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Mohammad Mohabbai

“Transformation of the philosophy of punishment from”“

Vindictiveness.“

To.“

Pragmatism.“

“Rights, a historical legacy of morality. I will never forget this famous statement by Dr. Nasser Katouzian, the father of Iranian law. In other words, law and justice are meant to preserve and elevate the morality of society, not as a means for revenge by the government or citizens!”

When a “crime” is committed, the government has a duty to respond to that behavior. One of these responses is “punishment”. Generally, the purpose of punishment in law is to prevent the repetition of the crime, to punish and reform the criminal, and to maintain morality in society. Therefore, there is no doubt that any citizen who commits a crime must be punished. The definition of crime is also explicitly stated in Article 2 of the Iranian Islamic Penal Code: “Any behavior, whether an act or omission, for which punishment is prescribed by law, is considered a crime.”

The method of punishment has not been consistent throughout history. In the history of criminal law, there is a first period known as “vigilantism and private wars”; as the name suggests, there was no government or rule and individuals took revenge privately. The second period of the first period is known as “private adjudication”. In this period, although initial governments had formed, tribes still held a lot of power and privately punished criminals. In this period, collective punishment existed, so the principle of personal punishment did not apply.

But the general judicial course was the final stage of the first criminal law course. In this course, the government and the state were responsible for carrying out punishments; because criminals first and foremost endanger the stability and security of society.

Throughout history, the punishment of criminals has varied according to the customs of the time. Until just a century or two ago, gruesome executions or “torture” were a common practice. Methods that would torture a person’s body, including cutting off limbs, skinning, burning and roasting, dismemberment, burying alive, hanging upside down and beating with wood, crushing the head with an axe, tying to a horse’s tail, splitting through tying to a tree, boiling in a cauldron, putting in raw skin and roasting, and being burned alive with plaster, and so on.

But with the expansion of human rights standards in the world, especially after World War II, a great number of countries abolished the death penalty and all forms of physical punishment. Generally, painful physical punishments, from excruciating deaths to flogging, were products of the “retributive” schools of criminal law. However, the reconsideration of these types of punishments is a product of the “consequentialist” schools, such as the “restorative justice” school.

Reasons for the Ineffectiveness of the Death Penalty.

In recent decades, humanity has reached a point where the death penalty is not at all in line with the implementation of justice, has no deterrent effect, and is in clear contradiction with most principles governing punishments for several reasons:

According to the principle of personal punishment, the amount of punishment must have a minimum and maximum. For example, the length of imprisonment can range from a few months to life imprisonment. However, the death penalty is absolute in nature. The death penalty is extremely unjust and cannot be weighed or adjusted according to the severity of the crime committed.

B) The death penalty is irreversible. If an innocent person is sentenced to death due to a judge’s mistake, their mistake can never be rectified. However, if a person is wrongly sentenced to a long prison term due to a judge’s mistake, it can be rectified.

C) The death penalty has no benefits for the individual or society. The experience of countries that have abolished such punishments shows that their elimination has not increased the number of criminals. In some countries, even after the abolition of the death penalty, there has been a decrease in the number of crimes that require execution. This type of punishment does not even create fear in the hearts of those who are prone to committing crimes and have witnessed the execution firsthand.

“D) The death penalty is contrary to the humanistic and civilized spirit of today, which values life for all human beings. In addition, it instills horror and disgust in the minds of people.”

The illusion of intensifying punishment and deterring crime.

Cesare Lombroso, an Italian criminologist, has an interesting theory about the intensification of punishment and its impact on crime deterrence. He says, “If the punishment for a crime is at a certain level and then the legislator decides to increase the punishment by one or more levels, criminals become agitated. And this agitation raises the recklessness and audacity of the criminal.”

According to the writer’s belief, this theory has been proven in Iran. From the mid-60s, it was decided in Iran to intensify the punishment for drug crimes. Hasn’t the time come to carefully and scientifically examine the impact of this intensified punishment on crimes?! When the punishment was intensified, the death penalty was included in the law for carrying, buying, and selling a few grams of heroin. This method of intensifying punishment has fueled drug traffickers. When a criminal, for example, wants to smuggle heroin, he tells himself that if he smuggles 30 grams and gets caught, he will be executed, and at the same time, if he smuggles 300 kilograms (ten thousand times more), he will still be executed! Therefore, the smuggler, along with his smuggling, also forms his own armed team and easily shoots and kills when confronted by authorities. Because he knows that his punishment is death, whether he kills or not.

In societies where severe punishment is imposed for certain crimes, among professional criminals, a culture of honor is formed around dangerous crimes and professional criminals become legends among their peers! Now we have to examine why all these executions for drug offenders have not had any impact on reducing crime?! About 80% of executions in Iran take place in this area and Iran’s ranking in executions in the world (in comparison to population) has reached the top of the table, which is not good for our country. If these executions had any impact on reducing crime, at least we could be happy about it and justify Iran’s first place in executions in the world (personally, I disagree with this justification). However, if someone has even the slightest knowledge of sciences such as criminology and crime analysis, they will find that harsher punishment not only does not lead to a decrease in crime, but it also increases the possibility of committing more crimes. Criminologists believe that harsher punishment is mainly the work of

The possibility of abolishing the death penalty for drug offenses in Iranian criminal law.

For some drug-related crimes in Iran, the death penalty is considered, but only based on the concept of corruption on earth mentioned in the book of punishments. Since the basis of legislation in Iran is the Imamite jurisprudence, and in Imamite jurisprudence, outside of retribution and execution, the death penalty cannot be imposed within “limits”, and since it is not possible to impose execution in punishment according to the rule of “punishment without limits”, therefore, for drug-related crimes, the death penalty is considered based on corruption on earth.

This issue can be criticized from two perspectives and efforts can be made towards abolishing the death penalty. One is that many Shia scholars believe that the implementation of “hadd” punishments is not permissible during the period of occultation. And secondly, according to the fatwas of the late Mr. Khomeini, until 1358, he rejected any execution of non-murderers. Now, the high number of executions that took place in the first decade of the revolution must be carefully examined. In a ruling issued for Mr. Mehdi Haddavi, the first prosecutor of the Revolutionary Court, he wrote: “Except for the following two cases, no court has the right to issue a death sentence: 1- Someone who is proven to have killed a person, 2- Someone who has given the order for mass murder or has committed tortures that have led to death. Individuals should not be executed in any other cases. Violation of this is a crime and

Furthermore, Mr. Khomeini did not accept the death penalty for the corruptor on earth. His opinion was that the title of corruptor on earth, in and of itself, is not a criminal title deserving of execution. In his writings, he explicitly states that if the element of “war” meaning carrying weapons, terrorizing people, and shedding blood is not present, the corruptor on earth is not deserving of execution. (p.889) With this argument, many drug traffickers and economic criminals such as Fazel Khodad and Mahafarid Amir Khosravi, should not be sentenced to death for corruption on earth and alternative punishments should be considered for them. Therefore, it seems necessary to have a fundamental review of the title of corruptor on earth and the death penalty in Iranian laws.

Alternative punishments for drug offenses instead of execution.

Drug addiction is a problem that even execution has not been able to prevent its spread; now it has become a subject of debate among some experts in this field. On the other hand, the death penalty is not one of the cases that we want to examine based on Islamic law, because there are no references to the issue of drugs in the law.

There is no doubt that punishment must have a deterrent aspect; when so many executions for drug crimes have not had a tangible impact on deterring drug crimes, what insistence is there for this trend to continue?

The most appropriate punishments for many drug-related crimes include confiscation of assets obtained from drug trafficking, monetary fines, and in some cases, deprivation of social rights. Additionally, considering that drug traffickers are considered as corrupters on earth from a legal perspective, and are harmful to society, and are not allowed to re-enter society during their imprisonment, they should be rehabilitated in correctional facilities, and long-term imprisonment should be used to reduce the use of the death penalty, so that drug traffickers can be punished in this way and fundamental deterrence can be achieved for these types of crimes.

One of the proposed ideas in Iran to reduce the number of executions is the establishment of “forced labor camps” for those convicted of drug crimes. Currently (in September 2016), there are 4,500 individuals on death row in Iranian prisons awaiting execution or a review of their sentence. There is now talk of launching forced labor camps and sending those convicted of serious crimes to these camps. Perhaps the possibility of being sent to a forced labor camp will have a greater impact on reducing crime in society compared to the death penalty.

The head of the prison organization, in an interview with Shafaqna on September 10 of this year, said: “All countries are trying to abolish the death penalty as much as possible. The conditions of the families of criminals who are executed or sentenced to death must also be taken into consideration. Families who have lost their head of household due to drug trafficking may be drawn into a cycle of similar crimes due to neglect, abuse, and economic and social problems. Life sentences or long-term imprisonment are not effective, and a person who is sentenced to long-term or life imprisonment will eventually be released from prison after a few years of serving their sentence through various pardons, reductions, and forgiveness. The legislature has made provisions in this regard, such as keeping these convicts in labor camps and harsh conditions. Necessary funds should be allocated for the operation of these camps, which were previously provided for in the law but not implemented. Currently, the problem of not establishing these camps is only a matter

In the judiciary and among criminal law professors, the issue of abolishing the death penalty for drug traffickers is being discussed. Dr. Hossein Mir Mohammad Sadeghi, the most prominent criminal law professor in Iran, strongly emphasizes this issue. Even Javad Larijani, the secretary of the Human Rights Headquarters of the judiciary, has announced the possibility of changing the laws related to the execution of drug traffickers. This possibility has taken on a new color in the efforts to repair Iran’s global image in the context of the severity and weakness of deterrent punishments.

The writer’s suggestion is to establish a large camp in one of the regions of the country, for example on one of the abandoned islands in the Persian Gulf, where only criminals sentenced to death are replaced with life imprisonment. In this camp, multiple workshops and factories should be set up and the free labor force of the condemned prisoners should be utilized. The prisoners will work in these camps until the end of their lives, based on their abilities, in order to both be removed from society and to use their labor force. Additionally, a portion of the financial benefits from the work of the criminals in this camp should be given to their families.