Death Penalty Does Not Deter Drug Traffickers

Feb 29, 2016 Uncategorized

This piece was written by Ricky Gunawan and was published in The Jakarta Post  on 10 December 2014.

 
 

The Attorney Generals Office (AGO) has announced its plan to execute five people by the end of 2014: mostly drug traffickers.

Indonesia is among the few countries with the harshest drug laws, executing drug traffickers to create a deterrent effect.

However, Indonesia’s position to retain the death penalty, particularly for drug offenses, is problematic.

First, the Indonesian legal community often refers to drug trafficking as an “extraordinary crime”, thereby justifying the extraordinary punishment of the death penalty.

However, labeling drug trafficking as an extraordinary crime is groundless from the perspective of international law.

Article 6 of the International Covenant on Civil and Political Rights (ICCPR) — which Indonesia has ratified — states that for countries that have not yet abolished the death penalty, it may only be imposed for “the most serious crimes”.

Various UN bodies, such as the UN High Commissioner for Human Rights, UN Human Rights Committee, UN Special Rapporteur for extrajudicial, summary or arbitrary executions killings and the UN Office on Drugs and Crime, have consistently asserted that drug offenses do not meet the threshold of “the most serious crimes” to which the death penalty may lawfully be applied.

In his 2012 report to the UN General Assembly, the UN Special Rapporteur on extrajudicial killings stated that the death penalty should only be applied for offenses of intentional killings, based on the practices of retentionist states and the jurisprudence of the UN and other bodies.

In March 2014, the International Narcotics Control Board — the independent and quasi-judicial body for monitoring government compliance with the three international drug control conventions, of which Indonesia is a member, encouraged states to abolish the death penalty for drug-related offenses.

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does not recognize the concept of “extraordinary crimes” for drug offenses. The convention places drug offenses into two categories.

First, drug offenses of a “grave nature”, such as the production, manufacturing and extraction of drugs.

Second, offenses that are “particularly serious”, such as the involvement of organized criminal groups in the production of drugs.

The 1988 convention does not explicitly recognize the death penalty for drug offenses.

Therefore, from an international drug law and international human rights law perspective, categorizing drug trafficking as an “extraordinary crime” and applying the death penalty to drug offenses is indefensible.

Second, the death penalty is retained because it is believed to have deterrence effect. This view is simply invalid. In 2008, Indonesia executed two drug traffickers and in 2013, it executed one more drug trafficker.

According to the 2012 death penalty report by the Harm Reduction International group, there were approximately 100 people on death row in Indonesia, including 58 drug traffickers.

According to the 2013 annual report of Indonesia’s National Narcotics Agency (BNN), there were 260 drug traffickers arrested in 2013 — an increase from 157 people in 2011 and 202 people in 2012. These numbers suggest that while the death penalty is continuously imposed and executions are carried out, the crime of drug trafficking shows no sign of abating. It seems obvious that the death penalty does not deter drug traffickers.

Further, in the past few years there have been cases where drug traffickers were able to operate from inside the prison.

This indicates that they may not be afraid of the penalty because they can bribe prison officials and other law enforcers. Hence, the argument that death penalty carries a deterrence effect is implausible.

Third, it is also often argued that drug trafficking has fatal consequences for younger generations and therefore drug traffickers deserve to be sentenced to death. But as William Schabas — an international scholar on the death penalty — rightly points out, in most cases, the drug traffickers are arrested and the drugs are confiscated. Interdicting drugs before they reach the public means that the trafficker sentenced to death could not have sold the drugs nor could anyone else and, hence, no lives have been lost.

Fourth, the higher probability that a harsh sentence is to be passed down, the higher probability that corruption is involved.

It is widely known that the Indonesian legal system is tainted with corruption and bribery. In this corrupted legal environment, if a drug trafficker is arrested and punishable by the death sentence, he or she is ready to pay high sums to enforcers to avoid prosecution or seek lenient sentences.

Rich drug traffickers will likely be able to evade the death penalty while those who are poor and cannot afford to bribe will be the ones facing execution.

The intention that the death penalty will get rid of drug traffickers is therefore not achievable and the risk that the state executes the wrong person is higher.

Fifth, organizations running illicit drug trafficking are involved in a complex network controlled by some powerful people. Those arrested are often just drug mules taking the greatest risks.

Imposing the death penalty on them will not deter the drug kingpins controlling the syndicate as they will continue to seek, groom and exploit vulnerable individuals to do the dirty jobs.

Illicit drug trafficking unquestionably has harmful effects on individuals and society. However, there is a common misconception that imposing the death penalty and executing those involved in drug trafficking is the magic formula to address this problem. As the above arguments demonstrate, the death penalty is ineffective for combating drug trafficking, and thus Indonesia must evaluate its strategy.

Indonesia should probably start by evaluating its unrealistic “2015 Indonesia Drug Free” program. While drugs have negative impacts on human beings, drugs can be positive too, for the purposes of health, science and technology.

This means that we cannot live in a “drug-free world”, but looking at Indonesia’s stubbornness to retain the death penalty despite its useless effect, one would ask whether Indonesia is open and ready to evaluate its misguided beliefs.

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