Judgement Documents
A Judgment of the Osaka District Court, October 31, 2011
- part of the Osaka District Court’s pachinko case decision of October 31, 2011, on the constitutionality of hanging in Japan
II. The constitutionality of judicial hanging
1. The defense counsels argued as follows: “Judicial hanging inflicts unnecessary pain on a condemned inmate and also could possibly result in decapitation. Its actual administration is such that one person who attended an execution related his experience that nothing had been more gruesome than that. In worldwide perspective, few countries retain judicial hanging as a method of execution at present. From these points it should be concluded that the precedent (in a judgment of the Grand Bench of the Supreme Court on April 6, 1955, published in Keishu, Vol. 9, No. 4, at p.663) saying that hanging is not cruel has already lost its basis because of changing times and circumstances. Judicial hanging constitutes cruel punishment which violates Article 36 of the Constitution. Moreover, if a condemned inmate is decapitated, it follows that the execution is actually death by beheading and that a punishment which is not established under law has been carried out. Thus, judicial hanging also violates Article 31 of the Constitution.”
2. After hearing the opinions of the lay judges (see paragraph (3) of Article 63 of the Act on Criminal Trials Examined under Lay Judge System), we examined the arguments of defense counsels and concluded that judicial hanging does not violate the Constitution. The reasons are stated below.
(1) A. According to witness Dr. Walter Rabl, who is an expert in forensic medicine, we find that the process of dying of a hanged inmate and the physical and mental effects of judicial hanging are as follows. That is:
(A) The most probable and typical processes of death are classified into two main patterns. (i) By compression of the carotid arteries and veins, which causes stoppage of blood flow to the brain and its anoxia, the inmate dies following the death of brain cells and cardiac arrest. Or (ii) By occlusion of the pharynx, which causes anoxia, the inmate dies in the same way. Further, these two processes of death can occur competitively (note by translator: ‘competitively’ in this document seems to be a mistake and the word ‘simultaneously’ would be correct). In the case of (i), consciousness lasts for 5 to 8 seconds while oxygen remains in the brain. In the case of (ii), consciousness lasts for 1 to 2 minutes while oxygen remains in the body. During the period of consciousness, the inmate suffers from compression of the neck and feels pain from the injuries caused by the rope and the hanging.
(B) Depending on the position of the halter, however, since the neck is not always squeezed symmetrically, the period with consciousness could be longer than described above and the pains and sufferings could be more severe. In addition, if the loading force is too large, the inmate may be decapitated. In such cases, because of the strength of the skin on the neck, it is often the case that not the whole neck but only its internal structure is partly torn off, while the skin of the neck remains intact. To avoid decapitation, the length of the rope (the falling height) may be shortened, so the squeeze on the neck becomes looser and the inmate’s pain increases. Because the strength of the neck structure and other conditions vary from individual to individual, it is impossible ensure that decapitation will be prevented.
B. Based on his experience of observing a judicial hanging, witness Takeshi Tsuchimoto said that “I thought the scene was gruesome and unbearable to see, when an inmate who had been alive and breathing just a few minutes before had arm and leg restrictions applied and a rope placed around his neck; the execution started, the inmate was hanged, and the body swung by the neck. Because we cannot predict what will happen in judicial hanging, there is also the problem that an unacceptable accident may occur.”
(2) A. Thus, in judicial hanging, until the loss of consciousness, which takes at least 5 to 8 seconds or, depending on how the neck is squeezed, up to 2 minutes or more, the inmate may suffer continuous pain. Moreover, under some conditions, hanging may be accompanied by decapitation, especially by severing the internal structures of the neck. When judicial hanging is carried out, there is a problem that we cannot reliably predict the process of dying for the inmate.
B. First of all, the death penalty is a system that forces a condemned inmate to atone for his or her crime through the taking of life against that inmate’s will. The death penalty inevitably inflicts mental and physical pains on the inmate, and involves brutality to some extent. Since the Constitution allows the death penalty to be retained, it evidently considers these pains to be unavoidable and inevitable. Therefore, an execution method constitutes ‘cruel punishment’, which is prohibited by Article 36 of the Constitution, only when it is especially brutal among possible execution methods. Of course, an execution method that inflicts unnecessary pain on an inmate, dishonors the inmate, or insults the inmate shall never be permitted, but obviously it is not required that an execution method shall relieve the mental and physical pains of the inmate to the utmost extent and keep them to some minimum, as if execution is a medical treatment. There would be bad effects if condemned inmates were executed more comfortably than persons committing suicide. Depending on historical and religious background, differences in values, or other factors, judgments as to whether or not a certain execution method is especially brutal can vary by country, by nationality, and even by individual. A method of execution should be considered a ‘cruel punishment’ only in the limited case when it is so impersonal and inhuman that it shocks a person with ordinary emotions. Otherwise, what kind of execution method is adopted is a matter to be decided through the discretion of the legislature.
C. It is difficult to say whether or not hanging is the best execution method for administering the death penalty. However, an inmate condemned to death is someone who has committed a crime which deserves the penalty. The inmate ought to endure some mental and physical pain inflicted through execution. In addition, even if other execution methods are adopted, unforeseeable accidents may still happen. Surely, judicial hanging does have pre-modern aspects, and the process of death through hanging is not perfectly predictable. Even so, and as already stated, judicial hanging does not constitute cruel punishment and therefore does not violate Article 36 of the Constitution.
Moreover, even on the testimony of the witness Dr. Rabl and the evidence submitted by defense counsels, it is believed that decapitation occurs exceptionally in the form of an accident. Furthermore, many cases of decapitation are partial, with the severing of the internal structures of the neck but with the skin of the neck kept intact. Thus, even when these accidents happen, in many cases we cannot go so far as to say they constitute death by beheading, and it is inappropriate to generalize from extremely rare and exceptional cases to conclude that an execution is death not by hanging but by beheading. Hence, judicial hanging does not violate Article 31 of the Constitution.
The arguments of the defense counsels are groundless.