Tuesday, November 22, 2005

An objective approach to van Nguyen

Just in case you haven't heard, a young Australian man is about to be hung in Singapore for drug trafficking. Tuong van Nguyen pleaded guilty and was promptly given the mandatory death penalty.

Apparently, van Nguyen was trafficking in drugs to pay off a debt that his brother had incurred. Given these 'sad' circumstances, many do-gooders are now actively petitioning for clemency, demanding trade sanctions, and even attempting to pervert sovereign rule through the International Court of Justice.

Rather than condemning drug trafficking as the evil scourge that it may well be, I have a slightly different (and non-judgemental) approach to defending Singapore's right to carry out their punishment (even though I personally am against the death penalty).

Some simple facts before I continue. Singapore has had the death penalty for both murder and drug trafficking since formation. Further, the death penalty is applied where the appeal against conviction has failed. This ensures that any future drug trafficking knows the risk he/she faces when deciding to bring drugs into Singapore. Van Nguyen knew the penalty for his crime prior to him committing it.

If you look at these facts through a contractarian lens, van Nguyen entered Singapore with full knowledge of the consequences of his premeditated actions -- that is, he entered into an ex ante assessment of the probability of being caught and the cost of the known punishment against his personal benefits of his actions. He obviously found that either the probability of being caught was low; the pain of execution was low; or that wiping his brother's debt was of great personal benefit to himself.

My point is simple: van Nguyen entered into a 'criminal contract' with the State of Singapore with his eyes wide open. He fully understood what the consequences of his actions were. He obviously miscalculated the probability of capture (or was statistically unlucky). He played the game and he lost. Criminals do this all the time. In the vast majority of the time, criminals are not caught and do in fact win.

If we allow ex post amendments of the original 'contract' we are imposing significant costs on the other party to the contract, namely Singapore. Opportunistic behaviour can significantly increase the cost of contracting and can undermine otherwise rational bargains.

Lets put this another way, what if he was caught for drug possession in a western liberal country, and hence received a slap on the wrist. Would people be all for the State suddenly deciding that ex post it will revise the sentence and give the criminal life imprisonment? The answer would no doubt depend on your personal moral view of the crime of drug possession. However, objectively, it would be manifestly 'unfair' because it allows a party to a contract to opportunistically amend the terms of the contract ex post.

For these reasons alone, van Nguyen should hang. He took a gamble, and he lost -- now live with the consequences.


Matt Canavan said...

But Singapore aren't the other party to the contract: Nguyen entered into an agreement with the drug dealers not Singapore. If Singapore changes the rules of the game and grants clemency, it will be the drug pushers that are harmed since they would have paid 'overs' to compensate Nguyen for risk of facing death penalty; a risk that did ulitmately not exist. Perhaps this partly explains the community's acceptance of an ex post reduction, rather than increase, in punishment.

Luke van Hooft said...

There was a contract between Singapore and van Hguyen upon his entry into their jurisdiction. Namely, you enter upon these conditions (criminal sactions if caught). Im arguing that it is inefficient to change the rules of that contract ex post.

Timothy Bradley said...

I used to be against the death penalty Luke. I thought that it was too easy an option for this human filth we're locking up. The idea of life imprisonment, in a 2 by 4 metre cell with three cumulative hours of human contact a week sounds like a greater punishment than death right?

But I guess, its a reaveled preference thing right? They have the opportunity to commit suicide but choose not to. So now I figure death must be the harsher punishment and I guess I've flip flopped.

That said, I don't know if van Nguyen quite fits the human filth description enough that the state should execute him. And while I empathize with your committment to contract law, surely the principle should have a little bending room to account for the sanctity of life?

Luke van Hooft said...

But young t-bone, whether life is sacred is a judgement value. I am presenting a non-judgemental approach. It is up to Singapore, as a sovreign nation, to decide what laws are appropriate for their citizens.

Carl Spackler said...

This is not an example of a complete contract, clearly.

Luke van Hooft said...

No contract is complete. But I would argue, due to the mandatory nature of the death penalty for drug traffickers, the provisions of the contract were fairly well known.

Different subjective probabilities of capture does not result from incompleteness.

Carl Spackler said...

But are the subjective probabilities not conditional on the states of the world, some of which will involve ex post hold up or renegotiation? Is is just as likely to think that he assigned some prior probability to the outcome being the he gets caught, appeals and is given a reduced sentence than it is to say he assigned some probability to the outcome of capture and execution.

Luke van Hooft said...

Since the death penalty is mandatory, he knew that if found guilty he would be hung. He may have reduced the probability of execution due to a believe in clemency. But, for whatever subjective probability he had, he assessed that the risk was worth it.

The ex ante contract was agreed to when he decided to enter Singapore with the drugs.

I am saying that it would be costly to allow ex post renenogitation of the terms. Once ex post variation is allowed, ex ante contract bargaining would become a lot more complex and costly.

In saying that however, there may be times when ex post renegotiation is beneficial to both parties. In this case, if the agrieved party (ie Singapore) thought that clemency would be beneficial, it does have that option. On revealed preferences though, it must be costly for Singapore to allow clemency in this case.

carl spackler said...

I agree with your approach, I was really arguing your second response. It is not necessarily inefficient to change the terms of the contract ex post to the extent that a better result can be achieved through bargaining in the second stage of the contract after all information asymmetries from the first stage have been resolved (which I agree is the point you have just clarified).

Clever Dick said...


The only "preference" revealed in the decision to not commit suicide when faced with a choice worse than death (ie life imprisonment)is the one hard-wired into our genes. GOD* put it there to ensure the survival of the species - not to maximise individuals' wellbeing. The fact that people then act according to that preference tells us nothing about their utility in different states. Thus, 50 years of being raped, bashed and living in a 3-by-3 cell is likely to be a harsher penalty than hanging, which is one reason we in the Department support the latter.

Richard Smart
Department of Legislative Promulgation and Regulatory Diffusion
Leviathan House


* For the purposes of this entry, GOD here stands not for "Government Of the Day" but for 'something external to ourselves'.

Peter Jackson said...

Just my little two cents. What if Van nguyen entered Singapore, but didn't know about this mandatory dealth penalty. I sure as hell didn't. If this is the case, then is the contract invalid. And so what if he broke the contract. People break contracts all the time. I mean when I left for North Sydney, I sure as hell didnt have to pay with my life. It seems a little excessie. Perhaps a 20 grand fine and a six week suspension would be sufficient.