PENALTY

where since abolition of the death penalty it has proven easier to
obtain convictions for murder rather than the less serious offence of
manslaughter. In fact, the proportion convicted of murder among all
those convicted of a homicide in England and Wales increased from
28 per cent in 1965 (the year that capital punishment was abolished)
to 63 per cent in 2005/2006. 14 The same has been true in Canada,
where the conviction rate for first-degree (capital) murder, rather than
second-degree murder or a lesser charge, has doubled from under 10
per cent when execution would result, to about 20 per cent “now
they [juries] are not compelled to make life-and-death decisions.” 15
PUBLIC OPINION WORLDWIDE
Support in the United States for executions is decreasing. According
to Gallup polls, public support fell from 80 per cent in 1994 to
60 per cent in October 2013. In November 2012, California held a
plebiscite to decide whether the death penalty should be abolished
and replaced by life imprisonment without parole. It was defeated by
a margin of only 6 percentage points (53 per cent to 47 per cent).
The risk of innocent people being executed; the cost of obtaining a
conviction for capital murder, holding a prisoner on death row and
providing a lengthy appeals process; 16 and the rising use of the primary
alternative—life in prison without the prospect of parole—are
all factors in the declining level of public support. The proportion of
supporters of capital punishment who say that they favour it because
of its deterrent effect has dropped remarkably in recent years.
A number of public opinion polls in the United States have shown
the same trend, but what of other retentionist nations? This section
14 Kevin Smith, ed., Kathryn Coleman, Simon Eder and Philip Hall, “Table 1.02: Offences initially
recorded as homicide by outcome, 1999/00 to 2009/10”, in Homicide, Firearm Offences and
Intimate Violence 2009-10, Home Office Statistical Bulletin 01/11 (2011).
15 Mark Warren, The Death Penalty in Canada: Facts, Figures and Milestones (London, Amnesty
International, 2005).
16 A recent study of the cost of the death penalty in Colorado showed that capital proceedings require
six times more days in court and take considerably longer to resolve than life-without-parole
cases. Justin Marceau and Hollis Whitson, “The cost of Colorado’s death penalty”, University
of Denver Criminal Law Review, vol. 3 (2013), pp. 145 ff. And a report of the California
Commission on the Fair Administration of Justice found that the additional cost of confining
an inmate to death row—as compared to a maximum-security prison for a life-without-parole
sentence—is $90,000 per year per inmate. California Commission on the Fair Administration
of Justice, Report and Recommendations on the Administration of the Death Penalty in California
(2008), available from www.ccfaj.org/documents/reports/dp/official/FINAL%20REPORT%20
DEATH%20PENALTY.pdf.
will look at surveys from Asia and the Caribbean, where governments
have claimed that public opinion would be hostile to abolition.
Japan
Statements from the judiciary and the executive in Japan justify retention
of capital punishment on the grounds that a democratic government
cannot ignore strong public support for it without endangering public
confidence in, and support for, the law. In this, they draw on an official
government survey on the death penalty that has been conducted
since 1956, approximately every five years. In the most recent survey,
conducted in 2009, 86 per cent of respondents favoured retention. In
2010 the minister of justice said that this high level of support should
be respected as an expression of “the voice of the people.” 17
There is a great deal of secrecy around the death penalty in Japan.
Until 2007 the Japanese government did not announce the names of
prisoners and the crimes they had committed after executions. And as
a powerful Amnesty International report pointed out, death-sentenced
prisoners and their family members are not informed of execution
dates. The inmate is only informed of the execution a few hours before
it takes place. 18
What is more, there is still no official information on how and when
prisoners under sentence of death are selected for execution, how
they are treated on death row, or what the cost of the death penalty
is compared to life imprisonment. At the time of writing, Japan had
157 people on death row in solitary confinement 19 —which is probably
double the number at the turn of the millennium, as the number
of death sentences has risen. This kind of information is only available
informally through those who are involved in the execution process,
and through somewhat speculative secondary sources. The government
does not ensure the publication of accurate information on the
process or outcomes. This has led scholars to state that “the secrecy
17 Yomiuri newspaper, 2010, cited in Mai Sato, The Death Penalty in Japan: Will the Public Tolerate
Abolition? (Wiesbaden, Springer, 2014), p. 25.
18 Amnesty International, “Will This Day Be My Last?” The Death Penalty in Japan (July 2006),
AI Index: ASA 22/006/2006.
19 Death Penalty Worldwide (updated 12 November 2013), available from www.deathpenaltyworldwide.org/country-search-post.cfm?country=Japan.
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