30 January 2006 :“The fact that prosecutors in Bali have sought the death penalty for the alleged Bali Nine ringleaders Myuran Sukumaran and Andrew Chan is grim news not only for them but also the Australian Federal Police,” said Mirko Bagaric, Professor of Law and Head of the Deakin Law School, Victoria, in an editorial printed in the Advertiser.
“It is an outrage that any of the Bali Nine should be pleading for their lives to an Indonesian court. The AFP, which effectively gave up the Bali Nine to Indonesian police, will have blood on its hands if any of the Bali Nine are executed. The AFP has attempted to justify its decision to provide the Indonesian authorities with damning evidence about the nine Australians on the basis that if they were not arrested in Bali, they could not guarantee the drugs would not arrive in Australia. They also cite international co-operation in the war against drugs.
“This explanation is hopelessly misguided. Capital punishment has no redeeming features. It is brutal and futile. It does not reduce crime. The practice is so repugnant that Australia rightly refuses to extradite foreigners to their country of origin if there is a meaningful risk they will be executed. How can it possibly be justifiable to place Australians in the hands of overseas authorities who are likely to execute them?
“Further, the war against capital punishment is more pressing than halting the importation of a finite amount of drugs.
“Blame aside, the important issue now is if any of them are sentenced to death, what can be done to ensure that none of them is executed? Their best chance rests with the Australian Government, which needs to make strong representations to the Indonesian authorities at the political level (which will filter down to the courts) – hopefully they are already well down this path.
“In trying to convince the Indonesian Government to not execute any of the Bali Nine, there are several matters that the Government needs to bear in mind.
“There are three basic ways to get people or institutions to do what you want. Force is the crudest method but is obviously not an alternative, nor are threats of tangible sanctions on Indonesia, such as limiting trade.
“The second method of persuasion is by legitimising one's position through the weight of numbers. This is democracy at work. But again this is not an option in the international arena.
“The final method is the moral force of one's arguments.
“To this end, Australia is hamstrung by the fact we are only now imploring Indonesia to not apply the death penalty. We gave tacit support for their decision to sentence to death some of the Bali bombers. Thus our opposition to capital punishment will, at least initially, have all the hallmarks of an expedient request as opposed to a principled moral stance.
“Despite this, we must still make the strongest representations to save the Bali Nine. This can only be done in an atmosphere of rational exchange aimed at advancing both nations' interests.
“Although common sense would indicate that executing drug traffickers would deter people from selling drugs, wide-ranging empirical evidence conclusively rebuts this proposition. Countries with capital punishment don't have lower levels of serious crime and when countries abolish the death penalty the crime rate does not increase. The greatest deterrent to wrongdoing is not the size of the penalty but the perceived risk of detection. Thus, it must be pointed out that Indonesian citizens are no safer from drugs as a result of capital punishment.
“Moreover, a fundamental sentencing principle is that the harshness of the penalty should match the severity of the offence.
“This is violated when the most severe form of punishment is imposed for offences which do not constitute the most heinous forms of offending. Drug trafficking is bad, but clearly crimes such as murder and homicide are far more serious.”