A Call for New Rigorous Empirical Research to Better Inform Drug Trafficking Policy in Indonesia

For decades, Indonesia, like its regional neighbours, has been committed to the death penalty for drug traffickers. That commitment is visible in the steady pace of death sentences over the last 20 years, which has resulted in almost 300 people on death row, about 186 of which are convicted for drug offences. The number of executions each year has fluctuated, with no executions in some years, such as between 2009 and 2012, and clusters of executions in others, as was seen in 2008 and 2015. Over the past two decades, Indonesia has executed 24 people for drug trafficking, the majority of the 44 executions during this time, and all of the 18 executions since 2015, have been for drug offences. 

Today is International Day Against Drug Abuse and Illicit Trafficking, a good time to reflect on criminal justice response to drug crimes in a region affected by high rates of drug trafficking. We focus here on Indonesia, but our arguments could equally apply to neighbouring jurisdictions in the ‘golden triangle’ of Southeast Asia who are similarly affected by the international drugs trade.

In Indonesia, both ideology and theory have sustained a punitive and uncompromising criminal justice policy for drug offences. The ideology links the nation’s social fabric and its economic and moral well-being to a forceful response to drug trafficking. Indonesia has often stated that drug abuse is the most serious crime facing the nation, responsible for dozens of deaths each year and countless drug-related health problems. While the government has recently made considerable investments in therapeutic, diversionary treatments for those caught with small amounts of illicit drugs, where there is no evidence of selling or trafficking, these claims about drug fatalities continue to sustain the belief that only the harshest punishment, death, is the appropriate and necessary response for what is thought to be the most serious crime. Hence, the government justified the 18 executions from 2015-16 in terms of a state of emergency caused by drugs. 

Criminal justice professionals and representatives of civil society have explained to us that the death penalty must be retained for its deterrent effect. Proponents of capital punishment further claim - without evidence - that Indonesian society, including the nation’s political and religious leaders as well as its social elites are committed to the death penalty.

The theory that sustains the death penalty is not driven by a strong retributive rationale, but by a deeply held belief that executions deter drug trafficking.  Deterrence has been cited in debates supporting a succession of laws and court opinions for more than two decades. Supporters of capital punishment cite no evidence of its deterrent effect, preferring instead to accept deterrence as a natural and self-evident truth. The belief both in deterrence and in the destructive power of drugs are reciprocal, with each reinforcing the other in a discourse that closes off thoughtful consideration of the facts.

Support for the death penalty among elites, and in turn the public, relies on official statistics on drug-related deaths that suggest that drug misuse has devastating consequences for the health of the nation. For over a decade, the government claimed that between 55 and 85 persons died each day from drugs. Critics of the death penalty are sceptical of these numbers, citing a lack of transparency in how they were derived or a workable and precise definition of “drug related deaths.” Perhaps surprisingly, given the steady rate of death sentences for drug offences, in our discussions with the National Narcotics Agency, these figures were revised to approximately 20- 25 drug–related deaths in 2018, suggesting a strong downward trend in recent years. This precipitous drop seems as unlikely and unscientifically grounded as does a claim of an illicit drug pandemic. Quite clearly, government and public support of the death penalty is based on faith more than on facts.

Rethinking Drug Policy in Indonesia

Across the world, governments have embraced the notion of evidence-based policy; a foundation of reliable empirical evidence on which to ground public policy. That evidence typically comes from strong research designs that apply counterfactual reasoning to identify the strengths and limitations of policy, as well as the factual bases of policy.  

How does the claim of deterrence stack up against this standard?  Do estimates of extremely high rates of ‘drug-related deaths’ meet the criteria of reliable evidence? We suggest that the answer is no on both counts.  

First, there has been over five decades of robust research on the deterrent effects of the death penalty. Most of this work was completed in the U.S., where executions since 1976 have been for murder only.  The most prestigious scientific body in the U.S., the National Research Council, reviewed the evidence on deterrence in 2012 and found no deterrent effect from either death sentences or executions. One reason they cited was the lack of comparisons to the next most severe punishment: a sentence of natural life in prison. The American review provides a blueprint for systematic and rigorous research to assess the extent of deterrent effects of death sentences and executions for drug crimes as well as for murder. 

Second, estimates of the number of drug-related deaths in Indonesia are unreliable in several ways. Understanding the role of drugs in an injury or a fatality is complicated by a variety of co-morbid conditions and circumstances.  Researchers in several countries have made significant advances in identifying the precise role of drugs in deaths, explanations that range from overdoses, to disease, or accidents, or to violence in drug markets.  A 2014 publication by scholars at the London School of Economics charts the mechanisms of drug-related injuries and deaths, suggesting research-based diagnostics that can provide a sound basis for policy planning and action. These tools can provide Indonesia with sound scientific evidence to evaluate and re-consider the decision to place the death penalty at the forefront of drug-control policy. 

Similarly, superficial public opinion research in various countries has demonstrated the limitations of binary survey questions that fail to reveal the nuances of opinion on the death penalty and that fail to capture the strength of opinion or what knowledge of the administration of criminal justice that opinion is based on. Rigorous and independent empirical research that explores when and under what conditions, and for which defendants, the death penalty may be justified, and when it is considered to be unfair or iniquitous or even effective, is necessary if retention is to be justified by reference to democratic will. If politicians, the media, and others who influence policy and shape public opinion are to articulate strong support for capital punishment we must measure the strength and coherence of their attitudes and beliefs about crime and punishment. Meticulous opinion research could identify the leverage points where new information can lead to a reconsideration of drug control policy and the role of the death penalty.  The death penalty is controversial in most societies that practice it, including Indonesia.  Public opinion often is highly sensitive to new information, especially when that information is tailored to specifically address the public debate. It should be carefully measured.

We are conducting new research - commissioned by the Death Penalty Projectin London in partnership with the Jakarta based NGO, LBH Masyarakat- to produce robust scientific evidence to evaluate and inform current drug control and wider criminal justice policies across Indonesia. Supported by the University of Indonesia and Atma Jaya University, we have designed the tools to generate new evidence to rethink drug control policy, and the use of the death penalty more widely, and to measure public and elite opinion in Indonesia. This is an important moment for Indonesia to develop evidence-based policy to move from faith to facts in drug and crime control effort and in deciding about future recourse to the death penalty.