Schapelle and the death penalty

Up until the trial verdict I think it’s fair to say that Australia was concerned that Schapelle was facing a possible death sentence. Then came the anti-Schapelle backlash and a number of commentators told us that Schapelle had never really be in danger of a death sentence and that in fact her long sentence partially reflected judicial annoyance at our strident support. It was an effective tactic in reducing support for Schapelle. But I certainly believed it. After all, if experts like the Chief Editor of the Jakarta Times and ‘Indonesian expert’, Tim Lindsey were saying it, it must be true. Right?

But I’m right back where I started. I now think Schapelle was at huge risk. Here’s why:

• Right from the start key Indonesian players were calling for the death penalty. Influential people like the Attorney General, the Bali Chief of Police and the Bali Chief Prosecutor were saying that an example must be set.

• Despite having numerous opportunities to say it wasn’t so, and to defuse a delicate political and tourism issue, neither the judges nor SBY were even prepared to say that it was unlikely.

• The Bali prosecutor and the Attorney General have gone on record to say that there is no legal difference between heroin and marijuana. The Indonesian Supreme Court has specifically confirmed that view.

• The Bali Chief Prosecutor and the Attorney General both expressed disappointment with the initial 20-year sentence and petitioned appeal courts for a life sentence to be imposed. The life sentence is of course just one rung short of the death penalty, and it seems very possible to me to think that the only reason they weren’t pursuing a death sentence with similar vigour was because of the political intervention of SBY following his visit to Australia, and his promise to ensure an outcome that was “acceptable to both countries”.

• The Bali Chief Prosecutor made it very clear in the early stages of the case that he was going after the death penalty. It’s hard to believe that he really changed his mind because she was “had no prior convictions and was polite in court”. In fact he challenged the “no prior convictions” at the appeal stage. It’s also worth noting that Schapelle shouted out that Winata was a liar during his testimony. So not only do the reasons seem insufficient, but there is no reason to think he actually believed them.

• Bali High Court judges have now stated that they regard Schapelle’s ‘offence’ as more serious than that of the Bali Nine couriers because she was importing.

• The judges and prosecutors have consistently indicated that Schapelle’s failure to admit guilt and express remorse entitles her to a greater sentence.

• Bali has been facing a rapidly growing drug problem, and there have been calls from the public and from politicians for drug smugglers to be executed. A colleague told me after returning from a conference in June 2004 that he had been told by ‘an Indonesian official’ he had met that Indonesia were in a state of panic over the drug escalation and were looking to implement the Singapore solution.

So my view is now that while Schapelle was very unlucky to be found guilty, she is very lucky to have avoided a firing squad. I suspect the combination of the tsunami and our generosity, SBY’s need for Australian investment and our vocal support might be all that saved her.