The efforts to establish safeguards for the death penalty have not been without criticism. It is not the lack of importance, yet, because the issue of arbitrariness within the death penalty will always persist. Saul Lehrfreund and Roger Hood argue that the subjectivity in imposing the death penalty merely shifts to those who establish the criteria for imposing it and to law enforcement officials when applying those guidelines. In other words, it is not a matter of finding the safest way to impose the death penalty,
but the debates on the death penalty should cease to exist.

This is a perspective that the authors fully understand. However, the creation of these safeguards is not intended to legitimize the death as long as the safeguards within this writing remain. The safeguards within this document serve as a complement to the provision of the 2023 Criminal Code, which, to a certain extent, still recognizes the existence of the death penalty. The objective is simple, which is to ensure that the imposition of the death penalty is applied by judges strictly and selectively.

With the enactment of the Criminal Code No. 1 of 2023 (hereinafter referred to as the 2023 Criminal Code), which will take effect in 2026, there are new developments regarding the death penalty, namely: (1) several changes regarding offenses punishable by death; (2) the possibility of commutation of the death penalty to life imprisonment; and (3) the change in the status of the death penalty from its previous classification as a principal punishment to a distinct category of punishment, namely a special punishment.

First, there are two offenses that were punishable by death according to the previous Criminal Code but have been amended in the 2023 Criminal Code, namely Article 140 (2) and (3)/Article 224 the 2023 Criminal Code and Article 44 Criminal Code/Article 544 the 2023 Criminal Code.2 Second, the 2023 Criminal Code opened the door to commutation for those sentenced to death under 2 (two) conditions, namely:

1. If, during the 10-year probationary period, the convicted demonstrated commendable conduct, then the sentence may be commuted from the death penalty to life imprisonment through Presidential Decree upon the recommendation of the Supreme Court; and
2. If, the person sentenced to death has met the requirement for execution, yet the state has not carried out the execution for 10 (ten) years, their sentence shall be commuted to life imprisonment by Presidential Decree

Third, the important change within the 2023 Criminal Code is regarding the classification of the death penalty as a special category of criminal offense. However, the shift of paradigm is not followed by an adequate explanation on the intent and purpose. In fact, there is no specific provision indicating a shift of paradigm from the previous Criminal Code. Instead, the 2023 Criminal Code contains more detailed and firm provisions regarding criminal penalties within the main criminal cluster, as seen in Article 79, Article 71, Article 80, and Article 85.

While not dismissing the positive changes introduced the 2023 Criminal Code, these changes were not accompanied by efforts to strengthen the adjudication phase through strict and selective law enforcement standards when imposing the death penalty, including in the Criminal Procedure Code No. 20 Year 2025 (hereinafter referred to as the 2025 Criminal Procedure Code). Whereas the issue of the death penalty does not only happen when a court verdict is issued, as these problems emerge as early as the adjudication phase. For example, in India, there is a ‘lethal lottery’ phenomenon, which refers to the inconsistency of the courts’ approaches when assessing the category of a criminal offense punishable by death. It is as if appearing in court is like a lottery, waiting to see what sentence the judge will impose. In Indonesia, the inconsistency is also common, especially with narcotics cases. There is still not consistent pattern in the imposition of the death penalty regarding aggravating circumstances, the defendant’s role, the weight of the narcotics evidence, and recidivism.

For that purpose, this paper is intended to serve as a guide for lawmakers and other decision-makers, reflecting state’s paradigm shift in treating the death penalty as a special form of punishment. The footnotes on the death penalty within the 2023 Criminal Code within this writing will be divided into two main focuses. First, regarding the adjudication process, ranging from substantial matters related to the standard for imposing the death penalty to procedural matters related to the criminal procedure law.