A State of Murder: A call to abolish capital punishment

If you do me harm, I will do you harm. It is the concept of revenge and personal justice without any social consideration.

By | Sat 1 Apr 2017

Chiang Mai-born, half Thai and half American Sherry Ann Duncan was fifteen when her body was discovered in a scrubland near Bangkok in 1985. Her murder, and ensuing trial, captured the bloodthirsty attention of the nation. The miscarriage of justice that followed, which saw four innocent men sentenced to death, greatly impacted not only the national psyche, but also the Thai judicial system.

Sherry Ann was living with a boyfriend at the time, 41 year old Winai Chaiphanit, a local politician and contractor with whom she had a fight over another boyfriend one month prior to her murder. With the discovery of her body, the media went into a frenzy, attacking her character with all manner of salacious speculations. They jumped to condemn Winai and four of his associates, who were soon arrested after a local man claimed to have seen them carrying her body to a car. The judge ruled Winai innocent due to lack of evidence, but the four men were sentenced to death. By the time the case wended its way up to the Court of Appeals, nearly six years had passed. The evidence at the second trial, however, proved collusion between the one witness and the local police, who together fabricated the entire story, and thirteen years after their initial arrest, three men were finally released from prison.

Sadly, one had died while he was incarcerated, another was crippled for life from injuries sustained in jail, and the two remaining men died within a year of their release due to bad health. Years later, a new trial found two hitmen, hired by the owner of Patpong Road’s daughter when she allegedly learned that Sherry Ann was having an affair with her husband, to be guilty. These men are currently serving life sentences, though the woman accused of hiring them was acquitted due to lack of evidence.

This lightning-rod case led to an overhaul of the Thai judicial system and decades of debate on capital punishment. The media and the public’s demand for blood pressured the police into finding scapegoats, resulting in manufactured witnesses and tortured confessions without prosecutors present, something that would not stand up in trial today. The process from arrest to final appeals and release took over a decade. The policemen involved remain unpunished, even though they were found guilty, with one escaping to the United States and another claiming early retirement. Eventually the families of the four wrongfully convicted men were offered 38 million baht in compensation, following The Crime Victims Compensation Act of 2001, which was created in direct response to this case. Sherry Ann Duncan’s case remains a crucial case study for all law students at Thai universities.
Unjust System

Human rights defender, lawyer and until last year Chair of Amnesty International Thailand, Chamnan Chanruang, has spent his career working towards ending capital punishment. “99% of the 438 people sitting on death row today (the number has nearly halved from earlier this year when HM King Rama X commuted numerous sentences) are there for drugs, and all of them are poor,” he explained. “No rich person has ever been executed in Thailand. There are 35 offences punishable by death in Thailand, most of them involving drugs. It used to be just heroin, then they added amphetamines and now meth. And yet in spite of the government’s belief that the death penalty is a deterrent, there have been zero studies worldwide to prove this. Look at Hong Kong which has abolished its death penalty and compare it with Singapore which has not. Their crime rates are comparable.”

“The myth is stronger than reason,” he continued. “The good news is that no one has been executed in Thailand since 2009, and that can largely be attributed to His Majesty the late King’s royal pardons. We are still sentencing death, in fact 216 people were sentenced last year, but all inmates have requested a royal pardon, so at this point all executions have been suspended pending royal decisions.”

Since the Second World War, more than two thirds of the world’s states have chosen to abolish the death penalty, either in law or in practice. “And if Thailand maintains its clean record on executions for a full decade — two years away — we will officially join their ranks,” Chamnan said.
An Eye for an Eye

“The death penalty originated from the idea of reciprocal action,” said Chaiyan Rajchagool, a professor of philosophy and law at Chiang Mai University. “An eye for an eye. If you do me harm, I will do you harm. It is the concept of revenge and personal justice without any social consideration. It is also an extension of corporal punishment, a relic from the days of public flogging and executions. It is integral to the idea of the hierarchical order of society — the land owners can do whatever they like to their serfs. The death penalty fits into this mentality.”

“What we at Amnesty International have been fighting for for decades is the total abolition of the death penalty,” explains Chamnan. “Taking away a life is to deny the most basic of human rights, the right to live. It is also irreversible, should any mistakes occur, which they do, as can be seen in the Sherry Ann Duncan case as well as the fact that 150 prisoners sent to death row in the United States since 1973 have been exonerated. Amnesty’s position is that the death penalty is a symptom of a culture of violence, not a solution to it. It is often used within skewed justice systems, either with forced confessions or as political tools. It is also discriminatory, often being applied to the poor, the marginalised or minority groups.”

“The good news,” he continues, “is that the Third National Human Rights Action Plan, due to be implemented in 2018, calls for its abolition. But whether there is political will to see this through…I don’t know, many plans just get shelved. But if we can reduce the offenses for death penalty, one at a time, we can slowly end it. However, whenever there is a nasty case of rape or murder, especially involving children, the topic pops up again and the populist governments feel the pressure to react by demanding harsh punishments.”

Chamnan has been lobbying, lecturing and campaigning on this matter for over two decades and says that he sees changes in attitude, especially amongst the educated. But on a national level, he says there is still very little debate on the matter.

“People simply don’t talk about this. When I am out campaigning I often get asked what I would think if it was someone I loved who had been murdered,” he said. “The fact is my father was shot to death when I was a young law student at university, so yes, I know first-hand. His murderer was never arrested, but even if they were, I wouldn’t have supported their execution. My father was gone, he was never going to come back, so what was the point in ending another life? It is interesting, you look at the United States and they have a society of relatives of people murdered by inmates currently sitting on death row, yet they are the ones lobbying for the end of the death penalty. So I think that is telling. I just wish people would discuss this more because I think that the more you talk and think about it, the more you will realise that it has to end. Unfortunately it isn’t a topic which lights people up unless there has been a heinous crime, in which case the public tends to use emotion rather than reason when talking about capital punishment.”

Chamnan explains that in Thailand an inmate will have very short notice prior to execution, citing this as cruel and unusual. “They live in constant fear, they have maybe two to three hours’ notice after the judge’s final order and they are dead. Families may not make it to prison in time; the last meal is always left uneaten; monks, governors, officials will come and the whole process is very short. They are taken to the execution area where there are three buttons to push and the three executioners will never know which two buttons released the gas. The process is painful and not easy. This is murder; our state is murdering.”
The Last Executioner

“As he began to face his own mortality, dying of cancer in 2012, he began to go against capital punishment somewhat,” said award-winning scriptwriter Chiang Mai resident Don Linder, of Chavoret Jaruboon, the man behind The Last Executioner, which won both best film and best screenplay at Thailand’s Tukkata Tong Awards recently. Linder spent many hours interviewing and eventually befriending Chavoret, who used a machine gun to execute 55 people over 19 years before Thailand switched to lethal injection in 2003. “But on the most part he compartmentalised, and saw it as a duty and responsibility. He was a Buddhist who believed in karma and felt that he was compassionately helping the prisoners to achieve their own karma.”

Linder quoted Chavoret in a Citylife article in 2013 as saying, “Convicts on death row are swamped in bad karma, and the executioner is doing them a favour by sending them on to their next incarnation for a chance to redeem themselves. I never got pleasure out of shooting people. It was my job. Killing criminals troubled and depressed me.”

But those were just some of the very few words Chavoret had on the subject, according to Linder, who watched over 100 hours of footage of Chavoret’s interviews with local media. “Not once did the question of the morality behind capital punishment ever come up. In fact, in all my interviews with the Thai press following the release of the film, this issue never came up,” said Linder, who had to take some time to think of an answer when asked what his personal opinion was about capital punishment.

“It has only been a couple of foreign press who have asked me this question,” he continued. “I am a liberal, but on a pragmatic side if someone did something to [my wife] Lida, well, I don’t know what I would think about it then.”
Changing Minds

As is, there is nothing in the penal code to rehabilitate criminals. Some correctional facilities offer numerous rehabilitation and reintegration avenues, but there is no national policy to support this.

There are also many ways to have sentences reduced in this country, from royal pardons to good behaviour. “But there is no consistency,” explained Chamnan who talked about meeting Dr. Wisut Boonkasemsanti, the gynaecologist who was sentenced to death for the 2001 murder, dismemberment and disposal of his wife down toilets. “He seemed very remorseful when I talked to him, and because he helped so many prison guards with their fertility issues as well as doctoring many inmates, his sentence was commuted time and again, leading to his release from prison in 2014. I can support this. But then you have the case of the so-called Thai Jack the Ripper, Somkid Phumphuang, who was sentenced to death for brutally killing five prostitutes in 2005, and he could be released in the not too distant future — a serial killer!”

“None of the arguments for maintaining capital punishment make sense,” he added. “Incarceration is always cheaper than execution. What with the appeals, prisoner protection, suicide watch, separate living areas, special this and special that, price is never a factor, so that argument is out. We have seen that it is not a deterrent and that there is always the irrevocable possibility of mistakes being made. It is also a punishment disproportionately meted out to the poor and disfranchised. Amnesty International will be releasing its 2017 report this April, and Thailand will be so close to achieving our aim of a country without capital punishment, in practice if not in law. We have a long road ahead, but the important matter is to talk about it. For now, thankfully we have the royal pardon, which will hopefully keep executions at bay for the foreseeable future.”

“Thai people believe in karma,” concluded Chamnan, “so we close our eyes. It is almost an opiate, an opt-out. It can be good in the way that we don’t get too frustrated, but it also means that we are apathetic and can sometimes lack compassion.”