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Friday, 2 March 2012

The Unreasonableness Of The Death Penalty

The biggest regret I have about my term as Nominated Member of Parliament being cut short by the General Elections was that I ran out of time to submit a motion to debate the death penalty. As I was unable to re-apply for another term due to work commitments overseas, I may have lost the chance to do this forever, and so have decided to write about this, especially after reading the article on  executions in Singapore in the Straits Times.
I oppose the death penalty generally, the death penalty for drug offences particularly, and the mandatory nature of the death penalty for drug offences specifically.
However, from the outset, I must state every clearly that I do not oppose the death penalty on grounds of human rights. Like Jeremy Bentham, I believe that natural rights are ‘nonsense on stilts’ but I shall leave that for another essay. I am also an atheist, which means that my objection to the death penalty is also not on religious grounds.
Below, I will lay out my general, particular and specific objections as I described above.
Firstly, the argument that the death penalty deters crimes is based on a logical fallacy. I do not argue this from an empirical basis, as many are wont to do i.e. that no study has conclusively proven this. 
The reason that no study can conclusively prove whether the death penalty deters crime is that it is impossible to ever do so. The whole point about deterrence is that it stops people from committing a crime – crimes that are deterred never occurred. However, if the crime never occurred, you can’t measure it. You can’t count something that never happened. You can never know if the existence of a punishment has deterred a particular crime precisely because if the punishment were truly a deterrent, those crimes never occurred.
Empirical studies can thus only study contingencies not causality. It can show patterns that a particular crime has fallen during the existence of the death penalty for those crimes. However, it can never prove that the death penalty has caused the rate of those crimes to fall. This is to confuse contingency and causality and is a logical failing. Crime during a period can fall for many reasons – economic conditions, social conditions – and may not have anything to do with the punishment itself.
This argument is of course true for any punishment but the maximum punishment deserves the maximum proof.
If we can never – logically – be sure whether the death penalty can deter a particular crime, it cannot be a reason for us to use the death penalty, especially when it is the maximum punishment we can mete out to a fellow human being.
My second reason for objecting to the death penalty in general is the existence of human error. Justice is meted out by human beings, and human beings are not infallible. There should always exist the possibility for making amends if justice is meted out wrongly. If this is the case, death is the only punishment we cannot make amends for, as the victim of wrongful conviction is already dead. This in my opinion is a strong reason for not ever meting out death as a punishment, unless we can be sure the justice system is infallible, and it will never be.
The arguments for the death penalty for drug offences are even weaker in my opinion, because of certain characteristics of the crime.
It is punishment for incipient harm – harm that has yet to happen. Let me explain.
Most justice is founded on the philosophical justifications that the criminal act involves the harming of other people – the ‘harm principle’. From simple littering to murder, these acts involve the harming of other human beings. This is the reason that society classifies these harmful acts as crimes, and punishes people for committing them.
Drug offences are different. The arguments that I often hear from people for imposing the death penalty for drug offences is often based on how much damage could be done if these drugs were used. More, this possible harm involves a lot of conjectural situations that are based on a lot of ifs. If the drug trafficker was successful in trafficking the drugs, the drug pusher could sell it to people who may or may not get addicted, who may or may not become a burden to his family (many rich drug takers never become a burden), whose families may or may not be destroyed etc. 
We thus in the case of drug offences very uniquely punish for harm that is not yet done, which even if highly probable, is not certain.
Even for the case of murder, for which the death penalty is meted out in many countries, there is a difference in the treatment of actual murder (harm already done) and attempted murder (harm that was intended but not done).
The treatment of drug offences is thus unique. And as I argued, the maximum punishment must have maximum justifications, and frankly, potential harm for me just does not quite make the cut.
A second unique characteristic of drug offences is the role that victims play.
In the vast majority of crimes, the victim is not willing. If you killed me with my co-operation, it would not be murder, it would be assisted suicide.
The victim in drug offences is almost always a willing party in the transgression. The law recognises this and thus, drug-taking is also an offence. It is true that there would be fewer drug takers if there are fewer drug traffickers; but the converse is also true – there would not be any drug traffickers if there were no drug users.
Drug offences to me are thus again a very special kind of offence, given that it almost always involves the co-operation of the victims.
This does not in any way make it right but again, does this weaken the justification for meting out the maximum punishment for such a crime? I believe it does.

Finally, the death penalty for drug offences in Singapore is mandatory. 
This I find hugely objectionable. It means that as long as the party is found guilty, the judge has to sentence the accused to death, even if there are mitigating circumstances.
I have four arguments to make here – one theoretical and three practicable.
First the theoretical. Sometimes it is useful to clear our thinking by using extreme examples to drill down to the reasonableness of a position. Some have argued there can never be strong mitigating reasons for drug-trafficking. The youth of the accused, his ignorance, his economic and social circumstances etc, once admitted as mitigating factors, will open a huge can of worms if we allow these to be pled in mitigation. This may be true to some extent but logically just because some mitigating reasons are weak does not mean that no mitigating reasons can be strong.
For example consider the possibility that I am forced to traffic drugs because a drug lord has kidnapped my mother and threatens to kill her unless I do as I am told. Under the mandatory death penalty, the judge cannot even take such a clear and exceptional mitigating factor into account and I will be sentenced to death if I am caught. The most I can hope for is clemency (which I shall deal with below). There is thus something wrong with not accepting any mitigating circumstances in dealing with drug offences – either you are guilty or you are not. Even in murder under Singapore law, there are defences built into the consideration of guilt, even though the death sentence is also mandatory.
When I was researching this issue, I discovered 3 arguments about the justice system in Singapore that have been used to support the mandatory death penalty.
The first is that the Attorney General’s chambers already takes mitigating circumstances into account and choose whether to push for the death penalty, by choosing the amount of drugs the accused is charged with trafficking. This sometimes could be less than a gram difference than the amount that would automatically trigger mandatory death, if found guilty.
This is wrong as it conflates the role of the AG’s chambers and the judiciary. The AG’s chambers is the prosecutorial arm, and it should not pre-judge a verdict and play the role of the judiciary as well. The fate of the accused should not be left to the AG’s chambers as this is the job of the judges. Mitigating circumstances of course can be exercised by the prosecution, as it is in other non-drug offences, but the main responsibility of passing a verdict should be with the judiciary. That is its function. Mitigation should be considered primarily at the judicial level, and this cannot be done at the moment as the hands of the judges are tied.
The second argument I often hear is that a non-mandatory death sentence puts too onerous a responsibility on the judges. The argument goes that the judge takes on a less of a burden psychologically and on his conscience if his job is merely to find guilt, as the sentence of death is automatic.
I hope our judges have got stronger characters than that.
There is no doubt that sentencing a person to death is difficult to the extreme, but so it should be! We would be worried if we had judges who could send people to death with no emotion or little consideration. The taking of a life by the state should never be something trivially dealt with, and if it causes great psychological stress for the judge who must make the decision whether to send a man to his death, all the better.
Finally, it is said that people who are found guilty of drug offences have the hope of getting clemency from the President. Much has been said about the rarity of such cases, the role of the President vs. The Cabinet and I will not belabour the points made. I think the most important point again is lost – mitigation should not be considered only at the clemency stage. Politicians have no business getting involved in deciding whether a man should live or die – that is not their job. It is the job of the judges, and with the mandatory sentencing, they cannot do this job.
In conclusion, I have argued that there are very strong reasons to re-consider the mandatory death penalty for drug offences in Singapore. Even if one supports the death penalty, and even of one supports the death penalty for drug offences (both which I have argued against), one cannot support the mandatory nature of meting out death for drug offences. Even for one such as I who does not believe in natural human rights, the case for this is logically weak.