America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Capital punishment far from dead in Southeast Asia

Screenshot from "Apprentice", by Boo Junfeng (2016)
In July 2013, then-US president Barack Obama sat down with his Vietnamese counterpart, Truong Tan Sang, to talk about Thomas Jefferson. It was Jefferson, Sang said, who had inspired the words of Ho Chi Minh's Proclamation of Independence, which carried as its opener a passage of America's Declaration of Independence.

Just 2 weeks after this high-minded discussion on autonomy and liberty, Vietnam executed a young man named Nguyen Anh Tuan.

It was thought to have been one of the first executions in Vietnam since it changed to death by lethal injection years earlier. But because Vietnam was banned from purchasing "authorized" lethal drugs, Tuan was administered with a home-made concoction that reportedly took 2 hours to kill him.

Between the month of Tuan's death, August 2011, and June 2016, Vietnam executed 439 people, according to one estimate by its Ministry of Public Security, which normally doesn't publish such lists.

In early 2013, one could have been forgiven for thinking that Southeast Asia was moving in the right direction on capital punishment. That year, 2 scholars, David Johnson and Franklin Zimring, described Asia as the "next frontier" in a global movement against capital punishment, since it is where almost 95% of such executions take place.

The death penalty was abolished in Cambodia in 1989, in East Timor a decade later and in the Philippines in 2006. What's more, in countries where capital punishment was still wielded, moratoriums were in place. No executions took place in Indonesia between 2008 and 2013, and none in Singapore between 2010 and 2013. [Figures vary according to sources - DPN].

But since 2013, things have deteriorated. The most recent case was in Thailand, where a convicted murderer was executed by lethal injection on June 18 this year. It was reportedly the country's 1st use of capital punishment since 2009. "The Thai government's many pledges about moving toward abolishing the death penalty clearly meant nothing," said Brad Adams, Asia director at Human Rights Watch, in a recent press release.

In the Philippines, President Rodrigo Duterte has in effect privatized the state's monopoly on the death penalty by allowing for extrajudicial executions of alleged drug users and dealers. He also wants to reinstate capital punishment formally.

Indonesia attracted global headlines when, in 2013, it executed a Malawian national for drug trafficking. It has continued to use capital punishment since. In May, an Australian national, Maria Exposto, was sentenced to death for transporting drugs in Malaysia.

In Vietnam, death sentences have been common in recent years, including for those convicted of corruption.

When defending the use of capital punishment, Indonesian Attorney General Muhammad Prasetyo stated in a 2015 interview: "We are fighting a war against horrible drug crimes that threaten our nation's survival.... I would like to say that an execution is not a pleasant thing. It is not a fun job. But we must do it in order to save the nation from the danger of drugs."

Give ear to 2 parts in this statement, which are fairly representative of the apologia given for the death penalty. First "our nation's survival," and second "it is not a fun job." The latter is a mere euphemism. No one says executions are ever fun, but such a statement provides a sense that the government is forced to commit a "necessary evil," if you will.

But capital punishment is not a necessary evil. It is, in fact, simply a choice. A simplistic reading is that the death penalty lies somewhere between laziness and nihilism. It is an admission by the state that some criminals cannot be reformed or returned to society; worse still, that the state shouldn't even try reforming offenders. In another sense, it is a purely utilitarian response that says killing some prisoners frees up space in Southeast Asia's already overcrowded prisons.

Upon doing away with its peine de mort in 1981, France’s minister of justice and future president Francois Mitterrand* correctly rationalized that capital punishment - represented by the imposing symbolism of the guillotine, the "national razor" - had come to embody "a totalitarian concept of the relationship between the citizen and the state."

Fine words, though finer were those of the 18th-century Italian philosopher Cesare Beccaria, who in his distinguished essay Of Crimes and Punishments wrote of the death penalty as a "war of the whole nation against a citizen whose destruction they consider necessary."

In short, capital punishment allows a government to pretend that it is eradicating people considered a risk to a "nation's survival," a necessary act "in order to save the nation," in the words of the Indonesian attorney general. Or, in the recent words of the leader of Thailand's military junta, General Prayut Chan-ocha, "capital punishment exists to guarantee national peace."

But what it's really about is a state's belief that it can make the ultimate decision on a person's life, that being death. It also allows governments to define what they think are national menaces.

For Vietnam, this means those who want to end the Communist Party's reign and install a multi-party system. In the 2000s, Vietnam reduced the number of crimes that can garner a death sentence, down from 44 to 18. But still on the list are political offenses. Article 109 of the reformed Criminal Code makes it a crime, one punishable by death, to try to overthrow the people's administration - that is, the Communist Party. Article 114 makes it illegal to weaken the apparatus of the party.

In Indonesia, Singapore, Malaysia and Thailand, it means people connected to the drug trade. Indonesia's National Anti-Narcotics Agency reportedly said last year that there were nearly 6 million drug users in the country. That's roughly 2% of the population. In 2016, President Joko Widodo asserted that there were 30 to 50 deaths per day because of drugs, using highly questionable statistics.

But even if true, it pales next to the roughly 550 deaths per day in Indonesia because of tobacco-related illnesses. Yet smoking cigarettes is not considered a threat to the "nation's survival" - maybe because tobacco firms are among the biggest taxpayers in Indonesia.

* François Mitterrand was France's Justice Minister between 1956 and 1957. The death penalty was declared illegal on October 9, 1981 when President François Mitterrand signed an abolition law pushed by Justice Minister Robert Badinter. 

Source: Asia Times, Opinion, David Hutt, June 21, 2018. David Hutt is a Cambodia-based political journalist who has been covering Asian affairs since 2014. He is Southeast Asia columnist for The Diplomat and a regular contributor to international publications.

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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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