Australia has executed no-one for half a century. Following the abolition of the death penalty by various states, the federal government abolished capital punishment in 1973.
Nevertheless, Australian citizens – like all of those from abolitionist jurisdictions – face the death penalty when they commit serious crimes in countries that retain it. Bali Nine pair Andrew Chan and Myuran Sukumaran are facing execution in Indonesia following their convictions on drug trafficking charges almost ten years ago. On Saturday, they and seven others were given official notice that they will be killed by firing squad on the prison island of Nusakambangan. Under Indonesian law, the minimum period between receiving notice and execution is 72 hours.
Indonesian President Joko Widodo, popularly known as Jokowi, has insisted all along that he will reject clemency petitions for drug traffickers on death row. In January, six were executed – five of them foreigners – straining Indonesia’s diplomatic relations with Brazil and the Netherlands. These countries abolished the death penalty in the 19th century.
Jokowi claims that Indonesia is in the grip of a national drug “emergency”. He argues that it needs to execute drug offenders to deter others and thereby reduce the rate of deaths following illicit or illegal drug use. However, he, like others who support the death penalty, can produce no evidence to support this claim.
Because it would be morally repugnant to conduct random experiments in the use of capital punishment, it remains difficult – if not impossible – to find empirical data on the deterrent effects of the threat of capital punishment that would persuade a committed proponent of the death penalty to change their mind.
As far as some crimes punishable by death in several countries are concerned – such as importing or trading in illegal drugs, economic crimes, or politically motivated violence – there is no reliable evidence of the deterrent effects of executions. What evidence there is – which is mostly from the US – should lead any dispassionate analyst to conclude that it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the supposedly lesser punishment of life imprisonment.
One rather unsophisticated way of considering deterrence is to analyse homicide rates before and after the death penalty is abolished. This at least can show whether countries that abolish capital punishment inevitably experience more murders, as those who support the deterrent argument claim.
In Australia, where the last executions occurred in the mid-1960s, the reported murder rate has, a few fluctuations aside, fallen.
Prior to the abolition of the death penalty in Canada in 1976, the reported homicide rate had been rising. But in 2003, 27 years after abolition, the rate was 43% lower than it was in 1975, the year before abolition.
Likewise, the homicide rate in countries of Central and Eastern Europe declined by about 60% after abolition in the 1990s. In most countries, abolition, and a strengthening of the rule of law, results in a decline in the homicide rate.
While recent studies on deterrence in the US are inconclusive as a whole, and many suffer from methodological problems, they do not produce credible evidence on deterrence as a behavioural mechanism.
Therefore, the issue is not whether the death penalty deters some – if only a few – people where the threat of a lesser punishment would not. Instead, it is whether, when all the circumstances surrounding its use are taken into account, the death penalty is associated with a marginally lower rate of the death penalty-eligible crimes than the next most severe penalty, life imprisonment. There is no evidence that it is.
As far as Indonesia’s claims for a deterrent effect are concerned, Oxford scholar Claudia Stoicescu has shown that this claim is based on inaccurate statistics on the number of drug users that need rehabilitation and the number of young people that die each day as a result of drug use.
Quite simply, rigorous analysis of the available data does not support the claims made for the need to retain the death penalty to reduce social harms.
About half of the people on death row in Indonesia have been convicted of drug-related offences. Many are foreigners.
Secrecy surrounds the administration of the death penalty in Indonesia. Prisoners learn about the exact time of their execution only 72 hours in advance.
Australian Prime Minister Tony Abbott and Foreign Minister Julie Bishop have not been able to persuade Jokowi that his belief in deterrence is misguided. However, they could perhaps remind him that his apparent approach to clemency is in breach of Indonesia’s binding obligations under Article 6(2) of the International Covenant on Civil and Political Rights. Indonesia became a party to this in 2006.
Clemency should always be considered on a case-by-case basis for each and every prisoner. Jokowi’s statement that he will reject clemency for all prisoners sentenced to death for drug offences is in clear contradiction of that principle.