- MAY 02 2001

On Death Row, Uncertainty by Design

TOKYO -- For 34 years on death row, Sakae Menda dreaded the sounds. They always came unannounced, a crude trumpet of death: the slide-click of metal as the small window on his cell door was closed; its echo as a guard walked down the line of cells, shutting each window in turn. Slide-click, slide-click, slide-click. Another cadence would then emerge, softly at first, a clap of the hard heels of guards' boots, marching closer. It grew louder, until the sound carried the image perfectly through the cell walls and his mind saw the line of grim-faced guards file into the cellblock and stand at attention in the long corridor. "Omukae! Your time has come." The order was close, so close. In a cell next to Menda, death was calling. In silent fear -- or, more rarely, with cries of protest -- the prisoner was led to the gallows. "When that happened, my heart froze," said Menda, who escaped the call when the courts acknowledged in 1983 that he had been imprisoned for a crime he did not commit. As America girds for the May 16 execution of Timothy McVeigh, attended by the blare of publicity and clash of debate, Japan stands in contrast with a capital punishment system that is cloaked in secrecy, largely ignored by the public -- and sometimes dead wrong, according to the government's own officials. Japan and the United States are the only industrialized democracies that still use the death penalty, although it is not uncommon in Asia. Japan's veiled and seemingly arbitrary administration of the punishment has brought cries of outrage from human rights groups and international bodies, including the United Nations. For 50 men and four women on Japan's death row, the only warning they will receive will be the appearance at their cell one morning of guards who will take them to the execution chamber. "It was so frightening," said Yukio Saito, who was put on death row at age 24 and acquitted on re-appeal in 1984 when he was 53. "Every day, I thought it would be tomorrow. Every dawn, I thought it would be today." For some, the call never comes: The Justice Ministry has repeatedly passed over certain prisoners until they are old and frail, in tacit admission that their sentence may have been wrong. Nearly 20 inmates have been on death row for more than a decade. At least 16 are over age 60; the eldest, 83, has been under a death sentence since 1966. The Justice Ministry does not divulge the names of the inmates it selects for execution and gives no explanation for the choice. Some are bypassed because of pending appeals; 50 inmates who have been sentenced to death are not "officially" on death row yet because their initial appeal has not been heard. But even when the legal efforts are done, inmates spend years or even decades not knowing if they are living their last day. Human rights groups have condemned this uncertainty. "It's inhumane. They go through torture every day," said Sayoko Kikuchi, head of an abolitionist group in Tokyo called Rescue! Ironically, many of those who have been on death row are ambivalent. "I think if I had known in advance when I would be executed, I would have gone mad," Saito said. Japan has executed 623 people since World War II, many of them in the chaotic aftermath of the war. Now, Japan hangs but a few annually -- there were three last year, five the year before. The numbers are minuscule compared with the 85 executions last year in the United States, which has roughly twice Japan's population and 12 times as many murders. To learn about Japan's secretive death penalty system, The Washington Post talked with some of the few men who were freed after being declared unjustly convicted, as well as with prison guards, lawyers, relatives and others involved with the death penalty process. They describe a system that is alien to most of the West. The death penalty is carried out against the elderly (15 people executed since 1993 were over age 60), against inmates who show obvious signs of mental illness and against prisoners still appealing their cases. The condemned sit for years in solitary confinement, under harsh prison rules. Inmates are executed without the knowledge of their family members or lawyers -- to avoid, the government admits, emotional scenes, last-minute appeals or demonstrations. The family is simply told later, "We parted with the inmate today." But it also is a system that has a cultural logic to Japanese. The long wait for execution is, in part, to allow the inmate time to prepare for death. The seemingly arbitrary selection is made, again in part, according to which inmates seem spiritually ready for their fate. "In a sense, to be given time, to do what you need to do to get over the fear of death, is necessary," Menda said. Now 76, he is a wry and bitter shell of the 23-year-old farm boy who was caught in the wrong bed at the wrong time, framed by a prostitute and a policeman for a double ax-murder in 1948. "Over the 34 years, I think I met about 80 inmates who were executed," he said in an interview near his home in Kyushu in southern Japan. "The first time I saw someone taken away, I became hysterical," he said. "I was so scared. I cursed at the guards, and threw things in my cell. "I was told by a priest: 'Menda-san, why don't you drop your appeal? For the sake of your family, for your peace, why don't you accept your fate?' "I rejected that. But there is, in Japan, the concept of flowing water: You let go, as the unseen power leads you," he said. "In the end, you get over the wall of fear of death. When you finally get over that wall, it's like opening a door." Executions are always carried out in the morning at one of seven "detention centers" in Japan, each with a death row. The chosen inmate is brought from his cell blindfolded. In the execution room, the noose is secured and the inmate's knees are tied. "The idea is to have a clean death. They aren!'t supposed to struggle and flop around," said Toshio Sakamoto, a prison officer for 27 years who is now retired. At most prisons, a separate room contains three to five buttons. On command, prison officers each push one button. One -- the officers do not know which -- releases a trapdoor that drops the condemned convict about 10 feet to his death. There are no public witnesses. "I don't think any officers tell their family what they do," Sakamoto said. Opponents argue that with so few executions, Japan should simply end capital punishment. The United Nations considers the executions a violation of the International Covenant on Civil and Political Rights, which Japan has signed. "The death penalty has no legitimate place in the penal system of a modern, civilized society," Gunnar Jansson, a representative of the Council of Europe, said during a visit to Japan in February to urge an end to executions. "The majority of the Japanese people think it is unavoidable to apply the death penalty in the most cruel crimes," said Yukio Kai, a counselor for the Justice Ministry's criminal affairs bureau. Pressed, supporters of the death penalty also say it is a deterrent to crime, though the claim is unproven in Japan as elsewhere. The homicide rate here declined gradually from 1950 until 1988 and then leveled off, irrespective of the number of executions, which has ranged from zero to 39 per year. More fundamentally, capital punishment is simply "not a social issue" in Japan, or much of Asia, where China leads the world in executions, said former justice minister Hideo Usui. "The Japanese people express a strong will for it." "The public in Japan is very harsh," said Koichi Kikuta, a law professor at Meiji University and a leading opponent of the death penalty. "We are a homogenous society, living together. If there is something shameful, we want to cut out that part from the rest of society." The government encourages that sense of shame. Even after an execution, it will not confirm the name of the prisoner. "We have to consider the feelings of the criminal who gets the death penalty," Kai said. "It's such a disgrace against his honor. I don't think he surrenders his honor or his privacy just because he surrenders his life." This concern for the prisoner is not reflected in the harsh prison regime imposed on the condemned man while he awaits his fate, say those who have been there. Masao Akahori spent 35 years in prison, 31 of them on death row. He was a vagrant living under a bridge in 1954 when police, under pressure to solve the murder of a young schoolgirl, arrested him for stealing coins from a shrine. Not until 1989 did a campaign on his behalf result in a court ruling that the confession signed by Akahori, who is mentally impaired, was coerced and that there was no evidence to connect him to the crime. During his years in prison, he was forced to sit alone in the center of his cell all day, Akahori said in an interview at his home in Nagoya, where he lives with a supporter who helped win his release. "We could not move about the cell," he said. "We could not lean against a wall. We could not lie down." Smoking was prohibited. Cells did not have television sets or radios. Rules varied in the different prisons in which he was held, he said, but in most, "We could only talk to the guards, and they never used my name -- only 'Number 23001.' " Letters and visits were limited to one or two family members and a priest. Takeko Mukai, a Protestant minister, legally adopted a 25-year-old murderer, Shinji Maeda, in 1987, an act prompted by her ministry and her compassion for the troubled young man, she said. She has watched the inevitability of the sentence take a toll on his mental health. "He feels his execution is approaching. He feels that everyone who surrounds him is an enemy. He nervously washes himself and scrubs for an hour, or brushes his hair for 20 or 30 minutes," she said. "He really lives in extreme agony." Yuichi Kaido, a Tokyo lawyer who represents death row inmates, and others say there are clear cases in which mentally incompetent prisoners have been executed. And even defenders of the Japanese judicial system admit there are errors. "There is a high possibility that some [death row prisoners] were executed in spite of being innocent," a former supreme court justice, Shigemitsu Dando, concluded in 1996. "I am afraid that the total number of such cases in the past has not been small." Five inmates were declared falsely convicted and released between 1983 and 1990. The acquittals were an extraordinary admission of police fault -- unrepeated since -- in a country where 99.8 percent of those charged by police are convicted, and appeals courts rarely overturn lower courts. "There are probably more cases like that" on death row, former justice minister Usui acknowledged in an interview. He said, however, that he still supports capital punishmentSpecial correspondents Shigehiko Togo and Akiko Yamamoto contributed to this report