The dead-end justice of execution

As a near neighbour executes a low-IQ drug mule after 12 years on death row, Morry Bailes says the tide may be turning against state-sanctioned killing.

https://indaily.com.au/opinion/2022/05/12/the-dead-end-justice-of-execution/

Australia abolished the death penalty progressively state by state during the 20th century and then at federal level, culminating in the passage of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010.

But our region, by and large, does not agree with Australia’s stance. Numerous Asia Pacific nations retain the death penalty, particularly for drug crimes.

This is no better illustrated than in Singapore, which on April 27 executed Malaysian man Nageanthran Dharmalingam.

Mr Dharmalingam had been sentenced to death for the crime of drug trafficking. In 2009 he was arrested and convicted after 43 grams of heroin, about three tablespoons, was found strapped to his leg.

Notable in his case was psychiatric evidence suggesting his IQ was only 69. On the various Adult Intellignce Scales, an IQ of 69 or below denotes someone on the lower extreme of intelligence. Facing the Singapore Supreme Court was an argument that Mr Dharmalingam was in fact not sufficiently mentally competent for it to be just or reasonable to have him executed.

He spent 12 years on death row. On the day before his execution his mother appeared before the Court of Appeal to again plead his case. But the family could not afford a lawyer and she was self represented. In spite of a petition signed by over 100,000 people and calls from high profile people including the Prime Minister of Singapore, some member countries of the EU, and entrepreneur Richard Branson, the court gave no quarter, insisting that the appeal was ‘frivolous’ and describing it as a ‘waste of the court’s time’, remarks that given the circumstances seem harsh by any measure.

The problem often is that courts are given little if any discretion owing to parliaments legislating for mandatory sentences that can include death. Thus it is parliaments not courts that decide outcomes, inevitably leading to results containing unexpected circumstances such as this. Having been earlier denied clemency by the President of Singapore, Mr Dharmalingam was hanged at Changi Prison. The execution by a first world country has drawn considerable international interest and in some cases condemnation.

Following this, Singapore was to execute another Malaysian drug runner, Datchinamurthy Kataia. But in a last minute reprieve, the Court of Appeal deferred his hanging and the matter will be argued later this month. Unlike his cell neighbour Mr Dharmalingam, Mr Kataia is legally represented.

It evokes memories of Australians executed in Malaysia, Indonesia and Singapore; the likes of Barlow and Chambers, Sukumaran and Chan, and Van Tuong Nguyen.

Public sentiment towards the death penalty is gradually changing in the Asia Pacific. The death of Mr Dharmalingam has had an impact, at least temporarily, on the thinking of many in Singapore. What they saw was an intellectually-impaired drug mule with barely over the amount of prohibited substance to warrant being put to death, whilst somewhere the drug boss who contrived to have him perform the task walks free and unaccountable. Is that justice? Is that likely to prevent the next unintelligent and desperate person from taking a chance?

“The argument that it acts as a deterrent seems completely contradicted by the experience of many countries.”

With the deaths of Sukumaran and Chan there was a palpable sense of an abject waste of human life felt by the majority in Australia. Two men who had spent long periods in prison already and who had entirely reformed, executed, it felt, for almost domestic political reasons. What exactly was the point?

The death penalty is in place in Malaysia, Indonesia, Vietnam, Thailand and Laos. But attitudes are changing. Indonesia hasn’t executed a person for quite some years. Thailand hasn’t executed a drugs offender since 2009, although it did execute a murderer in 2018. In the Philippines, putting aside the encouragement of President Duterte for public vigilantes to engage in extra-judicial murder of drug users, the offical death penalty was abolished in 2006. It is estimated that Duterte’s call resulted in the loss of 20,000 lives.

Japan is another interesting country to watch. It retains the death penalty but pressure is mounting internally to reform. After a considerable pause in executions, three men were put to death late last year; all murderers who had engaged in what Justice Minister Yoshihisa Furukawa described as ‘extremely ghastly’ crimes.

On an international index, those nations though are now the minority – 54 countries retain the death penalty, twice that number have abolished it, and there are 26 countries which, whilst retaining capital punishment, are abolitionists in practice.

Our own close ally the USA retains capital punishment, but has states where execution has slowed down or stopped altogether.

In Australia the majority of us oppose the death penalty. Sometimes opinions differ, depending on the crime. More favour death as a penalty for acts of terror that result in loss of life, but they are still the minority. In 1947, 67%, favoured death as a punishment for some crimes, 24% opposed it and the remainder were undecided. By 2009 those numbers had roughly reversed.

Those opposed to the death penalty cite a number of reasons. Whilst a country has a sovereign right to legislate to take life for some criminal acts, the cruel and unusual aspect for many prisoners is often how long they wait on death row. Sometimes, such as in Japan, the condemned never know when the day of execution will arrive. Japan usually gives but a few hours notice to an inmate of their impending death. It carries the execution out in complete secrecy and tells the family afterwards. One can only imagine waiting day by day, wondering which one might be your last. In the US, people can sit on death row for decades, sometimes for the majority of their lives.

But the greatest argument is the finality of death. Our criminal justice system deliberately places an emphasis on the presumption of innocence and proof beyond reasonable doubt, knowing that guilty people will be acquitted, but favouring that to imprisoning and penalising the innocent. The problem with the death penalty is that if there has been an error – regularly coming to light now with the availability of DNA evidence – there is no going back. There is no bringing of justice to the dead, however innocent they may ultimately prove to be.

To illustrate how wrong the criminal justice system can be, consider the recent U.S. case of Thomas Raynard James. Mr James suffered the misfortune of having the same name as a suspect in an armed robbery that resulted in murder. Moreover he was positively, though erroneously, identified by an eyewitness as having been at the crime scene.

Mr James was arrested in 1990 and spent over 30 years imprisoned. Just last year, that witness expressed her doubt about the testimony she had given to the jury in his trial, and his conviction was overturned in the same week as Mr Dharmalingam was executed in Singapore. Although what Mr James endured as an innocent man was immense, he did not face the death penalty and now can live out his days a free man. Witnesses, juries and courts make mistakes, but the death penalty once carried out is irreversible.

Most Australians believe there is no room in a just society for the death penalty. The argument that it acts as a deterrent seems completely contradicted by the experience of many countries. The case of Mr Dharmalingam may energise opposition to death as a penalty in Singapore but sentiment across our region is changing anyway.

Even with its cost, there is an increasing acceptance that imprisonment is a sufficient penalty for all crimes, so long as sentences handed down to the convicted meet with society’s expectations.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

First published InDaily 12/5/2022