Beyond arbitrary: how the mandatory death penalty for drug trafficking disproportionately affects foreign national women

In honour of International Women’s Day 2022, in this blog post I will be reflecting on the gendered impacts of the mandatory death penalty for drug trafficking. My doctoral research focuses on (predominantly foreign national) women sentenced to death for drug trafficking in Malaysia. Malaysia provides a unique case-study: the mandatory death penalty was introduced in 1983, and while some reforms were made in 2017 to introduce some discretion, these were very limited and thus the death penalty still operates largely mandatorily in practice. Abolitionists argue that the mandatory death sentence is unjust due to its arbitrariness. However, I argue that the language of arbitrariness obscures the true situation - the legislation targets a marginalised group of economically precarious foreign national women.   

It is estimated that 29 countries around the world still retain the mandatory death penalty for one or more offences, usually for homicide. This is in large part due to the history of British colonisation. Mandatory sentencing was part of English common law and exported to other countries through colonisation. After independence, the mandatory nature of the death sentence was retained, and in some instances, like in the case of Malaysia, it was expanded to include new offences such as drug trafficking. The mandatory death sentence conflicts with several fundamental legal principles, including: proportionality; the absence of judicial determination of the appropriateness of the sentence; and it violates the right to a fair trial as there is no opportunity for mitigation. The UNHRC has consistently stated that the mandatory death penalty is a violation of the right to life due to the lack of consideration of whether the punishment is appropriate and proportionate to the crime. Over the past half century there has been an international movement towards the abolition of the mandatory death sentence (and indeed the death penalty in general) as it is generally accepted to be out of touch with ‘evolving standards of decency’. Critiques of the mandatory death penalty tend to focus on its arbitrariness, whereas this language may obscure the fact that the death penalty targets the most marginalised in society.

When it comes to drug trafficking, we can turn to research on the use of mandatory minimum sentences in drug cases in the US. Much has been written about how women of colour and from low socio-economic backgrounds as well as children are disproportionately affected by these policies as part of the US War on Drugs. While the death penalty does often affect racialised women in the Malaysian context, race operates in a different way there. In a region with a significant flow of migrant labour, race and ethnicity are conflated with citizenship. As Pei-Chia Lan writes in relation to migrant domestic workers in Taiwan, there is a ‘stratified otherization’ of foreign workers, and a ‘construction of racialized differences among migrant workers by national divides’. And indeed Carolyn Hoyle’s research shows that foreign nationals are especially vulnerable to the death penalty in both Asia and the Middle East. In Malaysia we find there is a disproportionately high number of foreign national women on death row for drug trafficking. The latest disaggregated data from Amnesty International suggest that, in 2019 there were 1,140 men and 141 women on death row in Malaysia, and crucially:

• A higher proportion of women are sentenced to death for drug trafficking (95% as compared to 70% of the male death row);
• A higher proportion of women on death row are foreign nationals (86% of the female death row population and only 39% of the male death row population).

My research indicates that many of the women are economically precarious and became embroiled in drug trafficking as a way to make ‘quick money’ to supplement their earnings from work they were doing in other feminised and precarious sectors such as domestic work and the entertainment industry. Others claimed to have been involved in what is known in the literature as informal cross-border trading or parallel trading, where they are paid to courier an item (ultimately claiming that they did not know it was drugs) across the border in their personal baggage allowance for a fee. It appears that drug syndicates are capitalising on the feminised flow of migration in the region. And my research found that law enforcement tended to view these female drug couriers as ‘disposable’ and do not make efforts to conduct investigations into who is higher up in the drug trade. In this way, economically insecure foreign national women become ‘collateral damage’ in the Asian War on Drugs.

It is important to note that the Malaysian public does not have an appetite for the mandatory death penalty, when imposed against women for drug trafficking. Professor Roger Hood, in conjunction with the Death Penalty Project, conducted a study on public opinion of the death penalty in Malaysia. Crucially the report found that support for the death penalty drastically reduced from 74-80% to 9% when respondents were presented with the case-study of a young Malaysian woman, aged 21, who was arrested with 100 grams of heroin hidden in a false bottom of her suitcase which was given to her by a foreign man she met on holiday.

But even where this is the opportunity for some discretion – in Malaysia, accused persons may put forward a limited defence of an ‘innocent carrier’ – my research found that judicial officers lacked an understanding of deception, duress and coercion. As shown by the following quote from a court judgment:

The keeping of her passport by her bosses, the “overprotectiveness” and restriction of her movement upon arrival at each designated destination, the immediate deliverance of the bag of “cloth samples” and all these other things she mentioned in her evidence should have caused alarm and triggered her curiosity.

Likewise, women were judged against the stereotype of a young, naïve, impoverished dupe, and those who did not fit this description were not afforded paternalistic mercy:

Her handbag contained make-up, ladies’ accessories, a Gucci watch, sunglasses and a wallet containing American Dollars… These items are not a poor lady’s possessions, but the items indicate she is a socialiser – a lady of the “world”.

Thus, even judicial discretion is unlikely to reduce the unacceptable degree of discrimination in the application of the death penalty for drug trafficking, nor will it address the structural factors that lead to the most economically precarious and marginalised being at risk of this punishment, and so it must be abolished on these grounds.

Lucy Harry is a DPhil candidate at the Centre for Criminology, and member of the DPRU, whose research focuses on the experiences of women sentenced to death for drug trafficking in Malaysia.