Friday, January 30, 2015

The Argument for and against Capital punishment

 Has a proven “deterrent” effect on other (would-be) drug traffickers, demonstrated by Singapore as testament to this claim?

According to Astari Anjani and Dimas Muhamad, a duo representing the Indonesian Foreign Affairs Ministry, capital punishment is a “vital” tool for “saving Indonesia from [its] drug scourge.”

Last week, Anjani and Muhamad penned a dubious column for the Jakarta Globe, in which they celebrated President Jokowi’s continued use of the death penalty as “an important part of our comprehensive strategy to win the war on drugs.”

Surprisingly, Anjani and Muhamad did not limit their argument to the classic fallacy of “appealing to emotion,” as do many supporters of the death penalty, including President Jokowi. Instead, the authors attempted to put forward a legal and empirical case for capital punishment, suggesting that “despite many claims to the contrary, several studies have affirmed the deterrent effect of the death penalty.”

I will deal with Anjani and Muhamad’s tenuous legal and empirical claims in a later article, but in this response, I would like draw attention to some of Anjani and Muhamad’s basic misconceptions of illegal drug markets, and their failure to grasp why illegal drug use is, at least at present, much more dangerous than need be.

Fallacy No.1: Drug traffickers kill drug users

Having to argue this point over and over really is a chore. But for those readers, like Anjani and Muhamad, who still fail to see the difference between a “murder” and a drug-related “accident,” allow me to spell it out once again.

Anjani and Muhamad began their article with a very unhelpful epithet: “Bloodless murderers,” they announced, “is the term that Kamaluddin Lubis, a prominent activist, once used to describe drug dealers — arguing that they ought to be executed for their crimes. To some such a label might be over the top, but it succinctly portrays this man’s misery: drug abuse claimed the life of one of his sons. And he is not alone.”

Granted, drug abuse does the claim the lives of a tiny minority of illegal drug users. But let’s be clear about why this is allowed to happen, and why it looks set to continue.

The problem lies not with the traffickers; they, just like beer and cigarette companies, are merely supplying dangerous substances to a consenting and desiring market. Of course, you may not condone that drug traffickers break the law, and you may despise the substances they deal in, but you have no grounds on which to accuse them of “murder.”

In a court of law, the charge of “murder” is not taken lightly. Before a defendant can be convicted of murder, the court must establish, beyond reasonable doubt, premeditated lethal intent as the motive of the crime.

In the case of drug trafficking, however, lethal intent is clearly not the motive. The courier who attempts to smuggle a parcel of heroin or methamphetamine through Soekarno-Hatta airport, for example, is not motivated by depraved thoughts of dead heroin users, or suicidal meth addicts. The courier is simply looking to make a quick buck.

As I argued previously in the Jakarta Globe, drug traffickers do not intend to kill their patrons, just as tobacco barons do not intend to kill smokers. And if you accept the latter half of this claim, Anjani and Muhamad, then you simply must admit the former. A drug trafficker is no more a “bloodless murderer” than the CEO of a large tobacco company — and to claim otherwise is to uphold an obvious double standard.

The main problem that we face today is not drug traffickers, but drug prohibition itself. Prohibition has gifted us a perfect, flawless framework for a totally unregulated illegal drug market, in which a small number of accidental drug deaths are sure to occur, purely for lack of oversight.

Let’s be honest about it: our drug laws are the real menace here. They ensure that recreational drug markets are kept in a permanent state of anarchy, and they ensure that drug users never really know exactly what’s in their product. This is precisely what puts innocent lives needlessly in danger, and this is precisely what leads some drug users to overdose accidentally.

The UK’s recent “Superman” pill tragedy offers a fine example of our illogical drug laws in practice, and a clear proof that prohibition is part of the problem, not the solution. (I take this example from the UK mainly because it is current and well-reported, though we can be sure that similar tragedies have taken place in Indonesia. The case of Jicky Vay Gumerung immediately springs to mind.)

Three men each bought a pill, bearing the “Superman” logo, sold to them as ecstasy (MDMA). All three men had taken ecstasy before, were familiar with its effects, and felt comfortable taking the drug again. What the three men didn’t know, however, was that their pills contained a dangerous adulterant known as PMA (para-Methoxyamphetamine).

Like MDMA, PMA also has stimulant properties. But unlike MDMA, PMA is significantly more toxic and up to 10 times more potent. Thus, after ingesting an unknown, lethal dose of PMA, all three men died as a result of overheating. Needless to say, if the three men had actually taken MDMA — a much safer drug with proven psychotherapeutic uses — their deaths could have easily been prevented.

Anjani and Muhamad, surely you can see reason here: Imagine if each of those three men had purchased a pure ecstasy tablet from a legitimate chemist, complete with a contents label, dosage information, and a directions booklet — just like the painkillers we all take for a cold or flu — do you think the men would have misused the pills so haphazardly as to result in an accidental overdose? Probably not.

Consider the inverse, also: Imagine if each of the three men had been aware that their pill contained a lethal quantity of PMA. Do you think they would have swallowed the pills anyway? Well, obviously not; not unless they sincerely wanted to kill themselves, (which is not the experience that most ecstasy users are looking for).

Indonesia’s leaders must accept that drug users are sensible and rational people just like the rest of us. Most drug users would like to enjoy taking drugs as safely as possible, in a safe environment, and they most certainly don’t want to overdose. But for such tragic accidents to be avoided, drug users need to know exactly what’s in the pill or powder before them. Sadly, however, thanks to prohibition, this is an unlikely possibility.

Regulation and harm reduction

I’m sure you have noticed, Anjani and Muhamad, that everything we produce for human consumption — whether it’s poultry, fruit juice, chickpeas or paracetemol — is legalized and regulated, precisely because of the potential harm that such items can cause to consumers.

I trust you have also noticed that we tend to subject the most dangerous legal substances — such as alcohol and tobacco — to the most stringent restrictions and regulations. Why is this so?

Well, in the case of alcohol and tobacco, we certainly don’t want minors to have uninhibited access to, say, cigarettes or vodka; and we don’t want fellow adults to die of methanol poisoning after chancing it with homemade moonshine such as oplosan.

So we have in place some rules and regulations that help keep these substances inaccessible (at least in theory) to the most vulnerable members of society, and we ensure that there is a controlled market for professionally produced alcohol or tobacco, so that our fellow citizens are not tempted to experiment with oplosan or a bizarre form of homemade kretek. This is all perfectly good practice, of course, and there is no reason why such regulations should not also extend to soft drugs such as cannabis and ecstasy.

Just think: who in their right mind would support a system in which wine or beer has to be produced at a secret location, sold on to shady, unaccountable middlemen, and finally served to the consumer in an unmarked bottle that could have come from literally anywhere? Very few people, I expect. And very few policy makers, likewise.

So why, then, when we have all of these commonsense precautions for legal drugs like alcohol and tobacco, must our leaders insist that our entire market for all other drugs remains totally unregulated?

At the end of their article, Anjani and Muhamad “commended” President Jokowi’s administration for “not turning its back on Kamaluddin Lubis and millions of others [drug users and families] who have gone through unspeakable misery.” The sad irony is, however, that by continuing to enforce prohibition, the government is doing exactly that — turning its back on the most vulnerable people that use drugs, and pushing them further into the hands of dealers and traffickers.

By continuing to enforce drug prohibition, the government is gifting the entire market to criminal gangs, and allowing them to cut corners with cheap adulterants, sometimes with fatal consequences. But rest assured, Anjani and Muhamad, that if every single drug user knew exactly the substance, dosage and purity of the drug before him, we would have very few drug deaths on our hands, and very few of those “bloodless murderers” among us.

There are many ways to “save the drug user,” as the National Narcotics Agency (BNN) once put it, but capital punishment is certainly not one of them.

Patrick Tibke is a Jakarta-based writer and a recent graduate of the Southeast Asian Studies program at SOAS, University of London. His interests include human rights, labor rights and drug policy.

This is the first of a two-part series. The second part is here.


A Rebuttal to Two Death Penalty Advocates

Ignorance or Deception? An op-ed by two Foreign Ministry staffers defending the use of the death penalty for drug crimes falls flat in both its appeal to empirical data and its appeal to international law, which does not consider trafficking a capital offense, the author argues

An official from the Attorney General’s Office announcing there will be no clemency for Australian drug traffickers Myuran Sukumaran and Andrew Chan. (AFP Photo/Bay Ismoyo)

Astari Anjani and Dimas Muhamad, a duo representing the Indonesian Foreign Affairs Ministry, believe that the death penalty is the right punishment for convicted drug traffickers.

Last week, in an opinion piece for the Jakarta Globe, Anjani and Muhamad described the death penalty as a “vital” tool for “saving Indonesia from [its] drug scourge,” and an “important part of our comprehensive strategy to win the war on drugs.”

At the beginning of their article, Anjani and Muhamad argued that drug use “claims lives,” and that drug traffickers should therefore be put to death as recompense. “Bloodless murderers,” the authors explained, do not deserve to live; not after all of the drug-related deaths that they have caused.

Having dealt with this fallacy in a previous article, I now propose that we turn to consider some of the authors’ less emotive arguments for the efficacy and fairness of the death penalty. Bear in mind, however, that Anjani and Muhamad’s entire case for capital punishment does seem to hinge on precisely the above claim — that all convicted drug traffickers are somehow culpable for thousands of deaths, and must therefore be punished in kind.

It seems to me, therefore, that if we refuse to grant Anjani and Muhamad the above claim — which we most certainly should — then the rest of their argument is rendered null and void. However, knowing that Anjani and Muhamad are bound to disagree with such an early victory proclamation, I think it is only fair that we hear out the rest of their case, in the interests of leaving no stone unturned.


Legal and empirical claims

Following their opening reference to “bloodless murderers,” Anjani and Muhamad went on to argue for the death penalty on the basis of: One, an appeal to empirical data, and two, an appeal to international legal norms.

Both of these arguments fail to present a compelling case for the death penalty, albeit for different reasons. First, Anjani and Muhamad’s appeal to empiricism — i.e. the claim that the death penalty has a proven “deterrent” effect — is both impossible to establish and quite obviously superseded by greater evidence to the contrary. Second, Anjani and Muhamad’s appeal to international legal norms was — to put it mildly — entirely composed of some convenient fantasies.

The authors argued points one and two in that order, but in the interests of saving the best for last, I shall begin with point two, the appeal to international law.

“One can argue that capital punishment is not effective enough or inhumane,” Anjani and Muhamad rightly conceded, “but when all is said and done every country has the sovereign right to prosecute criminals in accordance with its national laws and international law norms that it agreed to.”

All perfectly true. But then in comes the fiction:

“Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which Indonesia has ratified, allows the death penalty under certain conditions, which Indonesia has met …

“The death sentence can only be imposed for the most serious crimes, and Indonesia deems drug trafficking to fall into this category. Despite the debate on what is meant by ‘the most serious crimes,’ the ICCPR’s preparatory works show that the omission in defining the term was intended by the negotiating parties to leave room for state-specific interpretation [emphasis added].”

The notion that there is still an ongoing debate as to the meaning of the ICCPR’s term “most serious crimes” is a total falsehood. In fact, all United Nations legal entities have confirmed that drug trafficking is an economic crime, committed for financial gain, and does not result in a direct loss of life. Drug offenses, therefore, do not meet the criteria of a “most serious crime.”

In 1984, in a document titled “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,” the Economic and Social Council of the United Nations proposed a clear definition of the term “most serious crimes.” That definition, which was later endorsed by the UN General Assembly, established that a “most serious crime” must result in an “intentional” and direct loss of life, thereby excluding economic crimes such as drug trafficking.

Later, in 1997, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions clarified that the term “intentional” should be “equated to premeditation and should be understood as [a] deliberate intention to kill.”

Even the United Nations Office on Drugs and Crime (UNODC) has long recognized that drug trafficking is not a lethal offense, and that this distinction is clear under international law. In 2010, for example, the executive director of the UNODC confirmed: “UNODC advocates the abolition of the death penalty and calls upon member states to follow international standards concerning prohibition of the death penalty for offenses of a drug-related or purely economic nature.”

In addition to the three examples cited above, three other United Nations legal entities have confirmed that executing citizens for drug offenses is in direct contravention of Article 6 (1) and Article 6 (2) of the ICCPR.

This position has been echoed, over the years, by the United Nations Human Rights Committee (2005 and 2008); the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2009); and the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (2010).

The ICCPR, as I am sure Anjani and Muhamad are aware, was adopted almost half a century ago, in 1966, and brought into effect in 1976. Needless to say, during the intervening half-century up until now, the United Nations has indeed rigorously studied and debated the terms of the ICCPR. But that debate is well and truly over — as far as capital punishment for drug offenses  is concerned — and for Anjani and Muhamad to claim otherwise is either plain ignorance or calculated deception.

Either way, both the letter and the spirit of the law are now abundantly clear: Under no circumstance may a signee to the ICCPR take the life of a citizen following conviction on a drug offense.


Moving swiftly on to Anjani and Muhamad’s second line of argument — the appeal to empirical data — here we confront a whole new set of fallacies.

Anjani and Muhamad believe that executing drug traffickers really does “work.” They believe that capital punishment has a proven “deterrent” effect on other (would-be) drug traffickers, and they point to the proud example of Singapore as testament to this claim.

“Despite many claims to the contrary,” the authors explained, “several studies have affirmed the deterrent effect of the death penalty. A Wall Street Journal article mentions that every execution of a murder convict prevents 74 murders in the following year. And in Singapore, which applies the death penalty, the number of drug offenders has declined by two-thirds since the 1990s.”

Anjani and Muhamad’s initial claim is entirely false. In the United States, capital punishment for convicted murderers appears to have no correlation whatsoever with homicide rates. In fact, if there is any correlation at all between execution and homicide in the United States, it most certainly cuts in the opposite direction. In the year 2000, for instance, the New York Times reported that “10 of the 12 states without capital punishment have homicide rates below the national average [...] while half the states with the death penalty have homicide rates above the national average.”

This is all quite besides the point, anyhow, for sentencing murderers to death is not the same as sentencing drug traffickers to death. Conveniently, those who support the death penalty for convicted murderers need only look to one statistic to try and “prove” that capital punishment works: i.e. the homicide rate. Does it go up, down, or stay the same?

In many ways, however, the much-vaunted “deterrent” effect of executing drug traffickers is not just more difficult to establish; it is impossible to establish.

How exactly are we supposed to know when the execution of one drug trafficker has successfully “deterred” another from committing the same crime?

Defenders of capital punishment for drug trafficking are thus confronted with a vast array of possible “success indicators,” all based on statistics, but none of which can really prove that the death penalty actually works.

Consider it this way: What would be the tell-tale sign that capital punishment deters drug traffickers?

Could it be a decrease in the total number of drug users? A decrease in drug arrests and drug seizures? A combination of these two things? Or is it safer to just assume that the more drug traffickers we kill, the more drug traffickers we deter?

There really is no reliable success indicator for the policy of executing drug traffickers. Even if we caught a hundred traffickers tomorrow, and promptly executed every single one of them, at what point could we honestly say to ourselves: “Aha! Now we know for sure that those executions did the job! Now we know for sure that hundreds of others have been deterred!”

Strictly speaking, it is impossible to tell whether capital punishment deters drug traffickers, because it is impossible to establish a causative link between — think of it this way — the execution of drug trafficker A, and the deterring of would-be drug trafficker B.

Just imagine: how would a research paper aim to demonstrate the existence of such a link? Where would the researchers look to assemble a sample group of safely “deterred” drug traffickers? And how would they question the samples: “On a scale of one to 10, how much did the death of drug trafficker A convince you that drug trafficking is not your dream job?” Clearly, the supposed “deterrent effect” that capital punishment has on other drug traffickers is not a testable hypothesis.

So the debate as to whether the death penalty “deters” others should really end here, at an obvious impasse. But, once again, in the interests of leaving no stone unturned, I will try to consider the issue through the same lens as Anjani and Muhamad, and take their success indicators to be as instructive as they make out.

Suffice it to say, then, that Anjani and Muhamad’s empirical case falls down on at least two counts: One, as mentioned above, Anjani and Muhamad commit the fallacy of presuming correlation implies causation. And two, they can only point to a mere handful of societies that bear out their hypothesis.

For Anjani and Muhamad to win the empirical case, they would need demonstrate that most of the countries that uphold the death penalty for drug offenses also have very low rates of drug use and/or drug seizures, just like Singapore. But clearly this is not the case.

The vast majority of the world’s statistics on drug use and drug seizures suggest that there is no correlation between capital punishment and prevalence of drug use or drug trafficking.

Consider Iran, for example, a country with some of toughest and most brutally applied anti-drug laws in the world. In 2010 and 2011, Iran executed more than 500 people each year for drug trafficking. And yet, in 2014 a UNODC report claimed that 6 percent of Iranians — some 4.6 million people — are addicted to an illegal drug. This is probably the highest addiction rate out of any society on Earth, and yet Iran is second only to China in the amount of drug offenders it executes each year. (China considers all statistics on capital punishment to be a state secret, though there is anecdotal evidence to suggest that China does indeed execute more drug offenders than Iran.)

Many other examples that do not meet the requirements of Anjani and Muhamad’s hypothesis are much closer to home; right under our noses, in fact, on the Southeast Asian mainland.

Myanmar, for example, keeps a mandatory death sentence for drug traffickers, but in 2013 still managed to produce 89 percent of Southeast Asia’s opium crop, from 60,000 hectares of poppy fields.

Thailand, likewise, also retains legal provisions for executing drug traffickers, and yet still has huge problems with drug smugglers entering from Myanmar, and soaring rates of methamphetamine addiction. Just last year, Thailand’s Office of the Narcotics Control Board (ONCB) estimated that 1.3 million Thais — or 2 percent of the country’s total population — are addicted to an illegal drug. Additionally, Thailand is known to have around 150,000 so-called “drug addicts” detained at controversial, compulsory treatment centers, undergoing military drills in the name of “rehabilitation.”

Similar non-correlations between capital punishment and rates of drug use and drug trafficking can be found in Laos, Vietnam, China and Malaysia. Each of these states still upholds the death penalty for convicted drug traffickers, and yet each of these states still has a thriving market for illegal drugs, particularly meth.

Clearly, then, capital punishment has no observable effect on rates of drug use, and does not appear to “deter” drug traffickers from targeting these most dangerous markets. So why should Indonesia buck the trend?

Anjani and Muhamad — and President Jokowi — please take note.

Patrick Tibke is a Jakarta-based writer and a recent graduate of the Southeast Asian Studies program at SOAS, University of London. His interests include human rights, labor rights and drug policy.


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