Declaration Calling for Reform of the Penal System Including Abolition of the Death Penalty
When a crime is committed, how should we deal with it? How can an offender come to feel and express genuine remorse for his or her crime, and avoid reoffending?
Policy for supporting victims of serious crimes and their families should be designed to provide the continuous support necessary for them, from the moment the crime is committed, and society as a whole should be responsible for providing such support. Serious crimes which result in the loss of life should never be tolerated, and the victims of such crimes can never be brought back. It is quite natural for bereaved families to seek severe punishment for offenders.
On the other hand, no one is born to be a criminal. Many offenders commit crimes against a backdrop of familial, financial or educational problems, and are often socialized in environments where they lack moral guidance and experience social discrimination. Our experience as defence counsel helps us to realize that sometimes people lose their sense of humanity and commit egregious crimes, but that they may come to regret what they have done and change their character if they are provided with proper assistance which encourages awareness of their problems.
Given this perspective, the penal system should not function merely for retributive purposes. It should also contribute to the recovery of humanity, and the rehabilitation and social inclusion of offenders, based on the principle that the inherent dignity and value of convicted persons as human beings should be respected. This idea, which was suggested by the Penal Reform Committee established by the Minister of Justice in 2003, and which was later affirmed by the government’s Crime Countermeasures Ministerial Meeting, aids in preventing reoffending and achieving a safer society.
We, the Japan Federation of Bar Associations (the “JFBA”), hereby issue this Declaration in consideration of the earlier Declaration Calling for Establishment of Measures for Rehabilitation of Convicted Persons and Cross-Society Discussion on Abolition of the Death Penalty (also known as the “Takamatsu Declaration”). The Takamatsu Declaration, issued on October 7, 2011 on the occasion of the 54th Convention on the Protection of Human Rights, reflected the belief that our objective should be a society free from the death penalty. Since then, the JFBA has worked to implement the Takamatsu Declaration. We also take into account the fact that there have been some significant developments in both the national and international situations with regard to the death penalty and criminal justice since the Takamatsu declaration was issued.
The revised UN Standard Minimum Rules for the Treatment of Prisoners (also known as the “Nelson Mandela Rules”) were adopted by the United Nations (the “UN”) General Assembly in 2015, and represent the minimum standards required for respecting the inherent dignity and value of prisoners as human beings, and accomplishing their rehabilitation. Japan should take responsibility for drastic reform of its criminal detention system in accordance with these Nelson Mandela Rules. For example, in 2013, the Committee on Economic, Social and Cultural Rights (the “CESCR”) recommended that the Japanese government abolish imprisonment with forced labour, in line with Article 6 of the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”).
In particular, when considering reform of the penal system as a whole, we need to take account of the fact that the death penalty denies the right to life guaranteed in Article 6 of the International Covenant on Civil and Political Rights (the “ICCPR”), which lies at the core of the idea of fundamental human rights, and that the UN Human Rights Committee and UN Human Rights Council have both urged the Japanese government to give due consideration to the abolition of the death penalty.
Many countries around the world have abolished the death penalty in the last few decades, and at its 69th session on December 18, 2014, the UN General Assembly adopted a resolution calling for a moratorium on the use of the death penalty. On this occasion 117 states supported the resolution, 38 states (including Japan) opposed it, and 34 abstained. This was the fourth time that a resolution calling for such a moratorium had been passed at the General Assembly, and marked the highest level of support achieved to date. The international trend toward abolition of the death penalty reflects a growing recognition that miscarriages of justice may take place in capital cases, that the death penalty has little deterrent effect for serious crimes, and that, accordingly, there is no clear basis for retention. Against this backdrop of declining support, the UN Congress on Crime Prevention and Criminal Justice, which will discuss reform of criminal justice systems worldwide, is set to be held in Japan in 2020.
Moreover, Japan has had four retrial cases in which a death row prisoner was finally found to be not guilty. Recently, in March 2014, the Shizuoka District Court decided to reopen the “Hakamada Case”, and Mr. Hakamada was subsequently released from death row after almost 48 years of imprisonment. If we retain the death penalty system, wrongful executions are simply unavoidable, because decisions of life or death are made by human beings. Furthermore, under Japan’s criminal justice system, which has many important defects, such as the detention and interrogation of suspects over a prolonged period of time and insufficient disclosure of evidence held by prosecutors, there is a serious risk of miscarriages of justice, and obviously, once a person has erroneously been sentenced to death and executed, the mistake is irrevocable.
Accordingly, the JFBA urges the government to reform the existing penal system into one oriented to the actual rehabilitation and reintegration of offenders, and declares itself to be committed to the realization of such reform. In particular, efforts to reform the system should address the following issues:
1. Reform of the penal system
(1) Amend the Penal Code in order to abandon the current two-track system, which stipulates both imprisonment with forced labour, and imprisonment without forced labour, by abolishing the former and introducing a wage system for prison work. Stipulate that the recovery of offenders’ humanity and their reintegration into society are among the purposes of imprisonment.
(2) Clarify that imprisonment is an exceptional measure which should be used only when an offender cannot be treated in the community, and expand the usage of non-custodial measures by introducing community service orders and/or drug treatment orders for addicted offenders, as alternatives to imprisonment.
(3) Relax the strict conditions with regard to suspended sentences for second convictions, which prevent judges from applying the most suitable sanctions to offenders in accordance with the actual circumstances of their crimes. In other words, amend Article 25 Section 2 of the Penal Code, in order to allow for suspended sentences to be an option even for second offenders who have committed another crime during their probationary period. Further, amend Articles 57 and 59 of the Penal Code, which provide for aggravated punishments for second or further repeated convictions, so as to enable appropriate sanctions to be chosen in accordance with the specific circumstances of the offences.
2. Death penalty system and its alternatives
(1) Aim for the abolition of the death penalty by the year 2020, when the UN Congress on Crime Prevention and Criminal Justice will be held in Japan.
(2) Upon abolition of the death penalty, consider possible alternatives to the penalty, applicable to those most serious crimes for which the death penalty had formerly been applied. Consider life imprisonment without the possibility of parole, or another severe category of life imprisonment, where prisoners need to serve at least 20 or 25 years, instead of the existing 10 years for life imprisonment, before they become eligible for release on parole. However, even when choosing to introduce life imprisonment without the possibility of parole, consider establishing a mechanism which enables decision makers such as courts to commute the sentence to ordinary life imprisonment, or otherwise alter the original sentence, in cases where they find that a prisoner has been rehabilitated by serving time.
3. System for rehabilitation and prevention of reoffending
(1) Codify the conditions for parole and review the role of the Regional Parole Board, by enhancing its independence and revising the composition of the Board. Amend Article 28 of the Penal Code so that concrete criteria for parole are provided by the Code, not the ordinance. Take the measures necessary to facilitate the release on parole of prisoners sentenced to life by, for example, ensuring that parole hearings will be held on a regular basis.
(2) Promote greater cooperation between the corrective/probation services and the social welfare services of the government. Strengthen social measures which are useful for the re-employment, resettlement and life security of offenders. The JFBA is determined to become actively involved in providing assistance for offender rehabilitation by liaising between offenders and welfare services, both at the pre-trial stage, which can prevent offenders from being sent to prison, and the prisoner release stage, which supports the smooth re-entry of prisoners into society.
(3) Fully revise the Act on Penal Detention Facilities and Treatment of Inmates and Detainees, in accordance with the newly amended Nelson Mandela Rules. In this regard, it is necessary to include the following revisions:
A) Remove the gaps between life in prison and life in society at large, so that imprisonment does not hamper the rehabilitation of prisoners. In particular, revamp the rules designed to maintain discipline and order within prisons;
B) Establish prison medical services which are independent from prison authorities;
C) Avoid usage of solitary confinement as far as possible, and;
D) Allow prisoners to maintain their relationships with members of the community, including their families, from the commencement of their detention to the time of their release.
(4) Examine Article 34-2 of the Penal Code on “Extinction of Punishment”, as well as other legal provisions which impose restrictions on the qualification requirements for various professions and hamper the rehabilitation of those convicted and released after serving their sentences, and consequently abolish any unnecessary restrictions.
October 7, 2016
Japan Federation of Bar Associations