Responding to Substance Abuse: From Penalization to Decriminalization, What Are the Possible Strategies?

Recently, during the National Conference on Judicial Reform, some committee members advocated for the decriminalization of drug use. Interested parties leaked yet-unpublished meeting materials to the media, allowing the media to attack specific committee members before the meeting even took place. This made other attendees worry that they, too, might become the next "public enemy" under such orchestrated manipulation, producing a chilling effect. Under these circumstances, not only did that particular session fail to touch upon the issue of decriminalization, but the chilling effect may have also discouraged committee members from fully considering and discussing the feasibility and shortcomings of alternatives beyond decriminalization.

To help the National Conference on Judicial Reform break free from this chilling effect, and to enable society to genuinely examine various responses to drug abuse without being held hostage by fear-mongering, this article analyzes and explains different response strategies, while clearly pointing out areas that still require further discussion, in the hope of arriving at sound policy decisions.

Overview of Drug Abuse

What is drug abuse? Simply put, it is using a drug when you should not. "Should not" includes using a drug in a manner that not only fails to improve health but actually causes harm, as well as use that is prohibited under law or social norms yet still occurs.

Drug abuse is a type of substance abuse. "Substance" is a more general term than "drug," encompassing tobacco, alcohol, and caffeine as well. These substances, too, can be abused, but such abuse tends to be understood primarily in terms of harm to health rather than as a target of criminal punishment. Here, we wish to remind readers that regulating and controlling drug abuse does not necessarily have to take the form of criminal punishment, as is currently taken for granted in Taiwan.

What is the current state of drug abuse in Taiwan? According to the report "A Comparative Study of the Prevalence of Drug Abuse in Taiwan," published by the Crime Prevention Research Center of the Academy for the Judiciary, Ministry of Justice, the estimated potential drug-abusing population in Taiwan in 2014 was approximately 300,000, giving an overall prevalence rate of 1.29% relative to Taiwan's total population of roughly 23 million. Prevalence rates for most categories of drugs were lower than those in developed countries, with the exception of MDMA (ecstasy). The study also noted that the prevalence of ketamine use is rising, and that there may be a significant dark figure of drug-related offenses at universities and colleges.

The Spectrum of Criminal Justice Responses to Drug Abuse

From the perspective of whether criminal punishment is imposed, approaches to drug abuse appear to fall clearly into two categories: criminal punishment (criminalization) and non-punishment (decriminalization). Imposing criminal punishment on drug users treats them as criminals, primarily to deter those who have not yet abused drugs from starting, and to deter those who have already abused drugs from continuing—otherwise they will be arrested and imprisoned. Decriminalization, on the other hand, treats drug users as ordinary people or as patients. Occasional drug use that has no discernible effect on health is, in essence, simply an ordinary person engaging in a lifestyle choice. When drug use has already affected health and the person becomes increasingly unable to stop, they lean more toward being a patient in need of treatment.

If we extend the spectrum between criminal punishment and non-punishment, there is also an intermediate approach: "treatment backed by criminal punishment," which does not treat drug users purely as criminals, but simultaneously adopts the perspective of viewing them as patients. Maintaining criminal punishment serves two purposes: first, to deter those who have not used drugs from doing so, or they may be imprisoned; and second, to improve the health of drug users by using criminal punishment as leverage to compel or encourage them to undergo treatment. If the user stops using drugs, punishment is waived; but if they use repeatedly, they may be regarded as disregarding the law and punished severely.

Taiwan currently does not adopt purely criminal punishment. At present, the use of Category 3 and Category 4 narcotics is subject to administrative penalties, which amounts to decriminalization; whereas the use of Category 1 and Category 2 narcotics is handled through the intermediate approach of "treatment backed by criminal punishment."

Decriminalization: Arguments For and Against

For people in Taiwan, "treatment backed by criminal punishment" is not difficult to understand, but the arguments for decriminalization are harder to grasp. The main arguments for decriminalization include the following:

Drug abuse, so long as it does not harm others, is at most a form of self-harm. Criminal law imposes strong restrictions on personal freedom; to avoid abuse of state power, it generally does not specifically punish acts of self-harm—for instance, the Criminal Code does not punish suicide or self-mutilation. This does not mean the state does nothing about self-harm, but rather that it tends to address it through assistance (such as suicide prevention outreach) rather than punishment.

Where drug abuse causes no harm to oneself or others, punishment is unnecessary. And when the degree of abuse worsens into addiction, criminal punishment has limited effectiveness in resolving the addiction problem, and may even produce side effects.

Contemporary medicine increasingly views addiction as a brain disorder, much like any other chronic disease. Repeated use is, like relapse in illness, an almost inevitable part of the process. The premise underlying the deterrent effect of criminal punishment is that people will refrain from doing something out of fear of punishment—but this logic does not apply to those with addiction. They may well be afraid of punishment, yet still use drugs again.

Beyond this, criminal punishment can inflict further harm on those with addiction. Incarceration may cause them to lose their jobs, struggle to find work after release due to stigma, and become disconnected from society; prisons often lack adequate medical resources, and countries that incarcerate large numbers of people with addiction may be unable to provide adequate care due to overcrowding.

Meanwhile, "treatment backed by criminal punishment" may, because severely addicted individuals relapse repeatedly—which amounts to repeated violations of the law—still result in most of them being imprisoned. As a result, those most in need of treatment end up being abandoned, and criminal punishment also restricts the adoption of other harm-reduction measures. For example, for individuals who ultimately cannot overcome addiction and for whom substitution therapy has proven ineffective, a safe dosage of the drug could be provided so that they can use it in a medically supervised, hygienic environment.

Historically, there have been far too many cases of forced treatment that were, in reality, infringements on personal liberty carried out in the name of treatment—some of which were entirely ineffective. For this reason, contemporary medicine operates on the principle of voluntary consent.

Allowing individuals to voluntarily choose to accept various forms of treatment is, in fact, the most effective way to use resources under conditions of scarcity. A common problem with "treatment backed by criminal punishment" is that a drug user may have to go through certain treatment procedures to avoid punishment even though they are not actually addicted and do not need treatment. In addition, "treatment backed by criminal punishment" often results in the judicial system bearing a caseload of drug users that far exceeds what its resources can handle; the system becomes overwhelmed, and the promised treatment simply cannot be delivered—effectively amounting to nothing more than incarceration after all. Rather than drawing large numbers of low-motivation individuals with addiction into the judicial system and claiming to devote resources to everyone while in practice failing to do so, it would be more realistic to first prioritize assisting those with high motivation to seek treatment.

Decriminalization has already been widely advocated internationally. Two Chinese-language references are listed below for reference:

• Global Commission on Drug Policy, "Advancing Drug Policy Reform: A New Approach to Decriminalization"
• IDPC, "The Public Health Approach to Drug Use in Asia: The Principles and Practice of Decriminalization"

The main arguments against decriminalization are as follows:

There is concern that without the deterrent effect of criminal punishment, the overall situation of drug abuse will spiral out of control: more and more people will use drugs, and there will be no restraint on excessive use[1]. Harm or disturbance caused to others by drug use also cannot be deterred—for example, a neighbor using ketamine nearby produces an unpleasant smell[2]; or drug use damaging the brain, leading to indiscriminate violence against others with no way to control it[3].

To prevent the situation of drug abuse from spiraling out of control, decriminalization needs to be paired with sound drug abuse prevention measures and adequate medical and social welfare resources—but these complementary measures are currently still insufficient.

A Brief Comparison of Different Criminal Justice Responses

The table below briefly compares the differences among criminal punishment, treatment backed by criminal punishment, and decriminalization:

For the sake of analytical convenience, the table divides responses to drug abuse into these three broad categories, but in reality, the line between "treatment backed by criminal punishment" and "decriminalization" is not so clear-cut. This is because "treatment backed by criminal punishment," if it leans heavily toward the patient-oriented perspective, may in practice reduce sentence severity, imposing only the minimum punishment necessary to support treatment; it may seek to avoid incarcerating drug users as much as possible, keeping them in the community to receive treatment even if they use drugs again, since repeated use is recognized as a characteristic of addiction, with the focus placed instead on lengthening the interval between relapses and restoring functioning in daily life (such as securing stable employment). Likewise, "decriminalization" refers only to decriminalization under criminal law, while administrative penalties may still be retained as a backstop, providing a limited degree of deterrence while supporting treatment.

The Fear-Mongering and False Sense of Security Surrounding "Decriminalization"

Viewed in this context, the discourse on decriminalizing drug use is, in fact, merely one of the possible solutions proposed in response to reflection on the ineffectiveness of existing drug abuse responses. Including decriminalization as one of the options under consideration also allows for a broader range of perspectives on where Taiwan's drug abuse policy should ultimately head.

It is regrettable that some individuals have manipulated public fear through incomplete information, making it difficult for the issue to be fully discussed. Here, it must be pointed out that the false sense of security brought about by criminal punishment may itself be the more dangerous outcome, because it allows people to avoid confronting the real problem.

Recommendations for the National Conference on Judicial Reform: Honestly Confronting the Choices in Criminal Policy

The current discussion outcome of the National Conference on Judicial Reform continues to adopt "treatment backed by criminal punishment," at most calling for the investment of additional resources. As we understand it, the most that may be added is the design of a "drug court." We believe the following issues must be genuinely understood and confronted:

Just how much deterrent force from criminal punishment is actually sufficient?

Under the influence of media-driven fear, the National Conference on Judicial Reform has not dared to discuss decriminalization, emphasizing only that treatment must be backed by criminal punishment. But here we must examine: how much deterrent force from criminal punishment is actually sufficient to support treatment? Five years? Four years? Three years? Two years? One year?

From the standpoint of avoiding the misuse of prison resources and protecting the health rights of drug users, the limits of criminal deterrence must be properly understood. Excessive incarceration only causes harm rather than supporting treatment.

What exactly has gone wrong with the current mechanism of deferred prosecution paired with addiction treatment and protective measures? How should it be fixed?

How should deferred prosecution paired with addiction treatment be reformed?

Taiwan already has a system of deferred prosecution paired with addiction treatment, but its utilization rate is low and its effectiveness is poor. According to prosecutors advocating for drug courts, this is because prosecutors have limited authority and cannot integrate medical and social welfare resources. Furthermore, once a drug user relapses, some prosecutors conclude that addiction treatment has failed and choose to proceed with prosecution instead. Unless Taiwan intends to abandon deferred prosecution paired with addiction treatment altogether, a concrete plan must be proposed for how to strengthen its implementation. Yet despite this mechanism having been in place for so long, the Ministry of Justice's proposal to the National Conference on Judicial Reform merely calls for "strengthening review," without identifying any concrete operational difficulties or offering any specific solutions.

Why has the existing system of protective measures nearly degenerated into mere incarceration?

Under the Narcotics Hazard Prevention Act, observation and rehabilitation, and compulsory rehabilitation, are by nature protective measures rather than simple restrictions on personal freedom—their purpose is treatment, not punishment. Yet why do the compulsory rehabilitation centers currently responsible for administering observation and rehabilitation, and compulsory rehabilitation, end up looking almost no different from ordinary prisons? Judging from the Ministry of Justice's reports, this seems to stem from the Ministry's lack of medical resources, while the Ministry of Health and Welfare has not taken over responsibility. Strangely, however, the resolutions of the National Conference on Judicial Reform only mention strengthening diversified treatment approaches, with no indication at all of whether the Ministry of Health and Welfare will take over the compulsory rehabilitation centers.

Why are judges unwilling to use suspended sentences paired with addiction treatment? If switched to drug courts, can judges' caseloads bear the burden, and how will quality be maintained?

Under current law, judges in Taiwan may also choose to impose a suspended sentence paired with addiction treatment on drug users, allowing them to receive treatment in the community rather than being directly incarcerated—yet in practice this is almost never seen. Whether the current system is maintained or switched to drug courts, the question that must be confronted is: why are Taiwanese judges reluctant to choose this kind of community-based treatment? What practical difficulties are encountered, and how should they be resolved? Unfortunately, this examination is nowhere to be found in the Ministry of Justice's report. The Judicial Yuan's report only reviews why treatment under judicial supervision has been ineffective and suggests that the law should be amended to improve the current system, but does not examine why judges almost never use suspended sentences paired with addiction treatment, nor does it specify how the law should be amended to improve the current system.

Moreover, if the system is switched to drug courts, unless judges are reduced to a mere rubber stamp for case referrals and probation officers' treatment recommendations, properly handling cases and building relationships with defendants requires manpower and time. Yet the proposing committee member touched on this only briefly, and the Judicial Yuan's report does not mention it at all. What adjustments to judicial manpower allocation would be needed to build a truly well-functioning drug court, and on what basis should this be assessed? These questions must be addressed.

What are the difficulties currently faced by probation officers? How should they be resolved?

Regardless of which approach under the current system is used, probation officers are the personnel who have the most direct contact with and provide the most assistance to drug users, yet the difficulties they currently face have not been adequately addressed. In 2015, there were only 217 probation officers nationwide, yet 17,509 new cases of protective probation were accepted that same year—not only is the caseload enormous, but probation officers must also shoulder numerous other judicial protection duties. The Ministry of Justice's report also mentions that if the proportion of cases using deferred prosecution paired with addiction treatment rises to 20%, the number of cases handled by probation officers could increase to over 15,000; using a staffing standard of 92 protective probation cases per probation officer, this would require 163 additional probation officers, with an estimated annual personnel budget of roughly NT$129 million. Yet the following points were insufficiently discussed at the National Conference on Judicial Reform and are absent from its resolutions:

• It remains unclear whether this staffing level would actually be sufficient. Is the calculation of a caseload of 92 cases per officer reasonable?
• Does the National Conference on Judicial Reform also agree to set the target of raising the proportion of deferred prosecution paired with addiction treatment to 20%, while the remaining drug users are all incarcerated? And if this is indeed the approach taken, does it genuinely align with the stated goal of treating drug users as patients?

Exactly how much social welfare and medical resources does the government have, or how much more could it invest in assisting drug users?

The most fundamental and important question underlying the approach of "treatment backed by criminal punishment" is this: exactly how much social welfare and medical resources does the government have, or how much more could it invest in assisting drug users? Because once drug users are drawn into the judicial system and required, under the backing of criminal punishment, to undergo diversified treatment, the next questions become: how many people might need such services, and how much manpower and material resources would be needed to meet that demand? How large a budget would be required? And exactly how much social welfare and medical resources does the government currently have, or how much more could it invest in assisting drug users? How large is the gap between the two? And if resources are clearly insufficient to provide adequate treatment, then what should be done? Can the government, or the National Conference on Judicial Reform, honestly explain what policy choices we should make under conditions of limited resources? For those who cannot receive adequate assistance due to insufficient resources, should they all simply be locked up? Should the government acknowledge that this is its own problem and allow relapse while continuing to impose protective probation? Or what, exactly, should be done?

Footnotes

[1] Whether such a situation would actually occur depends on the specific circumstances. Drug abuse itself can cause bodily harm, which in itself carries a certain deterrent effect. In addition, decriminalization could still be paired with administrative penalties, leaving room for the government to intervene with coercive measures. There is also the matter of how effectively drug abuse prevention education is being promoted.

[2] The use of Category 3 and Category 4 narcotics in Taiwan is currently subject to administrative penalties, and police also have the authority to investigate ketamine use. However, what police in Taiwan choose to investigate is closely tied to performance metrics; where such metrics are lacking, there may be little motivation to act. Furthermore, some police officers regard drug use as an act of self-harm and are, accordingly, less inclined to take active enforcement measures.

In addition, the problem of quality of life being affected by others' drug use can be managed even if decriminalization is formally adopted. One possible approach would be to adopt a concept similar to designated smoking areas—that is, permitting use only in certain designated locations, with fines imposed for use in prohibited areas.

[3] Setting aside cases where harm to others has already occurred, this type of situation involves severely addicted individuals. Under decriminalization, it would be necessary to understand why medical treatment has proven ineffective for them. If intervention is required, consideration should be given to whether isolation is necessary to protect others. Furthermore, for this category of severely addicted individuals, even the imposition of criminal punishment is unlikely to deter them from harming others indiscriminately, since they have already lost the capacity for self-control. In such cases, the only remaining significance of punishment is isolation.