Shanmugam’s slippery slope

– The Online Citizen thanks Benjamin Cheah for giving us permission to reproduce the following article in full. –

Law Minister and Second Home Affairs Minister K Shanmugam seems to abandoned logic in favour of imagined catastrophes. In [a report by]TODAY, Shanmugam said that the mandatory death penalty is a ‘trade-off’ to protect ‘thousands of lives’. In effect, repealing the mandatory death penalty must lead to drug mules being released, which must lead to public sympathy for the mules, which must encourage the drug lords to send more drugs into Singapore. In doing so, he has glossed over the situation in favour of appealing to public fears about drug trafficking and abuse. He does not seem to acknowledge the subtlety of the situation.

Note the distinction between a mule and a trafficker. A mule is the person hauling drugs around, while a trafficker is someone who makes money by buying and selling drugs. Traffickers include street dealers who sell drugs on the street, distributors who move drugs, and kingpins responsible for supply of drugs.

The repeal of the mandatory death penalty does not mean the abolishment or acquittal or all drug mules. It simply means that judges will have to decide whether they should hand down the death penalty for every single drug offender they try, instead of sending them all to the gallows. It does not mean that the offender will be automatically acquitted and released on the streets.

Shanmugam’s example is disingenuous. He says that the drug barons will send young mothers to move drugs. By abolishing the mandatory death penalty, the mother will have to be acquitted, generating public sympathy. This example clearly ignores reality.

Drug mules merely shuttle drugs around. They do not even need to know what they are smuggling. Malaysian Vong Vui Kong, sentenced to death for trafficking heroin, claims that his boss in Johor Bahru asked him to deliver some packages to Singapore without revealing what these packages are. Elsewhere, drug traffickers are seducing young women, recruiting them as unwitting drug mules by asking these women to deliver a package or luggage overseas. Shanmugam’s example means that ignorance is a crime punishable by death.

One of the pillars of justice, as Shanmugam must surely know, is proportionality. Four different people may commit essentially the same crime, but receive different sentences due to different degrees of culpability. In this example, four different men have been arrested for killing someone and are now on trial.

The first man is a hired killer, paid to kill a person. He set out to kill someone, and achieved it. His purposeful action would, in a court of law, earn him the highest penalty.

The second is a disgruntled employee at a bakery. To take revenge on the company, he adds rat poison into the goods. A customer dies as a result, while dozens more fall ill. While his intention was not to kill someone, he knew that his actions would lead to severe harm. He gets the second highest penalty.

The third is a drink driver. After a night of drinking, he speeds home, driving dangerously. He runs down and kills a pedestrian as a result. While he did not intend to cause harm, he acted recklessly, leading to death. Recklessness is considered less severe than deliberate actions, and so he gets a less harsh sentence.

The last one is a terrorist bomber. His girlfriend, visiting her family overseas, asks him to post a package that she forgot to send. He does so. The package is a bomb, and it goes off in the post office, killing a postal employee. He did not intend to kill anyone, and did not know what the package was. Is he culpable for his crime?

Shanmugam has ignored these four categories of criminals, clumping them together as evildoers making war on civilisation. Most developed countries these days frown on drug use, and so do most of their citizens. Mules who knowingly move drugs from place to place tend to come from underdeveloped countries or poor areas of a country, who do so because they have nothing left to lose, and a lot to gain — from their point of view. Such criminals, as far as I know, are not very common in Singapore. The average high-volume drug mule in Singapore moves drugs because he or she was tricked into doing it — the last class of criminal.

Most people would naturally be suspicious if a stranger asked him or her to move packages around. But would they be suspicious if a lover or a superior asked them to do so? Would they examine these packages before sending them on? It’s highly unlikely. Remember the example of the bomber. You can only punish someone for negligence if the person significantly deviates from the standard of care expected in the situation. If the man had passed on the package after receiving it from a stranger, he may be accused of being negligent, because one would reasonably expect him to suspicious of that package. But he was seduced, and one would not expect to scrutinise everything belonging to your lover.

We can only apply the harshest possible penalty if the mule knows that or she knows that he or she is moving drugs — and even then, such a person did not deliberately target someone for harm, making he or she the second-worst kind of criminal, at best. If the mule does not know, then he or she can only belong the fourth class of criminal — or is not a criminal at all. Applying the death penalty, the harshest penalty, for this kind of offender violates the principle of proportionality, and therefore justice — something that Shanmugam fails to acknowledge.

The government opines that the death penalty serves as a deterrent. Only a person who is willing to carry something out can be deterred from doing that something. Only drug mules who are willing to knowingly shuttle drugs can be deterred by the death penalty, and repealing the mandatory death penalty does not abolish the death penalty. Drug mules who do not know they are moving drugs cannot possibly be deterred, because they have no intention of moving drugs.

Repealing the mandatory death penalty means greater discrimination and more options for judges. Judges would then be able to uphold the principles of justice far more easily, being able to hand out sentences in proportion to the crime, instead of being forced to hand out death sentences. The sentence can then fit the crime. Judges can still execute serious drug offenders if they feel the punishment is severe enough, without needing to order the deaths of drug offenders who did not deliberately set out to harm people. The government’s precious policy of deterrence would not be affected by a more selective approach to the death penalty.

(This, of course, means that the abolishment of the mandatory death penalty must lead to changes in relevant laws to reflect culpability)

In short, if the justice system do not punish the victims of con men, why does it insist on punishing people conned into moving drugs?

Now let’s look at this from a different angle. Perhaps Shanmugam was referring to the abolishment of the death penalty for drug offenders, and was worried that doing so encourages drug trafficking. Shanmugam seems to have stepped out of reality if this were his point.

The black market for narcotics is a market, stretching around the world with long supply chains. The drug dealer on the street is just small fry. The drugs he sells are purchased from a distributor, who tends to be just a middleman who moves the drugs, and receives them from yet another middleman. The drug baron, the one who directs production and supply, is motivated by market forces and profit. He is basically a businessman selling illegal goods.

Shanmugam says that if drug mules are released, then ‘you will get a whole unstoppable stream of such people coming through’. That is nonsense. Drug barons do not have infinite production capability. They need raw materials, labs, suppliers, middlemen, and mules. To send such an ‘unstoppable stream’, drug barons would have to step up production capability. This incurs a lot of costs, such as bribes, payment to middlemen and mules, and costs of setting up drug labs. A drug baron would only incur such costs if he is confident that there is sufficient demand — and profits — to cover these costs. By sending an ‘unstoppable stream’, the baron would be jacking up supply — which, as any economist can tell you, reduces prices, and quite probably profit. The only way to make profit in such a situation would be to increase demand for drugs.

To increase demand for drugs, legal companies can conduct market studies, pay for advertising, and conduct public relations campaigns. Drug barons have to rely on the efforts of the street dealers to increase demand for drugs. The drug baron is not selling his product to the street dealer; he is selling his drugs to the drug dealers’ supplier. In the same vein, a writer sells her works to his publisher, even though the readers buy the printed books. But now assume a situation where only the bookstore can sell books, and the books do not carry the authors’ names. This is the market for drugs. The only reasonable way to jack up demand for illegal goods is for the street drug dealers to reach out to people — the baron has little to no control over that. If demand in Singapore were to rise to such a height that the drug barons would send an unstoppable stream of mules, then the real question should be: why has government policy failed to discourage drug use amongst people and stop the street dealers?

Not that such high demand is likely. Singapore is a very small country, and would have a correspondingly small market for drugs. Drug barons would concentrate their efforts on large countries, where there is a higher demand for drugs. Why would drug barons send an unstoppable stream of mules to Singapore, when they would rather send this stream elsewhere? Drug mules are not renewable or widely available. They need to be recruited, and if the mules come from first world countries, the barons would have to spend a lot time and money training the recruiters to successfully swindle mules into sending drugs. Willing mules are more (but not freely, always, nor exclusively) available from poorer regions of the world — and even then, it is difficult to hire them to move drugs beyond a land border to a neighbouring country, or within the same country. Poor people do not behave the same way as most other people, making them stand out in a crowd, and immigration officials would naturally pay more attention to people who stand out. More so if a seemingly poor person somehow manages to afford a plane ticket and can travel overseas. People from more affluent societies are not usually willing mules, because they tend to have more respect for the law and more able to take up legal jobs. It is very costly to send an ‘unstoppable stream’ of mules, and not worth the effort for a small country like Singapore.

Shanmugam has also insulted the police forces and other agencies involving drugs. The greater the number of mules, the higher the chances of arresting one — and more. If the police were to detect an increasing number of drug mules, the police would react accordingly by training more sniffer drugs, cooperating with foreign counterparts, and stepping up enforcement measures. Every arrested drug mule can potentially give away the identity of his or her recruiter — cooperation with foreign counterparts could then lead to increased arrests, disrupting the supply chain. At the same time, the police would embark on a public outreach campaign, in an attempt to target the supply side of drugs. Drug rehabilitation agencies and halfway homes would do the same. The drug dealers and barons can only react to this by reaching out to more people to increase demand, which converts people slower than public outreach programs, increasing prices on the street, which drives away buyers and profits, and by attempting to bribe public officials. The last would attract the attention of the Corrupt Practices Investigation Bureau, which is regularly praised for its efforts (and probably justifiably so). Should drug barons decide to increase supply, they risk exposing themselves to law enforcement officials, who will have more information with which to track them down or disrupt supply chains. This does not even cover probable police responses to ‘soaring crime rates’ caused by crime, which would no doubt be just as holistic and intense. Shanmugam apparently thinks the Singapore Police Force cannot do this, even in the face of massive drug supply. The lack of confidence in the agencies that enforce the laws he is responsible for is noted.

Drug barons face significant obstacles when they attempt to increase supply and movement of drugs in any country, much less Singapore. It is ridiculous to state that releasing one drug mule would encourage drug barons to send more mules. It costs a great deal for them to do so, and Singapore is too small a market for them to bother. If in fact such a thing happens, then demand for drugs would be so widespread that the problem would in fact be demand for drugs, not supply, and the failure of enforcement actions. That is even assuming that the police, in tandem with other rehabilitation agencies, fail to stem the flow of drugs in Singapore. That is not likely for now.

Shanmugam said that the mandatory death penalty saves one life and ruining ten, implying that the other option is to save ten and take one life. This is a false choice. Why take the life if the mule does not know he or she is moving drugs? For that matter, why take the life at all?

If the government truly insists on maintaining the mandatory death penalty, then it must argue on the basis of reality, taking into account the factors mentioned above. It must argue that the mandatory death penalty serves to deter drug mules, even drug mules who do not what that they are moving drugs, and the drug traffickers overseas who cannot be touched by Singapore’s death penalty. It must argue that a more selective approach to the death penalty for drug offences cannot produce the same effect, or is significantly less effective than the mandatory death penalty. It must argue that the death penalty is indeed even necessary, that the punishment fits the crime. It must argue that the life must be taken in the interests of society.

Thus far, Shanmugam has produced a slippery slope and a false dilemma. These are not reasons to take a life. They are excuses to prop up an increasingly unpopular and possibly irrelevant policy. Matters of life and death must be based on reason — not excuses.

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Read also the views of the two following bloggers:

Magnezium:

The Court of Appeal’s decision in the Yong Vui Kong case still isn’t out yet, but the Law Minister has made some comments defending the mandatory death penalty.

While no study has been done on the death penalty for drug trafficking in Singapore, at least one study has been done on the death penalty for murder. The study suggests that in Singapore, the mandatory death penalty does not have a deterrent effect on murder. In other parts of the world, too, scholars are agreed that the death penalty has no deterrent effect on murder.

Mathia Lee:

Since when did we start trading justice for [its mere]deterrent effect?

If we begin to accept unjustly disproportionate punishments in order protect even innocent lives, would we not have apply the same principle to all abhorant crimes and impose the mandatory death penalty for all these crimes? Rapes, break-ins, corruption, snatch theft, errant construction companies flouting safety rules — are these any more acceptable than drug trafficking and why do we not impose a mandatory death penalty?

Does having the mandatory death penalty instead of a discretionary death penalty really protect ‘thousands of lives’ more?

Where is the proof? Where is the evidence?

How does this even work at the logical level?

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