By Ben Perlmutter
This summer, the Islamic State filled headlines across the world for its filmed decapitation of American and European journalists and aid workers. President Obama called the beheading of American journalist James Foley “an act of violence that shocks the conscience.”[1] While the Islamic State’s beheadings are undoubtedly morally evil, similar affronts to human dignity are occurring with legal sanction in the United States and Japan. The United States and Japan are the only two liberal democracies in the world that continue to sentence criminals to death. Moreover, both states’ death penalty legal processes for sentencing and executing are profoundly procedurally flawed. The United States and Japan must follow the example of their fellow liberal democracies around the world, in addition to many far less human rights-respecting states, and abolish the death penalty.
Amnesty International (AI), a world-renowned human rights NGO, condemns the death penalty as, “the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice.”[2] Other human rights organizations such as Human Rights Watch and the Council of Europe likewise oppose the death penalty in all cases, regardless of the crime. [3][4]
While the death penalty is still present and active in many countries across the world that have generally bad human rights records, the United States and Japan are the only liberal democracies that still execute their prisoners. The other countries continue to use the death penalty include rampant human rights abusers, such as China, Iran, and Iraq. Even Russia, which has recently escalated its human rights suppression to levels not seen since communism, does not permit the death penalty.
Not only do Japan and the United States regularly execute criminals, the death penalty systems of both countries possess serious procedural flaws. Japan has 127 people on death row, as of the end of August.[5] The Japanese procedure for executions is shrouded in secrecy. Often inmates on death row are only given a few hours notice before their execution, while the inmates have to wait on average eight years and five months between their sentencing and being put to death. There is no clearly discernable system for determining when the executions actually happen. The death row inmates have very limited contact with the outside world while they are awaiting their execution, usually in solidary confinement. Death row inmates can rarely see their family while awaiting their execution and their family members usually only find out about the execution after it happens.[6]
The Japanese death penalty system is even worse because there is dubiously high conviction rate and little appeals process. The conviction rate for criminal trials is extremely high in Japan—99 percent.[7] The Japanese conviction rate is so high because the prosecutors and the magistrates that decide if the accused are guilty are part of the same social circles, and often have strong personal and professional relationships with each other. Moreover, there is little appeals process for those convicted of the death penalty to challenge their death sentence.[8]
The flaws in the Japanese death penalty system were highlighted this April, when the longest serving death row inmate in the world, Iwao Hakamade, was released after serving 48 years on death row. Evidence had been present since the 1980s that brought Mr. Hakamada’s guilt into doubt. Mr. Hakamada was only able to get a retrial in March 2014, and that was only after a large international movement, including a petition for retrial by the judge who originally sentenced him.[9]
After the retrial was finally granted, Mr. Hakamade was quickly found not guilty with the help of recent developments in DNA technology, in addition to the large body of evidence that supported his innocence.[10] Mr. Hakamade is 78 now and senile. Some activists have even argued that his senility occurred as a result of the mental toll of his near-50 years of solidary confinement. He has lost the vast majority of his life to these Byzantine Japanese criminal procedures.[11]
While the particular series of bureaucratic hurdles that Mr. Hakamada had to go through to obtain his freedom in Japan would not occur in the United States, the American death penalty system nonetheless contains many of its own inhumane procedures that make an already inhumane practice even worse.
In the United States, death penalty sentencing is racially biased. Judges and juries are more likely to give African Americans a death sentence if they kill a white person than if they kill a fellow African American. This bias reflects underlying racial biases in American society.[12]
There is also class bias in death penalty sentencing in the United States. Criminals who receive death sentences tend not to be able to afford their own attorney, and instead receive inferior public defenders. Wealthier defendants who commit comparable crimes can afford their own attorneys and therefore receive more favorable sentences.[13]
Executions usually occur by lethal injection in the United States, during which convicts are intravenously injected with a “cocktail” of sedatives to incapacitate them, and then poison to finish the job. In recent years, European pharmaceutical companies have stopped selling the main drugs used in these cocktails, sodium thiopental and pentobarbital, to American penal systems out of moral opposition to executions. As a result, prisons have had to experiment with whatever drugs they can get their hands on. Moreover, states are secretive about the drugs that they use because the American drug companies that manufacture the drugs want to avoid public backlash.[14]
This had led to horrifying results. These secret experimental death cocktails do not work as intended approximately seven percent of the time, according to Dr. Austin Sara. Dr. Dara is the author of Gruesome Spectacles, a book about the death penalty in the United States.[15] In April 2014, a horrifically botched execution occurred in Oklahoma. As death row inmate Clayton D. Locket was being given a new experimental lethal injection cocktail, he started withering and gasping on the execution table. It took him 45 minutes to die. One of Mr. Lockett’s lawyers, Dean Sanderford, said, “it looked like torture.”[16]
To be sure, there are groups within both the United States and Japan that are actively working to abolish the death penalty. The National Coalition to Abolish the Death Penalty in the United States and the Anti Death Penalty Asia Network in Japan both support and campaign for the abolition of the death penalty in their respective countries.[17][18]
The European Union (EU) has also actively campaigned for the abolition of the death penalty in the United States and Japan. In 2009, for example, the EU issued more than 30 statements about death penalty cases from around the world, including those in the United States and Japan.[19] More recently, the High Representative of the European Union for Foreign Affairs and Security Policy, Catharine Ashton, issued a public statement condemning the state of Oklahoma for the botched execution of Mr. Lockett. The statement shames the executors for their torturous means of execution and furthermore calls for the banishment of the death penalty.[20]
The United States and Japan should follow the example of the rest of the world’s liberal democracies and scrap the death penalty. It is an inherently inhumane act for the state to kill one of its citizens, and it is specifically depraved to execute convicts via the severely flawed legal procedures of the United States and Japan. The continued use of the death penalty is a blatant violation of the liberal principles that both states allege to uphold. United States and Japan: kill the death penalty.
[1] Sink, Justin. “Obama: Entire World ‘appalled’ at ISIS Execution of US Journalist.” Thehill.com. August 20, 2014. Accessed October 26, 2014.
http://thehill.com/homenews/administration/215597-obama-calls-on-world-to-kill-cancer-of-isis.
[2] Amnesty International. “Abolish the Death Penalty.” Amnesty.org. 2014. Accessed October 26, 2014. http://www.amnesty.org/en/death-penalty.
[3] Human Rights Watch. “Death Penalty.” Hrw.orh. 2014. Accessed October 26, 2014. http://www.hrw.org/topic/retired-terms/criminal-justice/death-penalty.
[4] The Council of Europe. “The Council of Europe, a Death Penalty Free Area.” Coe.int.
2014. Accessed October 26, 2014. http://hub.coe.int/what-we-do/human-rights/death-penalty.
[5] Amnesty International. “Japan: Secret Execution as Authorities Ignore Calls for Reform.” Amnesty.org. August 29, 2014. Accessed October 26, 2014.
http://www.amnesty.org/en/news/japan-secret-execution-authorities-ignore-calls-reform-2014-08-29.
[6] Ibid.
[7] The Japan times. “Amnesty International Slams Japan’s ‘secrecy’ on DeathPenalty.” Japantimes.co.jp. March 27, 2014. Accessed October 26, 2014.
[8] Ibid.
[9] The Japan times. “Ex-judge Denied Visit to Inmate.” Japantimes.co.jp. July 3, 2007. Accessed October 26, 2014. http://www.japantimes.co.jp/news/2007/07/03/news/ex-judge-denied-visit-to-inmate/#.VCHGHS5dVY4.
[10] The New York Times. “Japan’s Death Row.” Nytimes.com. April 6, 2014. Accessed October 26, 2014. http://www.nytimes.com/2014/04/07/opinion/japans-death-row.html.
[11] Ibid.
[12] Amnesty International. “Death Penalty Facts.” Amnestyusa.org. May 2012. Accessed October 26, 2014. http://www.amnestyusa.org/pdfs/DeathPenaltyFactsMay2012.pdf.
[13] Ibid.
[14] Plumer, Brad. “Botched Executions Have Been around as Long as the Death Penalty.” Vox.com. April 29, 2014. Accessed October 26, 2014. http://www.vox.com/2014/4/29/5666706/botched-executions-have-been-around-as-long-as-the-death-penalty.
[15] Ibid.
[16] Eckholm, Erik. “One Execution Botched, Oklahoma Delays the Next.” Nytimes.com. April 29, 2014. Accessed October 26, 2014. http://www.nytimes.com/2014/04/30/us/oklahoma-executions.html.
[17] National Coalition to Abolish the Death Penalty. Ncadp.org. 2014. Accessed October 26, 2014. http://www.ncadp.org/.
[18] Anti Death Penalty Asia Network. Adpan.net. 2014. Accessed October 26, 2014. http://adpan.net/.
[19] European Union. “EU Policy on Death Penalty.” Europa.eu. 2014. Accessed October 26, 2014. http://eeas.europa.eu/human_rights/adp/index_en.htm.
[20] The European Union. “Statement by EU High Representative on the Execution of Clayton Lockett in the US State of Oklahoma.” Europa.eu. May 9, 2014. Accessed October 26, 2014. http://eeas.europa.eu/statements/docs/2014/140509_01_en.pdf.
