Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

What explains Indonesia's enthusiasm for the death penalty?

For many years, Indonesia was classified as a "low-application state" in its use of the death penalty. But recently there seems to have been a surge in enthusiasm for capital punishment, with public officials lining up to declare their support. The death penalty has been offered as a solution to a range of problems, from narcotics crime, to sexual abuse, and corruption. Last month, for example, President Joko "Jokowi" Widodo urged police to chase, capture, and strike down drug dealers. "If the law allowed it, [I'd tell you to] blast them," he said. Earlier this year, he signed a presidential regulation authorising the death penalty for child sex offenders. Following her boss's lead, Health Minister Nila Moeloek said the suspects in the recent fake vaccine manufacturing scandal deserved execution.

What explains the recent popularity of the death penalty? Are officials just responding to public demands? Does public enthusiasm for the death penalty reflect frustration with the weak rule of law in Indonesia?

The embrace of capital punishment in Indonesia is a symptom of a growing environment of penal populism in the country. Penal populism describes a situation where politicians promise to solve the nation's troubles by punishing crime, rather than by pursuing social justice. Penal populists rely on, and generate, fear of crime, suggesting it is a growing threat to society. They blame an impotent justice system and accuse it of being too lenient on criminals. In response, they call for more severe punishments against perpetrators, exploiting what they see as the public's appetite for harsh law and order policies. This might make them popular but it only serves to perpetuate problems in the justice sector.

For populists, the cause of crime, including drug abuse, is always the individual perpetrator. The social conditions that contributed to the offending behaviour are never part of the picture. Users and dealers are considered the sole cause of the drug problem and deserve to be punished accordingly. But because populists focus on individual offenders, the public can become blind to deep-seated challenges in society. No crime can be divorced from its social context, including factors such as race, gender, class and education. There is no point blaming individual offenders for drug crimes while washing our hands of the structural issues that contributed to the problem. The shortcut solutions offered by penal populism - such as the death penalty - are not only oppressive, but they ultimately have little impact on the causes of crime.

Penal populists work hand-in-hand with the media. The media help whip up fear about the levels of crime in society, and advocate harsh punitive measures in response. The media largely endorsed the government framing of the 2015 executions as a matter of national pride and sovereignty, and ignored analysis debunking State Narcotics Agency (BNN) figures on levels of drug abuse. The simplistic presentation of the drug issue influenced how the public and other decision makers responded.

It is not hard to see how the courts might believe that by delivering harsh punishments they are strengthening the rule of law. Every time judges deliver a death penalty verdict they are applauded in the media. Politicians, including the president, endorse their decisions and even suggest extending the punishment to other crimes. But they are not strengthening the rule of law, they are doing the opposite. Judges end up undermining their own profession by allowing myths, public anger and disillusionment with the criminal justice establishment to affect their sentencing decisions.

The rise of penal populism, which exploits public anger, is threatening the independence of judiciary. Under Soeharto's New Order the greatest threat to judicial independence was intervention by the executive. But now, in the democratic era, the threat comes from the media, public pressure and mass demonstrations, sometimes accompanied by violence. Judicial corruption cannot be ignored either, of course, but there is growing evidence suggesting judges fear backlash when they make decisions that conflict with public sentiment, greatly compromising their independence. A 2015 Judicial Commission survey, for example, found that 3/4 of district-level judges in Medan had been threatened or intimidated.

Issues like the absence of checks and balances within the criminal justice system, the lack of access to justice, or poor quality of legal aid available for suspects are of little interest to penal populists. Yes, populists mention the criminal justice system, but only to blame it for not delivering sufficiently punitive punishments. There is no attempt to inform the public about the challenges facing the system, or have a rational debate about how they might be addressed. Jokowi is guilty of this, too. He makes no attempt to discuss the challenges of addressing drug abuse, preferring to propose shooting dealers in the street. When law enforcement is driven not by evidence but by public outrage or anxiety, the result is an increase in miscarriages of justice, as well as torture and arbitrary arrest and detention by law enforcement officials.

President Joko "Jokowi" Widodo
President Joko "Jokowi" Widodo
As in other countries, the cases most vulnerable to being exploited by penal populists, and resulting in such miscarriages of justice, are those involving terrorism, sexual or narcotics crimes. The Jakarta International School (JIS) case, for example, demonstrates the powerful impact of public pressure on investigators and the courts, which worked together to punish individuals accused of sexual crimes against children. Confessions were extracted under torture, one suspect died in police detention under highly suspicious circumstances, and a Canadian teacher and Indonesian teaching assistant were imprisoned based on very weak and questionable evidence.

Similarly, a study by the Community Legal Aid Foundation (LBH Masyarakat) in 2011 found that torture and mistreatment in police custody was routine in narcotics cases. Many people accused of narcotics crimes were not told about their right to legal aid, and those who were informed of this right were often warned that they would face heavier sentencing demands if they sought assistance.

Civil society and legal aid organisations are not above engaging in the rhetoric of penal populism. This has particularly been the case with corruption. Although civil society organisations frame their populism in terms of "monitoring the courts", and do so with the intention of ensuring a fair result, there have been occasions where the tone of protests has been threatening. At a time when politicians are only too happy to engage in penal populism, civil society organisations need more than ever to avoid a populist approach and discipline themselves to offer a more nuanced and detailed picture of the challenges facing the criminal justice system.

The government also needs to change its approach. Jokowi may well be frustrated with judicial corruption. But if the president is sceptical about the justice sector - falling just short of endorsing extra-judicial killings - what about the public? Should they then resort to vigilante justice? By focusing on harsh punishments, penal populists weaken the justice system, because they allow weak and corrupt courts to carry on with little imperative to change. They are a major threat to the justice sector reform project.

Exploiting high levels of public ignorance about crime and punishment might not be ethical but it is easy. Offering rational and evidence-based arguments is much more difficult, and not usually popular, especially in an unbalanced media environment. But when the government is not doing so, it is up to civil society groups to provide clear and accurate information about the complexities of crime and punishment.

Source: Coconuts, July 22, 2016. Nurkholis Hidayat is an Indonesian human rights lawyer and previously served as a director of the Jakarta Legal Aid Institute (LBH Jakarta), and national advisor for legal aid and criminal justice for the Australia Indonesia Partnership for Justice (AIPJ).

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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

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