Bali Nine: Why arguments for execution don't stack up
THE impending execution of Bali Nine ringleaders Andrew Chan and Myuran Sukumaran has led to an impassioned public debate about capital punishment.
But some of the reasons being used to justify the executions just don't hold up under scrutiny.
Proportionality - the notion that punishment must fit the crime - is a fundamental principle of criminal law.
The argument for executing Chan and Sukumaran holds the death penalty is proportionate because they voluntarily participated in the illicit drug trade, which wreaks havoc on the social fabric.
Indonesia's co-ordinating minister for political, legal and security affairs, Tedjo Edhy Purdjanto , for instance, has said:
Because of the drug lords, 40 drug addicts die [in Indonesia] every day.
Supporting this view, A Current Affair journalist Caroline Marcus wrote in The Courier Mail:
when weighing up the right to life of convicted drug traffickers against the rights of victims and the wider community's welfare, it should be a no-brainer where our sympathies must lie.
There are two key assumptions being made here. The first is that Chan and Sukumaran are directly responsible for the harms - including deaths - associated with illicit drug use. The second is that people who use drugs are especially vulnerable to drug traffickers, so society must protect them.
According to this way of thinking, death penalty for drug smuggling deters would-be ringleaders from planning similar drug operations, and protects some of society's most defenceless citizens. But these assumptions aren't supported by evidence.
The idea that drug "lords" are directly responsible for drug deaths suggests there's a direct, causal connection between drug importation and drug deaths.
This notion simply cannot be sustained; although harms are sometimes associated with drug use, drug-related harms are complex phenomena, shaped by many things.
Drug overdoses are the result of a constellation of factors, including laws that prohibit drug use, insufficient treatment options for people who want to reduce substance use, and the lack of medically-supervised drug consumption facilities, among other things.
All of these can play an important role in preventing fatal drug overdoses, so there's no guarantee people would have died had the drug smuggling operation been successful.
At any rate, the link between Chan and Sukumaran and the deaths of people who use drugs are hypothetical because the drugs never reached their intended destination. The execution of the men cannot be a proportionate response because it relies on flawed logic about the cause of harms that never eventuated.
Drug users are victims
The second key assumption is that Chan and Sukumaran preyed on vulnerable consumers, variously described as "victims" and drug "addicts" in comments made in the media.
This idea belies a key stereotype about drug markets: that they are structured in certain ways, with a fixed hierarchy of roles.
According to this logic, those in the upper echelons of the system (drug manufacturers, for instance, and traffickers) have more power than those lower down in the chain (drug mules and consumers). These claims are also unsustainable.
If dealers and traffickers had all the power, we might expect to see demand for drugs and drug prices remain relatively stable over time. Instead, demand is shaped by factors such as supply, pricing, and the availability of other drugs.
At times, dealers are themselves vulnerable. They work hard to develop trust and rapport with their clientele. They negotiate with consumers on price and may face competition. Where their customers have limited means to pay for drugs, they sometimes accept other goods in exchange.
Research suggests every drug market is subtly different, with different power dynamics. So it is much too simplistic to suggest people who consume drugs are always being taken advantage of, even if this may be the case in some drug markets, at certain times.
Addiction is actually a complex and contested term, but this is not reflected in how it's used in current debates. Indeed, the way we talk about drug users is akin to saying everyone who drinks alcohol is an alcoholic.
For many, the word addiction conjures up images of helplessness, hopelessness and a loss of control. And when consumers of drugs are referred to simply as addicts, it implies particular relationships between them and other people, including drug dealers. It suggests a power imbalance that might not necessarily reflect reality.
Although some people who consume drugs may have trouble managing their drug use (just as some people who drink alcohol do), drug users form a very diverse population. And many would reject simplistic and patronising assumptions about their capacity, and more importantly, their choice to consume drugs.
They would not see themselves as "victims" or "addicts" but as willing consumers. We should be aware of just how stigmatising the language of "addiction" can be, and how much that matters.
No one is denying that drugs can cause harm but when two lives are at stake, it behoves us to ensure that we aren't justifying ending them based on stereotypes. We must reflect on the potentially uncomfortable fact that many people use drugs for pleasure - and that drug consumers are not always or necessarily the vulnerable victims of "evil" drug lords.
And anyway the approach to Chan and Sukumaran is at odds with the way that drug users are treated in other parts of the criminal justice system.
The "victims" the Indonesian justice system is "protecting" from drug dealers in this instance are elsewhere punished for buying and consuming drugs.
The use of unsustainable claims about drugs and drug "addiction" to justify the most extreme form of state-sanctioned punishment isn't unique to this case.
While the impending executions of Andrew Chan and Myuran Sukumaran make the stereotypes and inconsistencies in our views about drugs and drug users more immediate, they actually need careful and constant assessment.
Such claims have the potential to shape public understandings of drugs and drug addiction in profound ways. For Chan and Sukumaran, their lives depend upon it.
Kate Seear is the Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law at Monash University. This article first appeared at The Conversation