The Dead End Execution Judge

When a close neighbor executes a low-IQ drug mule after 12 years on death row, morry bailes says the tide could turn against state-sanctioned murders.

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

But our region generally disagrees with Australia’s position. Numerous countries in Asia-Pacific maintain the death penalty, especially for drug offences.

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

Dharmalingam was 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 tied to his leg.

Notable in his case was psychiatric evidence that suggested his IQ was only 69. On the various adult intelligence scales, an IQ of 69 or lower indicates someone of lower intelligence. An argument was made against the Singapore Supreme Court that Mr Dharmalingam was in fact not mentally competent enough to be just or reasonable to have him executed.

He was on death row for 12 years. On the day before his execution, his mother appeared before the appeals court to plead his case again. But the family could not afford a lawyer and she was represented herself. Despite a petition signed by more than 100,000 people and calls from prominent people, including the Prime Minister of Singapore, some EU member states and entrepreneur Richard Branson, the court gave no quarter, claiming the appeal was “frivolous” and describing it as a “waste of court’s time,” notes that given the circumstances, seems harsh anyway.

The problem is often that courts have little or no discretion, as parliaments legislate for mandatory sentences that can include death. So it is the parliaments and not the courts that decide the results, which inevitably leads to results that contain unexpected circumstances like these. After the President of Singapore was previously denied a pardon, Mr Dharmalingam was hanged in Changi Prison. The execution by a first world country has sparked international interest and in some cases condemnation.

Following this, Singapore would execute another Malaysian drug runner, Datchinamurthy Kataia. But at the last minute, the Court of Appeals postponed his hanging and the case will be heard later this month. Unlike his cell neighbor, Mr. Dharmalingam, Mr. Kataia is legally represented.

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

Public sentiment towards the death penalty is gradually changing in the Asia-Pacific. Mr Dharmalingam’s death has affected the thinking of many in Singapore, at least temporarily. What they saw was a mentally retarded drug mule with barely more than the amount of illicit drugs to be put to death, while somewhere the drug lord who managed to get him to do the job was roaming free and inexplicable. Is that justice? Is that likely to prevent the next unintelligent and desperate person from taking a gamble?

The argument that it has a deterrent effect seems to contradict the experience of many countries.

With the deaths of Sukumaran and Chan, there was a palpable sense of a horrific waste of life felt by the majority in Australia. Two men who had been in prison for a long time and who had completely reformed themselves were executed, it felt, for almost domestic political reasons. What exactly was the point?

The death penalty is in effect in Malaysia, Indonesia, Vietnam, Thailand and Laos. But attitudes are changing. Indonesia hasn’t executed a person in years. Thailand has not executed a drug offender since 2009, although it did execute a murderer in 2018. abolished in 2006. It is estimated that Duterte’s appeal resulted in the loss of 20,000 lives.

Japan is another interesting country to watch. It maintains the death penalty, but internal pressure to reform is mounting. After a significant pause in executions, three men were executed at the end of last year; all the killers involved in what Justice Minister Yoshihisa Furukawa described as “extremely heinous” crimes.

However, on an international index those countries are now in the minority – 54 countries maintain the death penalty, twice as many have abolished it, and there are 26 countries that, although they maintain the death penalty, are in practice abolitionists.

Our own close ally, the US, maintains the death penalty, but has states where executions have been delayed or stopped altogether.

In Australia, the majority of us are against the death penalty. Sometimes opinions differ depending on the crime. More prefer death as punishment for acts of terrorism leading to loss of life, but they are still in the minority. In 1947, 67% favored death as the punishment for some crimes, 24% opposed it, and the rest were undecided. In 2009 those numbers were roughly the opposite.

Opponents of the death penalty cite a number of reasons. While a country has the sovereign right to legislate to take life for some criminal acts, the cruel and unusual aspect for many inmates is often how long they have to wait on death row. Sometimes, as in Japan, the convicts never know when the day of execution will come. Japan usually gives a prisoner a few hours’ notice of their impending death. It carries out the execution in complete secrecy and tells the family afterwards. You can only imagine having to wait day by day, wondering which one could be your last. In the US, people can spend decades on death row, sometimes for most of their lives.

But the biggest argument is the finality of death. Our criminal justice system deliberately emphasizes the presumption of innocence and evidence beyond reasonable doubt, knowing that the guilty will be acquitted, but preferring the incarceration and punishment of the innocent. The problem with the death penalty is that once a mistake has been made – which is now regularly exposed with the availability of DNA evidence – there is no turning back. There is no justice for the dead, no matter how innocent they turn out to be.

Consider the recent American case of Thomas Raynard James to illustrate how wrong the criminal justice system can be. James was unlucky to have the same name as a suspect in an armed robbery that ended in murder. In addition, he was decided by an eyewitness, albeit erroneously, to be identified as someone who had been at the crime scene.

James was arrested in 1990 and spent more than 30 years in prison. Just last year, that witness expressed doubts about the testimony she gave to the jury at his trial, and his conviction was quashed the same week as Dharmalingam’s execution in Singapore. Although what Mr. James endured as an innocent man was immense, he did not receive the death penalty and can now live his days as a free man. Witnesses, juries and courts make mistakes, but the death penalty once executed is irreversible.

Most Australians believe that there is no place for the death penalty in a just society. The argument that it has a deterrent effect seems completely contradicted by the experience of many countries. Mr Dharmalingam’s case may fuel opposition to death as a punishment in Singapore, but sentiment in our region is changing anyway.

Despite its costs, it is increasingly accepted that imprisonment is a sufficient punishment for all crimes, as long as the sentences imposed on the convicts meet the expectations of society.

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

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