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English>Statements and Opinions>Opinion Papers>Proposal on a System Design for Alternative Punishment Following the Abolition of the Death Penalty

Proposal on a System Design for Alternative Punishment Following the Abolition of the Death Penalty


November 15, 2022

Japan Federation of Bar Associations



Towards abolishing the death penalty, the Japan Federation of Bar Associations (the “JFBA”) has published the “Declaration Calling for Establishment of Measures for Rehabilitation of Convicted Persons and Cross-Society Discussion on Abolition of the Death Penalty” in 2011 (adopted at the 54th JFBA Convention on the Protection of Human Rights), followed by the “Declaration Calling for Reform of the Penal System Including Abolition of the Death Penalty” in 2016 (adopted at the 59th JFBA Convention on the Protection of Human Rights), calling on the government to reform the penal system to make it a system which aims for the true reformation and rehabilitation of convicted persons, to abolish the death penalty, and to consider possible alternatives to the death penalty following its abolition. The JFBA has also published the basic propositions in 2019 and commenced detailed examinations on a system design for alternative punishment, by organizing items for consideration pertaining to designing a judicial proceeding system of commutation. This includes the introduction of the sentence of life imprisonment without the possibility of parole as a new maximum punishment, and the establishment of a change of punishment proceeding system, from life imprisonment without the possibility of parole to an indefinite life sentence with the possibility of parole, which is to be granted in exceptional circumstances.


Through such examination, the JFBA compiled the “Proposal on a System Design for Alternative Punishment Following the Abolition of the Death Penalty” dated November 15, 2022, in which we proposed introducing a “custodial sentence of life imprisonment without the possibility of parole” and establishing a special proceeding through which a custodial sentence of life imprisonment without the possibility of parole can be commuted to a custodial sentence of indefinite imprisonment with the possibility of parole (the “special judicial proceeding system for commutation”), and submitted it to the Prime Minister, the Minister of Justice, the Speaker of the House of Representatives, and the President of the House of Councilors on November 17, 2022.

Summary of the JFBA Proposals


1. Proposal to abolish the death penalty and introduce a “custodial sentence of life imprisonment without the possibility of parole” as a new maximum sentence in place of the death penalty.


2. A custodial sentence of life imprisonment without the possibility of parole shall be established in such a way that Article 28 (concerning parole) of the Penal Code will not be applied, which is different from life imprisonment or life imprisonment without work under the current Penal Code (imprisonment or imprisonment without work will be abandoned as of the date specified by Cabinet Order within a period not exceeding three years from the date of promulgation (June 17, 2022) of the act partially amending the Penal Code and other related acts and be integrated into a new custodial sentence) (life imprisonment and life imprisonment without work imposed prior to enforcement and a custodial sentence of indefinite imprisonment with the possibility of parole to be imposed after enforcement are hereafter collectively referred to as “a custodial sentence of indefinite imprisonment with the possibility of parole”).


3. Proposal to newly establish a special proceeding of commutation for sentenced persons who have previously been given a custodial sentence of life imprisonment without the possibility of parole but have satisfied certain requirements such as showing signs of substantial reformation, wherein their sentence can be commuted to a custodial sentence of indefinite imprisonment with the possibility of parole (the “judicial proceeding system for special commutation”).


When such commutation is granted under this system, the statutory period for which the inmate whose sentence has been commuted is required to be incarcerated before they can be paroled is to commence on the day on which the judgment granting commutation becomes final.


4. As for the details of the system design for the judicial proceeding system for special commutation in the preceding paragraph, the JFBA proposes that the following items as listed in the aforementioned basic propositions by the JFBA Council on October 15, 2019 be considered.

      1. ) “The form” of the judicial proceeding system for special commutation in the legal structure should be by the enactment of a new act, the (tentatively named) “Act on the Judicial Proceeding System for a Custodial Sentence of Life Imprisonment without the Possibility of Parole”.
      2. ) “The agency(ies)” that govern(s) the judicial proceeding system for commutation should be courts.
      3. ) “The period” for which inmates who have been given a custodial sentence of life imprisonment without the possibility of parole are required to be incarcerated before they can file a petition for special commutation (the “minimum period of incarceration before filing a petition for special commutation”) should be 15 or 20 years
      4. ) As for “elements to be considered” in judging the special commutation, it goes without saying that “the inmate is showing signs of substantial reformation through correctional treatment programs and other activities” needs to be included. In addition, further examination is required to determine whether or not to also include “whether social conditions are at such a state from an objective point of view that such commutation in the case in question would not be rejected” as an element to be considered.
      5. ) As for “the collection of evidence” for the assessment for special commutation:

        (i) The warden of the penal institution where the inmate is being incarcerated should be obliged to submit materials and records on the inmate which are collected and kept at the institution. In addition, the right of the inmate, their family members, and the family members of the victim to submit evidence for consideration should be granted, as appropriate.

        (ii) The establishment of a system to allow expert examination to be carried out on the inmate’s physical and mental conditions should be also considered.

      6. ) As for “the mode of court sessions and type of adjudication by courts,” the mode of court sessions should be trial proceedings*1 and adjudication should be reached by a panel of judges serving as a council.
      7. ) As for the “jurisdiction of courts,” the district court which is situated at the place where the inmate is being incarcerated should be the court of first instance.
      8. ) As for the “individuals who are eligible to file a petition” for special commutation, besides the inmate, their spouse and relatives within the third degree of kinship, the warden of the penal institution where the inmate is being incarcerated, and public prosecutors can also be considered, on the condition that such petition is not filed against the inmate’s will.
      9. ) As for “the criteria for filing a petition for special commutation and the grounds for disqualification,” it can be considered:

        (i) That the minimum period of incarceration before filing a petition for special commutation has passed;

        (ii) to make it part of the criteria that the inmate shall not be under criminal investigation or on trial in criminal cases at the time of the filing of a petition. *2,3

      10. ) As for “appeal against pronouncements and refiling of a petition,”

        (i) The right to appeal against a pronouncement of a judgment against the inmate should be granted. However, if the right to appeal is granted, the public prosecutors’ power to file an objection should be denied.

        (ii) A system should be designed to allow inmates whose previous petition(s) for special commutation has(have) been dismissed to file a new petition after the expiration of a period of time, as long as there is still a possibility of successful rehabilitation of the inmate.

      11. ) In the judicial proceeding system for special commutation, the right to appoint an attendant who advocates for inmates should be granted. The establishment of a court-appointed attorney attendant system for inmates should be also considered.


5. The JFBA published its “Opinion Calling for Improving the Parole System for Indefinitely Incarcerated Inmates” dated December 17, 2010, in which we pointed out that life imprisonment or imprisonment without work is effectively being applied as life imprisonment without the possibility of parole despite the applicability of the parole system for such inmates (Article 28 of the Penal Code), and the situation has not improved at all to this day. Accordingly, apart from introducing a custodial sentence of life imprisonment without the possibility of parole, the JFBA again strongly urges immediately improving the application of the parole system for indefinitely incarcerated inmates as proposed in the opinion paper.


Furthermore, our proposal for introducing a custodial sentence of life imprisonment without the possibility of parole is meant to propose a new maximum sentence in place of the death penalty should it be abolished. In other words, the sentence is meant as an appropriate sentence for vicious crimes that have been deemed capital offenses. Thus, the JFBA strongly requests careful deliberation and examination by judicial professionals in applying the sentence to ensure that its introduction will not lead to it being imposed without careful consideration in cases in which the death penalty would not be warranted and a custodial sentence of indefinite imprisonment with the possibility of parole would be deemed an appropriate sentence.


6. A system shall be implemented to ensure that inmates who have been given a custodial sentence of life imprisonment without the possibility of parole are treated in a manner that respects their dignity. Specifically, examinations need to be carried out on correctional treatment prescribed in the Act on Penal Detention Facilities and Treatment of Inmates and Detainees (the “Act on Treatment of Inmates and Detainees at Penal Detention Facilities”) as to whether the same correctional treatment should be given to those who have been given a custodial sentence of life imprisonment without the possibility of parole and those with the possibility of parole, and whether there should be any difference in correctional treatment between these two groups. Also, as for guidance for reform and guidance in school courses, an examination needs to be carried out on the details of each objective of correctional treatment*4 according to international human rights standards.




*1: As for whether to make the sessions open to the public or not, it can be considered that not every phase of the sessions needs to be open to the public.
*2: There is no need to disallow the filing of a petition for special commutation by an inmate on the ground that a request for a retrial by the particular inmate is pending. Just because the inmate is exercising their right to file such a request does not immediately mean that the inmate is not showing signs of reformation, and such disallowance would infringe the right to request a retrial. When deciding whether the inmate is allowed to be re-integrated into society in the future, it is sufficient to take into consideration the degree of reformation the inmate is showing while carrying out a comprehensive assessment of the inmate.
*3: The JFBA has called for reforming disciplinary punishments on inmates in its “Proposal for a Reform in Light of the Fifth-Year Review on the Act on Treatment of Inmates and Detainees at Penal Detention Facilities After its Enforcement” dated November 17, 2010 and has pointed to the current practice of punishing inmates in its “Opinion Calling for Improving the Parole System for Indefinitely Incarcerated Inmates” dated December 17, 2010. The seriousness of grounds for disciplinary punishments varies. Therefore, it is inappropriate to not accept a petition for special commutation from an inmate on the ground that a disciplinary punishment has been imposed on them.
*4: The primary focus will be on the objectives towards commutation and at which point correctional treatment is to be shifted to treatment with the objective toward reintegration into society.





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