The government’s unexpected proposals to reform the mandatory death penalty, announced on 9th July, by imbuing the courts with some discretion when passing sentence in drug trafficking and homicide cases, represent an overdue step in the right direction. In a move that partially addresses longstanding concerns raised by civil society groups about the lack of judicial discretion, the death penalty will no longer be mandatory in such cases if certain conditions are met.The government’s cautious step forward is a welcome one, given the well-worn and familiar arguments against the mandatory death penalty. The chief drawback is that it leaves no room for judicial discretion and the consideration of mitigating conditions, such as the age of the defendant or his personal circumstances, as well as the possibility of rehabilitation. It is therefore needlessly arbitrary and cruel. The government has now proposed to legislatively vest the courts with the discretion to take into account specific mitigating considerations when passing sentence.
Unfortunately, the conditions for opting out of the mandatory death penalty – in drug trafficking cases – outlined by the government may be so overly stringent that only a small minority of deserving cases would benefit. The first condition is if the accused suffers from a mental illness which precludes him from taking full responsibility for his actions. It is a criterion likely to have been brought about by a controversial case in 2011 when charges against a low IQ individual were inexplicably lessened by the prosecution, even though he had initially been in the dock for the same charges as a co-accused who received the death penalty.
The second condition – that of “substantive co-operation leading to concrete outcomes, such as the dismantling of [drug] syndicates or the arrest…of syndicate members” – may simply be out of reach for the majority of drug couriers as these are usually low-level runners who were picked or manipulated precisely because they have little knowledge of the syndicate. While this stipulated condition does afford the courts some leeway, the latter’s tendency to take a literalist interpretation of the statutes means that most drug couriers will probably be consigned to the gallows anyway. Indeed the government has stressed that the mandatory death penalty will continue to apply in most cases.
But it is these very offenders who may deserve a reprieve, as the mandatory death penalty lacks all sense of proportionality. A young unwitting drug mule (a typical profile of those arrested for trafficking) caught with 30 grams of morphine, for example, gets no more sentencing consideration than a serial killer, while this does nothing to deter the real traffickers who put him up to it. Furthermore, the defendant is saddled with an unusually onerous burden of proof by the statutes: if caught in possession of a drug, he is automatically presumed to be responsible for it and to know its nature, and if caught with a certain amount he is presumed to be trafficking.
The failure to address this worrying lack of proportionality indicates that the government is still largely driven by an overwhelming focus on perceived deterrence rather than ensuring substantive justice. Indeed, when presenting its reforms, the government repeatedly cited the mantra that the mandatory death penalty had a serious deterrence effect.
The problem is that there is little evidence for this – partly because it is difficult to show what might be the outcome without the mandatory death penalty – but it is nevertheless a mindset that is strongly supported by a society that seems to hold the perception that Western liberal democracies are ‘overrun’ by crime because their laws are too ‘soft’. Yet the truth is that effective law enforcement and an expeditious court system may play far more important roles in deterring potential offenders. Civil society groups campaigning against the mandatory death penalty and capital punishment therefore still have a long way to go.
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