8 Conclusion

8.1 The Death Penalty in Japan: How the Book Approached the Issue

Stated at the general level, the question addressed by this book is: to what extent
can the Japanese government defend its approach to the death penalty based on
“popular support”. Is the retention of the death penalty so central to popular trust
in the criminal justice system, that abolition would result in the erosion of politi-
cal and judicial legitimacy? It was hypothesised that the Japanese public was
uninformed about the death penalty due to the secrecy that surrounds its practice,
and that this is driving up support for the death penalty.
In addition to analysing the Government Surveys, the hypotheses were test-
ed by a combination of three types of empirical studies: firstly by a conventional
descriptive survey, secondly using a survey with an experimental design, and
thirdly by an innovative survey design centring around the notion of “delibera-
tion”. The range of methodologies employed in answering the research problem
allowed a thorough investigation of public attitudes to the death penalty from
various angles.

8.2 Taking Stock of the Methodology

The preliminary survey and the experimental survey were administered online to
survey panels. It is hoped that their use, which is not at all developed in the UK,
has persuaded those who were unfamiliar with its methodology to consider its
potential in social science. Maxfield, Hough and Mayhew (2007) argued that
conventional sample surveys are becoming more difficult to mount in the UK
due to their high cost and falling response rates. Although the Crime Survey of
England and Wales has so far managed to achieve 75% response rates consistent-
ly, they argue that the chances of being able to retain a high rate in the future are
low. While random-digit-dialling phone surveys promised two decades ago to be
the alternative to face-to-face-surveys, the declining use of landlines and the
difficulty in contacting the younger generation who rely heavily on mobile
phones have caused problems; for example, in past sweeps of the International

M. Sato, The Death Penalty in Japan,

DOI 10.1007/978-3-658-00678-5_8, © Springer Fachmedien Wiesbaden 2014
182 8 Conclusion

Crime and Victimisation Survey (Ibid.). Online panel surveys have the potential
to be the next pioneer of social survey method, given the low cost and the quick
delivery of large samples. The low cost of online panel surveys makes them
especially ideal for conducting exploratory analysis with a large sample. Expand-
ing computer literacy also indicates that surveying the older generation with
online panel surveys – which is one of its weaknesses at the moment – will in the
near future most likely not be a problem, and its use will secure responses from
younger generations.
The experimental survey which was used to test the Marshall Hypothesis
was unique due to its larger sample size and design. As described in Chapter 2
(“Public attitudes towards the death penalty”), almost all studies testing the Mar-
shall Hypothesis have up to now relied on relatively small convenience samples
using students. The sample in the experimental survey was made up of a sub-
sample drawn from a national representative survey, where special attention was
paid to creating two comparable samples, using a random block design. This
took the examination of the Marshall Hypothesis out of a classroom setting,
testing adults with various social backgrounds, in contrast to the “criminology
majors” with a presumed interest in the death penalty who predominate in US
research on the subject. In this sense, the experimental survey can claim to be a
true experiment measuring the effect of information on death penalty attitudes
among the Japanese public.
The use of the deliberative consultation, inspired by deliberative polling,
provided another methodological contribution to the understanding of attitudes to
punishment. While there is a preference for quantitative analysis by policy mak-
ers, conventional surveys are limited in capturing the nuanced appreciation of
public opinion. Qualitative methods such as focus groups and interviews can, on
the other hand, measure the subtlety of opinion, but findings cannot be general-
ised to the population. Deliberative polling allows you to “have your cake and
also eat it” – providing both quantitative and qualitative evidence. The delibera-
tive consultation might have benefited from a larger and more representative
sample, but it nonetheless provided rich evidence that made sense of some of the
unexplained findings from the preliminary and experimental surveys.
8.3 The Relationship between Information and Death Penalty Attitudes 183

8.3 The Relationship between Information and Death Penalty Attitudes

It was hypothesised that the Japanese public is uninformed as well as misin-

formed about the death penalty and, more generally, about criminal justice mat-
ters. The three studies confirmed these hypotheses.
The lack of knowledge observed in the experimental survey was extensive.
It covered all items, from the method and process of executions, to international
movements towards abolition, to past exonerations of death-row inmates. The
deliberative consultation further contributed to the existing evidence about public
knowledge by demonstrating that participants were also unaware of their lack of
knowledge, thinking that they were more informed than they actually were be-
fore taking part in deliberation. Participants were particularly shocked by the
limited extent of information disclosed by the Japanese government surrounding
its use and application of the penalty. These findings suggest a lack of debate on
the death penalty, and the topic being of low interest to the Japanese public,
despite the apparently high levels of support seen in Government Surveys.
The preliminary survey showed that a substantial proportion of respondents
considered the murder rate to be rising steeply, when in fact the overall trend had
been level. Further public misconceptions emerged in the deliberative consulta-
tion, where participants considered criminal trials to be contests between the
defendant and the victim (or their families), and again expressed the view that
serious crimes were getting out of hand. The interpretation of the role of victims’
families in sentencing – the notion that families’ sense of grievance justifies
severe punishment – is a concern, given that lay-judges are now direct partici-
pants in the sentencing process. If they are swayed by victims’ families’ griev-
ance, there would be serious consequences for the principle of proportionality.
There was evidence in the deliberative consultation of cognitive dissonance,
with respondents interpreting information about the stable murder rates in in-
ventive ways. Some argued that the quality of murder is worsening, or that the
number of murders committed per offender is rising. Not all information items,
however, were interpreted in such a manner. Some information, such as the pro-
cess of execution and everyday life of death-row inmates, was readily accepted
as facts. Whether pieces of information were accepted without reinterpretation
seemed to have nothing to do with the quality or status of the information. In
terms of credibility, information on murder rates was an official figure released
184 8 Conclusion

by the National Police Agency, whereas information regarding the process of

execution and the treatment of death-row inmates was unofficial, gathered by
non-governmental organisations such as the JFBA. It can be argued, therefore,
that the credibility accorded by participants to evidence depended on its capacity
to justify their death penalty positions. Participants needed the murder rate to be
rising to justify the need for the death penalty, and they needed the system to
work without judicial errors that may result in wrongful executions.
The experimental survey addressed the two elements of the Marshall Hy-
pothesis which are concerned with the impact of the provision of information on
punitivity: providing information will decrease public support for the death pen-
alty, but those who support the death penalty due to retributive reasons will not
change their opinion. The experimental survey found that providing information
about the death penalty had a statistically significant impact in reducing support
for it. The largest impact was observed among those who originally were definite
retentionists; in other words, it is not only those with qualified or undecided
views who are susceptible to change. This is an important finding, which con-
tributes to the current empirical evidence, indicating that expressions of strong
support may not in fact reflect entrenched viewpoints.
The increased punitivity observed in the control group was unexpected, and
produced some insights into possible contextual effects on death penalty atti-
tudes. It was suggested that the current climate of opinion, which views crime
and justice issues from the victims’ perspective and uncritically supports the
death penalty, made respondents in the control group more enthusiastic about
retention than they were in the preliminary survey. This could have been because
the experimental survey had a more explicit focus on the death penalty than the
preliminary survey – prompting people to respond according to social expecta-
tions. Alternatively, there may have been a real increase in levels of punitivity
between the two surveys. Parallels may be drawn between the findings from the
control group and what is currently being observed in the US, where support for
the death penalty has been declining, with strong evidence pointing to increased
public awareness of judicial errors surrounding the death penalty. While the
experimental provision of information has demonstrated the malleability of atti-
tudes, it seems these attitudes have a natural fluidity, probably reflecting the
provision of information through the media. The positive framing of the death
penalty debate in Japan may have moved respondents to view retention as a
8.4 The Effect of Deliberation on Death Penalty Attitudes 185

necessity, and the negative framing of the penalty in the US appears to have led
to a decline in support.
Fluidity in attitudes was further considered by examining whether the im-
pact of information indiscriminately influences attitudes to the death penalty. It
was hypothesised that retentionists who support the death penalty due to retribu-
tive reasons would not change their opinion. In other words, this hypothesis
compares the relative importance of knowledge-based factors and symbolic fac-
tors – in this case retribution – in explaining death penalty support. The analysis
found some support for this element of the Marshall Hypothesis, but the provi-
sion of information still had some impact on those with retributive views. Hold-
ing retributive attitudes was a slightly stronger predictor of attitudes than the
provision of information – although both variables in the model were statistically
significant. From a policy perspective, the knowledge-based factors having simi-
lar explanatory power to retributive attitudes is important. This suggests that
public attitudes to the death penalty have the potential to be reframed through the
provision of information.
Lastly, in examining fluidity of attitudes, fragility was observed when
providing concrete questions on the death penalty. The experimental study found
that less than half of the respondents who expressed support for the death penalty
in the five-point scale question were prepared to pass a death sentence. This
finding is particularly important for policy, because whether or not a person is
willing to sentence a defendant to death is not a hypothetical question. It is a real
scenario that the Japanese public is currently facing with the lay-judge system.

8.4 The Effect of Deliberation on Death Penalty Attitudes

Questions on the impact of deliberation were mainly answered by the results of

the deliberative consultation, though the experimental survey provided some
indication of the potential power of dialogue. It found that respondents who had
discussions about the death penalty comprised a higher proportion of abolition-
ists, which provided a provisional link between deliberation and death penalty
attitudes and a direction for the hypothesis: deliberation will decrease public
support towards the death penalty. The deliberative consultation found that there
was no statistical change between pre- and post-deliberation: nearly half of the
186 8 Conclusion

participants remained in the same position, with the remainder divided between
those moving towards retention and those moving towards abolition. The lack of
overall change should not be understood as evidence that deliberation had no
effect on death penalty attitudes. Instead, there is strong evidence that delibera-
tion actually had a great deal of impact in changing participants’ attitudes to the
death penalty, perhaps even more than was observed in the experimental survey.
Evidence for this is largely qualitative, and was gathered during and after
the deliberation process. Furthermore, the examination of qualitative evidence in
turn explained the inadequacies of the quantitative measure which was used in
measuring attitudinal change by deliberation. Firstly, follow-up interviews from
participants who did not change their position on the death penalty brought to
light the contradictions and struggles of participants torn between retention and
abolition. This ambivalence was not only found among those with qualified or
undecided views, but also among definite abolitionists and retentionists. Modera-
tors who led the group discussions described the nature of dialogue from the first
discussion group to the second as a shift from “conflict” to “accommodation” –
with less of a clear divide between retentionists and abolitionists. Deliberation in
fact led to increased levels of tolerance towards, and understanding of, partici-
pants with different viewpoints, resulting in contradictory opinions and doubts
over their initial position, as well their newly held position, on the death penalty.
These qualitative findings expose the limitation of the quantitative measure
used to capture change in the way the death penalty was perceived. The five-
point scale question used in the pre-survey may have been adequate for partici-
pants before deliberation. However, answering the same question in the post-
survey appears to have become a more difficult task, as their death penalty atti-
tudes had become more complex and multifaceted through deliberation. A ques-
tion measuring the degree of tolerance towards abolition would have been more
suitable, and may in this case have achieved statistical significance, despite the
small sample size. A clear example of the five-point scale question not doing its
job was found in a follow-up interview, with a participant who moved from be-
ing undecided to a retentionist. The interview revealed that she believed, after
deliberation, that the practice of execution should be halted, but that the death
penalty should be kept on the statute book as a symbol of the most severe pun-
ishment to deter potential criminals, and for general education purposes.
8.4 The Effect of Deliberation on Death Penalty Attitudes 187

In assessing the impact of deliberation in comparison to the information

presented in the experimental survey, it should be remembered that the latter was
a result of attitudinal manipulation through information only. Participants alone
considered the information presented to them. However, in addition to the provi-
sion of information, participants at the deliberative consultation were exposed to
others, with whom they engaged in a dialogue for a whole day. This exposure
offered the time and space to receive and offer confirmation and disagreements
of death penalty attitudes among participants, including discussions on the inter-
pretation of facts. More importantly, participants were exposed to other partici-
pants’ beliefs and values, which were separate from information that shaped their
death penalty positions. This unique element characterising the deliberative pro-
cess can explain participants’ ambivalence and increased confusion as to what
should be done about the death penalty.
However, increased tolerance of abolition did not automatically equate with
increased tolerance of leniency in sentencing. It is true that when looking at the
differences between reasons for retention in pre- and post- deliberation, there is a
change in the nature of support towards a more lenient angle. The support
changed from an uninformed instrumental belief (for example, in general deter-
rence) and a “positive” choice (for example, life-for-life retribution) to a “reluc-
tant” reason (for example, the death penalty being the most severe punishment
under current law, and the lack of life imprisonment without parole). However,
these “reluctant” reasons – especially the lack of life imprisonment without pa-
role – were debated extensively in terms of which was the more punitive penalty.
There were even discussions as to how the current sentence of life imprisonment
can be modified to make prison conditions harsher and to create a sentence so
severe that it would make prisoners “wish for a death sentence”.
Lastly, with respect to the effect of deliberation, there is the possibility that
deliberation can influence and change broader attitudes (such as a desire for
retribution), labelled in this book as symbolic factors. It is usually assumed that
these are deep-seated attitudes which will be consistent over time, regardless of
exposure to new information. However, shifts in these attitudes were observed,
according to the pre- and post-surveys. Deliberation may therefore have changed
not only attitudes to the death penalty, but also some underlying core attitudes.
188 8 Conclusion

8.5 Validity of the Government Survey

The validity of the Government Surveys was first assessed by using all available
information disclosed by the Japanese government. Response rates were exam-
ined, along with the framing of questions used to measure death penalty atti-
tudes. There was a large disparity in response rates between the older and the
younger generations, as well as between men and women. In particular, men in
their 20s were the most under-represented group, which was also the group most
likely to support abolition. Taking into consideration that no correction for non-
response was applied to the sample, it was argued that the results of the Govern-
ment Surveys should be interpreted with caution, as they may over-represent
proportions of retentionists. It was also argued that the wording of the Govern-
ment Survey question is likely to maximise support for retention.
These criticisms were put to the test empirically in three surveys. The pre-
liminary survey showed that around half of the respondents were undecided or
unsure, showing that most respondents do not really have a pre-formulated opin-
ion on the death penalty. This is in significant contrast to the Government Survey
results, and how they have been reported. The experimental survey further
demonstrated the limitations of the wording used in the Government Survey: the
experimental and control groups showed no difference in their response to the
Government Survey question – in contrast to their response to the five-point
scale question. This suggests that the question was too crudely phrased to be able
to pick up on subtle differences in attitudes. The crudeness of design is to be
found in the wide definition of retentionists and the narrow definition of aboli-
tionists, and the lack of any measure of the degree of support for, or opposition
to, the death penalty.

8.6 The Relationship between Trust and Punitivity

The relationship between trust and punitivity was approached from the perspec-
tive that higher trust is linked to less support towards the death penalty, by meas-
uring both institutional and personal trust. The theory behind the direction of the
hypothesis was derived from the understanding that lack of institutional trust
results in the loss of perceived legitimacy of institutions, and creates political
8.7 Taking Stock: The Main Research Question 189

pressures to be punitive in order to maintain state authority. The lack of trust at a

personal level reduces social solidarity, creates fear of others, and results in de-
mands for punitive measures. The preliminary survey found that when people
have lower levels of trust, they are more likely to support the death penalty, thus
confirming the hypothesis. However, this was not the case with the courts. Peo-
ple who trusted the courts were in fact more likely to support the death penalty.
The reason why trust in the courts showed a different set of associations
from other measures of institutional trust and personal trust became clearer in the
deliberative consultation. While the preliminary survey showed relatively high
levels of trust in the courts in comparison to other state institutions, it was not
possible at that stage to establish why this was the case. In the deliberative con-
sultation, participants expressed high levels of trust in the courts in their ability
to offer procedural fairness as well as distributive fairness, including in death
penalty cases. This strong trust led participants to not even contemplate the pos-
sibility of wrongful executions. Strong levels of belief in the courts may be par-
tially explained by the fact that there have not been any cases where the executed
prisoner was found to be not guilty after the execution had taken place. Possibly,
then, “over”-trust in the courts made respondents underestimate the risks of exe-
cution following wrongful conviction. This finding adds to the current theoreti-
cal understanding of trust and punitivity. Although a trusting relationship with
people and institutions creates room for manoeuvre for state institutions to take
progressive measures (for example, to decrease imprisonment rates or abolish the
death penalty), “too much” trust can lead to blind support for punitive measures.

8.7 Taking Stock: The Main Research Question

The central question in this book was: to what extent can the Japanese govern-
ment defend its approach to the death penalty based on “popular support”? There
are two parts to the answer. This book has provided a technical critique of the
Government Survey – discussed in the previous section – along with considera-
ble evidence about the correlates of support for the death penalty. In aggregate,
these point to a particular interpretation of the evidence. The previous section has
argued that the Government Survey evidence regarding majority public support
is flawed. Problems include the wording of the question, the over-representation
190 8 Conclusion

of retentionists through non-response problems, and the inability to capture the

substantial number of people who were undecided or lacked strong views.
Nonetheless, however technically inadequate the Government Survey ques-
tion may be, the fact remains that, as in many other countries, general support for
the death penalty is fairly high in Japan – even when using other questions. This
leads to the second part of the answer to the research problem, which involved
reference to the correlates of support for the death penalty. This book has
demonstrated how factors of knowledge and trust interact to shape attitudes to
the death penalty. The findings showed that the nature of “majority support”
rests on the uninformed and misinformed views about the penalty itself, and
about the criminal justice system, including unrealistic trust in the courts’ ability
to deliver procedural and distributive justice. The argument therefore is that, in
interpreting surveys showing high support for the death penalty, the nature of
support should be examined, specifically measuring attitudes directly underpin-
ning it.

8.8 Policy Implications

At the beginning of this book, arguments were laid down as to why it is im-
portant to examine public opinion about the death penalty in Japan. The point
was made that international human rights treaties, combined with judicial and
political leadership, have been successful in restricting the scope of the death
penalty and increasing the number of abolitionist states across the world. How-
ever, some countries – including Japan – have not followed this trend. Despite
condemnation by international organisations, Japan has to date continued to
execute prisoners without much political damage (for example, it has retained its
observer status in the Council of Europe). In the light of this situation, this book
adopted a unique view of Japanese death penalty policy. It took a step back from
the universalistic claims based on human rights, commonly made by abolitionists
and international organisations when trying to persuade countries towards aboli-
tion, and examined the issue from the retentionist’s perspective – in this case
scrutinising the Japanese government’s argument. In other words, the book has
constructed a critique of the Japanese government’s argument for retention of the
death penalty in its own terms, without relying on human rights arguments.
8.8 Policy Implications 191

As noted throughout this book, the official justification for retention is the
existence of majority public support, reflected in the Government Survey results.
The unreliability of the Government Survey, and the dynamics of knowledge and
trust in shaping opinion, have been made clear in previous sections. This section
considers the implications of the Japanese government’s approach to the death
penalty. It then offers recommendations as to how the government, and policy
makers in other retentionist countries, should interpret and make use of social
survey evidence concerning the death penalty.
Some have argued that any form of responsiveness to public opinion should
be resisted, and that penal policy should be separated from public opinion. One
justification for this is the extent of public ignorance and misunderstanding of
the criminal justice system. Sir Robin Auld dismissed public opinion on the
grounds that people are mostly ignorant or inconsistent in their views. He argued
that it should not be a major determinant in shaping penal policy, as “public
confidence is not so much an aim of a good criminal justice system; but a conse-
quence of it” (Auld, 2001, chapter 1, para. 32). Similarly, Michael Reiterer, the
Minister and the Deputy Head of the Delegation of the European Commission to
Japan, argued that “whether to abolish the death penalty or not, is not an issue to
be determined by popularity polls...It is matter of principle” (Reiterer, 2004).
Following their argument should lead to the conclusion that uninformed and
misinformed views which shape attitudes should not provide states with a justifi-
cation for executing prisoners. Additionally, if high trust is linked to beliefs
about infallible courts, the basis of this trust is not a legitimate reason to uphold
the death penalty (see a similar argument made by Oberwittler and Qi (2009) on
Chinese public attitudes to the death penalty).
However, Lord Bingham stated that he did “not consider it would be right,
even if it were possible, for judges to ignore the opinion of the public” (Lord
Bingham, cited in Roberts, 2002, p. 22). An argument can also be made that
ignorance and misinformation increases the state’s obligation to inform the pub-
lic, and ignorance itself is not persuasive enough to dismiss the public from ex-
pressing their will regarding the criminal justice system (Walker, Hough & Lew-
is, 1988, p. 194). It would be objectionable for state institutions to completely
disregard public opinion, because responsiveness is a central characteristic of
“democracy at work” (Beckett, 1997, p. 4), and ensures that policies do not stray
totally away from the wishes of the public (Robinson & Darley, 1995; Robinson,
192 8 Conclusion

2009; Roberts & Hough, 2005; Garland, 2009; Gottfredson, Warner & Taylor,
1988). As Garland (2009, p. 229) argues:

The experience of recent decades, however, suggests that the era of government by experts is
now over and it is hard to imagine it being re-introduced any time soon. And even were it prac-
ticable, such a solution would raise principled objections. In a democracy, political representa-
tives are obliged to engage with public opinion and edify it where possible by means of educa-
tion, information and deliberative debate.

Thus, even though the polls may be misleading and the public may be misin-
formed and uninformed, it does not seem reasonable to exclude the public voice
totally from debate on criminal justice. The public should be engaged to some
degree in how it would like to be protected and judged by its own criminal jus-
tice systems (Walker, Hough & Lewis, 1988). Ideally, public opinion should be
reflected in policy and practice, without the judiciary and legislature being en-
tirely driven by it.
One way of striking a balance between acknowledging the nature of public
opinion, while still being responsive enough to public demands to ensure legiti-
macy, is to focus on the extent to which the public is willing to tolerate abolition.
The criterion in assessing this should be whether the death penalty is important
in maintaining the legitimacy of the justice system. This approach to surveys
provides state institutions with the room to exercise leadership, as well as to be
responsive to public opinion. Of course, it is important for the Japanese govern-
ment to disclose more information about the death penalty and promote debate.
However, it is probably unrealistic to think that governments can do on a nation-
al scale what experiments have done on a small scale. The important thing is not
for the government to wait until a change occurs in public opinion, or attempt to
demonstrate a majority abolitionist nation through various forms of public edu-
cation, but for it to push for increased humane treatment of offenders while re-
maining in tune with public limits of toleration.
It should be remembered that surveys carried out in abolitionist countries
prior to removal of the death penalty have generally shown that this action did
not command public support (Hood & Hoyle, 2008, pp. 361-366). However,
those carried out after abolition have attracted less support for retention, with the
death penalty “defined as a barbarity of the past” (Hood, 2009, p. 7). It could be
argued, then, that despite strong support from surveys for the death penalty on
8.8 Policy Implications 193

the surface, the public may still consider abolition as bearable or acceptable. This
further stresses the importance of how public opinion surveys are interpreted.
The way in which the Government Survey has been interpreted by the gov-
ernment, the courts, and politicians, considering only the proportion of support,
is not a good way of using empirical evidence as social barometers. The Japa-
nese government should open its mind to possibilities beyond the rhetoric of
“majority support”; it should stop simply asking the public if it would like to
retain the death penalty. Instead, it should start examining whether the public
will tolerate abolition – and aim not to overstep the limits of public tolerance.
Based on the findings from the studies, it has been argued that the Japanese pub-
lic is likely to accept the abolition of the death penalty, and that, if this were
done, it would continue to regard the Japanese criminal justice system, and other
state institutions, as legitimate authorities.
Furthermore, by asserting that death penalty support is a majority opinion,
the Japanese government is in fact reinforcing the view that there is consensus on
death penalty opinion. Members of the general public, who mostly do not have
fixed opinions on this topic, are being persuaded through reporting of the survey
that majority support is the position on the death penalty – giving the impression
that the Japanese are unified on this question.
There is a reason – even an obligation – for the Japanese government to try
to focus on public tolerance for abolition, and to promote rejection of the death
penalty. It is true that Japan is not bound by international human rights treaties to
abolish the death penalty immediately, as they have not ratified the Second Op-
tional Protocol to the ICCPR. However, it is a duty of the state under the ICCPR,
to which Japan ratified in 1979, not to “delay or to prevent the abolition of capi-
tal punishment” (Article 6(6), ICCPR). Over 30 years on from the year of ratifi-
cation, it is time that the Japanese government started to take its obligation seri-
ously, and to show the international community that they are not merely follow-
ing public opinion, but are actively pursuing ways in which to achieve abolition.
Lastly we turn to a series of questions – without simple answers – which
this book inevitably raised by examining the Japanese government’s stance on
the death penalty. It opened up a debate about the “democratic” approach to the
death penalty, in contrast to the usual human rights-based approach. Noting the
limitations of international treaties observed in this book, can we ever reach a
decision about the circumstances in which one approach is more appropriate:
194 8 Conclusion

top-down, grounded in human rights, or bottom-up, driven by the voice of the

people? If people reject the human rights-based approach, can the inclusion of
public opinion be valid by itself? The Japanese government’s arguments are not
valid empirically; however, the question remains whether the democratic argu-
ments may in some circumstances overwhelm considerations of human rights.
Striking the right balance is a delicate issue. This book has taken the view
that the democratic approach to the death penalty can be justified theoretically,
but only in circumstances where it can be proved beyond doubt that abolition
would lead to serious erosion of the legitimacy of institutions of justice. In theo-
ry, one can think of such situations – for example, in countries emerging from
civil war – where trust in state institutions is low, or countries where a life-for-
life principle may be so culturally enshrined, that abolition would result in seri-
ous disruption to the criminal justice system. The problem I see with the demo-
cratic approach is not in its theoretical validity in defined circumstances, but in
its dependency and reliance on empirical evidence for proving public support,
which may be impossible. The democratic argument – no matter how sound the
theoretical reasons behind its public support may be – may always run into prob-
lems in providing solid evidence of public support that demonstrates the absolute
necessity of the penalty. At least in terms of using survey evidence, the Japanese
government has failed to demonstrate the necessity of retaining the death penalty
with its Government Survey.