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Death Penalty for Hikari City Mother-Child Murder Case
- Victim Relief by Restorative Justice -

Norio Takahashi
professor of Waseda Law School.(Doctor of Law, Waseda University)

The Hiroshima High Court reversed it's decision and handed down the death sentence for the murder of a mother and her daughter in Hikari City (April 22, 2008 Hiroshima High Court) to the accused who was a minor at the time of the crime (18 years and one month old). This case has been attracting widespread public interest as a result of extensive coverage of the victims' family by mass media.

This court of appeal deserves to be studied from various perspectives, but here, it shall be discussed from the perspective of restorative justice, especially from the standpoint of the victims involved.

Nagayama Standard and "Emotions of Victim's Family"

In the "serial shooting murder case (Nagayama Incident) (Showa 58-7-8 Police Procedure 37-6 609 pages), the supreme court ruled that the death penalty may be imposed inevitably in consideration of the degree of criminal liability and balance of justice based on a nine-point set of criteria which includes; degree of viciousness of the crime, motive of the crime, how the crime was committed-especially the manner in which the victim was killed, outcome of the crime------especially the number of murdered victims, sentiments of the victim's bereaved family members, impact of the crime on society, defendant's age, defendant's previous criminal record, and degree of remorse shown by the defendant.

First, the relation between this Nagayama Standard and this case should be questioned. Indeed, the Nagayama Standard is nothing but a set of abstract guidelines, and though it should be made more concrete in individual cases, it adopts the "exceptional capital punishment" standard. The reversed and remanded high court ruling (maximum sentence 18-6-20 1213 Edition 89 pages) this time, though premised on "exceptional capital punishment", can be said to have adopted the criteria "in rule capital punishment", demonstrating that if a crime is vicious, basically, the death sentence will be passed, but death sentence shall be avoided exceptionally under extenuating circumstances. However, it should be noted that this particular incident is a critical one in which such judgment of "reversal between general principle and exception" cannot be passed readily in consideration of the number of victims, defendant's age, etc. Still, the fact that the high court handed down this ruling, which was carried out by the appeal court decision, shows that the focus in this trial was on "sentiment's of bereaved family members of the victims" out of the nine criteria.

Criminal Justice System which has yet to Satisfy Sentiment's of Victim's Family

It comes perfectly natural for the families of crime victims to want the offenders to be penalized by death as these victims have lost their loved ones in brutal ways, their voices being the cry of those they have lost. When we read the diaries of victims, the emotions of avenging the perpetrators overflow uncontrollably. However, it is also obvious that these emotions are the retributory sentiments of the victim as an individual, and the national punitive authority is not rooted merely in this. There exists here a gap between personal level and public level, and important issues here are can this gap be closed, and what would be the appropriate means of doing so. This means that unless the national punitive authority is exercised only along such retributory sentiments of the victims, it is unlikely that victim sentiments will ever be completely fulfilled in criminal justice. Individual victim sentiments also tend to be categorized and generalized as objective victim sentiments---in the world of justice, this is wholly reasonable. On the contrary, the problem here lies in the fact that victims have no other means of expressing their sentiments to the public but through the justice system and mass media.

Bridge Served by the Restorative Justice System

Taking crime to be a violation of human relations, restorative justice is a system aiming at the restoration and recovery of the relations between the victim, perpetrator, and community through their involvement. It has the potential to play a complementary role in criminal justice. All concerned stakeholders participate voluntarily in the restorative justice system, and if progress is poor, they revert to the criminal justice system. Such a system however does not actually exist, and this is a problem. Through the restorative justice system, communication between the stakeholders is implemented assisted by experienced and trained mediators, enabling all parties to speak out their emotions. If direct dialogue is not possible due to the nature of the case, indirect communication by representatives is carried out. In other words, restorative justice is a system which provides the venue for the various stakeholders involved to communicate, serving as a bridge to them.

The criminal justice system is a so-called win or lose situation and the defense method applied in this case by the lawyers falls under this category. In the U.S., there is a system called Defense Initiated Victim Outreach (DIVO) whereby specialists who are neither the lawyer of the perpetrator nor the prosecutor serve to bridge the victim's bereaved family members and the perpetrator's lawyer in criminal cases. It deserves attention as a system of restorative justice.

From Retribution to Restoration and Recovery

It would be ideal if criminal problems could be solved through the joint efforts of a criminal justice system which serves as the venue for legal communication, and restorative justice which serves as the venue for fresh communication. The retributory sentiments of victims must be expressed in the restorative justice system. Though this may not alleviate these retributive emotions in some cases, what is important is that it lays down the path from retribution to restorative and recovery.

From the perspective of restorative justice, the perpetrator' responsibility would be fulfilling actions that contribute to the restoration and regeneration of victims, instead of being subjected to punishment. The responsibilities of the community and those of the media lie in sharing and supporting the sufferings and distress of the victims, not demanding that the perpetrator be punished.

"Retribution is the attempt to restore balance by having the perpetrator fall to the same depths as the victim. The aim is to defeat the wrongdoer into abandoning all sense of superiority and reaffirming the victim's dignity. On the other hand, restoration serves to lift the victims back to their original level". (Howard Zehr "What is Restorative Justice?" Page 195 onwards). Whether to take these words as merely pretty words or taking them seriously and working towards them will serve as a touchstone as to how we want to build future society,

Norio Takahashi
professor of Waseda Law School.(Doctor of Law, Waseda University)

Profile

Born in 1951 in Tokyo. Graduated from Waseda University School of Law in 1975. Completed Master's and Doctoral Programs from the Graduate School of Law, then served as lecture, associate professor, and professor of Toyo University, before joining the current position of professor of Waseda Law School.
(Doctor of Law, Waseda University)

Main Publications

Complicity in Crime and Theory of Complicity (1988, Seibundo)
Concept of Loss Recovery in Criminal Law (1997, Seibundo)
In Pursuit of restorative Justice (2003, Seibundo)
What is Restorative Justice? From Retribution to Restoration of Relations (Translation supervisor) (2003, Shinsensha)
Law School Textbook: General Theory of Criminal Law (2nd edition) (Coauthorship) (2007, Nippon Hyoronsha)
Normative Ethics and Interpretative Theory of Criminal law (2007, Seibundo)
Resolving Crimes by Dialogue-Developments in Restorative Justice (2007, Seibundo)
Law School Textbook: General Theory of Criminal Law (Coauthorship) (2008, Nippon Hyoronsha)