Return to Paradise is Anything But
By Michael Asimow, UCLA Law School and Stan Ross, University of New South Wales School of Law (September 1998)
The new film Return to Paradise raises profound questions about the gulf between law and justice and about personal moral responsibility. We think every lawyer should see it.
Three young Americans meet in Malaysia and enjoy the tourist attractions, including lots of cheap hashish. Tony and Sheriff return to the states, leaving Lewis behind with the hash stash. Hes busted for drugs. Two years later, Tony and Sheriff are getting on with their lives in New York when they are contacted by Beth, Lewis lawyer (outstandingly played by Anne Heche). They learn that Lewis has been convicted and sentenced to death. The sentence will be carried out in eight days.
Beth explains that she has struck an unwritten deal with the Attorney General of Malaysia. If Tony and Sheriff return to Malaysia, Lewis life will be spared. If both Tony and Sheriff return, each must serve three years in prison. If only one returns, he must serve six years. Its a classic and quite literal version of the prisoners dilemma. Beth is incredibly persistent in trying to persuade them to go, but she is far from candid in her dealings with them. And she begins a passionate affair with Sheriff.
We wont disclose any more of the plot, but consider the issues raised just by this brief summary.
The Malaysian drug law imposes an incredibly harsh and unjust penaltya mandatory death sentence for possession of drugs for personal use. This occurs because the law irrebuttably presumes that possession of more than a minimum amount of the drug (200 grams of cannabis, a figure which the film reduces to 100) is trafficking. About 150 people have been executed under this law, including a number of foreigners.
Are we being ethnocentric here? At the clemency hearing that occurs near the end of the film, the Malaysian Chief Justice says that Americans dont understand the harshness of Malaysias drug laws. But he observes that Malaysians dont understand the American tolerance toward drugs and the tremendous damage theyve done to our society.
Many of the best films about law have dramatized the gulf between law and justice. Recall To Kill a Mockingbird, when an obviously innocent black man is convicted of rape, or Billy Budd, which involved a mandatory death penalty for striking an officer. Or Paths of Glory in which soldiers are selected by lot to be shot because an entire army unit failed to capture an enemy position. I believe Return to Paradise deserves a place alongside these great films. And it may even cause us to question our own incredibly severe minimum penalties for drug offenses, especially for possession of crack cocaine.
The reality, however, is that it is extremely unlikely that Lewis would be executed for this offense. According to Professor Sid Harring, only the very worst traffickers or the very most unlucky people are actually executed. There are about ten executions a year but there are probably at least 1000 people who are caught by the police and could potentially get the death penalty.
Harring observes that the police drop a large number of cases that might be prosecuted. He also points out that the judiciary manipulates the drug law to acquit a large number of people who are probably guilty. This is to be expected when the penalty is so out of proportion to the gravity of the offense. Thus a large number of defendants are acquitted because they sustain the burden of showing that they lacked "knowledge" of the presence of drugs in their bags or rooms (for example, because there were multiple occupants of the room). Other decisions have allowed defendants to rebut the presumption that possession of specified amounts automatically shows trafficking (though this seems to contravene the statute). Finally, a good many defendants win on appeal or receive clemency.
The clemency hearing that occurs in the film is quite inaccurate. The Chief Justice would not preside over such a hearing. Harring says he pointed this out to the filmmakers but they felt that they needed the drama of a judicialized hearing. Instead, the clemency hearing would be provided by an administrative pardons board. The Attorney General would take part in this proceeding and probably could control the outcome. Therefore, it is possible (though unlikely) that the Attorney General would have struck the deal described in the film. It would not have been a plea bargain but instead an agreement by the Attorney General to recommend clemency for Lewis to the pardons board. It is not clear how the AG could have guaranteed to Tony and Sheriff that they would receive three or six year terms since plea bargaining as such does not exist in Malaysia.
This film also raises troubling questions of personal responsibility. What is the moral obligation of Tony and Sheriff to return to Malaysia to serve three or six years in prison? Would you go? Lewis was only a casual acquaintance, not a lifelong friend. Even if the AG honors his promise and they have to serve only three or six years, they will do so in a very unpleasant, very dangerous third-world prison. Their lives and relationships will be left in shambles. Yet if they dont go and Lewis is hanged, they may feel remorse for the rest of their lives.
Return to Paradise also raises thorny questions of legal ethics. What, for example, is the ethical duty of a lawyer, who is representing a client sentenced to death, in trying to persuade non-clients to return to Malaysia? Certainly, Beth meets and exceeds the standard for zealous representation of her client.
But in her dealings with Tony and Sheriff, Beth is less than candid (were not disclosing here in what respect Beth misled Tony and Sheriff). Model Rule 4.1 states that in the course of representing a client a lawyer shall not "knowingly make a false statement of material fact or law to a third person." The comment to Rule 4.1 explains that the lawyer has no affirmative duty to inform an opposing party of relevant facts. Did Beth make false statements or tell half-truths? Or merely fail to inform Tony and Sheriff of relevant facts? And if she was untruthful, could her actions be justified by her clients horrible situation?
Did Beth act unethically in starting an affair with Sheriff? Lawyer-client sex is highly frowned on today. Some states have banned it entirely, even if it is entirely consensual. Other states prohibit sexual relations if the client is abused or if the relationship would adversely affect the lawyers ability to represent the client. But here Sheriff is not Beths client, and the affair may well be in Lewis best interests. So maybe starting the affair was a smart and ethical strategic move.
In addition to many other issues, Return to Paradise contains troubling material on the irresponsibility of the press. An ambitious American journalist gets wind of the story. Beth pleads with the journalist not to report it because any press disclosure will infuriate the Malaysians and torpedo the deal. Apparently hostile foreign press coverage hastened the execution of two Australians (Barlow and Chalmers). We wont tell you what happens, but lets just say that the story doesnt reflect well on the press.
Like many works of popular culture about law, Return to Paradise raises all of these issues and more. It has haunted us and our families. See it if you get the chance.
The authors gratefully acknowledge the help of Professor Sid Harring of CUNY Law School and Professor Jesse Wu of the Faculty of Law, Northern Territory University, Australia. We referred extensively to Harrings article, Death, Drugs and Development: Malaysias Mandatory Death Penalty for Traffickers and the International War on Drugs, 29 Colum. J. Transn. Law 365 (1991).