The Death Penalty is Morally indefensible
This article is written in rememberance of Nagaenthran A/L K Dharmalingam who was executed by the State of Singapore on 22 April 2022; Nagaenthran who had the IQ of 69 was convicted in 2009 by the High Court of Singapore for importing with intent of trafficking 42.72 grams of diamorphine and had spent more than a decade on death row.
Nagaenthran was assessed by psychiatrists to possess an IQ of 69, a level of intelligence indicative of learning disability.
As Human Rights Watch notes, ‘an I.Q. in the 60 to 70 range is approximately the scholastic equivalent to the third grade.'(See George S. Baroff, Mental Retardation: Nature, Cause and Management, 3rd ed.(Philadelphia, Pa.: Brunner-Routledge, 1999). The Death Penalty and Offenders with Mental Retardation | HRW.
To put it bluntly, Nagaenthran could have possessed the mental age of a child between the ages of 9 to 12 years NHSGGC : Severity of Learning Disabilities , yet he had been adjudged by the State to possess the culpable mental state of an adult deserving the death penalty for drug trafficking.
To the intelligentsia, perceiving the world through a dispassionate, objective assessment of the facts, Nagaenthran was a rational, calculative drug offender who knew the difference between right and wrong, appreciated the nature of his acts, and weighed the risks against the benefits of smuggling heroin;
Yet, to a person with borderline mental disability the world is perceived to be a very different place, a place of struggles and strain, problematized by mental health issues impairing cognitve functioning, including perceptions of risk.
Consider the expert views of two eminent psychiatrists, Jannelien Wieland and Frans G. Zitman:
”’people with borderline intellectual functioning, or an IQ between 70 and 85, do comprise a vulnerable group……they face difficulties across all areas of ordinary life.”
”They are at increased risk of experiencing physical problems, poverty, have more difficulties with activities of daily living, have limited social support and no access to specialised services. They often live problematic lives, functioning under high strain but unnoticed by the rest of society.”
”they are more vulnerable to the development of mental health problems than people of average or above average intelligence and may also be more vulnerable than people with mild intellectual disability.”
”Several studies show increased risk for the development of almost all psychiatric disorders in childhood as well as in adulthood, including substance misuse and personality disorders.”
(It is time to bring borderline intellectual functioning back into the main fold of classification systems – PMC (nih.gov) Jannelien Wieland, psychiatrist, Kristal Centre for Psychiatry and Intellectual Disability, Rivierduinen, Leiden, and Frans G. Zitman is emeritus professor at the Department of Psychiatry, Leiden University Medical Centre, Leiden, The Netherlands).
A psychiatrist who assessed Nagaenthran‘s mental state, Dr. Ung Eng Khean, testified in court that ”Nagaenthran suffered from “an abnormality of mind at the time of his arrest, namely:
Severe Alcohol Use Disorder, Severe Attention Deficit Hyperactivity Disorder (ADHD), Combined Type and Borderline Intellectual Functioning/Mild Intellectual Disability”. Statement on the Imminent Execution of Nagaenthran K Dharmalingam – Transformative Justice Collective
Amnesty International further noted:
”Medical experts who assessed Nagaenthran in 2013, 2016 and 2017 found that he has borderline functioning intelligence and concurrent cognitive deficits, which “may have contributed toward his misdirected loyalty and poor assessment of the risks in agreeing to carry out the offence”. Singapore: Abhorrent hangings must end as man with intellectual disability executed – Amnesty International
The International Drug Policy Consortium released a statement urging the State to halt the execution. They argued that Nagaenthran’s I.Q. of 69–
”meets the international standard for intellectual disability, and his functioning skills (including verbal fluency, abstract reasoning, and problem solving) are impaired.” Joint statement urging Singapore to halt impending execution of Nagaenthran K Dharmalingam for a drug offence (idpc.net)
Further International outcry over the imminent execution was reported by the International media, including The Guardian which stated:
‘A group of 11 British MPs and peers have written to the Singaporean high commissioner, asking that Dharmalingam’s life be spared.‘
‘In the letter, they state they have learned that Dharmalingam is “seemingly unaware of the fact he faces execution, due to his mental condition, and that he is hallucinating, incoherent, and imagining his prison cell as a garden in which he is safe”.Singapore: indefinite stay of execution for man with learning disabilities after he gets Covid | Singapore | The Guardian
This very real possibility that Nagaenthran may have lacked cognitve awareness of the imminent reality of being executed is further iterated by the UN Special Rapporters:
“We are also concerned that his past 11 years on death row has reportedly caused further deterioration of his mental health.” OHCHR | Singapore: UN experts urge halt to execution of drug offender with disabilities
Such International Human Rights experts have argued that carrying out the execution of a man who had languished in a solitary prison cell for over a decade, a man who might not only have been mentally unaware of his impending execution, but also oblivious to the circumstances which led to his stay on death row-–
hardly accord’s with the notion of due process-
the right of an individual to ensure that his her legal rights are respected and protected by the State.
It had been argued by Human Rights experts that Nagaenthran should have been afforded the due process procedural right to undergo further independent psychiatric assessment to determine his current mental health and state of mind prior to his execution.
To deprive a man of his very life without guarenteeing him his due process rights to procedural accomodation for his disability might be argued by some to be a travesty of justice,–
And a violation of International law as enshrined in the Convention on the Rights of Persons with Disabilities 2006 ( CRPD):
Article 10 – Right to life states:
‘States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.‘ Convention on the Rights of Persons with Disabilities (CRPD) | United Nations Enable
Amnesty International writes:
”The treaty bodies for the Convention of Rights of Persons with Disabilities (CRPD), to which Singapore is a party to, prohibits the imposition of the death penalty on people whose mental and intellectual disabilities have impeded their effective defence.” Singapore: Abhorrent hangings must end as man with intellectual disability executed – Amnesty International
The International Community’s rejection of the use of the Death Penalty
The International Community has questioned whether Nagaenthran had been afforded due process procedural accomodations by the State.
The following UN independent experts released statements calling for the State to halt Nagaenthran’s execution:
Morris Tidball-Binz Special Rapporteur on extrajudicial, summary or arbitrary executions;
Felipe González Morales, Special Rapporteur on the human rights of migrants;
Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
Gerard Quinn, Special Rapporteur on the Rights of Persons with Disabilities and-
Tlaleng Mofokeng, Special Rapporteur on the right to physical and mental health
”We are concerned that Mr. Nagaenthran a/l K Dharmalingam did not have access to procedural accommodations for his disability during his interrogation.”
‘‘We further highlight that death sentences must not be carried out on persons with serious psychosocial and intellectual disabilities.”
”Under international law, countries which have retained the death penalty may only impose it for the most serious crimes, that is, those involving intentional killing, the human rights experts also stressed.”
“Drug related offences do not meet this threshold,” they said. “Resorting to this type of punishment to prevent drug trafficking is not only illegal under international law, it is also ineffective. There is a lack of any persuasive evidence that the death penalty contributes more than any other punishment to eradicating drug trafficking.” OHCHR | Singapore: UN experts urge halt to execution of drug offender with disabilities
This argument raised by the Special Rapportuers that ”death sentences must not be carried out on persons with serious psychosocial and intellectual disabilities” is underpinned by the UN Declaration on the Rights of Disabled Persons 1975 :
‘‘Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.” OHCHR | Declaration on the Rights of Disabled Persons
International law, as the UN Special Rapporteurs explain, specifically prohibits the use of the death except for ‘the most serious crimes in accordance with the law‘. ( note Art. 6, para. 2 of the International Covenant of Civil and Politica Rights ICCPR).
The term ‘most serious crime’ has been interpreted by Human Rights experts and organizations such as Amnesty International to be restricted to intentional killings. Death Penalty – Amnesty International
Yet, retentionist States continue to invoke the death penalty as the answer to a presumptive ‘existential’ threat posed by drug traffickers to society , arguing that trafficking could destroy countless lives.
The potentiality of drugs for destroying lives remains just that….
a potential that is often not actualized in reality (due in part to effective drug law enforcement measures),
but evinced in political naratives emphasising the utilitarian concerns of those who presume a deterrent effect associated with Capital punishment, one which is largely unsupported by empirical data.
Criminological and Sociological experts, Radelet and Akers argued:
“Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth.
In short, the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.‘(Radelet and Lacock, (2008-2009) Do Executions Lower Homicide Rates: The Views of Leading Criminologists’ (northwestern.edu)
As I’ve argued in a previous essay, the question of whether a society tends to embrace or reject political narratives such as -the ‘death penalty works’ or is an ‘effective deterrent’ against potential murderers and drug traffickers –
is, as Garland posits, to some degree contingent upon its cultural, historical and political context, rather than on any presumed axiomatic truth about the legitimacy of Capital punishment. David Garland, Punishment and Modern Society: A Study in Social Theory, 2012, University of Chicago Press
The socialization of individuals within specific cultures in ways that lead them to integrate certain cognitive frameworks of thinking supportive of the death penalty, —
may in turn condition their emotional responses and rationalizations on the use of Capital punishment, responses reinforced and affirmed by the technocrats of Penality over time.
I argue that executing a drug trafficker in order to to avoid a hypothetical possibility of drugs killing other addicts is a grossly disproportionate and unjustifiable policy and penal response, —
since offenders are killed for a political purpose, rather than for actually taking the life of another.
an unjustifiable response, as drug offenders like law abiding citizens possess fundamental and inviolable human rights to life and respect for human dignity recognized by International law:
The Forfeiture of one’s right to life cannot be justified by political considerations.
The Prohibition on the use of the Death Penalty in International Law
David Garland reminds us that since the 1980’s there has been an increasing number of ‘anti-death penalty provisions ….. embodied in human rights conventions, transnational treaties and international law.’ (Garland 2010, Peculiar Institution).
These International Human rights instruments include:
”Protocols 6 and 13 of the European Convention of Human Rights (1983 and 2002) (which) prohibit the death penalty, —
as do the United Nations’ 2nd Optional Protocol to the International Covenant on Civil and Political Rights ( ICCPR), which was passsed in 1989, —
and the American Convention on Human Rights Protocol to Abolish the Death Penalty, adopted in 1990 by the General Assembly of the Organisation of American States.’‘ (Garland 2010, Peculiar Institution).
The juridyfing of the death penalty by minority of Nation States invoking their sovereign rights to determine death as a politically or judicially sanctioned punishment for drug trafficking —
has no legal basis in International law;
And is in stark opposition to the moral and legal norms respecting human life and respect for dignity exemplified by the majority of Sovereign States comprising the International Community.(Note: Amnesty International’s findings: At the end of 2020, 108 countries (a majority of the world’s states) had abolished the death penalty in law for all crimes and 144 countries had abolished the death penalty in law or practice.)
Yet, as the renowned Criminologist, David Garland reminds us:
‘....there is the jurisprudential difficulty of subjecting a discretionary subjective, moral decision – who should live and who should die? – to the discipline of rules.‘ (Garland 2010, p.264, Peculiar Institution).
Is it even morally permissible for societies to juridify the act of killing a human being, —
to give it the semblance of legality by embedding it in legal rules, —
while attempting to retain standards of decency expected of civilized societies?
Or, is ‘the rule of law’ and ‘the power of the States to kill in irreconcilable conflict?(Garland 2010, p.264, Peculiar Institution),—
in that the rule of law derives its legitimacy not just from its legislative origins or the will of the Law makers , but from its normative capacity to protect the human rights of all individuals (What is the Rule of Law? | World Justice Project), including those of the most vulnerable in society such as the mentally disabled.
Patrick J.
References
Wieland, Jannelien, and Frans G Zitman. “It is time to bring borderline intellectual functioning back into the main fold of classification systems.” BJPsych bulletin vol. 40,4 (2016): 204-6. doi:10.1192/pb.bp.115.051490
The Death Penalty and Offenders with Mental Retardation | HRW.
NHSGGC : Severity of Learning Disabilities
OHCHR | Singapore: UN experts urge halt to execution of drug offender with disabilities
OHCHR | Declaration on the Rights of Disabled Persons
OHCHR | Singapore: UN experts urge halt to execution of drug offender with disabilities
Death Penalty – Amnesty International
Do Executions Lower Homicide Rates: The Views of Leading Criminologists’ (northwestern.edu)
David Garland, Punishment and Modern Society: A Study in Social Theory, 2012, University of Chicago Press
Garland 2010, Peculiar Institution: America’s Death Penalty in an Age of Abolition, Harvard University Press, Cambridge, MA, 2010.
Essays on Human Rights , Law and International Relations 