects who confess” to a crime, but the revised Japanese law lacks that system and instead focuses entirely on deals between prosecutors and informants to aid investigations, she said.

Prosecutors had been advocating for the introduction of a bargaining system, claiming that changes in criminal procedure law, including a new rule obligating the recording of interrogations in certain investigations, required new and “diverse” ways to obtain evidence.

Yet critics are worried that pressure from prosecutors to cut deals will only reinforce the weaknesses of Japan’s current criminal justice system, which is largely dependent on confessions, unless proper measures are put in place to prevent false testimony and miscarriages of justice.

There will be “a strong incentive to “implicate others to get away with their own crimes or receive a lighter sentence,” said Sasakura. “That does lead to the possibility of wrongful accusations and convictions.”

Indeed, a 2005 report by the Center on Wrongful Convictions at Northwestern University School of Law (now Pritzker School of Law) found that, since 1973, more than 45 percent of the wrongful convictions involving men on death row in the United States who were later exonerated were obtained in part through such arrangements.

Also, out of 330 DNA exoneration cases in the U.S., 22 percent involved informant testimony that was used as evidence to convict, according to Brandon L. Garrett, a professor at the University of Virginia School of Law.

To prevent suspects or the accused from lying to get a deal, Japan’s revised law penalizes false depositions and obliges defense lawyers to be involved in the bargaining process. If depositions are found to be false, those giving them will face up to five years in jail.

But critics are skeptical these measures would be enough to prevent fabrications.

Penalizing false depositions could “make it harder for informants to retract what they said,” Sasakura pointed out. Instead of discouraging false statements, the penalty may instead push informants to stick with their story even if it’s false, she explained.

Getting lawyers involved doesn’t guarantee false statements won’t be made, either.

Defense lawyers might find themselves in an ethical dilemma — whether to fight for their client’s best interests by making a deal or to see justice served, said Yuji Shiratori, a professor at Kanagawa University who specializes in criminal procedure law.

The lawyer of the informant “won’t have access to the information needed to make a justified decision about the ‘other case’ (involving an accomplice) and decide what is best for the client” when considering whether to bargain with prosecutors, he added.

“There are measures to deal with individual issues arising from the introduction of the bargaining system. But upon closer examination of such steps, it’s hard to say they would do enough” to prevent miscarriages of justice, Sasakura said.

Nobuo Gohara, a former prosecutor and current lawyer at Gohara Compliance and Law Office in Tokyo, insisted it is necessary to record people’s statements to detect the false ones.

Fabricated statements usually change over time to fit objective facts, so “it’s very important to know whether any ex post facto tweaks to the story have been made” to assess whether the informant’s account is false, he said.

However, given that the bargaining process won’t be recorded, it will be hard to judge whether a statement is false, he added.

Since informants, defense lawyers and prosecutors all have a stake in ensuring the depositions of suspects or defendants are true, it may make the Japanese criminal justice system more prone to wrongful convictions, Gohara also said.

Sasakura, the professor at Konan University, pointed out that the reliance on confessions and statements is a distinct aspect of the Japanese criminal justice system.

Behind Japan’s wrongful convictions is an “underlying mentality that confessions and statements are the most reliable piece of information,” sometimes more so than scientific and objective evidence, she said.

In the past, Japanese investigators “forced suspects to confess by applying pressure and conducting torturous interviews,” said Gohara. With the new system, the prosecutors will try to make them speak up in return for benefits.

“The way prosecutors try to make suspects or defendants speak may change, but the reality (of the confession-based justice system) won’t,” he added. – Japan Times, 31/5/2018

Japan – ADPAN & 14 CSOs Submission for UPR

JAPAN: The Death Penalty

 For the United Nations Universal Periodic Review of Japan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and 14 Civil Society Organisations (CSOs) listed below

 

Since the last UPR of Japan in 2012, 26 persons have been executed from 2012 to 2017, whereby 2 have been executed in 2017. A total of 36 death sentence have been finalized from 2012 to 2016. As of the end of 2016, there are 128 persons on death row.

Death penalty continues to exist in statute books  for crimes that do not result in the death of any  victim.

Whilst, we continue to call for the abolition of the death penalty in Japan, and for a moratorium on all executions pending abolition, we would like to highlight specific concerns concerning the death penalty and unfair trials, which we hope would form part of UN member states recommendations at the upcoming UPR.

In brief,  besides calling for the abolition of the death penalty, and an immediate moratorium on all executions, we are hoping that the following specific recommendations be made to made to Japan:-

 

– That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

 – That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. We recommend a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

 A. REFORM OF THE ‘LAY JUDGE SYSTEM’ COURTS – UNANIMOUS DECISION FOR DEATH PENALTY

  1. In 2009, a new trial system was introduced, known as the ‘lay judge system’, whereby serious cases like murder that carry the death penalty are conducted before 6 ordinary citizens and 3 career judges. All that is required for the death penalty to be imposed is a simple majority, which includes 1 vote from one of the 3 career judges.’
  2. As of March 2015, prosecutors have sought the death penalty for 31 persons, and the ‘lay judge system’ courts have handed down the death penalty for 23 cases, which is about 74%. In comparison, when such cases were tried and finalized between 1980 and 2009 before career judges, only about 55% received the death sentences in cases where the prosecution sought the death penalty.
  3. There is an unnecessary and even dangerous risk of injustice for a person to be sentenced to death in a situation when the decision of the court is only based on a simple majority decision of a ‘lay judge system court’. This is because legally trained and experienced judges are typically more likely to apply reason and law dispassionately to the facts. In serious cases of dreadful crimes, international experience over time and cultures shows that legal training and experience are essential qualities in the application of fair legal reasoning. After all, that is why all countries have legally trained people administering justice. Under the lay judge system at this time, the experienced legally trained judges can be outvoted by the lay jury.
  4. Justice demands that a decision to impose the death sentence should be unanimous. In the United States of America, a conviction and a death sentence requires a unanimous jury verdict in the Federal Government and all states save 2. Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote. This is a similar position that exists in many other jurisdictions, which still have the jury system when it comes to criminal cases.
  5. Overwhelmingly, although it is expressed in different language in different systems, courts need to be satisfied beyond reasonable doubt before a finding of guilt in serious criminal matters. This is a much higher standard than ‘on balance’ or ‘by majority’. Similar reasoning should apply to the question of whether to execute – the tribunal should be satisfied by a significant margin. We say that a unanimous verdict should be required before a person is to be put to death.
  6. As such, in the Japanese ‘lay judge system’ courts, a simple majority decision of a panel of 9 persons (6 lay persons and 3 judges) has the potential to be unjust. The fact that 4 other persons, which may also include 2 of the 3 experienced career judges  decided not to convict and/or impose the death penalty is very relevant and should not be ignored.

RECOMMENDATION :

That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 B. MANDATORY APPEALS AND CONSIDERATION FOR CLEMENCY BEFORE EXECUTION

7. On 13/7/2017, Koichi Sumida and another were executed at the Hiroshima Detention Center and Osaka Detention Center respectively.

8. Sumida was sentenced to death in lay judge trial held in February 2013, and there were no appeals, which means that no higher courts and/or bodies had the opportunity of reviewing the decisions of the first court.

9. This is the third execution of an inmate whose death sentence that was imposed by the ‘lay judges system’ courts did not go on appeal to the High Court, or the further appeal to the Supreme Court.

10. The reasons why this persons who were sentenced to death did not choose to exercise their right to appeal is a mystery.It is not clear why they did not file appeals, or why they later chose to withdraw their appeal as was by Sumida.

11. Some, amongst death row inmates call this “volunteer”. Some just wish to be executed, having given up the will to live. It is akin to a desire to commit suicide.

12. It is a fact that courts can make mistakes, and it is not uncommon in mostjurisdictions that appeal courts do overturn convictions and/or sentences.

13. As an example, it must be pointed out that the Tokyo High Court, did overturn lay judges court’s decisions to impose the death penalty in three cases, which were subsequently upheld by the Supreme Court in 2015. The absence of an appeal, would have not allowed the High Court and/or higher courts correct errors made and save lives.

14. In many jurisdictions, in capital cases, a plea of guilty will not be accepted. The trial will have to proceed to enable the courts to make its own determination based on the evidence adduced, that the said accused person is proven to be guilty in accordance to the required standard of proof in a criminal case, and thereafter whether evidence adduced and the circumstances of the case justify the imposition of the death penalty.

15. The rationale behind this practice in capital cases, is the desire of the State to ensure that there is no miscarriage of justice, and no innocent person or convicted person not deserving to be sentenced to death, is wrongly sentenced to death.

16. Applying the same rationale, there is a need to put in place a mandatory appeal system, that will require all cases of persons sentenced to death, to have their cases mandatorily brought before the Appeal courts in Japan, to enable the Appellate courts to review not just the death penalty, but also the conviction that resulted in the death sentence.

17. In the case of Japan, this would mean that there shall be an appeal to the High Court, and thereafter a further appeal to the Supreme Court for all cases where the convicted has been sentence, irrespective of whether the convicted chooses not to appealthe conviction, and/or the death sentence.

18. In the same way, after all appeals are done, all cases that carry the death sentence, shall go through the existing clemency process in Japan, noting that a such process could also decide to commute the death sentence to a prison sentence, or even result in a full pardon in exceptional cases.

19. In such capital cases, if the accused and/or convicted, do not have a lawyer, then the court shall appoint a lawyer to act on behalf of the said accused.

RECOMMENDATION:-

That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. There should be a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

We refer also to the earlier submission made by the Advocates for Human Rights, the Center for Prisoners’ Rights and the World Coalition Against the Death Penalty and state our support for the recommendations made therein.

 

Dated: 13 September 2017
Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Center for Prisoners’ Rights Japan


Forum 90, Japan

Ichiyou-kai, Japan

Inter-religious Network “Stop the Death Penalty!”, Japan

Japan Catholic Council for Justice and Peace, Sub-Committee for Abolition of the Death Penalty

Jesuit Social Center Tokyo

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

ODHIKAR, Bangladesh

Christian Development Alternative (CDA), Bangladesh

Norden Directions, Australia

Democratic Commission for Human Development, Pakistan

Think Centre, Singapore

Civil Rights Committee of  Kuala Lumpur And Selangor Chinese Assembly Hall, Malaysia

 

  • 
    

JAPAN – UPR Joint Submission by ADPAN and 14 CSOs,

JAPAN: The Death Penalty

 For the United Nations Universal Periodic Review of Japan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and

14 Civil Society Organisations (CSOs) listed below

 

Since the last UPR of Japan in 2012, 26 persons have been executed from 2012 to 2017, whereby 2 have been executed in 2017. A total of 36 death sentence have been finalized from 2012 to 2016. As of the end of 2016, there are 128 persons on death row.

Death penalty continues to exist in statute books  for crimes that do not result in the death of any  victim.

Whilst, we continue to call for the abolition of the death penalty in Japan, and for a moratorium on all executions pending abolition, we would like to highlight specific concerns concerning the death penalty and unfair trials, which we hope would form part of UN member states recommendations at the upcoming UPR.

In brief,  besides calling for the abolition of the death penalty, and an immediate moratorium on all executions, we are hoping that the following specific recommendations be made to made to Japan:-

 

– That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

 – That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. We recommend a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

 

  1. REFORM OF THE ‘LAY JUDGE SYSTEM’ COURTS – UNANIMOUS DECISION FOR DEATH PENALTY
  2. In 2009, a new trial system was introduced, known as the ‘lay judge system’, whereby serious cases like murder that carry the death penalty are conducted before 6 ordinary citizens and 3 career judges. All that is required for the death penalty to be imposed is a simple majority, which includes 1 vote from one of the 3 career judges.
  3. As of March 2015, prosecutors have sought the death penalty for 31 persons, and the ‘lay judge system’ courts have handed down the death penalty for 23 cases, which is about 74%. In comparison, when such cases were tried and finalized between 1980 and 2009 before career judges, only about 55% received the death sentences in cases where the prosecution sought the death penalty.
  4. There is an unnecessary and even dangerous risk of injustice for a person to be sentenced to death in a situation when the decision of the court is only based on a simple majority decision of a ‘lay judge system court’. This is because legally trained and experienced judges are typically more likely to apply reason and law dispassionately to the facts. In serious cases of dreadful crimes, international experience over time and cultures shows that legal training and experience are essential qualities in the application of fair legal reasoning. After all, that is why all countries have legally trained people administering justice. Under the lay judge system at this time, the experienced legally trained judges can be outvoted by the lay jury.
  5. Justice demands that a decision to impose the death sentence should be unanimous. In the United States of America, a conviction and a death sentence requires a unanimous jury verdict in the Federal Government and all states save 2. Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote. This is a similar position that exists in many other jurisdictions, which still have the jury system when it comes to criminal cases.
  6. Overwhelmingly, although it is expressed in different language in different systems, courts need to be satisfied beyond reasonable doubt before a finding of guilt in serious criminal matters. This is a much higher standard than ‘on balance’ or ‘by majority’. Similar reasoning should apply to the question of whether to execute – the tribunal should be satisfied by a significant margin. We say that a unanimous verdict should be required before a person is to be put to death.
  7. As such, in the Japanese ‘lay judge system’ courts, a simple majority decision of a panel of 9 persons (6 lay persons and 3 judges) has the potential to be unjust. The fact that 4 other persons, which may also include 2 of the 3 experienced career judges  decided not to convict and/or impose the death penalty is very relevant and should not be ignored.

RECOMMENDATION :That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

  1. MANDATORY APPEALSAND CONSIDERATION FOR CLEMENCY BEFORE EXECUTION
  2. On 13/7/2017, Koichi Sumida and another were executed at the Hiroshima Detention Center and Osaka Detention Center respectively.
  3. Sumida was sentenced to death in lay judge trial held in February 2013, and there were no appeals, which means that no higher courts and/or bodies had the opportunity of reviewing the decisions of the first court.
  4. This is the third execution of an inmate whose death sentence that was imposed by the ‘lay judges system’ courts did not go on appeal to the High Court, or the further appeal to the Supreme Court.
  5. The reasons why this persons who were sentenced to death did not choose to exercise their right to appeal is a mystery.It is not clear why they did not file appeals, or why they later chose to withdraw their appeal as was by Sumida.
  6. Some, amongst death row inmates call this “volunteer”. Some just wish to be executed, having given up the will to live. It is akin to a desire to commit suicide.
  7. It is a fact that courts can make mistakes, and it is not uncommon in most jurisdictions that appeal courts do overturn convictions and/or sentences.
  8. As an example, it must be pointed out that the Tokyo High Court, did overturn lay judges court’s decisions to impose the death penalty in three cases, which were subsequently upheld by the Supreme Court in 2015. The absence of an appeal, would have not allowed the High Court and/or higher courts correct errors made and save lives.
  9. In many jurisdictions, in capital cases, a plea of guilty will not be accepted. The trial will have to proceed to enable the courts to make its own determination based on the evidence adduced, that the said accused person is proven to be guilty in accordance to the required standard of proof in a criminal case, and thereafter whether evidence adduced and the circumstances of the case justify the imposition of the death penalty.
  10. The rationale behind this practice in capital cases, is the desire of the State to ensure that there is no miscarriage of justice, and no innocent person or convicted person not deserving to be sentenced to death, is wrongly sentenced to death.
  11. Applying the same rationale, there is a need to put in place a mandatory appeal system, that will require all cases of persons sentenced to death, to have their cases mandatorily brought before the Appeal courts in Japan, to enable the Appellate courts to review not just the death penalty, but also the conviction that resulted in the death sentence.
  12. In the case of Japan, this would mean that there shall be an appeal to the High Court, and thereafter a further appeal to the Supreme Court for all cases where the convicted has been sentence, irrespective of whether the convicted chooses not to appealthe conviction, and/or the death sentence.
  13. In the same way, after all appeals are done, all cases that carry the death sentence, shall go through the existing clemency process in Japan, noting that a such process could also decide to commute the death sentence to a prison sentence, or even result in a full pardon in exceptional cases.
  14. In such capital cases, if the accused and/or convicted, do not have a lawyer, then the court shall appoint a lawyer to act on behalf of the said accused.

RECOMMENDATION:- That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. There should be a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

We refer also to the earlier submission made by the Advocates for Human Rights, the Center for Prisoners’ Rights and the World Coalition Against the Death Penalty and state our support for the recommendations made therein.

 

Dated: 13 September 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Center for Prisoners’ Rights Japan

Forum 90, Japan

Ichiyou-kai, Japan

Inter-religious Network “Stop the Death Penalty!”, Japan

Japan Catholic Council for Justice and Peace, Sub-Committee for Abolition of the Death Penalty

Jesuit Social Center Tokyo

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

ODHIKAR, Bangladesh

Christian Development Alternative (CDA), Bangladesh

Norden Directions, Australia

Democratic Commission for Human Development, Pakistan

Think Centre, Singapore

Civil Rights Committee of  Kuala Lumpur And Selangor Chinese Assembly Hall, Malaysia

 

 

See related posts:-

JAPAN – Recommendations and Japan’s Responses in previous UPRs on the issue of Death Penalty

JAPAN: The Death Penalty – UPR Submission by Advocates for Human Rights, Center for Prisoners’ Rights and World Coalition Against the Death Penalty