Death penalty
does not deter drug traffickers
Ricky Gunawan ; Director of LBH Masyarakat (the Community Legal Aid
Institute), based in Jakarta
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JAKARTA
POST, 10 Desember 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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