The Asia-Pacific Journal | Japan Focus Volume 10 | Issue 38 | Number 5 | Article ID 3832 | Sep 09, 2012

1

Killing Asahara: What Japan Can Learn about Victims andCapital Punishment from the Execution of an AmericanTerrorist 　　麻原を殺すーーあるアメリカ人テロリストの死刑から、被害者と死刑について日本が学べるもの

David T. Johnson

“Even now my sad and vexatiousfeelings have not changed.”

-Father of girl whosekil ler was hanged inTokyo on August 3, 2012(Asahi Shimbun, 8/3/12,evening edition, p.15)

“It violates the fundamental notionthat like crimes be punished aliketo allow life or death to hinge onthe emotional needs of survivors.”

-Former U.S. federalprosecutor Scott Turow(Ultimate Punishment,2003, p.53)

AUM Puzzles

The murders committed by AUM Shinrikyoguru Asahara Shoko and his henchmen may bethe most malevolent crimes in Japanese history.March 20, 1995 was Japan’s 9/11, and but for alittle dumb luck—including the failure topuncture all the bags of sarin that were plantedin the subway trains—the death toll could havebeen much higher than 13 and the number ofpersons injured might have reached five digitsinstead of the true total of 6300. Asahara andhis followers killed at least 16 people in the sixyears leading up to that awful Monday

morning, and because of their proficiency atdisposing of dead bodies the real figure couldbe two or three times higher. This was murderon a scale Japan has seldom seen, and for everyperson killed or injured by AUM, dozens morewere adversely affected, often in life-wreckingways.

Asahara Shoko

Seventeen years have passed since Asaharawas pulled from a cubbyhole in Kamikuishikiwhere he hid from police while clutching$100,000 in cash, yet many important mattersremain poorly understood. NHK televisionrecently broadcast several hours of interestingspeculation, but in the end could not answer

APJ | JF 10 | 38 | 5

2

why the Tokyo gas attack occurred and whyAsahara wanted to precipitate Armageddon.1

Another important question has been evenmore neglected, for mass murder reflects botha willingness to kill and a failure of control.Why, then, did police fail to stop AUM beforeJapan’s crime of the century occurred,especially given all the evidence cultists left inthe wake of their crime wave, including (a) anAUM badge that was dropped by one of thekillers in the Yokohama apartment whereattorney Sakamoto Tsutsumi and his wife andson were slain in 1989, (b) a sarin gas attack inNagano prefecture that killed 8 and injuredmore than 200 some nine months before thesubway attack in Tokyo, (c) sarin leaks at thecult’s chemical factory in Kamikuishiki, and (d)a front-page Yomiuri headline on New Year’sDay 1995 describing chemical compoundsdetected in Kamikuishiki and linking them tothe sarin attack in Nagano? Japanese policewere once held in high esteem by manyobservers,2 but the colossal failure of police toprotect the public against AUM has led someanalysts to conclude that while most individualofficers may be honest and dedicated, Japan’spolice force is, as an institution, “arrogant,complacent, and incompetent.”3

The scene outside a Tokyo subway afterthe sarin gas attack of March 20, 1995,which killed 13 and injured 6300.

Three commissions were created to investigatewhat went wrong in the Fukushima nuclear

disaster of 2011, and the US federalgovernment created a commission to prepare“a fu l l and complete account o f thecircumstances surrounding the terrorist attacksof September 11, 2001,”4 but no commissionhas ever been established to examine these andother AUM-related puzzles.5 The result of thisfailure to look and learn is a level of ignorancethat could prove catastrophic when terroriststarget Tokyo again.

AUM and Capital Punishment

Including Asahara, 13 members of AUM havehad their death sentences finalized and hencecould be hanged at any time. In July, formerMinister of Justice Ogawa Toshio said thatprosecutors had been “creating an environmentto execute Asahara” (Asahara shikei shikko nokankyo-zukuri) through strategic leaks to themass media,6 while the recent arrests of HirataMakoto, Kikuchi Naoko, and Takahashi Katsuyafollowing a 17-year manhunt create two newpossibilities.

First, Takahashi may join Asahara and otherAUM disciples on death row. All of the otherdrivers who transported sarin hitmen to theTokyo subway in March 1995 have alreadybeen condemned to death, and there is littlereason to suppose trial by lay judges will resultin greater leniency for a man who escapedaccountability for 17 years.7 As of this writing(August 2012), prosecutors have obtained asentence of death 14 of the 17 times theysought it from lay judge panels, a higher“success rate” than prevailed when panels ofthree professional judges made life-and-deathdecisions on their own. Some analysts evenbelieve Democratic Party of Japan Minister ofJustice Taki Makoto approved the hanging oftwo murderers in August 2012 partly out ofconcern for the effects the executions mighthave on the forthcoming AUM trials.8

Second, the execution of Asahara and otherAUM offenders could be postponed for several

APJ | JF 10 | 38 | 5

3

years while Takahashi’s case makes its waythrough the courts. Heretofore, waiting beforeexecuting has been standard practice for theMinistry of Justice in cases involving co-offenders who could be sent to the gallows.

The arrests of Takahashi, Kikuchi, and Hirataalso create an opportunity to consider whatwould be gained by killing Asahara and otherAUM offenders. In the rest of this article I focusespecially on what hanging these murderersmight do for victims of AUM’s crimes.9 For thedead the answer is nothing at all, but whatabout their families, friends, and survivors?

In most criminal cases, victims in Japan and theUnited States did not receive the help andregard they deserve for much of the postwarperiod. But in recent years the situation hasimproved in both countries with the passage oflaws protecting and promoting victims’ rightsand with the movement to center stage ofvictims and survivors in criminal courts and themedia. In Japan, for example, victims now havethe right to sit with prosecutors at trial,question witnesses, make sentencingrecommendations, and request that thedefendant pay financial damages in casesinvolving death or injury. These reforms havemade a difference—sometimes for the betterand sometimes for the worse—and manyobservers believe there remains room forfurther improvement. In particular, Japan’sConstitution lacks a provision explicitlyprotecting victims’ rights, there continues to beinadequate financial support for some victimsand survivors of crime, and there is stillinsufficient protection of the privacy ofvictims—especially the victims of sex crime.10

Some of the most important victim-relatedchanges are not narrowly legal but rather arethe effects of broad cultural shifts. Mostnotably, when capital punishment is framed asa matter of satisfying victims and helping themto achieve “closure” (kugiri o tsukeru)—as isoften the case in Japan and the United

States—one effect is to legitimate a sanctionthat has become increasingly difficult to justifyon other grounds. A panel of American expertsrecently concluded that there is no evidencethat the death penalty deters homicide, anddeterrence through the death penalty interrorism cases appears to be an even greaterchimera because terrorists are often willing todie for their cause.11 Similarly, pro-deathpenalty claims that the public supports capitalpunishment or that individual states aresovereign to choose their own punishmentpolicies sound increasingly hollow whenconfronted with the reality that the deathpenalty is frequently regarded as a violation ofthe human right to life.12

In this context, where deterrence is a hollowhope and the abolition of capital punishment isa leading indicator of whether a state is“civilized,” it is no coincidence that the rise ofrhetoric about the need to “serve victims” hascorresponded with death penalty increases inJapan and the United States, the only twodeveloped democracies that continue to carryout executions on a regular basis. In the UnitedStates, “closure” as a concept made its firstappearance in the media in 1989, andexecutions increased six-fold in the decade thatfollowed, from 16 in 1989 to 98 in 1999.Subsequently, concerns about human rights,miscarriages of justice, and the financial costsof capital punishment stimulated greatercaution about state killing and large deathpenalty declines in the 2000s. (In 2011, 13American states carried out 43 executionswhile 37 states and the federal government didnot execute.) In Japan, too, the number ofDistrict Court death sentences almost tripled asvictims became more central in media accountsand the criminal process, from an average of4.5 per year for 1988-1997 to 12.4 per year for1998-2007. Similarly, a recent report byJapan’s Legal Research and Training Institutefound that the proportion of murdererssentenced to death rose almost fourfold afterthe Tokyo gas attack, from 1 in 400 for

APJ | JF 10 | 38 | 5

4

1955-94, to 1 in 160 for 1995-2004, to nearly 1in 100 for 2005-2009.13

Thus, AUM’s terrorism helped fuel aresurgence in Japanese capital punishment intwo ways: directly, by contributing 10 percentof the people who reside on the country’s deathrows; and indirectly, by intensifying public fearand fury about crime and thereby legitimatingan institution that promises to protect thepublic and express the outrage that victims andcitizens feel.

Despite the increased salience of victims andsurvivors in the capital justice systems of Japanand the United States, there is little solidevidence about how (if at all) the death penaltyserves victims. The recent publication ofIndiana University Professor of Law Jody LyneeMadeira’s fine book starts to fill this lacuna byproviding some answers to this question in theAmerican context.14 Its main conclusion shouldgive pause to people who support capitalpunishment because “the victims need it.”According to Madeira, many common beliefsabout victims and capital punishment aremistaken. Although her book provides evidenceabout only one case, that case involves thelargest terrorist attack ever carried out bydomestic offenders on American soil. In thisand several other respects, her work hasimplications for thinking about what killingAsahara might mean for victims and survivorsin Japan.

American Terrorists

On April 19, 1995—less than one month afterAUM attacked the subways in Tokyo—26-year-old Timothy McVeigh set off a truck bomboutside the Alfred P. Murrah Federal Buildingin Oklahoma City, killing 168 people andinjuring 800 more.

Timothy McVeigh

At the time, this was the largest act ofterrorism in modern American history (thescale of harm would be surpassed when 19foreign terrorists killed nearly 3000 people onSeptember 11, 2001). Like the Tokyo GasAttack, this was a direct assault on the centralgovernment, and McVeigh chose this target tomaximize media coverage. The MurrahBuilding had an open design that afforded newsorganizations ample opportunity to obtainphotographs and television footage that wouldconvey the full extent of the carnage. In thisregard, McVeigh relied on the media toengrave the bombing in America’s collectivememory. The media did not disappoint.

There are several other significant parallelsbetween the terrorist attacks in Oklahoma andTokyo. In both, the principal offender did not

APJ | JF 10 | 38 | 5

5

act alone: Asahara had a whole cult behindhim, while McVeigh had help from TerryNichols and Michael Fortier. All three of theseAmerican terrorists were home grown andhighly regarded: they all served in the U.S.military, and McVeigh even received a BronzeStar for his service in the first Gulf War.Similarly, in both cases the offenderscommitted their crimes while aware that theycould be sentenced to death for their acts. Inboth cases, the offenders believed theirviolence was justified: by the doctrine of “poa”in AUM, which was perverted to mean thatmurder might serve a victim’s interest bypreventing him or her from accumulating badkarma, and by McVeigh’s belief that he wasengaged in a righteous “act of war” against thegovernment, which rendered the workers in theMurrah Building “fair targets” and “enemycombatants” because they were members ofthe government’s “support structure.” In bothcases, the offenders hoped their violence wouldproduce revolutionary change. In both cases,the principal offenders received inconsistentsentences: McVeigh was sentenced to deathand then executed by lethal injection in 2001,while Fortier was sentenced to 12 years inprison (he served 10.5) and Nichols escaped adeath sentence twice, first in a federal trial andthen at trial in the state of Oklahoma (he is nowserving a life term). There was inconsistency inJapan too: 14 members of AUM have been triedfor murder in connection with the subwayattack, and only Hayashi Ikuo received asentence of life imprisonment, which manypeople regard as inconsistent with the deathsentences received by the other 13 killers.(Hayashi dropped sarin on the Chiyoda subwayline, killing 2 people and injuring 231.) TheTokyo District Court Judge who originallysentenced Hayashi (Yamamuro Megumi) stillharbors doubts about the propriety of his lifesentence.15

On April 19, 1995, the Alfred P. MurrahFederal Building was bombed, killing 168and injuring 800.

But the most striking parallel between thesetwo cases of terrorism is the incalculable harmdone to innocent victims. These were attemptsto kill randomly and on a grand scale, and in anawful way they succeeded.

Japan has been called “the state that kills insecret” because the secrecy and silence thatsurround capital punishment are taken toextremes seldom seen in other nations.16 Likeeveryone else in the country except a handfulof officials in the Ministry of Justice, victimsand survivors do not know in advance when anexecution will occur, and after the fact newsreporting tends to be perfunctory, with littleeffort to communicate what victims andsurvivors feel. By comparison, executions inAmerica are much more transparent,17 and theexecution of Timothy McVeigh opens anespecially wide window onto the sensibilities ofvictims and survivors because his lethalinjection was the most widely viewed executionin America in half a century,18 and becauseMadeira reports what 33 victims and survivorstold her during the seven years she spentresearching her book. The next sectionsummarizes several recurrent themes.

American Victims

According to Madeira, terrorism is an intensely

APJ | JF 10 | 38 | 5

6

unwelcome “toxic intrusion” for victims andsurvivors (p.19). McVeigh, Nichols, and Fortiernot only disrupted hundreds of lives, theydesecrated the physical and emotional integrityof their victims. Some victims and survivorsanalogized this intense sense of violation tobeing raped—with all the feelings of outrageand impurity that rape often entai ls .Recovering one’s identity and restoring one’sdignity means learning how to manage theunwanted intrusion.

For many victims and survivors, managing thistoxic intrusion is a Sisyphean task. Losing aloved one to murder is unlike any other blow inlife, because the survivor’s loss is not the resultof something as fickle and unfathomable asdisease or as random as an earthquake; it iscaused by the conscious choice of anotherhuman being. The experience of intentionalharm is so far from the core assumptionspeople usually share when they live togetherthat the reality is difficult to accommodate. Thevictim’s loss is also compounded by a failure oflaw, for before the criminal process ever beginslaw has already failed to perform its mostimportant function: the protection of life andlimb (Madeira, ch.2).

Madeira shows that victims and survivors varya lot, and hold diverse opinions about capitalpunishment and the criminal process (p.118).At McVeigh’s execution, some victims andsurvivors swore at the condemned or madeobscene gestures in his direction (McVeighcould not see them through the one-way mirrorat the prison or the camera that enabled peopleto watch his execution in Oklahoma). Somevictims and survivors who watched thisexecution felt relief afterward, and a few evenclapped or sang songs. And some saidMcVeigh’s execution reduced his control overtheir emotions, while a few even said it was“therapeutic” in the sense that it broughttemporary relief from his toxic presence.

But memories persist even after killers are

executed, and Madeira reports that McVeigh’sexecution produced little of the “closure” thatAmerica’s culture of capital punishment haspromised victims and survivors for the past twodecades. Indeed, the subtitle of her bookcaptures the punch line of her research. TheDeath Penalty and the Myth of Closure findsthat there is no such thing as closure in thesense of absolute finality (p.41). Survivorsnever really “get over it,” though some do copebetter than others (p.282).19

According to Madeira, different capacities tocope are rooted in different orientations to“memory work,” which is defined as “aninteractive process by which individual familymembers and survivors construct meaningfulnarratives of the bombing, its impact on theirlives, and how they have dealt with, adjustedto, or healed from this event” (p.xxiii). Thus,memory work consists of the emotional,cognitive, and physical labor of crafting, telling,and retelling stories, through relationships withother people and in conversations with the self(as sociologists observe, the self is largelyconstructed and susta ined through“soli loquizing”). 2 0

http://www.amazon.com/dp/0814796109/?tag=theasipacjo0b-20http://www.amazon.com/dp/0814796109/?tag=theasipacjo0b-20

APJ | JF 10 | 38 | 5

7

Madeira’s thesis about memory work has atleast six corollaries.

Coping with murder is an ongoingprocess that never ends because one’sstory must be continuously revised inlight of new information, experiences,and perceptions (p.38). The never-endingnature of memory work helps explainwhy survivors’ sentiments often changeover time, as appears to be the case withMotomura Hiroshi, the Japanese man inthe Hikari case who passionatelyadvocated capital punishment for thekiller of his wife and 11-month-olddaughter but who took a somewhat softertack after the killer’s death sentence wasfinalized.21 “Time has been my mosttreasured confidant,” he told reporters ata press conference in February 2012. “It

allowed me to view the case with level-headedness. I hope we don’t put threelives [of his wife, daughter, and thedefendant] to waste, and use this as anopportunity to attain a society in whichwe wouldn’t have to use the deathpenalty.”22

As for Mr. Motomura, so for many ofMcVeigh’s victims: “Time, measured inyears, seemed to be the biggest aid inc o p i n g , c o n t e x t u a l i z i n g , a n dcompartmentalizing the bombing” (p.44).Forgiveness was also a crucial stepforward for some victims (p.192).Doing memory work well requires closeattachments to other people. As Madeiranotes, “much memory work must takeplace outside of the courtroom,” andhuman bonds are essential to survivors’reconstructive efforts (p.182).The law alone cannot make victimswhole. In the face of the cruelties thathumans inflict on each other—withmurder the gravest cruelty of all23—asense of meaning typically comes fromoutside the law, and so does healing.Law’s most critical failure is its inabilityto answer the questions victims andsurvivors find most compelling. InOklahoma City these were: Why did theycommit the bombing? And why did wehave to be victimized? According toMadeira, these incessant questions drivesome victims “nuts” (p.149), and comingto terms with terrorism means learningthere is “no perfect answer” (p.151).Anger is a normal victim response tomurder, and it frequently defines thevictim’s self and world. Moreover, angercan be productive for some victims, aswhen it helps organize and direct thevictim’s attention and energy, often byel ic i t ing a determination to seesomething positive come from the loss(p.70).But anger can also be deeply destructiveto victims and survivors. In various ways,

APJ | JF 10 | 38 | 5

8

Madeira’s interviewees recognized theinsight articulated by Buddha some 25centuries ago: “Holding on to anger islike grasping a hot coal with the intent ofthrowing it at someone else; you are theone getting burned.”24

Emotions on Trial

It is difficult to determine the proper role ofanger and other emotions in a capital trial. Onthe one hand, the U.S. Supreme Court has heldthat “it is of vital importance to the defendantand to the community that any decision toimpose the death sentence be, and appear tobe, based on reason” (Justice John Paul Stevensin Gardner v. Florida, 1977). Indeed, one themeof American capital jurisprudence since the1970s has been the effort to rationalize thesentencing process by requir ing thesubstitution of rational principles and rule-of-law values for punitive passions and unguidedjury discretion. In the words of the Court’sPenry v. Lyons holding of 1989, the capitalsentencing decision must be a “reasoned moralchoice,” unencumbered by ignorance andemotion.

Yet the same Supreme Court that emphasizesthe importance of rational decision-making alsopermits American prosecutors to present“victim impact” evidence in the penalty phaseof capital trials (Payne v. Tennessee,1991)—though victims generally are notallowed to make specific sentencing requests,as they are permitted to do in Japan. Oneprominent death penalty scholar believes “it ishard to imagine an opinion that runs moredirectly contrary to the Court’s rationalizingreforms.”25 And another analyst has concludedthat victim impact evidence in American capitaltrials “prevents the jury from hearing theconstitutionally required story of thedefendant,” largely because it is easier forjurors to identify with the murdered victim’s“cognitive schema” than with that of thedefendant.26

At Timothy McVeigh’s murder trial, JudgeRobert Matsch tried to police victims’expressions of af fect , but in the endprosecutors were permitted to call 38 victimimpact witnesses, including 26 familymembers, 3 injured survivors, 8 rescueworkers, and a day care center employee.According to Madeira, their testimony was “soheartrending that sentencing proceedings werefraught with emotions” (p.156). To no one’ssurprise, McVeigh was sentenced to death inJune 1997. He would be executed four yearslater. His final statement, a handwrittenversion of British poet William Ernest Henley’s“Invictus”, could not have been more defiant:“My head is bloody, but unbowed…I am themaster of my fate: I am the captain of mysoul.”27

McVeigh’s main co-offender, Terry Nichols, wasnot sentenced to death, and it is reasonable towonder why. Many victims and survivorsbelieved Nichols was as morally culpable asMcVeigh, yet he escaped a capital sentence notonce but twice, first in a federal trial and thenat a state trial in Oklahoma. The principaldifference between his own two trials and theearlier one of McVeigh lay not in what was newbut in what was missing—especially the tearsof the victims. The gut-wrenching stories thatcharacterized McVeigh’s trial became sointense that court guards stocked the medialistening room with boxes of tissues. Incontrast, Nichols’ defense lawyers weredetermined to limit the types of victim impactstatements that would be permissible, and thejudges in his trials ultimately “forced theprosecution to tone down the victims’testimony to a basic recitation of the facts”(p.162). At Nichols’ federal trial, for example,Helena Garrett simply said “yes” when askedwhether she got to see her 16-month-old sonone last time before his burial; in McVeigh’strial she had given a heartbreaking account ofhaving to kiss her son’s feet and legs at thefuneral home because his head and face wereso badly injured (p.163).

APJ | JF 10 | 38 | 5

9

Victims and survivors in Japan now have morevoice in criminal trials than they did when thefirst wave of AUM offenders was being tried. Inthis sense, recent reforms are having an effect.But change is not necessarily progress, and onecritical question is how to regard the increasedsalience of victims in Japanese capitalpunishment. In making this judgment oneneeds to consider two truths about theJapanese context. First, victims and survivorstend to take on an almost sacred status in thecriminal process, making it virtually impossibleto cross-examine them or question theirassertions.28 Second, Japanese judges routinelypermit victims and survivors to beg for deathpenalty outcomes, and many bereaved personsare apparently encouraged to beg by family,friends, and prosecutors.29

I have attended three murder trials in Japan inwhich prosecutors sought a sentence of death.Victims and survivors were permitted to beg forthe ultimate sentence in all three.

In the first lay judge trial in which prosecutorssought a sentence of death, Hayashi Koji wassentenced to life imprisonment for killing twowomen. Near the end of this trial the son of onevictim cried intermittently while reading a five-page statement to the court. He called hisdeceased mother a “supermom” (supa-kachan)who had many friends and loved nature andkaraoke, and he said that while the defendantmay regret getting caught for the killings, hefeels no real remorse. The son also rebuked thedefendant for testifying that his youngestvictim sometimes talked smack about hercolleagues and customers. “Cut the crap!”(fuzakeru na), he raged at the defendant. “Shewould not do something like that!”30 The sonconcluded his statement by asserting—threetimes—that he wanted the defendant sentencedto death and by imploring judges and layjudges to study the photos of his mother’sbloody body during their deliberations.

In the same trial, the sister of one victim also

testified. She started by announcing that she“hates” the defendant because his crimes are“so horrible and evil,” and the longer she spokethe more momentum she gained. She weptloudly while reading her statement, andsometimes interjected how “vexed” (kuyashii)she felt by what the defendant had done. Shealso rebuked the defendant for trying to “trick”the court in his testimony. “You merely saidwhat was convenient for you,” she insisted.“Give us the lives of our loved ones back!” Nearthe end of her statement she broke into huge,gasping sobs, and when it became apparent shecould not continue, her attorney steppedforward to finish reading it.The final wordswere as follows:

“I went to visit [my sister’s] gravethe other day and I told her thatthe next t ime I come I w i l ldefinitely bring news of a deathsentence (shikei hanketsu okanarazu moratte kuru kara ne).My beloved sister is watching thistrial, and I really want the court togive us a death sentence. I desire adeath sentence. I hope you will doas I request.”

In a murder trial in Chiba that I attended in thesummer of 2011, Tateyama Tatsumi (who had acriminal history as long as his black belt forjudo) was sentenced to death for killing ayoung woman and brutally raping, robbing, andassaulting several other victims. In thepenultimate trial session, a parade of thewoman’s two parents, their attorney, fourvictims, and two prosecutors—nine persons inall—spent 195 minutes imploring judges andlay judges to condemn the defendant to death.By comparison, the defense’s allotted time forits closing argument was 60 minutes.

Riding the Elephant

One of the hallmarks of Japanese criminal

APJ | JF 10 | 38 | 5

10

justice is the almost monopolistic control thatprosecutors possess over case information.Prosecutors take numerous statements fromsuspects and witnesses during the pretrialprocess (and receive many more from thepolice), but they do not have to disclose all ofthem to the defense. Because of recent victims’rights reforms, prosecutors now possess anenormous emotional advantage as well, for thereforms give victims and survivors a muchlarger role at trial, and because judgesroutinely allow powerful emotional testimonyfrom victims and survivors that makes itdifficult to carry out the kind of “reasonedmoral judgment” that is the prerequisite ofprincipled sentencing.

Research shows that the human mind isdivided, like a rider on an elephant. The rider isour conscious reasoning—the stream of wordsand images of which we are fully aware—whilethe elephant is the other 99 percent of ourmental activities—the intuitive and emotionalprocesses that occur outside of awareness butthat govern most of our behavior.31 To allowvictims and survivors to express their feelingsat trial in their full emotional agony is to makethe rider’s already difficult job of steering theelephant even more difficult.

In the third murder trial I watched, Ino Kazuowas sentenced to death by the Tokyo DistrictCourt for robbing and killing an elderly manwho was relaxing in his apartment on theSunday afternoon in November 2009 when Inobroke in and stabbed him to death. This murderoccurred six months after Ino had beenreleased from prison after serving 20 years forkilling his wife and 3-year-old daughter in1988. On the second day of trial, the victim’sson was allowed to testify that he wanted adeath sentence even though the defendant wasdenying all of the charges against him and eventhough fact-finding had barely started (the sonwas permitted to make a second demand for adeath sentence at the end of the trial). Studiesshow that allowing victims to demand a death

sentence before the facts have been foundsignificantly shapes the fact-finders’assessment of what the facts are.32 This is onereason why capital trials in America arebifurcated into guilt and sentencing stages, sothat the facts can be found before punishmentis imposed. Notably, the only Japanese trial sofar in which prosecutors sought a sentence ofdeath and a lay judge panel acquitted—themurder trial of Shirahama Masahiro inKagoshima in 2010—involved a presiding judge(Hirashima Masamichi) who refused to permitsurvivors of the two murder victims to makeexplicit sentencing requests; he insisted thattheir statements be edited before being read incourt.33

The Kagoshima case suggests that as in the twomurder trials of American terrorist TerryNichols, reducing the volume of victims’ tearsmay also make a difference in Japan. Morefundamentally, to allow life and death decisionsto hinge on the emotional needs of victims andsurvivors is to violate the basic principle thatlike crimes be punished alike—as this article’sopening quotation from Scott Turow suggests.It remains to be seen what victims andsurvivors will be allowed to say in the murdertrial of AUM’s Takahashi Katsuya.

Lessons for Japan

American writer James Thurber often exhorted,“Let us not look back in anger or forward infear but around in awareness.” There isinsufficient awareness of the role that victimsand survivors play in Japanese criminal trials,and there is insufficient discussion of the rolethat they should play. I have written this articlein the hope that increased awareness of theevidence from America will help generate morediscussion about vict ims and capitalpunishment in Japan. I conclude with threelessons for Japan.

First, murder is down in Japan, and terroristattacks ceased after Asahara was arrested, butrandom killings (musabetsu na satsujin)

APJ | JF 10 | 38 | 5

11

continue to make Japan’s public anxious andangry. Those public responses may seeminevitable, but they are as much a product ofthe media penchant for peddling fear andfury—and of political leaders’ priorities—asthey are “natural” human reactions. As MoriTatsuya recently reported, real ity isconstructed quite differently in Norway, whereAnders Behring Breivik killed 77 people in July2011 before being sentenced to 21 years inprison in August 2012.34

Bre iv ik in Os lo courtroom af tersentencing.

If looking into the mirror of Norway alerts us tothe possibility of responding to terrorism inmore constructive terms than resentment andvengeance,35 looking into the mirror of Americamay awaken us to the reality that capitalpunishment seldom provides closure for victimsand survivors. This is the main negative lessonfrom the execution of Timothy McVeigh.Punishment does not heal victims, and thecriminal law cannot make them whole.

The main positive lesson from the Oklahomacase is that memory work can help to healsome victims and survivors, especially when ittakes place in the context of close humanrelationships. In this sense, personalattachments are crucially important. When

murder ruins one or some of them, theconstructive thing to do (easier said thandone!) is to seek meaning in conversation andconnection with friends, family, and loved ones.Moreover, in order to be effective, memorywork must continue until the end of one’s life.For victims and survivors, memory workbecomes one of life’s essential activities, likeeating, drinking, and sleeping.

Finally, one would like to believe that memorywork and related acts of remembrance makepeople and their societies more vigilant in theirability to prevent terrorism and other acts ofatrocity. But the truth is not so easy. AsSeptember 11 illustrated in the United States,“never again” is “a fairy tale” which ought to betaken to heart by people in Japan and othercountries.36 Sooner or later Asahara and theother AUM offenders on death row willprobably be executed. For Japan’s leaders,especially those in the Ministry of Justice whocontrol the country’s machinery of death,“looking around in awareness” might helpproduce the realization that the physicaldemise of these terrorists will provide neitherenduring comfort to victims and survivors noran obstacle to other zealots who believe it isrighteous to kill. As Jody Lynee Madeiraconcludes in her fine book, the myth of closureis a warning about the false comfort of state-killing, and it is also an exhortation to bevigilant about the future.

David T. Johnson is Professor of Sociology atthe University of Hawaii; davidjoh@hawaii.edu.This article is a revised and expanded versionof “Asahara o Korosu to iu Koto: AmerikajinTerorisuto no Jiken kara Higaisha to Shikei nitsuite Kangaeru”, Sekai (October 2012),pp.214-226 (translated by Iwasa Masanori).Johnson is co-author (with Franklin E. Zimring)of The Next Frontier: National Development,Political Change, and the Death Penalty in Asia(Oxford University Press, 2009), and co-editorof Law & Society Review. He is an Asia-PacificJournal associate.

https://apjjf.org/mailto:davidjoh@hawaii.eduhttp://www.amazon.com/dp/0195382455/?tag=theasipacjo0b-20http://www.amazon.com/dp/0195382455/?tag=theasipacjo0b-20

APJ | JF 10 | 38 | 5

12

Recommended citation:David T. Johnson,"Killing Asahara: What Japan Can Learn AboutVictims and Capital Punishment from theExecution of an American Terrorist," The Asia-Pacific Journal,Vol 10, Issue 38, No. 5,September 17, 2012.

Articles on related subjects

•Philip Brasor, Lay Judge System and theKanae Kijima Trial

•David T. Johnson, War in a Season of SlowRevolution:Defense Lawyers and LayJudges in Japanese Criminal Justice

•David T. Johnson, Capital Punishmentwithout Capital Trials in Japan’s Lay JudgeSystem

•Lawrence Repeta, Transfer of Power atJapan’s Justice Ministry

•David T. Johnson and Franklin E. Zimring,Death Penalty Lessons from Asia

•Mark Levin and Virginia Tice, Japan’s NewCitizen Judges: How Secrecy ImperilsJudicial Reform

Notes

1 NHK TV, “Mikaiketsu Jiken”, May 26-27,2012.

2 See, for example, David H. Bayley, Forces ofOrder: Policing Modern Japan (University ofCalifornia Press, 1976, 1991), and Walter L.Ames, Police and Community in Japan(University of California Press, 1981). For aportrait of Japanese prosecutors that is alsosomewhat positive, see David T. Johnson, TheJapanese Way of Justice: Prosecuting Crime inJapan (Oxford University Press, 2002).

3 Richard Lloyd Parry, “Japan’s IneptGuardians,” New York Times, June 24, 2012.Parry has also written an excellent book about

Obara Joji, the killer and serial rapist whooperated for years under the noses of theJapanese police (People Who Eat Darkness,Jonathan Cape, 2011).

4 Report of the National Commission onTerrorist Attacks Upon the United States(2004).

5 Several other AUM puzzles remain unsolvedand underexplored. For example, why didpolice fail to find the person(s) who tried toassassinate Japan’s top cop (Kunimatsu Takaji)ten days after the assault on the Tokyo subway?Why did prosecutors arrest Asahara’s leaddefense lawyer (Yasuda Yoshihiro) during theguru’s criminal trial on a criminal charge soobscure—obstruction of the compulsory seizureof rental income from a corporation Yasuda wasadvising—that the Tokyo District Courtultimately concluded it was utterly groundless(appellate courts later overruled)? And why do1500 people (and one of my friends) still revereAsahara and remain committed to his teachingsdespite all of the evil done in his name?

6 Aoki Osamu (interviewer), “Ogawa Toshio gaGekihaku: ‘Asahara Shikei’ to ‘ShikikenHatsudo’”, Shukan Posuto, July 6, 2012,pp.43-45.

7 After Takahashi’s arrest, Takahashi Shizue,who lost her husband in the Tokyo gas attack,lamented “You must have known about ourgreat suffering as victims, yet why did you runaround for so long?” Asahi Shimbun, “‘NazeKoko made Tobo’ ‘Shinjitsu Sematte’ Aum JikenIzoku kara”, June 15, 2012.

8 Inagaki Makoto, “Govt Resumes Executions:Friday’s Executions Show New Minister’sDetermination,” Daily Yomiuri, August 4, 2012.

9 As explained later in this article, the questionof deterring terrorism through capitalpunishment is less complicated and lesscontentious.

https://apjjf.org/-Philip-Brasor/3757https://apjjf.org/-Philip-Brasor/3757https://apjjf.org/-David_T_-Johnson/3554https://apjjf.org/-David_T_-Johnson/3554https://apjjf.org/-David_T_-Johnson/3554https://apjjf.org/-David_T_-Johnson/3461https://apjjf.org/-David_T_-Johnson/3461https://apjjf.org/-David_T_-Johnson/3461https://apjjf.org/-Lawrence-Repeta/3244https://apjjf.org/-Lawrence-Repeta/3244https://apjjf.org/-Franklin_E_-Zimring/3228https://apjjf.org/-Virginia-Tice/3141https://apjjf.org/-Virginia-Tice/3141https://apjjf.org/-Virginia-Tice/3141http://www.9-11commission.gov

APJ | JF 10 | 38 | 5

13

10 Matsui Shigenori, “Justice for the Accused orJustice for Victims?: The Protection of Victims’Rights in Japan,” Asia-Pacific Law & PolicyJournal, Vol.13, No.1 (2011), pp.54-95.

11 Daniel S. Nagin and John V. Pepper, editors,Deterrence and the Death Penalty (TheNational Academies Press, 2012), and RobertA. Pape, Dying to Win: The Strategic Logic ofSuicide Terrorism (Random House, 2005).

12 Sangmin Bae, When the State No LongerKills: International Human Rights Norms andAbolition of Capital Punishment (StateUniversity of New York Press, 2007); RogerHood and Carolyn Hoyle, “Abolishing the DeathPenalty Worldwide: The Impact of a ‘NewDynamic,’” Crime and Justice (The University ofChicago Press, Vol.38, 2009); and David T.Johnson and Franklin E. Zimring, The NextFrontier: National Development, PoliticalChange, and the Death Penalty in Asia (OxfordUniversity Press, 2009).

13 Ida Makoto et al, “Saibanin Saiban ni okeruRyokei Hyogi no Arikata ni tsuite”, LegalResearch and Training Institute, SupremeCourt of Japan, July 2012. By comparison, inthe United States from 1977 to 1999, about 2.2percent of all known murder offenders weresentenced to death; see John Blume, TheodoreEisenberg, and Martin T. Wells, “ExplainingDeath Row’s Popu la t ion and Rac ia lComposition”, Journal of Empirical LegalStudies, Vol.1, No.1 (March 2004), pp.165-207.

14 Jody Lynee Madeira, Killing McVeigh: TheDeath Penalty and the Myth of Closure (NewYork University Press, 2012).

15 Yamamoto Ryosuke, “Judge Who SparedAUM Doctor Still Has Doubts About Verdict,”Asahi Simbun/Asia & Japan Watch, November17, 2011.

16 David. T. Johnson, “Hisoka ni Hito o KorosuKokka”, Jiyu to Seigi, Vol.58, No.9 (September2007): 111-127, and Vol.58, No.10 (October

2007): 91-108 (translated by Kikuta Koichi);and David T. Johnson, “Japan’s Secretive DeathPenalty Policy: Contours, Origins, Justifications,and Meanings,” Asia-Pacific Law & PolicyJournal, Vol. 7, Issue 2 (Summer 2006),pp.62-124, available here.

17 Fuse Yusuke, Amerika de Shikei o Mita(Gendai Jinbunsha, 2008).

18 Ten seats were allotted for victims andsurvivors at McVeigh’s federal trial in Denver,and there were seats for 320 more to watch alive broadcast in an Oklahoma City auditorium.At McVeigh’s execution in Indiana, a lotterywas used to allocate 7 seats for victims’ familymembers, 2 seats for survivors with physicalinjuries, and 1 seat for other survivors; another300 watched a closed circuit broadcast inOklahoma.

19 University of Houston Professor of Law DavidR. Dow puts Madeira’s point more sharplywhen he says, “After you kill the bad guys,you’re just as angry as you were before, butthere ain’t no one left to hate.” Dow is also thelitigation director of the Texas DefenderService, a nonprofit legal aid corporation thatrepresents death row inmates. See his TheAutobiography of an Execution (Twelve, 2010),p.174.

20 Lonnie Athens, “The Self as Soliloquy,”Sociological Quarterly, Vol.35, No.3 (1994),pp.521-532.

21 Masuda Michiko, Fukuda kun o KoroshiteNani ni Naru: Hikari shi Boshi Satsugai Jikenno Kansei (Inshidentsu, 2009).

22 Mainichi Daily News, “After Death SentenceConfirmed, Bereaved Family of Young Mom andBaby Takes Step Forward,” February 21, 2012.

23 Among developed democracies, the cruelty ofmurder is unusually common in the UnitedStates. For example, the murder rate in NewYork City has dropped 80 percent since 1990,

http://blog.hawaii.edu/aplpj/files/2012/02/APLPJ_13-1_Matsui.pdfhttp://blog.hawaii.edu/aplpj/files/2012/02/APLPJ_13-1_Matsui.pdfhttp://blog.hawaii.edu/aplpj/files/2012/02/APLPJ_13-1_Matsui.pdfhttp://www.jiadep.org/page157_files/page157_1.pdf

APJ | JF 10 | 38 | 5

14

but as of 2012 it remains approximately 10times higher than the murder rate in Tokyo.Killing in the United States stands out in twoother ways as well, for America is one of theworld’s leading executing states (its 43executions in 2011 ranked fifth in the world,behind China, Saudi Arabia, Iraq, and Iran),and it is also one of the most active in carryingout the murder that is called (and sometimescelebrated as) war.

24 See, for example, Madeira, pp.192, 237, 282.See also Simran Khurana, “Buddha Quotes."

2 5 David Garland, Peculiar Institution:America’s Death Penalty in an Age of Abolition(Belknap Press, 2010), p.279.

26 Diana Minot, “Silenced Stories: How VictimImpact Evidence in Capital Trials Prevents theJury from Hearing the ConstitutionallyRequired Story of the Defendant,” The Journalof Criminal Law and Criminology, Vol. 102, No.1 (Winter 2012), pp.227-251.

27 For the whole poem see here.

28 David T. Johnson, “Victims and Emotions inJapanese Capital Punishment”, Hogaku Semina,May 2011.

29 David T. Johnson, “Progress and Problems inJapanese Capital Punishment,” in CapitalPunishment in Asia: Comparative Perspectives,edited by Roger Hood and Surya Deva(forthcoming, Oxford University Press, 2013).

30 Hayashi’s youngest victim and his maintarget was a 21-year-old woman whom he hadpatronized at an “ear-cleaning salon” inAkihabara 154 times in the 14 months beforehe murdered her. Hayashi felt unrequited lovefor the woman—or lust, or longing, orsomething—and he was angry that themanagement of her shop had forbidden him to

visit any more.Hayashi also testified that thewoman sometimes spoke critically about someof her customers and clients, and this was onereason the son of his eldest victim rebuked him.For more details on this case, see David T.Johnson, “Capital Punishment without CapitalTrials in Japan’s Lay Judge System,” The Asia-Pacific Journal (December 27, 2010).

31 Jonathan Haidt, The Righteous Mind: WhyGood People Are Divided by Politics andReligion (Pantheon Books, 2012), p.xiv. Seealso Daniel Kahneman, Thinking, Fast and Slow(Farrar, Straus and Giroux, 2011), and DavidEagleman, Incognito: The Secret Lives of theBrain (Vintage Books, 2011).

32 David T. Johnson, “Capital Punishmentwithout Capital Trials in Japan’s Lay JudgeSystem,” The Asia-Pacific Journal (December27, 2010).

33 The Kagoshima case is discussed in moredetail in Johnson (2010).

3 4 Mori Tatsuya, “Genbatsu wa Yuko naKeibatsu na no ka: Norway no moto-Hoso niKiku”, Sekai, August 2012, pp.176-183.

35 Norway’s different approach to terrorismdoes not marginalize victims and survivors.Before Breivik’s trial began, “the court named174 lawyers, paid by the state, to protect theinterests of the victims and their families,” andat trial the court heard 77 autopsy reports.After each report, “the audience watched aphoto of the victim, most often a teenager, andlistened to a one-minute-long biography voicinghis or her unfulfilled ambitions and dreams.”For more detail, see Toril Moi and David L.Paletz, “In Norway, a New Model for Justice,”New York Times, August 23, 2012.

36 Madeira, 2012, p.273.

http://quotations.about.com/od/stillmorefamouspeople/a/Buddha1.htmhttp://en.wikipedia.org/wiki/Invictushttp://www.japanfocus.org/-David_T_-Johnson/3461http://www.japanfocus.org/-David_T_-Johnson/3461http://www.japanfocus.org/-David_T_-Johnson/3461http://www.japanfocus.org/-David_T_-Johnson/3461http://www.japanfocus.org/-David_T_-Johnson/3461http://www.japanfocus.org/-David_T_-Johnson/3461