Reforming the Justice System

Decriminalization of Drug-Related Offenses and Alternatives to Incarceration

International research suggests that drug use, the possession of drugs and drug paraphernalia for personal use, and the cultivation and purchase of drugs for personal use should be decriminalized. The rationale for decriminalization is the concern that fear of imprisonment deters drug users from accessing health and harm-reduction services that could save their lives; furthermore, actually locking drug users up disrupts their family and community ties and erodes their employment and educational opportunities, potentially worsening their plight.

The optimal practice of decriminalization is to remove all criminal penalties for drug use while simultaneously providing health and social services to those willing to accept help. Although international research most strongly recommends full decriminalization—meaning no punishment whatsoever for personal drug use—the implementation of decriminalization is typically accompanied by referrals and administrative sanctions. Referral means that if law enforcement agencies discover drug use or minor possession, the offender is diverted out of the criminal justice system and handed over to other entities within the framework of health and social services to be handled according to their condition and needs. The advantage of this approach is that judicial authorities lack the capacity to formulate and implement programs that help improve offenders' health and quality of life, and are thus better off leaving it to units equipped with such capabilities. Meanwhile, the deterrent effect of administrative sanctions must also be viewed within a health-promotion framework, meaning care must be taken that their effects do not repeat the sequelae produced by criminalization.

International research also suggests that for non-violent drug-related offenses—such as acting as a transporter (i.e., the lowest-tier drug mules responsible for smuggling drugs across national borders), engaging in small-scale drug transactions at the bottom tier due to drug dependence, and committing economic crimes out of drug dependence (such as theft)—dispositions other than imprisonment should be adopted. Doing so ensures the health and well-being of these individuals while more effectively deploying judicial resources toward large-scale, violent drug trafficking and higher-level crime.

Some countries may not necessarily decriminalize drug use, but may instead adopt other alternatives to incarceration.

Alternatives to incarceration can be broadly divided into three major categories: 1. diversion at the pre-arrest and pre-prosecution stages; 2. diversion at the prosecution stage; 3. post-conviction alternatives to imprisonment, such as probation, conditional suspended sentences, and the like.

International research suggests that diversion should take place at the earliest possible stage to effectively reduce the burden on the criminal justice system and spare individuals from enduring lengthy and cumbersome criminal procedures. Diversion is best implemented at the police stage, though concerns exist regarding police abuse of power. International research suggests establishing a robust prosecutorial guidance mechanism, including supervising and reviewing police actions, and training police to understand how to approach drug use from a health and social perspective. Incorporating representatives of drug users into the design of decriminalization or diversion procedures also helps strengthen trust between communities and prosecutors.

Drug courts are also a common diversion mechanism, primarily utilized in the US and some Latin American countries. They involve placing the offender into the criminal justice system while suspending criminal proceedings, with the offender undergoing drug dependence treatment or a series of social interventions under a judge's supervision. If the offender fails to comply with agreed conditions, criminal proceedings may be resumed. This model currently faces the following criticisms: 1. drug courts in some countries focus exclusively on individuals committing pure drug use offenses, ignoring others who break the law due to drug dependence; 2. determinations of whether an individual has drug dependence are not made by health experts; 3. some individuals without drug dependence problems undergo treatment simply to avoid imprisonment, which constitutes a waste of resources; 4. individuals must plead guilty to enter treatment programs; 5. failing to complete treatment results in punishments that are sometimes harsher than those in the regular criminal justice system.

Reasonable Distinctions and Penalties for Offenses

International research indicates that, regardless of whether decriminalization is adopted, offenses related to personal drug use should be handled differently from offenses involving the intent to supply drugs.

1. Offenses Related to Personal Drug Use

   Personal drug use, along with related possession, cultivation, or purchase, is recommended for decriminalization, replaced by measures such as harm reduction and treatment.

   User-dealer offenses (individuals involved in low-level drug trafficking primarily to fund their own drug use). Common scenarios involve individuals who are themselves drug-dependent, concurrently using and engaging in small-scale sales of the drugs they consume to sustain their habit. Alternatives to incarceration are recommended, replacing them with harm reduction and treatment measures to eradicate the root causes of their offenses.

   Criminal justice systems often encounter difficulties in distinguishing between personal use and intent to supply drugs. Some countries adopt quantity thresholds, where possessing a certain amount of drugs constitutes intent to supply. If drug quantities are used to distinguish personal use from intent to supply, the specified amounts should properly reflect market reality—accounting for the consumption patterns, potential daily consumption, and purchasing patterns of users within the community, and such amounts should be merely indicative. To establish intent to supply, other factors beyond quantity should be weighed in individual cases, such as the number of mobile phones carried, packaging materials, cash, weapons, and history of drug dependence.

   Difficulties in Distinguishing Between Personal Use and Drug Supply in Taiwan's Criminal Justice Practice

   Taiwan's Narcotics Hazard Prevention Act separately prescribes the offenses of drug use, drug possession, possession of drugs with intent to sell, drug transfer, and drug trafficking, carrying varying penalties. For Category 1 drugs, the statutory minimum penalty for being an accomplice to drug use (aiding consumption) is 6 months, whereas for drug trafficking, the statutory minimum penalty is life imprisonment.

   At first glance, these offenses appear clearly distinguishable. In practice, however, a series of behaviors often makes it exceedingly difficult to determine which offense applies.

   • I didn't sell drugs to anyone else; a friend wanted to buy drugs, gave me money in advance, and I simply went to pick up the goods for him. —Distinction between trafficking and aiding consumption?
   • Buying drugs in larger quantities is cheaper; I organized a group buy as the coordinator, purchasing together with others rather than selling drugs to them. —Distinction between trafficking and aiding consumption?
   • Buying drugs in larger quantities is cheaper; I bought them upfront to consume slowly, not because I intended to sell to others. —Distinction between possession and possession with intent to sell?
   • I bought the drugs for my own use; a friend had a need, so I sold it to them at cost/purchase price. —Distinction between transfer and trafficking?

   Currently, the evidence in practice most capable of objectively proving the process is wiretap transcripts. Yet, from wiretap transcripts, it is rarely easy to determine whether a person engaging in a small-scale drug transaction is trafficking, transferring, or aiding consumption, as wiretap transcripts often feature coded language or rendezvous appointments. Relying on testimonies often leads to shifting accounts.

   Drug possession quantity is another issue. What possession threshold, in the absence of other evidence, allows one to say a person possesses with intent to sell rather than mere possession?

   Possible approaches to ameliorating these judicial difficulties include:

   • Constructing reliable domestic research on the drug use and purchasing patterns of Taiwan's drug-using communities to serve as judicial reference.
   • Looking at comparative law and referencing German regulations, the statutory penalty ranges for possession, possession with intent to sell, transfer, and trafficking are designed without drastic gaps. However, exceptionally severe categories of behavior—such as involving massive quantities of drugs, organized crime, violence, carrying weapons, or involving minors—are explicitly stipulated in the statutory text as aggravating factors. Additionally, German law explicitly stipulates that small-scale production, purchase, or possession of drugs for personal use (using the term "narcotic drugs") may be exempt from punishment.

2. Offenses Involving Intent to Supply Drugs

   Offenses involving intent to supply drugs should likewise be categorized and handled differently. While some countries tend toward harsh punishment for drug-related offenses, the vast majority of those severely penalized are bottom-tier users and small-time dealers. Harsh punishments neither help improve the living conditions of these bottom-tier individuals nor rationally distinguish between truly severe crimes and lesser offenses; furthermore, it represents an unbalanced allocation of resources: law enforcement and the criminal justice system spend excessive resources addressing such minor, bottom-tier drug crimes, leaving them unable to focus on tackling more serious drug-related crimes involving violence, corruption, organized crime, and money laundering. Consequently, international research offers the following recommendations:

   1. For small-scale drug dealing within a circle of friends and relatives yielding limited profits, alternatives to incarceration are recommended to alleviate the burden on the criminal justice system and prisons.
   2. Regarding individuals serving as bottom-tier transport mules in transnational drug transportation and sales—meaning those responsible solely for smuggling drugs across national borders—such bottom-tier actors in the drug market mostly hail from vulnerable social backgrounds, receive negligible compensation, risk their lives (as some conceal drugs inside their bodies), and may be coerced or exploited. Alternatives to incarceration are recommended.
   3. For individuals involved in serious or organized crime who reap massive profits, play high-level roles in drug production or trading, or run organized crime networks frequently employing violence and engaging in corruption and bribery, resources should be dedicated to prosecution and heavier penalties.
   4. When considering aggravating or mitigating sentences for drug suppliers, the following factors are recommended for consideration:
      Mitigating Factors
      • The offender originates from a vulnerable and impoverished socio-economic community environment, where imprisonment could make future employment harder and plunge their children and family into destitution.
      • The offender bears caregiving responsibilities, particularly women caring for children or disabled elders.
      • The offense is not driven by high profits.
      • It is a first-time offense.
      • No involvement in organized crime or violence.
      Aggravating Factors
      • The offense is driven by high profits.
      • Involvement of minors.
      • Involvement in violent activities, corruption, bribery, or money laundering.
      • Involvement in organized crime.

   Imbalance in Sentencing Severity for Manufacturing, Trafficking, and Transporting Drugs in Taiwan's Criminal Justice Practice

   Taiwan's Narcotics Hazard Prevention Act groups manufacturing, transportation, and trafficking together, prescribing distinct statutory penalty ranges based on drug categories. Category 1 drugs carry the death penalty or life imprisonment; Category 2 drugs carry life imprisonment or fixed-term imprisonment of 7 years or more; Category 3 drugs carry fixed-term imprisonment of 7 years or more; and Category 4 drugs carry fixed-term imprisonment between 5 and 12 years. The biggest problem here is the unreasonableness of the minimum penalties set, with the most unreasonable being Category 1 drugs.

   Drug kingpins, small-time dealers, and mules all face the statutory death penalty or life imprisonment, which severely violates the principle of proportionality. Because it is so disproportionate, judges in Taiwan have long cited Article 57 of the Criminal Code to commute sentences for low-level Category 1 drug trafficking cases. Nevertheless, the "going rate" remains over a decade of imprisonment, which not only fails to help offenders but severely wastes limited prison resources.

   The recommended approach is to redesign the elements of drug-related offenses and their penalties. Alternatively, at a minimum, the mandatory minimum penalties should be abolished and judicial sentencing guidelines provided.

Modernization of Drug Law Enforcement

The aforementioned criminal justice reforms must be paired with the modernization of drug law enforcement. The focus of enforcement should be on reducing violence, striking at the mid-level of drug trafficking organizations (since top-tier figures exert less direct organizational influence than mid-level ones, and "decapitation" can trigger violent succession struggles), tackling corruption, bribery, and money laundering, and strengthening investigative capabilities. Beyond traditional enforcement, the pursuit of social objectives and the establishment of partnerships with the health and social sectors must also be strengthened.

Adopting Health-Protective Policies in Prisons and Other Closed Facilities

Because prisons frequently suffer from resource scarcity, overcrowding, and even the generation of additional health risks, international research does not consider prisons ideal places for addressing drug use and dependence. Nonetheless, since drug users continue to enter prisons, international research puts forward the following recommendations:

• The state bears the responsibility for healthcare regarding incarcerated individuals; therefore, necessary medical care resources must be poured into prisons.
• Governments should consider having health-governing agencies (in Taiwan, the Ministry of Health and Welfare) rather than judicial or correctional agencies (in Taiwan, the Agency of Corrections, Ministry of Justice) manage prison health issues. This is because prison health issues should be viewed as an integral part of national public health and health policy.
• Harm reduction and drug dependence treatment should also be promoted within prisons, ensuring sound continuity between in-prison programs and post-release programs.

Regulation of the Drug Market

How drug policies can effectively intervene in the drug market is an important issue, broadly falling into three categories: absolute prohibition of the drug market's existence, legal regulation of the drug market, and complete deregulation of the drug market. Which approach to adopt depends on a nation's evaluation of health, human rights, and security issues, and which course best safeguards public health to the maximum extent possible. The problem with absolutely prohibiting the drug market is primarily the emergence of a illicit drug black market. Where governments fail to eradicate the drug black market, it is mostly controlled by criminal organizations and constitutes a major source of economic revenue for them. Drug users are basically forced to buy drugs from the black market, where inconsistent drug quality may further jeopardize their users' health. The problem with completely deregulating the drug market is extreme commercialization, where merchants might use various methods to encourage drug use, further harming public health. Legal regulation of the drug market represents a novel trial that may mitigate harms brought by the illicit drug market while avoiding harms caused by excessive commercialization.

Legal regulation of the drug market can be roughly divided into five basic models: 1. Medical model: High-risk drugs and behaviors, such as injecting heroin and amphetamines, require medical prescriptions and specific consumption venues. 2. Dedicated retail pharmacies: Trained and licensed vendors may sell regulated drugs in quantified rations to registered users. Suitable for medium-risk drugs such as powdered cocaine. 3. Licensed retail: Suitable for low-risk drugs such as cannabis. 4. Licensed premises for sale and consumption: Similar to Dutch cannabis "coffee shops." 5. Unlicensed sale: Suitable for lowest-risk products, such as caffeine-containing beverages. Additionally, good practices in tobacco and alcohol control can be referenced.

As to which regulatory model or models suit a given country, recommendations should be made by an expert team. Team members should include experts in public health, law enforcement, drug policy reform, evaluation and monitoring, alcohol and tobacco control, prevention, treatment, and harm reduction, alongside representatives of drug users and cultivators. Furthermore, reforms must be implemented cautiously and in phases, continuously monitoring effectiveness during implementation and adjusting policies based on emerging evidence. Finally, regulating the drug market should also be viewed within the context of addressing the socio-economic drivers underlying drug problems, thereby creating an environment better suited to resolving socio-economic issues, since market regulation alone can only solve so much.

Conclusion

Although this article began by tackling the myth of deterrence, this myth is actually undergoing a transformation. Facing prison overcrowding and repeat offenses by drug users, Taiwan's government is also gradually beginning to see that sending drug users to correctional facilities may not solve the problem. Practitioners in Taiwan are also increasingly recognizing that drug policy must be grounded in health maintenance, requiring greater resource investment into medical, public health, psychological, and social welfare fields.

Once the shift from deterrence to health protection occurs, making comprehensive national policy adjustments based on this core goal—rather than having health agencies operate in isolation from judicial ones—becomes an important task. Under this mindset, the term "drugs" should perhaps even be discarded, and related problems categorized as "addictive substance abuse" or "substance abuse." Given the complexity of substance abuse problems and the multi-layered impacts of implementation, a dedicated policy unit/agency can be established when necessary. Taking the US as an example, the Office of National Drug Control Policy (ONDCP) is established under the White House. This unit does not handle actual execution, but rather sets and adjusts overall drug policy directions and submits reports on implementation status. The efficacy of such policy units themselves should also be scrutinized; they are not a silver bullet upon creation. In the US, the Government Accountability Office (GAO) is responsible for this. In 2016, the GAO also issued critical reports on the implementation results of ONDCP policy goals, recommending modifications.

Looking at the Netherlands, for instance, a committee was formed between 1968 and 1972 with the objectives of investigating the causes of increased drug use, addressing irresponsible drug use, and proposing a system to treat drug-dependent individuals. Chaired by Pieter Baan, then Chief Inspector of Mental Health, the committee's initial composition comprised two representatives from the Ministry of Health and Welfare (medical experts) and four from the Ministry of Justice (including the Minister of Justice, Chief of Police, Prosecutor, and Forensic Laboratory Director). Later, recognizing that the committee lacked experts on how to reach drug users (who often conceal themselves and avoid medical or other resources due to stigma or criminal penalties), they incorporated sociologists, psychiatrists, addiction treatment experts, and civil servants from the Department of Social Work. They completed their report over four years, which subsequently served as the guiding blueprint for Dutch drug policy.

Taiwan currently has the Anti-Drug Council, whose administrative affairs are overseen by the Minister of Justice. From a health-preservation perspective, however, overseeing council affairs should perhaps not be the responsibility of the Minister of Justice. Additionally, ensuring that the council does not devolve into perfunctory inter-ministerial reports, but genuinely guides overarching national policy, is another challenge, which truly requires support from sound policy planning, evaluation personnel, and research—importantly incorporating experts on how to reach drug users. Considering that Taiwan's organizational performance or policy efficacy frequently lacks rigorous review mechanisms, strengthening review mechanisms is likewise vital.

The transformation of drug policy currently appears imperative, though relevant funding, human resources, and the cross-sectoral integration and coordination of resources are all still in their infancy stages. The road ahead is long, but recognizing the problems and direction, and gradually adjusting resource allocation, is something that must begin now.

Controversies Surrounding Decriminalization and Alternatives to Incarceration

Some individuals oppose decriminalization and alternatives to incarceration; the following claims are clarified below:

The Research, Development and Evaluation Commission of Taiwan's Executive Yuan once commissioned scholars to study the Treatment of Drug Users and the Feasibility of Decriminalization, which compiled domestic controversies surrounding decriminalization.

Back to News