Hisho's Birds

Chapter 5

Enga’s interference robbed the room of its remaining energy. Eikou decided to call it a day. Starting the next morning, and for several days running, he and his magistrates confined themselves to chambers and debated the issues at length. But the legal and moral waters only grew murkier.

Somewhere along the line, Sotsuyuu, the clemency magistrate, started advocating for capital punishment while Jokyuu, the sentencing magistrate, argued for life without parole.

p. 123

To fulfill the requirements for mitigating circumstances, Sotsuyuu visited the families of the victims. Though attempting to be as empathetic and sympathetic as possible, they steadfastly refused to condone any sentence other than death.

So it had been from the start, leaving Sotsuyuu in the position of advocating for the death penalty on behalf of the victims. Playing the devil’s advocate forced Jokyuu to insist on the opposite. And so together they filled their respective roles. Eikou well understood how bewildering the whole thing had become.

What Eikou found so strange about it was that all three of them should end up this nonplused. Watching in silence as the Sotsuyuu and Jokyuu sparred, Eikou had to conclude that Jokyuu had no chance of prevailing.

At one point, advocating for capital punishment, Sotsuyuu raised the concerns of the citizenry.

“People are on edge. They believe the kingdom is coming apart. In order to bring order to such a world, shouldn’t the penal system serve as a deterrent? The relationship between crime and punishment must be made crystal clear.”

Sotsuyuu was referring to a version of the old proverb, “Abolish punishment with punishment.” A harsh sentence publicly imposed on a criminal would dissuade others of a similar ilk. In response to this, Jokyuu pointed out that the evidence from other kingdoms and their own records was that the harshness of a sentence did little to curtail crime rates.

“Regardless,” Sotsuyuu pressed, “the use of the death penalty does not degrade public safety. It is true that the death penalty can’t be said to prevent future crime. But the law-abiding citizen does see it as necessary. Sending a criminal like Shudatsu to the gallows assures him that the law works and public order is being preserved. The dire threat that murderers will be put to death sets their minds at ease.”

p. 124

“I understand the public’s need for peace of mind and their fear of an anarchic world. However, an increasing crime rate begins with troubled minds and a world in chaos. I don’t like saying it, but I’m talking about the decline of the kingdom itself. More executions can’t stop it. It’s all pain and no gain. Reinstating the death penalty in a kingdom on the decline will be interpreted as condoning its expanded use.”

“Making sure that doesn’t happen is the responsibility of the courts. Don’t the courts exist to both protect the people and reassure them? Reassure them with the judicious use of the death penalty, and protect them from its excessive use. What other recourses do we have?”

Jokyuu didn’t know and couldn’t answer. Eikou and his magistrates feared that reinstating the death penalty would lead to its overuse. Except that preventing its overuse was their job in the first place. And it was hardly the only arrow in their quivers or the only task on their to-do lists.

Instead, Jokyuu next challenged Sotsuyuu on the issue of judicial error. “Erroneous applications of the death penalty certainly exist,” he argued dourly. “Can we claim to have never decided wrongly? Unfortunately, the innocent have been mistaken for the guilty and wrongfully accused. If the accused has already been found guilty and executed when the false charges come to light, he cannot be brought back to life. We should always leave a way to correct such wrongs.”

p. 125

“Then let me ask you this: can wrongful imprisonment be so easily corrected? What about involuntary servitude? Let’s say a man is found guilty for a crime he did not commit and is sentenced to serve hard time. Can those years of his life—forever lost—be retrieved? The average person out there does not look forward to a life of unlimited years as we do.”

Jokyuu didn’t answer.

“The typical lifespan is but sixty years or so. A year or three may seem a trifle to us. To them, one year or three out of those sixty is a precious commodity. Time lost is lost forever. There is no true recompense for the pain of the accused or the suffering of the family plagued by gossip and rumor-mongering for having spawned a sinner. The authorities cannot afford to make mistakes when it comes to serious crimes.”

“As long as the gods themselves are not trying cases, mistakes are inevitable. It is easy to cling to idealism, but the idea that perfect justice can be achieved with just a little more effort is presumptuous.”

“Except no mistakes were made in regards to Shudatsu,” Sotsuyuu protested. “He not only owned up to his crimes, he was caught in the act on at least five occasions. Countless others witnessed him at the scene of the crimes. If the death penalty is to be avoided to give the accused the benefit of the doubt, then when there is no doubt, as in Shudatsu’s case, can’t we conclude that the death penalty is entirely appropriate?”

p. 126

Jokyuu furrowed his brows. “For the time being, we’re debating the application of the death penalty in general, not as it applies to Shudatsu specifically.”

“Same thing. If you’re going to argue that the death penalty should be taken off the table to guard against the possibility of judicial error, then it should be put back on the table in cases where there is no possibility of error. To the extent that the Divine Decrees admit the possibility of capital punishment, its rightness or wrongness is beside the point. Instead, the dilemma before us can only be resolved according to the particulars of each case.”

Listening to their back and forth, Eikou found himself nodding. Jokyuu again had the weak end of the argument. While capital punishment was a question of rights and wrongs, judicial error was undeniably wrong. Debating apples and oranges like this was ultimately a pointless exercise.

Consequently, Sotsuyuu discussed the sentiments of the victim’s families. “Consider the extraordinary suffering by those robbed without reason of their families by a wild beast.”

“I am perfectly aware of it. But the execution of Shudatsu will not bring back the victims, nor can it hope to heal the pain of that loss to any great extent.”

p. 127

“But, of course. There’s no changing the past. Not even God can make what has happened not happen. All the more reason to provide a helping hand in any way possible, no matter how glancing it may appear at first. The suffering that comes from losing a family member cannot be simply expunged. However, it may be possible to alleviate it in part by assuring them that Heaven will not allow men like Shudatsu to exist. That much relief we can definitely offer. Contrariwise, knowing of a way to alleviate the suffering of the bereaved families, how can adding to it by not executing Shudatsu be called humane?”

“Nevertheless,” Jokyuu insisted, “the penal code does not exist in order to extract revenge on behalf of the bereaved.”

“Then on whose behalf does it exist? Yes, to reform the criminally-minded. But Shudatsu has been sentenced to imprisonment with hard labor three times already. The second time for aggravated murder, the third time for felony murder. After being sentenced in Kin Province for the latter, if he’d been executed as the law allowed, twenty-three lives would have been spared.”

In fact, as long as Shudatsu had not experienced a “change of heart,” the pretense that the penal code existed to “reform” him contained little persuasive power. Jokyuu conceded that the methods employed in “reform” were flawed. That being the case, the goal should not be restoring the death penalty but creating reform programs that could be expected to deliver more effective results.

Except he had no answers as to what constituted an effective “reform program” and how an actual change of heart might be ascertained. Shudatsu’s “reform” and subsequent release resulted in twenty-three new victims, a heavy weight for the criminal justice system to bear.

p. 128

After that, Jokyuu tested arguments for life without parole. “If repeat offenders are the problem, don’t release them. Up till now, a serious repeat offender sentenced until his tattoos have faded served a de facto life sentence. On that basis, a criminal sentenced to death will serve a life sentence. What about that?”

“So you’re saying a criminal like Shudatsu should be given room and board for the rest of his life at the expense of the taxpayer? If the number of criminals like Shudatsu increase, the costs will grow hard to handle. As long as the people have to bear that burden, it should be explained to them in logical terms why such criminals are being allowed to live.”

Jokyuu quickly found an answer. “Again, because a miscarriage of justice is always possible. So long as the possibility exists, we must always be able to correct those mistakes. So we appeal to the taxpayer in order to guarantee that ability. The effectiveness of such measures serves to protect the average citizen as well. The next judicial error could result in that fate befalling an innocent man.”

“And then what? Not executing them and storing them away someplace does not guarantee that the mistakes will be corrected. And as far as that goes, how does one go about correcting such a mistake?”

“The party in question would appeal the conviction.”

p. 129

“So if Shudatsu cries injustice and the courts retry him, would he be sentenced again? And this time around, will the sentencing magistrate alter the sentencing order?”

“Of course he would be sentenced again, though by a different magistrate.”

“And does a different sentencing magistrate mean a different order? For the court to render judgment, would it also be acceptable to change the sentencing order by having the supervising judge simply change who is assigned to the case?”

Jokyuu didn’t have any ready answers. He had full confidence in his abilities during the sentencing phase and did not believe that an appeal would so easily change the outcome. The premise of the question itself was problematic. At first glance, it was only logical to praise the wisdom of reassigning a magistrate. However, that changing the magistrate was as good as changing the sentencing order was tantamount to saying that the magistrate lacked objectivity in the first place. No good could be found in such logic.

“I can see arguing that the death penalty should be abolished so mistakes in the judicial process can be corrected. If, in fact, that does not happen, the argument is meaningless. An appeals process would start with hearing the convict’s petition and then amending the sentencing order. The case load alone would leave the courts with little time to do anything else. Any filtering mechanism set up to alleviate that burden will necessarily narrow the window during which corrective measures could take place. No, such mistakes should be avoided in the first place. Dressing up indefinite servitude or life imprisonment as opportunities to correct mistakes diminishes the urgency of the sentencing order. If we fear mistakes, we would do better to leave the death penalty on the table while resolving not to make them.”

p. 130

Jokyuu remained silent. Eikou shook his head. Once again, Jokyuu seemed to have rhetorically stranded himself on thin ice. And that struck him as odd.

Eikou lived in a world where the emperor had suspended the death sentence. By itself, that was a logical step to take, just as it was logical to see the penal system as a way of reforming the criminal class. Thus, while the appearance of Shudatsu prompted calls for the return of capital punishment, refraining from using it made sense as well. The problem that remained was whether or not the people would accept such a ruling.

Nevertheless, the more they argued about the death penalty, the less merit there was in unilaterally taking it off the table. As strange as that was, up till now, they’d never seriously considered the question. But to ask if capital punishment should be reinstated here and now prompted feelings of a different sort. From somewhere a voice resonated in his heart saying, that alone is a bridge too far—

No less baffled than when they’d begun, Eikou asked, “But what do you really think, Sotsuyuu?”

p. 131

Eikou addressed him by name, not title. Sotsuyuu blinked in surprise and averted his eyes. “To tell the truth, I’m of two minds on the matter. When it comes to Shudatsu specifically, the death penalty seems inevitable. But I also have to wonder if that is the right conclusion.” He added with a wry smile, “To be honest, I keep hoping someone will rule it out of bounds for the sentencing magistrate as well.”

No less at his wit’s end, Jokyuu said with an exasperated sigh, “We’re looking for a way out and not finding it. The clemency magistrate need not necessarily be bound by cold hard logic. But the death penalty is a different creature altogether.”

Sotsuyuu added, “At first, my concern was that a reinstitution of the death penalty would end up tied to its overuse. However, now in the position of advocating for it, I sense that something is different. I’m talking off the top of my head, but if excessive use of the death penalty becomes a concern, the courts should rein things in. That’s how I come down on the subject. When justice officials express fear of such outcomes—none other than a justice minister such as myself—I can’t help thinking it strange that a connection should be drawn between reinstituting the death penalty and specifically to its excessive use.”

“Undoubtedly,” Eikou agreed with a nod.

p. 132

Jokyuu sighed again. “The fact of the matter is, the more we discuss the issue, the more I think the logic of saying the murderer repays his debt with his own death doesn’t really hold up. But the families of the victims believe it does. And so do normal citizens with no visceral connection to the case. More than the application of basic justice, perhaps this is a reflection of what goes beyond mere reason.”

“A reflection, eh?”

“Yes,” Jokyuu confirmed with a nod. “If seeking the death penalty is not rational, then repudiating the death penalty is the only sensible option. One can’t help coming away believing that the whole thing is a game of logic. Real, grounded emotions are lost in the shuffle. And yet, force my hand and I would have to say that capital punishment is uncivilized. Just as we manage to avoid the literal application of most of the Five Punishments, so we should also avoid capital punishment.”

“I see.”

Once reserved for serious felonies such as murder, the Five Punishments were defined as tattooing, amputation of the nose, amputation of the foot, castration, and death. Now considered “uncivilized” and “inhumane,” they were increasingly shunned and few if any kingdoms still used them. Even in Ryuu, what remained on the books referred to the former Five Punishments only in broad generalities.

p. 133

Sotsuyuu agreed. “If amputating the nose or foot is deemed barbaric, then capital punishment all the more so. The general feeling is that no kingdom where the rule of law prevails should resort to such measures.”

Indeed, Eikou thought to himself. And yet, he couldn’t ignore that cold lump in his chest.

Shudatsu had exercised such barbaric violence against the innocent without a second thought.

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