Juridifying the Death Penalty: A Morally Indefensible Choice

This article advocates against the execution of Nagaenthran A/L K Dharmalingam by the State of Singapore; Nagaenthran who has 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 has 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 be said to possesses the mental age of a child between the ages of 9 to 12 years NHSGGC : Severity of Learning Disabilities , yet he has been adjudged by the State to possess the culpable mental state of an adult deserving the death penalty for drug trafficking.

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

The International Drug Policy Consortium released a statement urging the State to halt the execution. They argue 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 in fact lack any 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

To carry out the execution of a man who has languished in prison for over a decade , a man who may not only be mentally unaware of his impending execution, but also oblivious to the circumstances which have 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.

I argue that Nagaenthran should be afforded the due process procedural right to undergo further independent psychiatric assessment to determine his current mental health and state of mind.

To deprive a man of his very life without guarenteeing him his due process rights to procedural accomodation for his diability is 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 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

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 MelzerSpecial Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

Gerard QuinnSpecial Rapporteur on the Rights of Persons with Disabilities and-

Tlaleng MofokengSpecial 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, 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

The Death Penalty and Offenders with Mental Retardation | HRW.

NHSGGC : Severity of Learning Disabilities

Statement on the Imminent Execution of Nagaenthran K Dharmalingam – Transformative Justice Collective

Joint statement urging Singapore to halt impending execution of Nagaenthran K Dharmalingam for a drug offence (idpc.net)

Singapore: indefinite stay of execution for man with learning disabilities after he gets Covid | Singapore | The Guardian

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.

Photo by Huy Phan on Pexels.com

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