Commentary: Does Changing "One Crime, One Punishment" Mean Unlimited Drug Use and Drug Dealing?

During the National Conference on Judicial Reform, regarding drug-related offenses, some committee members considered the current practice of applying "one crime, one punishment" to be excessively harsh and thus proposed changing this approach. For drug use, it was proposed to replace it with protective measures, comprehensively evaluating multiple prior acts of use at once and providing appropriate treatment. For drug trafficking or transfer, it was suggested that the Supreme Court criminal panels pass a resolution to treat continuous or closely linked repetitive acts as a single offense under the doctrines of continuous offense (接續犯) or collective offense (集合犯).

However, some committee members expressed during the meeting that adopting such an approach would undoubtedly make drug users feel they could use drugs without limit before a judgment becomes final. Conversely, other committee members argued that, in practice, judges do not increase sentencing excessively for defendants involved in multiple drug-related offenses, rendering any modification to "one crime, one punishment" of little practical benefit.

Ultimately, the conclusion of the meeting was not to amend the provisions regarding "one crime, one punishment" for drug-related offenses.

Criticisms that drug-related penalties are overly severe are nothing new. Due to the problem of addiction, repeated drug use often constitutes multiple counts of drug use offenses, and petty drug dealing undertaken to sustain an addiction frequently constitutes multiple counts of drug trafficking offenses; this is a routine characteristic of such crimes. How to structure responses specifically tailored to addiction-driven crimes and whether to distinguish them from general criminal processing is indeed an issue. It is understandable that committee members raised review proposals.

Is "One Crime, One Punishment" the Crux of the Problem?

If initial instincts suggest a problem exists, the next question is: does the problem lie in "one crime, one punishment"?

Let us first return to the legal basis for judicial sentencing in Taiwan.

According to Article 51 of the Criminal Code: "When concurrent offenses are committed, sentences are pronounced separately for each offense, and the aggregate execution shall be determined according to the following provisions: ... 5. Where multiple fixed-term imprisonments are pronounced, the aggregate sentence shall be fixed at a period above the longest of the individual sentences but below the total sum of all individual sentences; provided, however, that the aggregate sentence shall not exceed thirty years."

When an offender commits multiple offenses in Taiwan, sentences are pronounced separately for each. For example, a court may sentence an individual to 5 years for Crime A and 15 years for Crime B. Subsequently, the actual prison term must be determined—namely, the "aggregated execution sentence" under Article 51 of the Criminal Code. In this example, the judge must set a sentence of at least 15 years and up to 20 years (15 + 5 years). Judges retain judicial discretion within this range.

Sentencing for drug-related offenses also follows this principle. Under this framework, committing multiple offenses does not necessarily compel a judge to impose a heavy sentence; rather, it practically affords judges a very wide scope of discretion. For instance, regarding the trafficking of Category 3 drugs, the statutory minimum penalty is imprisonment for not less than 7 years. If Defendant A commits the offense of trafficking Category 3 drugs 10 times, and the judge sentences them to 7 years for each count, the judge could theoretically issue a minimum sentence of 7 years or a maximum of 30 years for the case (the sum of the pronounced sentences would be 70 years, but under Article 51 of the Criminal Code, it is capped at 30 years). How the judge ultimately rules depends on the circumstances of the individual case. In cases of petty drug dealing, because the statutory minimum penalty is excessively severe, practitioners generally apply sentence reductions. As seen in the National Police Agency's report, "Analysis on Confirmed Prison Terms for Offenses of Manufacturing, Transporting, and Trafficking Drugs", over the past decade, the majority of convictions for trafficking Category 1 drugs resulted in sentences under 7 to 10 years (statutory minimum is life imprisonment); for Category 2 drugs, mostly under 3 to 5 years (statutory minimum is 7 years); and for Category 3 drugs, mostly under 3 years (statutory minimum was 5 years prior to 2015, and 7 years thereafter).

Here, we can see that the critical issue is less about "one crime, one punishment" and more about whether judicial discretion is reasonable and guided by standards, as well as the excessive severity of statutory minimum penalties—particularly in drug trafficking cases (compelling judges to desperately invoke Article 59 of the Criminal Code for discretionary reduction).

The Problem of Drug Use Offenses

The matter can be further divided into the distinct problems of drug use offenses and drug trafficking offenses. The essence of a drug use offense is fundamentally a problem of addiction; the focal point is whether penal law is an appropriate tool to address addiction. If criminal punishment is unsuitable for responding to addiction, then the core issue is no longer "one crime, one punishment," but rather how to effectively assist patients. Returning to the committee member's remark that such an approach would make drug users feel they could use drugs without limit before a judgment becomes final: this views addiction entirely through the lens of criminal punishment, assuming that threatening punishment for every single act of use will deter addicts from using out of fear. However, the very nature of addiction is a high probability of relapse, and such usage disregards legal consequences. Of course, individuals whose addiction is not yet severe might feel deterred by such penal threats; yet, even without "one crime, one punishment," any evaluation of appropriate treatment programs to assist drug users would still account for instances of repeated use. Would drug users not similarly strive to maintain good behavior under those circumstances to secure treatment programs that less severely restrict personal freedom? Naturally, these discussions currently remain speculative; empirical validation would require piloting different approaches to find out.

The Problem of Drug Trafficking Offenses

Regarding drug trafficking offenses, the problem fundamentally stems from statutory minimum penalties that are overly severe, alongside judges lacking rational sentencing references and assessment methods. Why are statutory minimum penalties excessively severe? Because some petty traffickers are addicts themselves, continually engaging in micro-trafficking to fund their drug habits. Solving this problem requires providing appropriate treatment rather than throwing them in prison. Furthermore, drug trafficking situations are quite diverse, ranging from transnational drug kingpins, domestic major and middle-tier suppliers, street-level retailers, to small-scale dealings within family and friend circles. Subjecting all these behaviors to life imprisonment for Category 1 drugs, and 7 years or more for Categories 2 and 3, violates the principle of proportionality and may exceed the incarceration required for necessary deterrence. Taiwan's core problem is that no one has researched what prison term lengths are rationally required to deter different types of trafficking, or where the marginal utility lies (e.g., year-by-year sentence enhancements—to what extent do they have little to no effect on suppressing recidivism rates?).

As for judges lacking rational sentencing references and evaluation methods, Taiwan currently relies only on informal "sentencing going rates," which are relatively based on collective judicial intuition. If one were to propose a method with a more rational basis to assist judges in evaluation, specialized personnel could conduct sentencing investigations and submit reports for judicial reference. In foreign jurisdictions, this role is sometimes fulfilled by probation officers (since probation officers utilize risk-needs assessment tools to provide treatments that effectively reduce recidivism); domestically, this is closer to the role of juvenile investigators in juvenile delinquency cases.

All of the above indicates that the severity of "one crime, one punishment" is a superficial symptom masking multiple underlying issues. The analysis presented here may not be entirely correct, nor are the proposed solutions foolproof, but it is hoped they will spark discussion and encourage everyone to offer better structural analyses of the symptoms and superior recommendations for solutions.