In honour of International Women’s Day 2021, we wish to take the opportunity to highlight some of the scholarship that the Death Penalty Research Unit (DPRU) is conducting on the plight of women sentenced to death for drug trafficking in Southeast Asia (with a particular focus on the jurisdictions of Indonesia and Malaysia). This issue is transnational in scope – with a high proportion of foreign national women subject to the ultimate punishment in this part of the world – and highlights and exacerbates existing intersectional discrimination and disadvantage.

Death Penalty Incidence

According to data collected by the Institute for Criminal Justice Reform (ICJR) from the Directorate General of Corrections (Ditjen PAS) of Indonesia, there were 355 people on death row in September 2020, 97% men and 3% women. 25% of all death row cases were foreign nationals, 100% of whom were drugs cases.

The last executions in Indonesia were carried out in 2016, which were all men (Merri Utami and Mary Jane Veloso were due to be executed but their executions were postponed at the last minute). The last executions of women took place in 2015; Rani Andriani, who was Indonesian and Tran Thi Bich Hanh, a Vietnamese woman. Both had been sentenced to death as drug mules. One of the DPRU’s key partners, LBH Masyarakat (LBHM), is greatly involved in the legal representation of women facing the death penalty for drug couriering in Indonesia.

However, despite the de facto moratorium, and the fact that drug-related deaths have been decreasing in Indonesia, the issuance of death sentences has been steadily increasing. This is leading to an exponential increase in the death row population where most prisoners remain interminably, given the lack of commutation mechanisms and great hesitancy in passing clemency applications. In fact, in December 2014 President Joko Widodo declared that he would refuse all clemency applications for drug offenders on death row, closing the door to that final route out of death row. This is particularly alarming given that several of the women on death row in Indonesia have exhausted all legal appeals.

Meanwhile, in neighbouring Malaysia, latest statistics from Amnesty International suggest that there are 1281 people under sentence of death in the country; 1140 men and 141 women. Of the women on death row, the vast majority – 134 – have been sentenced to death for drug trafficking. Whilst some limited reforms were made to the mandatory death penalty for drug trafficking in 2017, most of the women currently on death row will have been sentenced under the mandatory regime. There has been a moratorium on executions since 2017. And whilst figures on execution rates are hard to come by, it is notable that Malaysia executed the first foreign national woman for drug trafficking over three decades ago, with the execution of Han Tsui Ling, a member of the then notorious ‘Hong Kong Eight’ in 1990.

Women at Disproportionate Risk

Indonesia has one of the highest rates of imprisoned women in the world; rising 144% between 2011 and 2018. There are currently ten women on death row in Indonesia. Five of them are murder cases and five are drugs cases. Over the last five years there have been three foreign national women on death row, all of which were drugs cases. In fact, female drug offenders represent the fastest growing prison population globally and are incarcerated in much higher proportions than men for non-violent drug offences. Most women and 100% of foreign national women in Indonesia have been sentenced to death for non-violent crimes, despite international legal norms stipulating that the death penalty should be reserved for only the ‘most serious crimes’, i.e. homicide.

Moreover, in Malaysia we find that there is a higher proportion of women (95%) on death row for drug trafficking as compared to the proportion of men on death row for the same offence (70%). Additionally, a far higher percentage of the female death row are foreign nationals (86%) as compared to the percentage of foreign nationals on the male death row (39%). DPRU research suggests that drug syndicates may be taking advantage of the transnational flow of female labour in the region (particularly migrant domestic workers) and using members of this mobile female workforce as unwitting couriers.

Woman waits in prison

Unsplash, taken by Amir Esrafili, 

Need for Gender-Sensitive Sentencing

Female drug couriers on death row have often been exposed to coercion, exploitation, violence and socio-economic pressures. Research from the DPRU has shown that many women have engaged in drug trafficking due to gendered economic precarity. Some experience sexual harassment while in prison. The number of prisons and facilities specifically for women is insufficient and in all female death row cases, there have been violations of the right to a fair trial. Research by LBHM and the International Drug Policy Consortium in 2019 found that in Indonesia, 25% of women had experienced torture by the police and 42% had no access to a lawyer at any stage, rising to 69% in the investigation stage. And a recent report on the Malaysian death penalty, from Monash Law School, found that despite the high incidence of women raising an ‘innocent courier’ defence, the courts are reluctant to accept this argument.

However, despite the particular difficulties that women face, gender-based challenges or mitigating factors are rarely taken into consideration in their cases. Women who are also foreign nationals, ethnic minorities or have disabilities, face further stigma, misunderstanding and barriers to justice and support. As Carolyn Hoyle’s research shows, cases involving foreign nationals raise significant due process challenges, due to their particular vulnerabilities, including a lack of understanding of the legal system in an unfamiliar jurisdiction, and lack of access to consular assistance, legal representation and interpreters, despite the Vienna Convention requiring states to provide such access. Plenty of research has shown that women and especially foreign national women prisoners face unique challenges, which can only increase with the added burden of the ultimate sentence. We urge governments and lawmakers to take these challenges into consideration when preparing sentences and to provide adequate support for these women to achieve full access to justice.

Jocelyn Hutton is an ESRC Research Officer in the Death Penalty Research Unit at the University of Oxford, working on research regarding Foreign Nationals sentenced to death in Asia and the Middle East with Professor Carolyn Hoyle.

Lucy Harry is a DPhil Candidate at the University of Oxford Centre for Criminology and Death Penalty Research Unit whose research focuses on the experiences of women sentenced to death for drug trafficking in Malaysia. Twitter: @lucyharry_