PENALTY

that surrounds capital punishment in Japan is taken to extremes not
seen in other nations” and that the public only has very abstract ideas
about the punishment. 20 This inevitably poses the question: on what
grounds does the public support the death penalty?
A recent study by Mai Sato argued that, although the Japanese assertion
that retaining capital punishment is a democratic obligation
may be theoretically coherent, it requires reliable evidence that the
public feel so strongly in favour of retaining the death penalty that
to abolish it would undermine the legitimacy of the criminal justice
system. 21 In other words, the Japanese government’s case is defensible
only if the surveys on which it relies accurately capture public attitudes
on the subject. Sato tested this through three rigorous surveys
of public opinion and found that the government’s interpretation of
its survey—and its contention that it reliably reflected the views of
the public as a whole—was seriously flawed. Her findings suggest that
opposition to abolition is neither as strong nor as unalterable as the
government claims. With more information and greater transparency
about how the death penalty system works in practice, and reliable
evidence on whether the execution rate has any deterrent effect on
the murder rate, a more accurate sense of the Japanese public’s support
for the death penalty would emerge. This suggests that retention
of the death penalty in Japan is not so central to popular trust in the
criminal justice system that abolition would result in the erosion of
political and judicial legitimacy.
Malaysia
In Malaysia, death is the mandatory penalty for murder, trafficking
in certain amounts of narcotics, and discharging a firearm during the
commission of various crimes, even if no one is hurt. There is a growing
debate on whether the mandatory death penalty should be replaced
by a discretionary system where it is used only in exceptional circumstances,
or abolished altogether. In a recent public opinion survey of
1,535 Malaysian citizens on this issue, 22 a large majority said they were
20 David Johnson, “When the state kills in secret: capital punishment in Japan” Punishment and
Society, vol. 8, issue 3 (2006), pp. 251-285, at p. 251.
21 Mai Sato, The Death Penalty in Japan: Will the Public Tolerate Abolition? (Wiesbaden, Springer,
2014).
22 Roger Hood, The Death Penalty in Malaysia (London, The Death Penalty Project, 2013).
in favour of the death penalty (either mandatory or discretionary): 91
per cent for murder, 74-80 per cent for drug trafficking (depending
on the drug concerned), and 83 per cent for firearms offences. Concerning
the mandatory death penalty, 56 per cent said they were in
favour of it for murder, but only 25-44 per cent supported it for drug
trafficking and 45 per cent for firearms offences.
When asked what sentences they themselves would impose on a
series of hypothetical cases, all of which were subject to a mandatory
death sentence, respondents gave markedly different answers than
they had given to the more theoretical questions. For none of four
hypothetical drug trafficking cases did more than 30 per cent choose
the death penalty. Only 8 per cent chose death for all the cases they
judged. Only 1.2 per cent thought that the death penalty was the
appropriate punishment for all 12 hypothetical cases of murder, drug
trafficking and firearms offences, showing decisively that the vast
majority favoured discretionary use of the death penalty.
These findings suggest that there would be little public opposition
to abolition of the mandatory death penalty. Public support for the
death penalty for drug trafficking and firearms offences, as well as for
murder, was not nearly as strong as had been assumed, so may not be
a definite barrier to complete abolition.
Trinidad
Another study recently surveyed 1,000 residents of Trinidad,
focusing on support for and use of the mandatory death penalty
for murder under current Trinidadian law. 23 It found that a large
majority of Trinidadians are in favour of the death penalty, but only
a minority (close to a quarter) favour it being mandatory for all
murders. Trinidadians also favoured discretionary use of the death
penalty in cases involving violent robbery or drug or gang killing,
preferring to take into account mitigating factors such as age and
previous good character. When faced with three murder scenarios,
only 1 in 5 survey respondents thought that the death penalty was
the appropriate punishment for all three crimes. The majority of
23 Roger Hood and Florence Seemungal, Public Opinion Survey on the Mandatory Death Penalty
in Trinidad (London: The Death Penalty Project, 2011).
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