Post by Anja Nieser on Sept 12, 2006 3:57:00 GMT -5
Peter Johnson, Mirko Bagaric and Richard Edney: Killers deserve a harsher fate
It makes sense for the PM to plead for the Bali drug runners but not terrorists
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September 12, 2006
ARE John Howard's views on capital punishment really symptomatic of an onset of schizophrenia? The Prime Minister has no qualms about the Indonesian Government's planned execution of the Bali bombers, yet he says he will make vehement pleas to Jakarta to secure clemency for the six members of the Bali Nine who are sentenced to death if the remaining legal avenues of appeal fail.
Schizophrenia?
You bet, according to a growing chorus of commentators. "Australia's record of selective and limited opposition to (capital punishment) certainly smacks of hypocrisy," laments The Australian Financial Review's Geoffrey Barker. "It's more than time for principled consistency from Canberra," says the University of Melbourne's Tim Lindsey. And according to a Lowy Institute report, Canberra's "double standard" damages the chances of securing leniency for our citizens.
We disagree. The Prime Minister's different views of capital punishment for the Bali bombers and the Bali Nine are indeed defensible.
For starters, he understands that there are few, if any, absolute moral or legal imperatives. Extremism in all its manifestations, even in relation to supposedly worthy causes, is inappropriate and unworkable. Even the right to life has its limits: hence the reason we all retain the capacity to employ lethal self-defence against violent aggressors.
Arguably, such is also the case with the death penalty. We have been ardent opponents of the death penalty. We still are. It is always brutal. It is futile.
Still, the predominant consideration in setting offence penalties is the principle of proportionality. This prescribes that the pain inflicted by the punishment should be commensurate with the harm caused by the offence. More acutely, it means that the harshest forms of punishment must be reserved for the most heinous offences.
To this end, a clear and striking dichotomy exists between a criminal's involvement in the drug trade and a terrorist bombing crowded places and killing helpless members of the public. Of course, drugs are a scourge of the community. But people who are involved in the drug trade invariably have no intention to harm people.
Every legal and moral system in the world has a hierarchy of culpability. Intentional harm is at the top, indifference or carelessness is near the bottom. That is the reason murderers are punished more than those who cause the deaths of people by their bad driving.
Further, the culpability for the harm resulting from drugs must be shared between the supplier and the user. After all, the users of drugs generally consent to the drug taking.
This is unlike offences such as terrorism and murder where the victims are innocent people who cannot avoid being harmed by the conduct. So, dealing with drugs does not cause as much unrest and fear in the community as do terrorism and random acts of murder. Drug use is not a random occurrence. Additionally, the crimes committed by drug users are normally confined to property offences, to obtain money to feed their drug habit. People who are the victims of property offences can recover far more readily than can victims of terrorist crimes.
Given the strikingly more heinous nature of terrorism compared with drug offences, it is intellectually sound to not oppose capital punishment in the case of terrorism but to object to the death penalty in the case of drug offences.
This is not to say that advocating wholesale abolition of the death penalty is not morally preferable to the view that capital punishment is permissible in relation to the worst crimes imaginable. But choosing between these views is a moot point in relation to the PM's legitimacy in going in to bat for the Bali Nine. The PM, remember, has never suggested that capital punishment is appropriate for anything except the most heinous of crimes: terrorism. His credibility here is undiminished.
There is another distinction between the Bali bombers and the Bali Nine: the latter case was the result of co-operative activity between Australia and Indonesia. Recall that the Australians were arrested following a tip-off by the Australian Federal Police to the Indonesian authorities. The legal process in relation to any offending behaviour is a continuum, which begins at the investigative phase and ceases when the offender is sentenced. Given that Australian authorities instigated the investigative phase of the Bali Nine case, Australia has a legitimate say in the ultimate outcome of the case.
As there is scope for an outcome that squares with the cultural and legal norms of both nations in relation to the Bali Nine, there is a rational basis for assuming that the Prime Minister's representations may be heeded.
Moreover, the offences the Bali bombers were involved in are offences by Indonesian nationals on Indonesian soil. The activities of the Bali Nine did not constitute a risk to the safety of any Indonesians. The offences in relation to which they were convicted relate to attempting to import drugs into Australia. The threatened harm was to Australians, not Indonesians.
Fortunately, the Prime Minister is prepared to step up to his duty to save the Bali Nine. It's even more fortunate that his judgment is not clouded by a tendency to take an extremist stance in relation to fundamental legal and moral issues.
Peter Johnson, Mirko Bagaric and Richard Edney are lawyers acting for five of the six members of the Bali Nine sentenced to death by firing squad. They do not represent Scott Rush.
It makes sense for the PM to plead for the Bali drug runners but not terrorists
--------------------------------------------------------------------------------
September 12, 2006
ARE John Howard's views on capital punishment really symptomatic of an onset of schizophrenia? The Prime Minister has no qualms about the Indonesian Government's planned execution of the Bali bombers, yet he says he will make vehement pleas to Jakarta to secure clemency for the six members of the Bali Nine who are sentenced to death if the remaining legal avenues of appeal fail.
Schizophrenia?
You bet, according to a growing chorus of commentators. "Australia's record of selective and limited opposition to (capital punishment) certainly smacks of hypocrisy," laments The Australian Financial Review's Geoffrey Barker. "It's more than time for principled consistency from Canberra," says the University of Melbourne's Tim Lindsey. And according to a Lowy Institute report, Canberra's "double standard" damages the chances of securing leniency for our citizens.
We disagree. The Prime Minister's different views of capital punishment for the Bali bombers and the Bali Nine are indeed defensible.
For starters, he understands that there are few, if any, absolute moral or legal imperatives. Extremism in all its manifestations, even in relation to supposedly worthy causes, is inappropriate and unworkable. Even the right to life has its limits: hence the reason we all retain the capacity to employ lethal self-defence against violent aggressors.
Arguably, such is also the case with the death penalty. We have been ardent opponents of the death penalty. We still are. It is always brutal. It is futile.
Still, the predominant consideration in setting offence penalties is the principle of proportionality. This prescribes that the pain inflicted by the punishment should be commensurate with the harm caused by the offence. More acutely, it means that the harshest forms of punishment must be reserved for the most heinous offences.
To this end, a clear and striking dichotomy exists between a criminal's involvement in the drug trade and a terrorist bombing crowded places and killing helpless members of the public. Of course, drugs are a scourge of the community. But people who are involved in the drug trade invariably have no intention to harm people.
Every legal and moral system in the world has a hierarchy of culpability. Intentional harm is at the top, indifference or carelessness is near the bottom. That is the reason murderers are punished more than those who cause the deaths of people by their bad driving.
Further, the culpability for the harm resulting from drugs must be shared between the supplier and the user. After all, the users of drugs generally consent to the drug taking.
This is unlike offences such as terrorism and murder where the victims are innocent people who cannot avoid being harmed by the conduct. So, dealing with drugs does not cause as much unrest and fear in the community as do terrorism and random acts of murder. Drug use is not a random occurrence. Additionally, the crimes committed by drug users are normally confined to property offences, to obtain money to feed their drug habit. People who are the victims of property offences can recover far more readily than can victims of terrorist crimes.
Given the strikingly more heinous nature of terrorism compared with drug offences, it is intellectually sound to not oppose capital punishment in the case of terrorism but to object to the death penalty in the case of drug offences.
This is not to say that advocating wholesale abolition of the death penalty is not morally preferable to the view that capital punishment is permissible in relation to the worst crimes imaginable. But choosing between these views is a moot point in relation to the PM's legitimacy in going in to bat for the Bali Nine. The PM, remember, has never suggested that capital punishment is appropriate for anything except the most heinous of crimes: terrorism. His credibility here is undiminished.
There is another distinction between the Bali bombers and the Bali Nine: the latter case was the result of co-operative activity between Australia and Indonesia. Recall that the Australians were arrested following a tip-off by the Australian Federal Police to the Indonesian authorities. The legal process in relation to any offending behaviour is a continuum, which begins at the investigative phase and ceases when the offender is sentenced. Given that Australian authorities instigated the investigative phase of the Bali Nine case, Australia has a legitimate say in the ultimate outcome of the case.
As there is scope for an outcome that squares with the cultural and legal norms of both nations in relation to the Bali Nine, there is a rational basis for assuming that the Prime Minister's representations may be heeded.
Moreover, the offences the Bali bombers were involved in are offences by Indonesian nationals on Indonesian soil. The activities of the Bali Nine did not constitute a risk to the safety of any Indonesians. The offences in relation to which they were convicted relate to attempting to import drugs into Australia. The threatened harm was to Australians, not Indonesians.
Fortunately, the Prime Minister is prepared to step up to his duty to save the Bali Nine. It's even more fortunate that his judgment is not clouded by a tendency to take an extremist stance in relation to fundamental legal and moral issues.
Peter Johnson, Mirko Bagaric and Richard Edney are lawyers acting for five of the six members of the Bali Nine sentenced to death by firing squad. They do not represent Scott Rush.