Why the mandatory death penalty project will end up hurting the anti-death penalty cause?

24 Mar

The Online Citizen (TOC) has recently launched a mandatory death penalty campaign, basically to call for an end and/ or moratorium to the mandatory death penalty sentencing which is inherent in Singapore’s Misuse of Drugs Act. As they have argued on their Facebook page, the legislation places the presumption of guilt on the accused which leaves little room for the judge to consider other forms of sentencing except the death sentence. Mitigating or external factors are not part of the judge’s discretion once the police is able to convince the judge that the former is in possession of a certain amount of aforementioned drugs.

The rationale for the campaign may be based on trying to appeal to a wider demographics who wants to retain the death penalty in Singapore but not to abolish it completely. By giving the judge the room to manoeuvre, it is hoped that fewer people caught for drug possession would be executed, especially if they are victims of their circumstances.

The logic of this argument can be traced to the majority of articles and editorials that TOC has published on its website.

For example, on the ‘TOC Editorial – A call to suspend all executions’,

‘… The mandatory death penalty for drug trafficking is particularly egregious for several reasons. First, it lacks a sense of proportionality… Second, the defendant is saddled with an unusually onerous burden of proof…’

In another commentary, ‘TOC Editorial: Media’s silence on Yong Vui Kong a national shame’, the editor argued that the mainstream media has failed to raise issues pertaining to ‘the fairness of the mandatory death penalty’. In particular, the author argued that the individual, Vui Kong, was depersonalised and that his tragic history such as coming from a disadvantaged background should have been a considering factor in the sentencing.

The ‘Calling for an end to the mandatory death penalty’ also treads along similar path by calling for ‘an end to the mandatory death penalty, as the court should be given the discretion to take all factors into consideration’.

While TOC and the supporters of the (anti-) mandatory death penalty may have good intentions by using both emotional and rational appeals in their campaigns, the focus on the misuse of drugs act and in particular, giving judges the discretion in these cases cannot be seriously considered an option or considered as appropriate, whether strategically or in principal, by anti-death penalty advocates.

By focusing on the Misuse of Drugs Act, those sentenced to death in Singapore as a result of being found guilty of other crimes will be overlooked in this debate. It creates a chasm whereby the lives of alleged murderers are considered as less valuable than those who are caught for drug possession. In some US states where the death penalty still exists, capital punishment is handed out to those convicted of murder. Some of these prisoners have been found to be innocent later. According to the Amnesty International US fact sheet on the death penalty (updated January 2010), 10 wrongfully convicted defendants were found innocent of their crimes in 2003. As many as 130 have been released since 1973 for the same reasons. This infers that a proportion of those convicted of murder may genuinely be caught up in the system. Therefore, if this is possible in the US, such occurrences could and may likely have happened in Singapore. Given that judges in Singapore have more room to deliberate on murder cases, it is questionable for the campaigners to challenge the wisdom of the notion of mandatory death penalty sentencing.

Challenging the mandatory nature of the death penalty therefore becomes an act of shooting oneself in the foot, not just for those against the mandatory death penalty but also for those who are against the death penalty in all situations. How can someone who is against the mandatory death sentence therefore proceed to challenge a murder case if he or she finds that the judges have not been fair nor taken every possible submitted court evidence into consideration with regards to a particular case? The anti-death penalty activist who believes that removing the mandatory nature of state execution as a first step to abolishing the death penalty is henceforth forced into a ridiculous situation of actually supporting the death penalty. In this case, he or she is now cornered into supporting the perverse notion of supporting the death penalty – so long as it is deliberated and supported by the decisions of a judge. It is this line of reasoning, a conceptual double blind that activists should be extremely wary of.

Certainly, others might retort that the mandatory death penalty should be modified to give judges more leeway. After all, this means tempering legal fastidiousness with mitigating factors that would hopefully inject more compassion into a rigid justice system. Unfortunately, this argument is playing with fire or may even backfire. Their logic is this: By considering external factors, judges are likely to mete out the death penalty only in extreme or justifiable circumstances. This is however hinged on the personal beliefs and outlook of the judges (some might even argue on his or her mood of the day). Since judges who deliberate on whether to mete out the death penalty would inevitably have to go through many similar criminal cases in his or her career, he or she is also most likely to become quickly desensitised to those mitigating factors as well. This is because defense counsel, in an attempt to help their clients get off the hook, would most likely focus on these external factors (such as the family background) since it is only his or her best chance to do so. This creates a vicious cycle in which the presiding judge is most likely to mentally block out these appeals and consider them as a form of legal manipulation or trickery. As such, debating about the death penalty based on mitigating factors is dangerous grounds since it inevitably creates  uncertainty – that it becomes a double-edged sword for anti-mandatory and anti death penalty activists.

This is not to suggest that such factors cannot or should not be considered in other kinds of trials. However, given the gravity of the situation of death penalty cases, basically a situation of life and death, our trust should never be based on the discretion of the judges.

One could look at the death penalty cases in US and foresee the complex ethical and legal issues that will arise if Singapore judges are given the right to discretion or discriminate. In Baze versus Rees, two Kentucky death row inmates challenged the lethal injection method which they claimed to be a violation against the Eighth Amendment as it constitutes ‘cruel and unusual punishment’. The Supreme Court, by a vote of 7 to 2 ruled against it. While this case is based on legal technicality, it shows that judges, however, well-versed and experienced they may be in understanding or applying the law, are not saints and inevitably coloured by their prejudices.

The anti-death penalty activist might retort that once the mandatory sentencing nature of the death penalty in Singapore is abolished, complete abolition is just a hop skip and jump away. This is a perfunctory argument at best.

The problem will arise once mandatory sentencing is abolished. Supporters against mandatory death penalty will disassociate themselves from anti-death penalty advocates and might even turn around to accuse the latter for being ‘hard core fanatics’.

Anti-death penalty advocates are forced to start from scratch, to turn the wheel once more, in other words. Therefore the mandatory campaign is not a half step, but an unnecessary wasted effort which should have been initially dispensed into public education and advocacy on the benefits of abolition. Furthermore, the anti- death penalty message would be lost on deaf ears by the public since its advocates have already sacrificed their principles to the altar of ‘pragmatism’ in the first round.

If these arguments are still not convincing, it is possible to study how other anti-death penalty movements around the world operate. It speaks volume when there has never existed any anti-death penalty groups which advocated this half-step of arguing against a ‘mandatory’ death penalty in its initial  years of campaigning. Therefore, without any precedence, taking the mandatory path as a half-step towards complete abolition is questionable as a form of political strategy.

In many countries with the death penalty, the state is most likely to impose a moratorium, sometimes leading to abolition. At other times, capital punishment is simply abolished. There has never been any recorded instances in history whereby a state moves from ‘mandatory’ to ‘discretionary’ to complete abolition.

International groups which advocate the abolition of the death penalty, from the EU to Amnesty International, have also never voiced support for this ‘discretionary’ aspect. It can be argued that in the US, certain forms of crimes which used to be punishable by death have now been abolished. For instance, the Supreme Court banned capital punishment against minors in 2005. This is however different from challenging the ‘discretionary’ nature of the death penalty, which, as have been argued earlier, is subject to judges’ prejudices.

Moreover, the abolition groups always set out to challenge the death penalty in all cases and when the pressure and timing is right, the system will definitely concede grounds. In short, the anti-death penalty movement needs to set the bar higher and it is for the political and criminal justice system to come to terms with these norms and values, not the other way round.

Given these pitfalls and shortcomings, the mandatory death penalty campaign cannot be a strategically clever nor ethical method to abolish the death penalty. Anti-death penalty activists should therefore refrain from adopting the mindset that it is alright to challenge the mandatory nature of the sentencing first.

All these arguments may seem irrelevant to those who are strictly in the mandatory death penalty campaign. Yet, for death penalty advocates, these individuals are still suffering from the same veil of ignorance and state propaganda that have plagued the rest of the population who supports the death penalty. The only recourse is education but not pandering to their misguided ideas.

The greatest consolation for anti-death penalty advocates, if they look far enough, is that they are clearly on the winning side of the battle. Just like the other great moral issues of the past, such as slavery or women’s right to vote, the act of compromising should always come from the system, not the other way round. The same reasoning applies to anti-death penalty. There is an unescapable trend towards its worldwide abolition and international law is clearly on this side. States that insist on executions are increasingly seen as pariah outlaws with dim regards for international human rights norms. According to Amnesty International, three important international and regional documents have been endorsed within this decade. They include the Protocol 13 to the European Convention on Human Rights which became the first legally binding international treaty to abolish the death penalty in all circumstances with no exceptions. The UNHCR approved the Human Rights Resolution 2005/59 on the question of the death penalty, calling for all states that still maintain the death penalty to abolish the death penalty completely and, in the meantime, to establish a moratorium on executions. Just three years ago, the UN General Assembly approved Resolution 62/149 which basically mirrored the UNHCR resolution.

At the end of the day, activists must be cognisant of domestic politics. This is not disputable. What they however, must also be aware is the bigger picture: where the international community is moving towards. When it comes to efforts in abolishing the death penalty in Singapore, the same logic applies.

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2 Responses to “Why the mandatory death penalty project will end up hurting the anti-death penalty cause?”

  1. cassiopeiia March 30, 2010 at 4:00 am #

    Consider it a small step in the right direction. Given the current circumstances in Singapore, where public support for the death penalty – even for drug offenses – is still very high, calling for its removal is simply unrealistic. It’s just like asking for gay marriage to be legalised when homosexual acts are still considered to be a crime. It’s not going to happen in the near future – Singapore society just isn’t prepared for it.

    Asking for the mandatory death penalty to be abolished, however, is quite a realistic goal in itself, given that even countries such as China and Uganda have abolished it. Abolishing the mandatory death penalty should be acceptable to the Singapore government because it doesn’t harm their interests in any way – it just gives the judges (appointed by them) more power to decide (which is after all what they are paid to do). It’s a small but realistic goal and for that I think it should be wholeheartedly embraced.

  2. Charles March 30, 2010 at 11:27 am #

    Regarding the situation in China, AI has continued to criticise the Chinese government with its secrecy of Death Penalty (DP). Mandatory or not, the fact remains, the death penalty is still being widely used in the country. In fact, because judges have more room to deliberate, people are more likely to think it is all right for the DP to exist since it will ‘weed out those who deserve their punishments’ from those who don’t.

    Secondly, the argument that the support for the death penalty in Singapore is high even for drug cases is fallacious at best. It is questionable if the ST poll that has commonly been cited is an accurate capture of popular sentiments. Even if it does, DP is not an issue based on ‘popularity ratings’. It is a human rights issue. The wishes of a group of people who wishes to see blood cannot override the very basic fundamental rights of an individual.

    Third, I am not against incremental reforms because they are not unheard of. For example, in the US, the juvenile death penalty and rape crimes have been subsequently banned. Instead of arguing to give judges the right to decide, campaigners could choose to focus on a moratorium on all death row cases as well as targeting abolising DP on selected crimes for a start but always insisting that it is abhorent in all cases.

    The mandatory DP campaign unfortunately, is inconsistent and morally questionable since it never expressed the position of the view to support the abolition in the future, nor does it explain why its proposal is much better than the current situation or the anti-DP stance.

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