THE CAPITAL PUNISHMENT DEBATE FOLLOWING THE DEATHS OF ANDREW CHAN AND MYURAN SUKUMARAN SHOULD SHIFT TO THE UNITED STATES
by Mirko Bagaric, Dean of Law School, Deakin University
The executions of Andrew Chan and Myuran Sukumaran for drug trafficking by the Indonesian authorities was cruel and futile. The Australian government and much of the community is rightly disappointed (even angered) by the decision of Indonesian President Joko Widodo to not spare the lives of Chan and Sukumaran.
The unfortunate reality is that such painful events will continue to occur in the foreseeable future. In order for Australia to reduce the incidence of capital punishment a more systematic and strategic approach is necessary than pointed government appeals requesting clemency for Australians convicted of capital offences in other countries.
The deaths of Chan and Sukumaran should be used as watershed moment in Australian foreign relations. The Australian government should display a zero tolerance policy to capital punishment. It needs to pressure the 65 countries that practise capital punishment to abolish it. It should not wait until the next Australian is placed on death row to do this. Last minute diplomacy does not work.
The government should not let considerations of moral relativity and nation sovereignty mute its moral voice. Moral relativity is illusory. All people are entitled to have their fundamental interests (life, liberty and physical integrity) at least minimally protected. That is why we are witnessing a slow, but sure, convergence in fundamental moral principles across the globe.
Moreover, the notion of national sovereignty has, fortunately, been beaten down by the twin forces of globalisation and the human rights movement so that it can longer be invoked as an impregnable shield to justify draconian laws.
So how does Australia convince other countries to abolish capital punishment?
There are three ways to get people or institutions to do what you want. Force is the crudest method but is obviously not an option. Even threats of imposing tangible sanctions on death penalty countries, such as limiting trade activities, are not likely to be effective, given our relatively minnow-like economic status on the world stage.
The second method of persuasion is by legitimising one’s position through the weight of numbers. This is why democracy works so well. But again this is not an option in the international arena, where each nation has its own governmental system
The final method is the moral force of one’s arguments. To that end, Australia was hamstrung in its bid to secure a reprieve for Chan and Sukumaran by the fact that it was only in relation to this case that we implored Indonesia to not impose the death penalty. This had all the hallmarks of an expedient request as opposed to a principled moral stance. This is especially the case given that in 2005 the then Australian Prime Minister gave tacit approval to the decision by Indonesian authorities to sentence to death the “masterminds” of the Bali bombings in October 2002.
A fundamental aspect of all moral judgments is that they are of universal application. This means that they apply equally to all people. It is indefensible to assert that certain people are more worthy or important than others.
A more principled stance is necessary. This needs to be made as persuasively as possible. This can only be done in an atmosphere of rational exchange aimed at advancing the interests of both nations. Insults or implied threats (for example, to reduced aid funding) do not work. Loud criticisms are good for points scoring, but they almost never influence behaviour. Instead human pride wins the day and to save face people normally respond to emotive criticisms by becoming even more entrenched in their position – no matter how flawed it might be.
This is underlined by the execution of 25-year-old Melbourne man Van Nguyen by Singaporean authorities on in December 2005 for attempting to smuggle 400 grams of heroin out of Singapore, and the executions of Australians Brian Chambers and Kevin Barlow for drug trafficking by Malaysia nearly 30 years ago.
Diplomacy in this regard involves an element of seeing things from the perspective of the other nation. This involves acknowledging that we share with capital punishment countries an unyielding desire to reduce the incidence of serious crime such as murder and drug trafficking. However, at the same time the problem of crime reduction and the practice of punishing criminals must be approached in a manner that is likely to be effective and respects moral values that transcend all cultures.
As I have noted previously in this Journal, although common sense would indicate that executing people who commit serious offences would deter people from such acts, wide-ranging empirical evidence conclusively rebuts this proposition. Countries with capital punishment do not have lower levels of serious crime, and when countries abolish the death penalty the crime rate does not increase. Moreover, data in the United States shows states that execute criminals generally have higher rates of homicide than states that have abolished capital punishment.
The greatest deterrent to wrongdoing is not the size of the penalty but the perceived risk of detection. Thus, it must be pointed out the citizens of death penalty nations are no safer from serious crime.
Further, it needs to be impressed on capital punishment countries that we all share a common morality and ultimately are unified by a desire to maximise human flourishing where each individual’s interest counts equally.
The most important interest recognised in this universal moral code is the right to life – violation of this right makes all other rights devoid of meaning. The right to life can only be violated where there is a compelling reason to do so (such as self defence). This is not the situation in the case of capital punishment. No benefit is derived from killing wrongdoers.
Acknowledgement of this will enable countries that abolish the death penalty to act as a moral beacon to the other countries in their region that execute criminals. In this regard it is important to note that a large number of other countries in our region execute criminals, including Indonesia, Malaysia, Vietnam, and China.
The killing of Chan and Sukamaran should not discourage Australia from making representations to countries to abolish capital punishment. On the contrary, it should intensify such representations. Life matters too much for that not to occur.
The most important country that Australia needs to lobby to abolish capital punishment is very distant from our region. The developed world lacks the moral persuasion to effectively urge all countries to abolish capital punishment because the most influential nation of earth continues to condone the practice. Capital punishment is legal in more than 30 American states.
Barack Obama supports it for extreme crimes such as mass killings and the murder of children. There are nuanced legal and philosophical arguments in support of the death penalty for only the most heinous of crimes. While empirical evidence shows that it does not deter crime it can be argued that it is a proportionate response to depraved criminal acts.
But there are some arguments that are better left in the classroom and which should never be used as supposed political and social justifications for extreme practices, such as capital punishment.
The ongoing support of the death penalty by the United States for heinous crimes provides an opening for other countries to attempt to justify executing offenders for less serious crimes. The regrettable reality is that countries like Indonesia and China will continue with their appalling execution practices until the developed world can speak with a single united and absolutist voice regarding the barbarity of the death penalty. In order for this to occur, the focus of the debate now needs to shift to the United States.
Fortunately, there is some scope for optimism on this front. Public support for the death penalty in the United States is at its lowest level in 40 years, with only 56% of Americans now in favour of the practice. A number of botched executions in the United States over the past year have focused public attention on the barbarity of the practice. This provides an opening for other leaders to meaningfully and effectively engage with their United States counterparts to attempt to steer the world’s most influential power to higher moral ground. In time, the benefits of this would be likely to be felt well beyond the borders of the United States.
 Amnesty International, Death Sentences and Executions in 2014 (2015).
 JL Mackie, Ethics: Inventing Right and Wrong (1977).
 Mirko Bagaric and Theo Alexander, “(Marginal) General Deterrence Doesn’t Work – and What it Means for Sentencing” (2011) 34 Crim LJ269.
 There are 32 states which still have the death penalty: Death Penalty Information Centre, States With and Without Death Penalty, http://www.deathpenaltyinfo.org/states-and-without-death-penalty. Since 1976, there have been 1,369 executions. Death Penalty Information Centre, Executions by Year Since 1976, http://www.deathpenaltyinfo.org/executions-year.
 Barack Obama, Obama Position on Capital Punishment, http://2012.presidential-candidates.org/Obama/Capital-Punishment.php.
 Pew Research Center, Less Support for Death Penalty, Especially Among Democrats (16 April 2015), http://www.people-press.org/2015/04/16/less-support-for-death-penalty-especially-among-democrats/.