Should we keep the death penalty? There are no easy answers.

Changi-prison-where-Singa-001

I’m surprised at how almost everyone on my social media feed has come out so firmly against the death penalty. I respect this view, but I feel that there are no easy answers.

Despite my liberal bent, it’s hard to justify why someone like mass murderer Anders Breivik deserves a second chance. There exists a certain class of crimes, so heinous and plainly malicious, that the usual abolitionist arguments about rehabilitation and compassion no longer matter.

Most Singaporeans would concur, for instance, that Staff Sergeant Iskandar bin Rahmat should have been sentenced to the gallows. In a botched robbery attempt, he butchered 67 year old Tan Boon Sin, stabbing him 20 times on the neck and face. He went on to murder Tan’s son, stabbing him 11 times on the scalp, face, and neck. In Ted Cruz’s words, criminals like SSG Iskandar are “exquisitely culpable”. Their actions are so beyond the pale of dignified human behaviour that no ordinary punishment would suffice.

I understand the standard liberal response that two wrongs don’t make a right. Murdering a killer will not bring his victims back to life. But this assumes that there’s no intrinsic moral value in killing a monster, as if we have the death penalty only to satisfy some atavistic desire for revenge. That’s simply not true.

The death penalty is defensible because certain criminals have surrendered their claim to humanity. What sets us apart from animals, and hence accords us dignity and a material claim to state resources, is our ability to respond to moral reason. When one commits murder, or guns down innocents to spread terror, the person demonstrates a callous disregard for human life. They abrogate their right to be treated as a human being. There is active moral harm caused when we give this kind of criminal access to rehabilitative services, or provide them healthcare while in jail, or allow them to sue the state of Norway for “inhuman treatment”. The very act of deeming them human enough to warrant a second chance is problematic. This is not about the state using the tool of execution to hypocritically signal that murder is wrong: in the former case, someone who is effectively an animal and beyond reasonable rehabilitation is killed. This is good. In the latter case, an innocent person is killed. This is bad.

The case of Kho Jabing is tricky, because if he were executed back in 2010, I would have come out in full-throated support of him. Back then, there was a mandatory death penalty for murder. Irrespective of mitigating circumstances or any other pleas, so long as someone is found to be guilty of murder, the court has to sentence them to hang. No excuses. And that’s extremely problematic, given the uniquely high threshold that one should meet in order for the death penalty to be principally justifiable.

However, the government did concede in 2013 that judges should have some discretionary power to commute death sentences to life imprisonment for drug offenses and murder, on a case-by-case basis. And Kho was accorded due process, with the High Court reducing his sentence to life imprisonment in August 2013. But the prosecution appealed that decision, with the five-man Court of Appeal concluding in a 3-2 split that Kho should be executed.

The majority justified this decision by arguing, “(The) death penalty would be the appropriate sentence when the offender has acted in a way which exhibits viciousness or a blatant disregard for human life … in the case of a violent act leading to death, the savagery of the attack would be indicative of the offender’s regard for human life.” They pointed to how Mr Cao Ruyin (the victim) was struck multiple times even after he stopped retaliating, and that he was hit with such malice and brutality that his skull was completely shattered. The majority bench reasoned that even if Kho’s intent was merely to rob Mr Cao, this did not excuse the “savagery of the attack which was characterised by needless violence.”

This is reasonable. Yes, it’s not perfect, as evidenced by how the High Court and subsequently two Court of Appeal judges felt that Kho did not deserve the gallows. But Kho’s story does not prove beyond reasonable doubt that the death penalty should be abolished. At best, it demonstrates that we should not have a mandatory death penalty for murder.

In fact, most of my misgivings about the death penalty don’t stem from its legality, but rather how it’s been used in Singapore. It’s probably a good thing that we decided to hang the twisted perpetrators of the Toa Payoh ritual murders. But how about those guilty of smuggling drugs into our country? Should being caught with 15 grams of heroin in your pocket mean a one-way ticket to the hangman’s noose? Our government seems to believe so. In a pointed, brusque speech addressed to the United Nations, then-Foreign Affairs Minister Shanmugan argued,

“Drug traffickers impose immense penalties, including the death penalty, on their victims.  Thousands of people die.  We have stopped that in Singapore.  We want to protect our people from becoming victims, and to protect our society.”

Here’s where I profoundly disagree. On one count, it’s when drug consumption is criminalised that people tend to suffer the worst consequences of abuse – when drug users cannot turn themselves in to the authorities without first being treated as a criminal, when needles are unsanitary and often carriers of HIV because needle exchange programmes are non-existent, and when drug addicts can’t even find support from their friends and family. Quite perversely, our zero-tolerance stance on drugs enables traffickers to “impose the death penalty” on drug users in the first place.

Another important factor is that for drug-related offences, perpetrator and victim are often one and the same. Many criminals who peddle drugs illegally are themselves drug addicts, lured into the industry by cartels who deliberately encouraged their dependence on these substances. Cartels also frequently threaten drug mules or their family members, coercing them into transporting drugs across borders at great personal risk. Or consider an argument premised on moral responsibility, where we’ve constructed a society so focused on aggressive academic streaming, so obsessed with defining success along a narrow elitist band, that those who are left with no recourse end up turning to crime.

Perhaps the best argument in favour of the government is that the death penalty is being used as a dispassionate foreign policy tool. For a drug trafficker, there’s no real difference between smuggling drugs into Singapore, as compared to any other Southeast Asian country. All our neighbouring countries have imposed the death penalty on drug trafficking too. Currently, we’ve been able to stay ahead of the curve because Singapore has better policing and tighter border control, so there’s a higher chance of drug mules being caught. By maintaining the status quo, we’re able to deflect most of the drug scourge onto Malaysia and Indonesia, where the punishment for trafficking is the same, but enforcement is far weaker. But if we were to lift the death penalty, the flow of drug traffic will get redirected back through Singapore – hence benefiting our neighbours. It’s the old story of how you can survive being chased by a tiger: you don’t have to sprint faster than the tiger; you only need to run faster than the person beside you.

Whether or not the lives of drug mules should be instrumentalised so we can play this sly foreign policy game is entirely up for debate. If you asked me, I’d argue that a drug-free Singapore is highly over-rated, contrary to prevailing government opinion.

Again, I don’t claim to have a definitive answer to this debate. I just felt that in light of the current polarised discourse taking place regarding the death penalty, it would serve us well to understand the rationale behind such a policy. It makes for better discourse, and ultimately, more constructive dialogue about the way ahead.

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