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Is the death penalty justifiable? How likely is that the EU will be successful in persuading Japan to abandon the death penalty?

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The global trend towards the abolition of capital punishment has recently become apparent, although with some exceptions. According to Amnesty International, since 1990 three countries each year on average have abolished the death penalty and today over two-thirds of the world's nations have ended capital punishment in law or practice.1 The practice of the death penalty remains most entrenched in Asia, where more than 90 percent of the world's judicial executions take place.2 The ultimate punishment is referred to as inhumane, barbaric organized killing or an ultimate form of torture. The European Union remains the most vocal advocate of eradication of capital punishment in the world, with the abolition as a non-negotiable condition of membership since 1998. The commitment of the EU to halt the death penalty goes beyond the European continent, which is reflected by its efforts to impose abolition through a diplomatic offensive to convince 'third countries' like Japan or China that capital punishment is a major affront to human dignity. In this climate arguing for attempts to justify death penalty is quite challenging and unpopular.

The core point of the debate over the death penalty is whether it is a human right or a judicial issue. Abolitionists emphasize that capital punishment goes against the most fundamental human right - the right to life. They claim that in a modern society citizens posses inalienable rights "that extend even to the most hardened of criminals".3 On the other hand, retentionists maintain that convicted murderers have lost their right to life due to their actions.4 Those against capital punishment usually analyze it in a framework constructed of three arguments: deterrence, retribution, and to a much lesser extent, recidivism. They quickly undermine the deterrent effect of capital punishment and consider retribution nothing but uncivilized revenge. The restraining effect of the death penalty on potential murderers in a society is referred by criminologists to as general deterrence, and a specific deterrence refers to the incapacitate effect on individual murderers from killing again.5 It is beyond the scope of this article to examine to what extent the scientific data support the deterrent effect, however, research that implies such outcome does exist.6 For instance, the results of a research conducted by scholars from Emory University revealed that each execution results, on average, in 18 fewer murders with a margin of error of plus or minus 10.7 Abolitionists dismiss the possibility of a deterrent impact on a presumption that a murderer is not capable of carrying out a rational line of thinking before deciding whether to kill. On the contrary, retentionists maintain that the death penalty is usually applied not to the so-called 'passion offenses', normally punished as second-degree murderers, but to carefully contemplated first-degree murder.

What I find most irritating in the abolitionist advocacy is the persistent emphasis on the right to life of the convicts dramatically highlighted by the 'brutality and violence' settings of the death penalty. Surprisingly, most of the discussions stick to dismissing the merits of the death penalty and skillfully pass over the fact what a capital crime is really like and how maliciously the victims have been abused. Paul Cassel compared this tendency to "playing Hamlet without the ghost".8 This 'ghost lacking' approach to some extent reminds me of the past conventional dealing with victims of human trafficking as offenders. As long as human rights are considered, the victim rights - based approach normally should be applied. In case of the abolitionist movement the protected victim is a wolf in a sheep's clothing, but nobody really cares what happened to the sheep. Why the right to life of the real or potential victims is not elaborated on? In a real life out of conference rooms and courts it is impossible and mutually exclusive for a murderer and a victim to benefit from the right to life at the same time.

Consequently, the central rationale for the ultimate punishment over imprisonment should be the specific deterrent effect of preventing from committing further homicidal (in case of life imprisonment restraining endangering the lives of other prisoners and guards). Furthermore, I would like to argue that disregarding the impact of recidivism on the murder rate as negligible is unacceptable. The position on recidivism rates of Hans Göran Franck, a distinguished Swedish human rights activist with a 30–year experience of advocacy for abolition, serves as a typical example of the irreverent attitude towards the issue. Accordingly, he considered the 2% rate of recidivism for murder and manslaughter in Sweden for the period 1966-1983 (25 convicts out of 1,258 killed again) insignificant, concluding lightly that "not many murderers kill again".9 Franck also claimed that the above-mentioned figures indicate "the proportional discrepancy between the punishment and the desired effect from a perspective of individual prevention".10 I wonder what the reaction of the additional 25 murder victims to having been categorized as "proportional discrepancy" would be.

On another note, capital punishment is frequently described as a highly immoral act or equated with murder. Jim Riley's response to this argument is that equating the taking life by an individual with capital punishment is illegitimate, unless we equate arrest with kidnapping and taxation with theft.11 Riley also claims that "moral justification of the death penalty can be justified by one simple principle: punishment should be roughly apportioned in severity to the nature of the crime". Is locking up a cruel and brutal serial killer for life in a free room with a free board along with wide-ranging medical and dental care, without an obligation to work and released from the responsibility of fulfilling social roles of raising children and taking care of aging parents an adequate punishment indeed?

Taking into consideration the 'third countries', the main obstacle confronted by the EU in its attempts to inflict the abolition of capital punishment in Asia appears the notion of the death penalty being a matter of domestic penal policy. The death penalty is firmly grounded in the legal system of Japan, and as long as it is being 'covered' by the US, which also retains capital punishment, the chances for abolition in this country in the near future remain rather small. A clear indication for bleak prospects was replacing just three months ago the Minister of Justice Keiko Chiba, a strong proponent of abolition in Japan, with Minoru Yanagida, who officially announced in October being in favor of death penalty. Looking at the issue of abolition in Japan and Asia from the human rights perspective may be linked to the debate on human rights versus Asian values, which evolved around Confucianism being characterized by justice and retribution. Singapore's UN envoy Vanu Menon, who led the opposition camp to the UN resolution in December 2007, accused the EU of neocolonialism, arguing that the international moratorium was an attempt "to impose a particular set of beliefs on everyone else".12 Moreover, human rights perspective can also lead to the perception of abolition in the dichotomy of individual versus group rights. Franck wrote in the conclusion part of his book that capital punishment is undemocratic because it does not show respect for the individual person.13 Abolition puts an individual (the perpetrator) in the centre. Meanwhile, the retention of the death penalty could be associated with giving priority to the society in terms of both, respecting its will and the deterrence aspect.

The motor of the abolition wave in the 1990s in Europe was the desire to enter the European Union with all the relevant benefits despite the strong opposition to abandoning the death penalty, indicated by public opinion polls. I can't help a remark that a membership as a rationale for abolition is a little bit like going to church and joining Christian communities in Japan by people who simply want to practice their English for free and has nothing to do with their inner conversion. In conclusion, I will risk a hypothesis that China might abolish capital punishment before Japan, as it might have more incentives for that, given that the assumption of its peaceful rise based on economic development turns true.
  1. Avonius, L. & Kingsbury, D. (2006). Human Rights in Asia: A Reassessment of the Asian Values Debate. Iwatake, M. The Nation-State and Its Violence: Deabtes in Post-Cold War Japan. Palgrave Macmillan
  2. Hodgkinson,P. & Schabas, W.A. (2004). Capital Punishment: Strategies for Abolition. Chapter 12. Cho, B.S. The Death Penalty in South Korea and Japan: ‘Asian Values’ and the debate about capital punishment? Cambridge University Press. 
  3. Miethe, T.D. & Hong, L. (2007). China’s Death Penalty: History, Law, and Contemporary Practices. Routledge.
  4. Scott, G.R.(1950). The History of Capital Punishment. Torchstream Books: London.
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