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Saturday, Sep. 22, 2012

Executions are not 'inevitable'

Special to The Japan Times

HONOLULU — After two men were hanged on Aug. 3, Minister of Justice Makoto Taki claimed that he has a duty to authorize executions. "As minister of justice", he explained, "I must carry out my role to respect courts and court decisions." Taki is wrong, and so were two of his Democratic Party of Japan predecessors who made similar "it is my duty" assertions after giving the green light to execute in July 2010 and March 2012.

There has been much debate about how to interpret Article 475 of Japan's Code of Criminal Procedure, which says that "The death penalty shall be executed under an order from the minister of Justice ... within six months from the day when a judgment becomes final." Some interpreters of this provision believe the language permits the minister of Justice to order executions, while others believe the text requires it. The "requires" reading seems arbitrary, for executions in Japan are almost never carried out within six months of a finalized sentence of death. Why, then, do some ministers of justice insist on the importance of the first part of Article 475 while casting a blind eye at the second?

The more fundamental problem with duty-based views about the decision to execute is that they are based on what French philosopher Jean-Paul Sartre called "bad faith," which he defined as "pretending that something is necessary when in fact it is voluntary." On this view, humans act in bad faith because they are free but do not want to face their freedom. Bad faith is thus the shadow of human liberty, and attempts to escape our own freedom are doomed to defeat.

Bad faith arises from social roles. Every person in society plays a variety of roles, as parent, son, sister, shortstop, voter, teacher, and so on. And at any given time, someone plays the role of minister of justice — an important role, and one that carries with it the possibility of bad faith, as all roles do.

People who say they "have no choice" are often engaged in bad faith, and most acts of bad faith are mundane. Every day we say "I had to do it" — laugh at the boss' bad joke, or nod at a teacher's unpersuasive explanation — and what we imply is that we have placed higher priority on the expectations of a role than on our own freedom to choose how to act.

But some acts of bad faith are highly consequential. When Japanese workers decided not to blow the whistle about safety problems in their nuclear power plants, they were engaged in the bad faith of pretending that silence was their duty as employees of their corporation. Similarly, when Shoko Asahara's henchmen released sarin gas on the Tokyo subway in March 1995, killing 13 and injuring 6,300, their crimes of obedience were rooted in bad faith that privileged their duty as disciples over their freedom as human beings.

Capital punishment is rooted in bad faith. At each step in the capital process — from the prosecutor's decision to seek a sentence of death, to the court's decision to impose it, to the minister of justice's decision to order a hanging — an act of bad faith occurs when the expectations of a role are taken as an alibi for the flight from freedom. "This is my duty; I take no joy in doing it," officials often say. "But I had to."

Japanese language reflects the ubiquity of bad faith in the capital process. In court opinions and pronouncements about capital punishment by politicians, prosecutors, victims, and the media, one invariably encounters the expression "yamu o enai" or "shikata nai" or some corollary way of claiming that an act was "inevitable" or "could not be helped." Indeed, the pivotal phrase in the Supreme Court's Nagayama decision of 1983 (yamu o enai) essentially tells judges and lay judges that they should impose a sentence of death when, all things considered, they have no other choice.

This is a legal fiction, for judges and lay judges always have a choice. But it is a fiction with a function, for this verbal formula protects death penalty decision-makers from personal accountability by suggesting that it is not really they who are engaged in the act of killing, it is the role they happen to inhabit which requires them to represent "the law" or "the will of the people."

Bad faith is also pervasive in American capital punishment. When American jurors are asked after the fact who is responsible for a death sentence, more than 80 percent say it is "the defendant" or "the law" while only 15 percent acknowledge it is the jurors themselves. This flies in the face of a decision by the U.S. Supreme Court that says it is an "intolerable danger" for jurors to believe responsibility for the ultimate determination of death rests elsewhere (Caldwell v. Mississippi, 1985).

Systems of capital punishment ask ordinary people to participate in what are normally regarded as extraordinary, prohibited acts. For most people most of the time, killing another person is beyond contemplation — and yet capital punishment asks people to do just that.

People are able to live with capital punishment because they smother it with padded words and because bad faith blurs the connections between act, consequence, and conscience. But there is no escaping the bedrock reality that we are humans before we are occupants of a role.

David T. Johnson is a professor of sociology at the University of Hawaii and coeditor of Law & Society Review.

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