Death Penalty in drugs Trafficking.

Author: Mr. Gaurav Dua

The United Nations through its three major international drug control treaties (Single Convention on Narcotic Drugs of 1961 (as amended in 1972), Convention on Psychotropic Substances of 1971, and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988) has defined drug smuggling as production, manufacture, extraction, sale and distribution contrary to the provisions of the above mentioned conventions.
The Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances of 1971 not only codify internationally applicable control measures but tries to ensure their use is restricted to medical and scientific purposes without being redirected to illicit channels. Whereas the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 lays down a few measures to combat illicit drug trafficking. Another important aspect of this convention is that it imposes an obligation on member states to establish drug trafficking as a criminal offence under its domestic law and while prescribing a punishment forms of deprivation of liberty of the accused should be taken into account. The states can also opt in addition to or as an alternative take measures for treatment, education, rehabilitation or social social reintegration.
So even in 1988 the United Nations was against death penalty to drug traffickers, and later on, the General Assembly in its resolution 62/149 of 18th December, 2007 abolished death penalty for all crimes.

What does Indian legislation say ?

In India The Narcotic Drugs and Psychotropic Substances Act, 1985 governs the production, possession, consumption and distribution of drugs. The said legislation defines drug as coca leaf, cannabis (hemp), opium, poppy straw and all goods manufactures from such plants.

Chapter 4 of the act talks about Offences and Penalties from Section 15 to Section 40.
The act prescribes a minimum term of rigorous imprisonment for 6 months with the maximum term of twenty years in case the narcotic drug is imported to or from India, or a minimum fine of ₹10,000, with ₹2,00,000 as the maximum fine which the courts can impose in case the narcotic drug is imported to or from India.

Before October 2001 the act had no provision to awarding death penalty to a person convicted as per the act. But with the amendment of 2001, Section 31A was added to the act which makes it mandatory for courts to award death penalty to offenders for certain offences in case the offender has been previously convicted.

However this amendment was passed after the Supreme Court of India declared mandatory death penalty unconstitutional in the case of Mithu v. State of Punjab (1980) and in the subsequent case of Machhi Singh v. State of Punjab (1983) held that death penalty is to be awarded in rarest of rare cases where the offence committed is heinous.

What is the scenario around the globe?

A 2012 report by Harm Reduction International is a NGO in Special Consultative Status with the United Nations Economic and Social Council, documents 33 countries that retain death penalty for drug offences, including 13 in which death sentence is mandatory.
An article published by The Economist in 2015 mentioned 32 countries have death penalty, out of which only 6 countries carry them out.

The Supreme Court of the United States in the case of Kennedy v. Louisiana held that death penalty should be given only for crime that take a human life, in other cases it would seem excessive and disproportionate.
Iran and Saudi Arabia which bagged 2nd and 3rd positions in regards to countries with highest number of executions, have awarded more than 53% of those death penalties in matters related to drug trafficking. Iran’s Parliament passed an amendment in 2017 which aimed to reduce the number of executions in the country for drug related crimes by replacing death sentence with life imprisonment. On 9th January 2018 the head of the Iran Judiciary, suspended convictions of people convicted for drug related crimes to have their cases re examined.

Article 6 of the International Covenant on Civil and Political Rights restricts the use of death penalty in limited cases. But the Second Optional Protocol to ICCPR imposes an obligation on member parties to not to execute anyone within their jurisdiction. Not only this, the General Assembly Resolution 63/168 saw 106 countries voting for moratorium on the use of death penalty.

What does scientific research and our past policies say about whether the death penalty deters drug trafficking and other crimes?

In a survey conducted by Northwestern University found that 87% of leading criminologists agree that death penalty doesn’t have any significant effect on deterrence of any type of crime.  Even Pennington Institute in one of its studies published that even though China & Iran have been awarding death penalty for drug trafficking, have had no impact on drug menace of the country. By 2005 Iran had more than 5,000  on death row for drug related crimes and yet it had the highest rate of opiate addiction in the world. In an interview conducted by Reuters, Iran’s deputy head of Judiciary for Social Affairs, stated that death penalty had no deterrence on drug trafficking instead they witnessed an increase in volume of drugs being trafficked, the variety of drugs and people involved in it. On another occasion Iran’s Centre for Strategic Research in 2015 admitted the death penalty had failed to reduce drug trafficking in the country.

As per the reports of Foundation for Economic Education, Philippines though doesn’t have a mandatory death penalty but as per Human Rights Watch 12,000 people have been killed for drug related crimes, despite having such a high number of executions it saw an increase of 64% in the consumption of various drugs.

What should be the quantum of punishment in cases of drug trafficking?

One cannot have a list of quantum of punishments which can be applied in similar cases. Since the facts of each case are different, so should be the punishment. What we need to understand is the government can classify drug related crimes into different categories, the categories can take quantity and the type of drug trafficked, to decide the quantum of the punishment. For eg. if the accused is apprehended for possession of 10g of marijuana then a punishment of more than 3 months of simple imprisonment, will seem too harsh in my opinion. But if it was 10g of methamphetamine then the accused should be convicted for a period not less than 6 months.
But in cases where elements of different crimes can be detected, like offences being committed as a part of criminal organisation, resulting in death, supplying drugs which cause harm to health or supplying of drugs in huge quantities, the court should impose a harsher punishment depending upon the scale and damage it has caused to the society.

Even while imposing penalty the court should take into consideration the harm the drug is likely to cause to an individual and society, the scale of supply activity.

What are the governments doing to fight the menace and find a solution to the problem?

Recently many countries have changed their stance on legalization of various psychedelic drugs. Almost 50 countries have legalized use of various psychedelic drugs for medicinal or recreational purposes. Besides this many countries have opted to either abolish the practice of death penalty all together, or in drug related crimes.

Countries have been taking steps to award a punishment which is proportionate to the crime. Realising that drug traffickers are different from drug kingpins, many governments have opted to give them a second chance. Some see drug trafficking as a victimless crime and therefore supports the rehabilitation for them.
The only known solutions to the problem are
Legalisingpsydelic drugs which have little to no harm on human body and regulating their trade through government policy

People who are declared as drug addicts should be provided with treatment in government facilities.

Setting up and building of rehabilitation centres for drug related criminals where they are educated and provided with vocational training to live a productive life

In the end what everyone seeks is a happy life where the person is free to do whatever they want. And this is where the focus of the government should be, everyone gets what they want and whenever they want as long as it doesn’t affect the right of another person.

The United Nations through its three major international drug control treaties (Single Convention on Narcotic Drugs of 1961 (as amended in 1972), Convention on Psychotropic Substances of 1971, and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988) has defined drug smuggling as production, manufacture, extraction, sale and distribution contrary to the provisions of the above mentioned conventions.
The Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances of 1971 not only codify internationally applicable control measures but tries to ensure their use is restricted to medical and scientific purposes without being redirected to illicit channels. Whereas the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 lays down a few measures to combat illicit drug trafficking. Another important aspect of this convention is that it imposes an obligation on member states to establish drug trafficking as a criminal offence under its domestic law and while prescribing a punishment forms of deprivation of liberty of the accused should be taken into account. The states can also opt in addition to or as an alternative take measures for treatment, education, rehabilitation or social social reintegration.
So even in 1988 the United Nations was against death penalty to drug traffickers, and later on, the General Assembly in its resolution 62/149 of 18th December, 2007 abolished death penalty for all crimes.

Indian legislation.

• In India, the Narcotic Drugs and Psychotropic Substances Act, 1985 governs the production, possession, consumption and distribution of drugs.
• Defines drug as coca leaf, cannabis (hemp), opium, poppy straw and all goods manufactures from such plants.

Chapter 4 of the act talks about Offences and Penalties from Section 15 to Section 40.
The act prescribes

• minimum term of rigorous imprisonment for 6 months with the maximum term of twenty years in case the narcotic drug is imported to or from India, or
• minimum fine of ₹10,000, with ₹2,00,000 as the maximum fine which the courts can impose in case the narcotic drug is imported to or from India.

Before October 2001 the act had no provision to awarding death penalty to a person convicted as per the act. But with the amendment of 2001, Section 31A was added to the act which makes it mandatory for courts to award death penalty to offenders for certain offences in case the offender has been previously convicted.

However this amendment was passed after

• Supreme Court of India declared mandatory death penalty unconstitutional in the case of Mithu v. State of Punjab (1980) and
• In case of Machhi Singh v. State of Punjab (1983) held that death penalty is to be awarded in rarest of rare cases where the offence committed is heinous.

What is the scenario around the globe?

A 2012 report by Harm Reduction International (NGO in Special Consultative Status with the United Nations Economic and Social Council), documents

• 33 countries that retain death penalty for drug offences,
• including 13 in which death sentence is mandatory

An article published by The Economist in 2015 mentioned 32 countries have death penalty, out of which only 6 countries carry them out.

The Supreme Court of the United States in the case of Kennedy v. Louisiana held that

•  death penalty should be given only for crime that take a human life,
• in other cases it would not seem excessive and disproportionate

Iran and Saudi Arabia which bagged 2nd and 3rd positions in regards to countries with highest number of executions, have awarded more than 63% of those death penalties in matters related to drug trafficking. Iran’s Parliament passed an amendment in 2017 which aimed to reduce the number of executions in the country for drug related crimes by replacing death sentence with life imprisonment. On 9th January 2018 the head of the Iran Judiciary, suspended convictions of people convicted for drug related crimes to have their cases re examined.

Article 6 of the International Covenant on Civil and Political Rights restricts the use of death penalty in limited cases. But the Second Optional Protocol to ICCPR imposes an obligation on member parties to not to execute anyone within their jurisdiction. Not only this, the General Assembly Resolution 63/168 saw 106 countries voting for moratorium on the use of death penalty.

What does scientific research and our past policies say about whether the death penalty deters drug trafficking and other crimes?

In a survey conducted by Northwestern University found that 87% of leading criminologists agree that death penalty doesn’t have any significant effect on deterrence of any type of crime.  Even Pennington Institute in one of its studies published that even though China & Iran have been awarding death penalty for drug trafficking, have had no impact on drug menace of the country. By 2005 Iran had more than 5,000  on death row for drug related crimes and yet it had the highest rate of opiate addiction in the world. In an interview conducted by Reuters, Iran’s deputy head of Judiciary for Social Affairs, stated that death penalty had no deterrence on drug trafficking instead they witnessed an increase in volume of drugs being trafficked, the variety of drugs and people involved in it. On another occasion Iran’s Centre for Strategic Research in 2015 admitted the death penalty had failed to reduce drug trafficking in the country.

As per the reports of Foundation for Economic Education, Philippines though doesn’t have a mandatory death penalty but as per Human Rights Watch 12,000 people have been killed for drug related crimes, despite having such a high number of executions it saw an increase of 64% in the consumption of various drugs.

What should be the quantum of punishment in cases of drug trafficking?

One cannot have a list of quantum of punishments which can be applied in similar cases. Since the facts of each case are different, so should be the punishment. What we need to understand is the government can classify drug related crimes into different categories, the categories can take quantity and the type of drug trafficked, to decide the quantum of the punishment. For eg.if the accused is apprehended for possession of 10g of marijuana then a punishment of more than 3 months of simple imprisonment, will seem too harsh in my opinion. But if it was 10g of methamphetamine then the accused should be convicted for a period not less than 6 months.
But in cases where elements of different crimes can be detected, like offences being committed as a part of criminal organisation, resulting in death, supplying drugs which cause harm to health or supplying of drugs in huge quantities, the court should impose a harsher punishment depending upon the scale and damage it has caused to the society.

Even while imposing penalty the court should take into consideration the harm the drug is likely to cause to an individual and society, the scale of supply activity.

What are the governments doing to fight the menace and find a solution to the problem?

Recently many countries have changed their stance on legalisation of various psychedelic drugs. Almost 50 countries have legalised use of various psychedelic drugs for medicinal or recreational purposes. Besides this many countries have opted to either abolish the practice of death penalty all together, or in drug related crimes.

Countries have been taking steps to award a punishment which is proportionate to the crime. Realising that drug traffickers are different from drug kingpins, many governments have opted to give them a second chance. Some see drug trafficking as a victimless crime and therefore supports the rehabilitation for them.
The only known solutions to the problem are ;

• Legalising psydelic drugs which have little to no harm on human body and regulating their trade through government policy
• People who are declared as drug addicts should be provided with treatment in government facilities.
• Setting up and building of rehabilitation centres for drug related criminals where they are educated and provided with vocational training to live a productive life

In the words of Anna Oschutz “In the end its not what I want but what the people want that will make the difference we want to see.”