1983.07.08

1981 (A) 1505

Keishu Vol.37, No.6, at 609

Judgment on standards for selection of the death penalty

Judgment of the Second Petty Bench, quashed and remanded

Tokyo High Court

1) Under the current legal system in which the death penalty is recognized, selection of the death penalty is allowed in cases where it is deemed that there is no alternative from the standpoint of balancing the crime with the punishment and from the standpoint of general prevention, when criminal liability is extremely grave taking account of any and all extenuations including the nature of the crime, the motive, its features and in particular the tenacity and cruelty employed in carrying out the murder, the gravity of its consequences as reflected especially in the number of victims killed, the feelings of the bereaved family, its impact on the society, the age of the perpetrator, his criminal record, and grounds for leniency after the crime has been committed.

2) In the instant case where the circumstances are unfavorable (see text of judgment), namely murder of four persons in succession in a cruel, tenacious and cold-blooded manner through fear that past crimes would come to light or in order to steal money, and the deep sense of injury felt by the bereaved families, even taking account of favorable circumstances such as the defendant's age at the time the crimes were committed (19 years), the disadvantaged environment in which the defendant was raised, the fact that the defendant married within the detention center after committing the crimes and, further, that the defendant has provided financial reparations to make partial amends for the damage caused, the original judgment reversing the sentence of death delivered by the court of first instance constitutes an extremely serious miscalculation of the penalty and must be reversed.

Full text (original text)

Judgment:

With regard to an incident of theft, murder, robbery with murder, attempted robbery with murder, violation of the Law Controlling Possession, etc., of Firearms and Swords, and violation of the Explosives Control Law, an appeal was received from the public prosecutor in connection with the judgment delivered on August 21, 1981 by the Tokyo High Court.
This Court gives the following judgment.

The original judgment shall be reversed. The instant case shall be remanded to the Tokyo High Court.

Among the grounds for acceptance of appeal submitted by the public prosecutor, the allegation of violation of judicial precedent involves cases quoted in the arguments for the appeal that do not include judgments extending as far as the purport of the arguments. This allegation therefore lacks a valid premise and the other arguments are allegations of inappropriate calculation of punishment. None of these arguments therefore constitutes grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

However, looking into this matter under the power of the Supreme Court taking account of the arguments of the public prosecutor, the original judgment must be reversed for the reasons indicated hereunder.

1. The facts in the case at bar are that the defendant, who at the time of the crimes was a minor of nineteen years of age, stole a handgun inside a US military base and, using this weapon, shot and killed two security guards on duty in Tokyo and Kyoto, robbed and then shot and killed two taxi drivers in Hakodate and Nagoya, thus taking the lives of four upstanding members of the community within the space of only a month. Having then returned to Tokyo, he broke into a school and was discovered by a security guard, whom he shot at in order to avoid arrest. However, the shot missed and he failed in his intention of murder.
Taking account of various circumstances such as the absence of any mitigating factors as regards the motive for the crime; that the crimes were premeditated in that the defendant carried the handgun around loaded with live ammunition; that there were several crimes involved and the method used in their execution was cruel, involving shooting several times at the head or in the face of the victims at close quarters; that the consequences were extremely grave, involving taking away the lives of four members of the community at the height of their working capacity; that the bereaved families of the victims received serious shocks on both the psychological and economic levels; and that the instant case was reported in the media under the title of the "Serial Murder by Shooting Maniac" incident and had an extremely great impact on society, making ordinary people highly concerned over their safety, it would be no exaggeration to say that the case at bar may be referred to as one of the most heinous in the history of crime, and, taking account of these circumstances as a whole, together with the fact that the defendant shows no signs of remorse concerning his actions as detailed above, even if allowance is made for all the factors standing in the defendant's favor such as the disadvantaged environment in which he was raised and the fact that he was still a minor at the time the crimes were committed, the court of first instance declared that there was no option available apart from the death penalty, which was duly imposed on the defendant.

2. In contrast, the original judgment pointed out that although the sentence in the judgment of the court of first instance could not be said to be unjustified, taking account of all the unfavorable circumstances involved such as the gravity of the consequences of the crimes, the depth of the feelings of injury on the part of the bereaved families, etc., the considerable impact on society, and the abnormal behavior displayed by the defendant at the trial conducted by the court of first instance, the death penalty system needed to be applied with circumspection. The judgment stated as follows:

"If the death penalty is to be selected in a particular case of indictment, the option should be limited to circumstances on such a level that every court would, on balanced consideration, have elected to impose the death penalty.

In terms of legislative theory, there is an opinion that imposition of the death penalty should be based on unanimous opinion of all judges, and this approach is worth bearing in mind in connection with application of the current law."

On this basis, bearing in mind the circumstances favorable to the defendant in addition to the afore-mentioned circumstances, it was decided that it would be too severe to uphold the death penalty on the defendant, in consequence of which the judgment of the court of first instance was reversed and the defendant was sentenced to life imprisonment. The circumstances favorable to the defendant mentioned in the previous judgment were as follows:

First, the crimes involved in the instant case were transitory crimes. The defendant was a minor aged nineteen years when the crimes were committed. He had been raised in a disadvantaged environment and, owing to his upbringing, his degree of mental maturity was effectively equivalent to that of an adolescent under the age of eighteen. Accordingly, the spirit of Article 51 of the Juvenile Law should be applied. In addition, one of the factors underlying these crimes was the poverty of social welfare policy.

Second, the defendant married P on December 12, 1980 after the judgment of the court of first instance had been delivered, and changes can be observed in the defendant's environment and mental state now that he has obtained a partner for life. He no longer speaks in the aggressive and rude manner he assumed at hearings of the court of first instance.

Third, the defendant has published the memoirs he has been keeping in prison since the crimes and has expressed his remorse for the crimes by donating, from the royalties gained from publication, a total of 2,524,400 yen to the bereaved family in Kyoto and a total of 4,631,600 yen to the bereaved family in Hakodate. In accordance with the wishes of the defendant, his wife P has visited the bereaved families in Kyoto, Hakodate and Nagoya and has expressed her condolences.

3. That the death penalty does not constitute a so-called cruel punishment and that criminal law providing for the death penalty does not violate the Constitution is the position of judicial precedent of the Supreme Court, Grand Bench (1947 (re) No. 119, judgment of March 12, 1948, Keishu Vol. 2, No. 3, p. 191). However, the death penalty is an extreme and dispassionate penalty that takes away forever life itself as the root of human existence. As such, it is the ultimate penalty for use in truly unavoidable cases and for this reason, as stated in the original judgment, it must be used only with the utmost caution.
The afore-mentioned opinion expressed in the original judgment that selection of the death penalty by a court should be an option in extremely heinous cases when there is room for virtually no other penalty is indeed understandable. In conclusion, under the current legal system in which the death penalty is recognized, selection of the death penalty must be allowed in cases where it is deemed that there is no alternative from the standpoint of balancing the crime with the punishment and from the standpoint of general prevention, when criminal liability is extremely grave taking account of any and all extenuations including the nature of the crime, the motive, its features and in particular the tenacity and cruelty employed in carrying out the murder, the gravity of its consequences as reflected especially in the number of victims killed, the feelings of the bereaved family, the impact of the crime on society, the age of the perpetrator, his criminal record, and grounds for leniency after the crime has been committed.

Considering this matter in light of the instant case, the records show that the defendant shot to death with a handgun four upstanding members of the community in the cities of Tokyo, Kyoto, Hakodate and Nagoya in the space of less than a month. His action in taking away the irreplaceable lives of these persons plunged their bereaved families into the depths of misery. About six months later, the defendant shot at a security guard in Tokyo. The case at bar provoked enormous social concerns throughout the country and was referred to as the "Serial Murder by Shooting Maniac" incident. The nature of the crime, its consequence and its social impact were extremely grave. The motive for committing this series of crimes was concern that his past crimes would be discovered or an attempt to gain money by force. The crimes were committed on the most trivial of impulses. The defendant made no attempt to respond to the pleading of his elder brother that he give himself up to the police after the Kyoto incident. Instead he went to Hakodate where he committed another grave crime, and there are thus no grounds for sympathy. As far as the method employed in the murders is concerned, the weapon he used for this purpose was a handgun stolen from a US military base, which he fired several times from a short distance at the face or head, etc., of the victims. The method can only be described as cruel in the extreme. In the case of Q, the victim in the Nagoya case, despite the victim begging for his life to be spared, saying "wait, wait", his begging was denied and he was killed in the most tenacious and cold-blooded manner. The feelings of hurt incurred by the bereaved family are extremely deep. The parents of Q have said that not to accept from the defendant any form of compensation for the hurt they have incurred is the least they can do for the repose of their son's soul, thus revealing the extent of their anguish. The mother of R, the victim in the Tokyo case, has also resolutely refused to take any compensation for the loss of her son, and she has said that she does not feel inclined to forgive the defendant no matter what the circumstances. The feelings of the bereaved families can thus be summed up in the word "anguish."
These points are strongly disadvantageous to the defendant.

As pointed out by the original judgment, points favorable to the defendant include the fact that he was still a minor when the crimes were committed; the fact that there is considerable room for sympathy given his extremely unfortunate home environment as he grew up; the fact that he married and obtained a partner after the judgment of the court of first instance was handed down; and the fact that he has made partial amends to some of the bereaved families by means of payments to them. These circumstances need to be taken into consideration. It is indeed a fact that the defendant was raised along with several brothers from infancy by his mother alone in a state of extreme poverty, and he grew up thirsting for the love of his blood relatives. He clearly deserves considerable sympathy in this respect, and it may be presumed that such negative environmental factors may well have had an effect in inhibiting his healthy mental development. The fact that the original judgment saw the crimes in the instant case as transitory crimes committed by an adolescent with an immature mental age of less than eighteen and determined that the spirit of Article 51 of the Juvenile Law should be applied was no doubt because emphasis was placed on the influence of the afore-mentioned negative factors. However, the defendant's brothers, who were raised in the same environment as the defendant, have grown up to become responsible adults without the behavioral symptoms of the defendant, and there are therefore doubts as to whether too much attention has not been given to environmental factors. In addition, although the defendant was a juvenile at the time the crimes were committed, he was in the upper juvenile age group, being aged between nineteen years three months and nineteen years nine months. Bearing in mind the deep-rooted criminal nature evident in the motive and the method of the crimes as described above, it would seem to be difficult to attribute to the defendant a degree of mental maturity equivalent to that of an adolescent under the age of eighteen without other special circumstances. Such being the case, it must be said that it is impossible to concur with the decision of the original judgment to the effect that the spirit of Article 51 of the Juvenile Law should be applied to the instant case, premised upon facts which were not necessarily clear on the basis of evidence, namely that the crimes were transitory and that the degree of mental maturity of the defendant was equivalent to that of an adolescent under the age of eighteen, and it is not appropriate to make direct linkage between the social welfare policy of the State, society and the crimes involved in the instant case. Throughout the court hearings and in his memoirs kept in prison, the defendant has consistently striven to attribute responsibility for his actions to external factors by transferring responsibility to his parents and brothers, to society, and to the State, etc., but this attitude of the defendant is problematic and it is not appropriate to over-estimate the importance of the defendant's marriage and his financial reparations to the families of the victims.

Summarizing the above, on the basis of the evidence that appears in the records of the case at bar, it is clear that the criminal liability of the defendant is extremely grave, and even if account is taken of the factors pointed out by the original judgment as standing in the defendant's favor, there cannot be deemed to be sufficient grounds for the determination of the original judgment that the sentence of death given to the defendant was too heavy.

Accordingly, the original judgment reversing the death sentence delivered by the court of first instance and sentencing the defendant to life imprisonment is based on errors in findings of individual facts that constitute the preconditions for assessment of punishment and in overall assessment, it incorporates an extremely serious error in fixing the sentence in proportion to liability, and a major infringement of justice will occur if this judgment is not reversed.

4. Accordingly, the original judgment is reversed on the basis of Article 411, item 2 of the Code of Criminal Procedure and, in consideration of the gravity and uniqueness of the instant case, the case is remanded to the original court in accordance with the main clause of Article 413 of the Code of Criminal Procedure in order to ensure that hearings are fully exhausted. The judgment contained in the Main Text is thus delivered on the unanimous opinion of the judges.

Public hearing held in the presence of public prosecutor Eiichi Kakei.

July 8, 1983

Supreme Court, the Second Petty Bench

Justice OHASHI Susumu
Justice KINOSHITA Tadayoshi
Justice SHIONO Yasuyoshi
Justice MIYAZAKI Goichi
Justice MAKI Keiji