My research explores judicial perspectives on the sentencing of minor drug offenders in Indonesia. Recently new legislation was passed in Indonesia which declared a ‘war on drugs’. This law has led to more people being imprisoned for drug use or drug related offences and can result in sentences of up to 5 years in prison. Presently there are an estimated 4 million drug users in Indonesia. Therefore, it would be impossible to send those 4 million people to prison, due to issues of overcapacity and the logistics needed to imprison so many people.
In my research, I interviewed 31 judges in Indonesia from different levels of court: from the lower level court to the Supreme Court.
Interestingly my data highlighted that some judges tried to resist the recent enforcement of drug legislation in different ways. The interview data highlighted that different judges negotiated the law differently. Some judges had an amicable relationship with the prosecutor and so when a case involving a breach of the new law arose, the judge would discuss a change in the charge against the accused with the prosecutor who set up the indictment.
After consulting with the prosecutor this charge was often changed to a lesser charge of drug using with a lesser sentence of one year.
Another method used by judges was their increasing encouragement to talk from the heart rather than to discuss how the mandatory minimum sentencing would apply to the accused. This has led to a focus of sentencing led by the heart. These approaches were delivered by judges making judgements on a moral basis, essentially ‘following their hearts’ on sentencing.
The enforcement of the law has been associated with the targeting of people who are of the lower social class. Most of the people charged with breaking this new drugs law are from underprivileged/poorer backgrounds and it seems that the criminal justice system now is targeting people who are more likely to experience poverty. By trying to resist the new law the judges are trying to be just, where this sentencing, led by the heart, shifts understanding of what constitutes fairness to the level of structural equality and involves calls for public health and social welfare approaches aimed at eradicating structural inequality.
At the practice level, the Court has been affected by the overload of drug cases, and the negative impact of imprisonment which does not deter drug users from becoming persistent offenders and committing more serious offences. The notion of the war on drugs has lost its direction.
Seen in this way, I believe that those recreational drug users should not be punished at all. Problematic drug use should be viewed as a symptom of an underlying issue. Such issues relate often to social (peer pressure, isolation, stigmatisation) and economic (unemployment and poverty) reasons which motivate some individuals to both use and sell drugs for profit, or as a perceived way of boosting energy for work) or family issues (conflict with parents, partners, etc.).
Seen in this way, it is imperative that attention should be paid to addressing those underlying issues. Those related to social factors would require empowerment, inclusion, acceptance from the public and equal opportunity. Economic issues would require stable jobs and access to resources. Family issues may require counselling.
Certainly, when considering that there are an estimated 4 million Indonesian drug users, addressing structural inequalities could be a fairer response and, ultimately, would contribute to the very meaning of justice.
Your Turn: In your opinion, what does justice mean in relation to drug use?
If you want to know more about the research, or wish to share your comments or views on this research, please contact Cecep Mustafa.
He has a Master degree in Criminal Justice and Penal Change at the University of Strathclyde and his research interests focus on the ‘sentencing’ role of the judiciary in drug matters. Read more.