Abdorrahman Boroumand Center

Iran and the United States opposed the United Nations General Assembly (Judicial Committee) resolution on abolishing the death penalty. The news, published today (November, 20, 2012) in various media, motivated me to re-publish an article I had written two years ago at the start of Ayatollah Larijani’s tenure at the helm of the Judiciary Branch. The subject matter of this article, abolition of the death penalty in the Law for the Fight against Illicit Drugs, [was chosen] because of twenty years of work I have conducted in this area. Its main premise is based on a research paper entitled “The Missing Links in 88 years of Legislating and Implementing Methods of Fighting Illicit Drugs in Iran” presented at the Conference on the International Dimensions of Illicit Drugs’ Legal Training Workshop for Judges and Prosecutors in December 1998. The change in practices that occurs in the country’s various management systems following a change of directors of various governmental organs, is at times so fundamental that it can neither be considered exceptional, nor can it be overlooked.

What prompted the writing of this article was the testing of an ineffective and failed experiment in penal policy and in the judicial realm, which seems to have occurred along with a change in management at the Judiciary Branch.

This article tries to establish a link with the past in order to analyze the effectiveness and the theoretical foundations of the death penalty. [This is done] without any political [motives], and based on the assumption that the rise in the number of execution of drug traffickers has been a penal policy decision in order to fight the increasing trend of drug traffic and production of mind-altering substances.

What is happening today has been tried again and again in the one hundred and one-year history of the fight against drugs in Iran (since the passage of the first law in 1910) by various regimes, at times rising to its highest levels, at other times subsiding, only to be reprised again. Although there is no independent, precise, and well-documented research conducted on the level of effectiveness of executions and their secondary effects on families and society, one can make a claim with a degree of certainty that the negative effects and consequences of execution are considerably higher than its positive effects.

This article is not trying to describe the undeniable negative effects of the death penalty on society and the families of those executed. If, however, the decision-makers at the Judiciary Branch and the Executive Branch’s Headquarters for the Fight against Illicit Drugs claim the death penalty’s effectiveness and deterrent value, one can prove that, in addition to negative political, security, social, economic, and human effects, this punishment has even been ineffective in [controlling] the scourge of drugs, and cannot contain it in the long term.

In the last one hundred years, more than 60 laws and regulations concerning addictive substances have been passed in Iran, most of which conflict with each other and have had many ups and downs. This is indicative of a lack of strategy, of influence by influential individuals and groups, and of the dominance of [unprofessional], non-expert viewpoints over [this] specialized and logical subject matter.

Generally speaking, the laws regarding addictive substances prior to the Islamic Revolution are categorized in three main groups:

1. Laws that have entirely or under controlled [circumstances] permitted farming and have had an economic view of drug distribution. According to these laws, opium export was the principal and most important part of Iran’s exports second only to oil; furthermore, domestically, various governments derived great income from taxation of farmers and middlemen. In the 1950’s, for instance, the international price of opium was 15 Dollars per kilogram (one and a half times the price of a barrel of oil at the time). Opium exports had therefore a great share in Iran’s economy and the country’s income.

2. The second group of laws and directives concerned the prohibition of farming, of production, and of drug use, devising different punishments for violators.

3. The third group of laws allows farming and use under certain circumstances, but takes a strong and harsh stance against drug trafficking. (For instance, the death penalty for 10 grams of heroin in the laws between 1969 to 1974-5, which was much more harsh than the current laws of the Islamic Republic of Iran.)

After the Islamic Revolution (aside from a 15-month period), production, sale, purchase, possession, and use of addictive substances was prohibited and criminalized pursuant to a law promulgated by the Council of Revolution in May-June 1980. Laws that have subsequently been passed by either the Islamic Consultative Assembly or the Expediency Council, have maintained this general policy of criminalization. In practice, however, there have been a great many ups and downs in the manner of implementation of laws, and it seems that implementation of said laws has completely changed in time and with changes in managers and directors.

By putting Islamic Revolutionary Courts, headed by Ayatollah Khalkhali, in charge of implementing the Law for the Fight against Illicit Drugs, there was a wave of execution of drug traffickers in 1980 and 1981, with the goal of deterrence through fear and intimidation. This practice abruptly came to an end, causing the police force to greatly object to the cessation of executions. In 1988, the practice of issuing death sentences for and conducting public executions of drug traffickers [resumed and] greatly increased. After a while, however, the trend subsided, as could have been anticipated.

The following table shows the percentages of death sentences for drug traffickers upheld by the Supreme Court and the State General Prosecutor’s Office from 1988 to 1997-8:

1988: 100 percent

1989 and 1990: 65 percent

1991: 38 percent

1992: 37 percent

1993: 28 percent

1994: 32 percent

1995: 30 percent

1996: 34 percent

1997: 26 percent

(Source: Headquarters for the Fight against Illicit Drugs Research Center statistics)

These statistics show that, in spite of the initial issuance of death sentences in provincial towns, the prevailing policies of the Judiciary Branch at the time were not based on the effectiveness of executions; [the rate of affirming death sentences] had decreased from 100 percent to 26 percent in ten years. In other words, 74 percent of death sentences were overturned by the Supreme Court and the Prosecutor General’s Office, a trend that seems to have [now] been modified once again due to changes in management at the Judiciary Branch, with the proponents of the death penalty and the decision makers having been able to reverse the previous approach.

Certainly one of the reasons for the decrease in executions in the previous period was differences in interpretations of the principles of Islamic jurisprudence, the necessity and effectiveness of the death penalty for certain drug crimes (including unarmed crimes), and differences of opinion regarding Shari’a-based instances of punishments contained in the Expediency Council’s 1988 law that led to conflict in legal practice. The important question that was on the minds of experts and practitioners during those years was “whether the death penalty is considered a Shari’a-based Hadd or not.”

A number of authorities have considered the death penalty to be a Hadd punishment, reduction and modification of which is not permitted. It is possible that the current view of the Judiciary Branch is the same as this Islamic jurisprudential interpretation, thereby leading to the increase in the execution of drug traffickers.

There is of course a completely different viewpoint held by other renowned religious authorities of Shi’a Islam that is in contrast to the aforementioned interpretation. For instance, in response to a question regarding drug trafficking and distribution as examples of “Efsad fel-Arz” (“spreading corruption on Earth”) and thereby triggering the death penalty, the late Ayatollah Araki issued the following Fatwa:

• “There is a problem. On its face, “Spreading corruption on Earth” concerns “those who wage war with Allah.” (Source: Ayatollah Araki’s Tozih-ol-Massael treatise)

• The intention of this Fatwa is to state that “Spreading corruption on Earth” concerns only [the act of] “waging war with God”, and not the instances inquired about (i.e., distribution of drugs, corrupting the youth, and propagating prostitution and [religious] prohibitions.

Or [consider] the late Ayatollah Fazel Lankarani, one of the most prominent contemporary Shi’a scholars, who has had some in-depth, important reflections on the subject.

• “… As for the manner of fighting this phenomenon – illicit drugs – I think that’s one of the Regime’s most complex issues. One of the most difficult, really very difficult, tasks is to figure out how to fight drugs. This is seriously one of the Regime’s [major] problems. The best way though, is to do cultural work. (Source: meeting with the Headquarters for the Fight against Illicit Drugs Secretary and officials in 1996-97)

• As for the subject of execution: Execution is ineffective; execution is pointless. Execution gives an impression of a thirst for power…” (Source: Conference on the International Dimensions of Illicit Drugs in Judicial Affairs, 1998, Publication, page 267.)

Or religious scholars such as Ayatollah Hossein Mazaheri, who considers the death sentence for “Spreading corruption on Earth” reserved only for Kafer-e Mohareb (“an infidel who wages war with Allah”).

What can be deduced, therefore, is that, from a religious standpoint and as Hadd punishment, there is no unanimity of opinion among Shi’a scholars regarding the death penalty for drug traffickers.

I first brought up the issue of the death penalty’s inconsistency with Shari’a Hadd [punishments] ([encompassing] 8 groups of crimes and sins) and the death penalty’s contradiction with instances of Efsad fel-Arz in the Law on Islamic Punishments (passed by the Expediency Council and which considers the following as examples of Moharebeh and Efsad fel-Arz: 1. Use of weapon in order to instill fear and terror in people and to deprive them of freedom and security; 2. Armed robbery; 3. Armed uprising against the Islamic government [or rule]; 4. Coup d’état.) in a research paper entitled “The Missing Links in 88 years of Legislating and Implementing Methods of Fighting Illicit Drugs in Iran,” presented at the Conference on the International Dimensions of Illicit Drugs in Judicial Affairs in December 1998. In spite of the fact that certain judges considered execution of drug traffickers a Hadd punishment and, citing Islamic Penal Code Article 22, did not even consider it to be open to a reduction of the sentence, one day after presentation of the paper (December 8, 1998) during the Conference closing ceremony held in Tehran and attended by Revolutionary Court judges, officials, assistant prosecutors, prosecutors, supreme court judges, and United Nations and Interpol legal experts, Ayatollah Mohammad Yazdi, the then-Head of the Judiciary, approved the paper and stated the following in what was considered to be a watershed moment in the fight against drugs:

“… In our opinion, the death penalty in this case is not Shari’a law that we cannot replace and modify; rather, execution [here] is a governmental law; in other words, it is a conventional law made by the ruler, not Shari’a [religious] law…” This viewpoint was immediately reflected in the press (Khabar, Ghods, Khordad, Abrar, Jomhuri Eslami, Iran News, etc.) and thereafter, a new chapter of international cooperation began, headed by the Headquarters for the Fight against Illicit Drugs and the Prosecutor General’s Office. The trend continued in the course of Ayatollah Yazdi’s tenure as well as during Ayatollah Shahrudi’s time as Head of the Judiciary. It appears, however, that with the new honorable Head of the Branch having taken charge, certain decision-makers in middle management have considered the time ripe for repeating the criminalization policies of 1980-81 and 1988, even though the ineffectiveness of such policies has been proven time and again.

Of course, the atmosphere of fear created by executions might perhaps have short term effects. No government can, however, indefinitely implement such punishment. Therefore, immediately after the end of executions, the drug traffickers will resume their activities on a larger scale.

The final point is the proportionality of the punishment with the crime, an accepted legal principle.

In penal law, the death penalty and the taking of an individual’s life is the ultimate punishment, one which justice and fairness require it be implemented, at a minimum, for the most serious crimes. How is the proportionality of the punishment with the crime justified when the death penalty is meted out for both armed trafficking of a ton of heroin, and for possession of several grams of drugs?

In addition to driving a wedge between the legal system and [the concept of] justice, doesn’t this type of punishment also send a message to the criminals, making them think “why shouldn’t we engage in trafficking several kilos and tons of drugs when we can be executed for a few grams? Why shouldn’t we engage in armed traffic and start gangs and groups and [drug] caravans when we can be executed for regular trafficking?”

The interesting thing is that this message becomes all the more justifiable [when one considers that] the government has, at times, engaged in negotiations with some of the major drug traffickers who have imported tens of tons of drugs into the country and have formed armed groups, giving them immunity. Although this analysis does not want to negate the grant of immunity, the message this type of action sends to traffickers, however, is that the stronger you are, the better your chances; after a period of doing business and acquiring wealth, you can enter negotiations and get immunity, whereas if you’re a small-time peddler, you have no chance at all.

In conclusion, I would like to point out that addictive substances (whether illicit drugs or mind-altering substances) are a multi-dimensional phenomenon and are closely tied to society’s various life, social, economic, and cultural issues. Dealing with them, as opposed to dealing with one-dimensional problems, requires utilizing different strategies and tactics; the problem cannot be overcome by resorting to such methods [as execution].

An observation about the reason for choosing the first title: parallel lines intersect in hyperbolic space, and the sum of the internal angles of a triangle is less than 180 degrees!!