Governing through Killing: The War on Drugs in the Philippines, David T. Johnson and Jon Fernquest

In contrast to the benevolent paternalism in traditional Japanese criminal justice, punishment in other Asian contexts can be much harsher. The death penalty remains legal in many countries, including Japan, and public support for capital punishment is generally high across Asia as it is still widely perceived as an effective means to deter crimes.

Please feel free to call us, the police, or do it yourself if you have the gun - you have my support. Shoot [the drug dealer] and I'll give you a medal (President elect Rodrigo Duterte, 6 June 2016).

Hitler massacred three million Jews... There's three million drug addicts. There are. I'd be happy to slaughter them (President Rodrigo Duterte, 30 September 2016).

In the name of eliminating drug crime, President Rodrigo Duterte has plunged the Philippines into a nightmare of brutal slaughter. The police say that since July 1 [2016], they have killed more than 2,000 people suspected of drug-related crimes. In addition, more than 3,500 homicides remain unsolved, many at the hands of unknown vigilantes.

(NewYorkTimes, 11 December 2016)

Labels such as “state killing” and “the killing state” are often used to describe the legally permitted judicial killing that occurs in systems of capital punishment. But states kill extra-judicially too, and sometimes the scale so far exceeds the number of judicial executions that death-penalty reductions and abolitions seem like small potatoes.

[Our focus here is] on extra-judicial killing in the Philippines during the first year and a half of President Rodrigo Duterte's war on drugs (June 2016- January 2018), for three reasons. First, the Philippines is a large country whose systems of punishment have seldom been studied. With more than 100 million people, it is the thirteenth most populous country in the world, and it has more people than any country in Europe. Second, extra-judicial killing in the Philippines has attracted much attention because of its large scale and the impunity enjoyed by its perpetrators. In January 2018, Philippine police acknowledged that approximately 4,000 suspected drug users or sellers had been killed in the war on drugs, while Human Rights Watch put the number at 12,000 and Philippine human rights advocates claimed it was more than 16,000. Despite thousands of slayings, only a handful of investigations have occurred, and not a single government official has been convicted. Third, we aim to focus attention on extra-judicial killing because it [is] a neglected subject in scholarship on punishment. By our count, the journal Punishment & Society published 35 articles and 20 book reviews about capital punishment in its first 19 years, but only two articles on extra-judicial killing. There has been a huge increase in the range and depth of scholarly work on the punishment of offenders who violate the criminal law. There is also a growing literature on the so-called “justice cascade” - how offenders against human rights norms are increasingly punished and called to account. But these two bodies of work “barely overlap” and both of them neglect the ways in which politicians, police, and members of the military frequently construe their own violence as morally justified acts of punishment and social control. For these reasons, we want to encourage research that will “expand criminol­ogy's domain” to include a subject that is interesting, important, and margin­alized.

Some analysts argue that the “abolition of capital punishment in all coun­tries of the world will ensure that the killing of citizens by the state will no longer have any legitimacy and so even more marginalize and stigmatize extra­judicial executions.” Others claim that the abolition of capital punishment is “one of the great, albeit unfinished, triumphs of the post-Second World War human rights movement” and that “abolition is a prerequisite for any regime aspiring to dissociate itself from those dark forces known for their hostility to democracy, equality and human dignity.” This article suggests that these views are too sanguine. What is happening in the Philippines - thousands of

3¹7 executions in a country without capital punishment - represents a pattern that has been seen before and that will be seen again in polities with weak law, strong executives, and fearful and frustrated citizens. State killing often sur­vives and sometimes thrives after capital punishment is abolished (see Mexico, Brazil, Nepal, and Cambodia). And in countries where capital punishment has not been abolished, extra-judicial executions have frequently been carried out after the number of judicial executions fell to near zero (as in Bangladesh, India, and Indonesia). [...]

For decades before the slaughter that started in the summer of 20r6, the Philippines had one of the highest rates of homicide in the world. In 20r4, it had the highest homicide rate among 5r countries in “Asia.” With 9.8 homicides per roo,ooo population, its homicide rate was twice as high as the rate for the US, three times higher than the average rate in Europe, and four times higher than the average rate for ten other countries in Southeast Asia. Because of underreporting and other data difficulties, it is hard to tell whether the Philippines has high rates for crimes such as theft, robbery, and rape but, in the years leading up to Duterte's election in 20r6, official crime rates soared, at least partly because of increased reporting by police.

The Philippines may also have higher rates of drug use and abuse than other countries in East and Southeast Asia, especially for methamphetamines (shabu). In 20r4, 89% of drug seizures in the country involved methampheta­mines, 8.9% involved marijuana, and 2.1% involved other drugs. In 20rr, the US State Department reported that 2.1% of Filipinos aged 16-64 abused methamphetamines. It is hard to tell because the data are of poor quality, but there may be more than 1 million methamphetamine users in the country, and Duterte and others have claimed there are more than 3 million. Some methamphetamine users exhibit signs of addiction and acknowledge committing crimes in order to support their habit, but the best ethnographic work on this subject finds that most users remain functional and that the only crime many commit is taking drugs.

But, for some Filipinos, methamphetamine is personally destructive and criminogenic. Trafficking is organized and financed mainly by ethnic Chinese gangs. Because the Philippines is located near large nations such as China, Indonesia, and Japan, it is a major hub for methamphetamines in the region. The Catholic Bishops Conference of the Philippines released a pastoral letter calling methamphetamine the “poor man's cocaine” and warning that the drug is “dangerously ubiquitous” and “peddled openly in parks, bars, and street corners.” Years earlier, Filipino bishops described drug users as “mental and physical wrecks” who were the “worst saboteurs” and who deserved “the highest punishments” - views that are shared by many Filipinos. There are few rehabilitation facilities in the country, and treatment is all but impossible to obtain for the vast majority of drug users and addicts. To most Filipinos and many outside observers, the failure of Philippine drug policy is obvious.

Although methamphetamine often harms individuals, families, and com­munities, it also performs positive functions, especially for the poor.

In addition to high rates of lethal violence, strong public demand for drugs, and deep public concern about drug-related problems, support for extra­judicial killing in the Philippines is fostered by the dysfunctions of its criminal justice system. Countries such as the US and Japan have serious criminal justice problems but, in many respects, they pale in comparison to those found in the Philippines. Most Filipinos believe there is little justice to be had from its “injustice system.” Its criminal process proceeds at a glacial pace. Its judiciary has a backlog of 600,000 cases and at least 20% of the country's trial courts lack judges. The average prosecutor handles 500 cases per year and the average public defender 5,000.

3¹9 including the Supreme Court - have proved “incapable of asserting their independence and doing their work in a credible way,” which motivated prosecutors in the International Criminal Court (ICC) to initiate their own investigations.

In short, criminal justice in the Philippines is ineffective, inefficient, and corrupt. It is also toothless. According to Mexico's Center for Studies on Impunity and Justice, the Philippines has the highest Global Impunity Index of any country in the world - just above Mexico, where the drug trade and extra-judicial killing also flourish. These failures of criminal justice seem to be “at the root of broad acceptance of Duterte's draconian drug war.” They also help explain why millions of Filipinos cheer extra-judicial killing or passively acquiesce to it, even though there is little evidence that it actually deters drug use.

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