Commentary｜The Crime of Drug Supply: The Heavier, the More Effective?

During the National Conference on Judicial Reform on April 20, reports emerged that committee member Lu Ying-chieh proposed revising the law to abolish the offense of "possession of drugs with intent to sell," prompting internet celebrity Chu Hsueh-heng (Lucifer Chu) to post on Facebook criticizing that even drug trafficking was being decriminalized. Reports also indicated that committee member Lin Wen-wei's policy proposal advocating that drugs be properly termed as medicines and decriminalized sparked controversy, with an anti-drug prosecutor lamenting today that "all our hard work seems to be in vain," while internet celebrity Chu Hsueh-heng remarked, "Welcome drug offenders to immigrate."

There is an increasingly evident tendency in current practice to handle drug supply and drug use through diversion. Regarding drug use, the practical sector is gradually reaching a consensus to move toward decriminalization, which is concretely manifested in a discourse that increasingly tends to view drug addiction as a medical condition—though practical measures have consistently failed to keep pace. As for drug supply, the tendency is to move in the direction of increasingly severe penalties.

Why Does the Crime of Drug Supply Need Adjustment?

This article argues that, rather than uniformly moving toward heavier penalties, drug supply offenses should instead move toward diversifying sentencing ranges and treatment models. The basic direction is: lowering the minimum statutory penalties while concurrently providing specific regulations on which drug supply behaviors warrant heightened penalties.

This is because:

1. Some individuals get involved in low-level drug dealing due to addiction
Some individuals are addicts themselves and engage in low-level dealing to raise money to buy drugs. For such individuals, a better approach is to utilize diverse treatment models to help them address addiction and other aspects of their lives. Imposing severe punishment has limited significance.

2. It better complies with the principle of proportionality
International research shows that offenses related to drug supply actually encompass many different types. In reality, the vast majority of those severely punished are low-level users and dealers. Severe punishment is not only detrimental to improving the living conditions of these marginalized individuals, but it also fails to reasonably differentiate between truly serious crimes and less severe offenses. Furthermore, it is an unbalanced resource allocation scheme: law enforcement and the criminal justice system spend excessive resources dealing with these minor, low-level drug-related offenses, leaving them unable to focus on more serious drug-related crimes involving violence, corruption and bribery, organized crime, and money laundering. Therefore, international research puts forward the following recommendations:

• For those involved in low-level drug dealing within circles of friends and relatives with limited profits, alternatives to imprisonment are recommended to alleviate the burden on the criminal justice system and prisons.
• For low-level couriers (drug mules) involved in cross-border drug transportation and trade—meaning those solely responsible for carrying drugs across national borders—such low-level participants in the drug market mostly come from vulnerable social backgrounds, receive extremely low compensation, yet risk their lives (as some conceal drugs inside their bodies), and some may be coerced or exploited. Alternatives to imprisonment are recommended.
• For those involved in serious or organized crime who reap high profits, play high-level roles in drug production or trade, or organize criminal networks that frequently use violence and involve corruption and bribery, resources should be invested in prosecution and heavier penalties should be imposed.

When considering the aggravation or mitigation of penalties for those involved in drug supply, the following factors should be taken into account:

Mitigation Factors

Aggravation Factors

The perpetrator comes from a vulnerable and impoverished socio-economic community and environment; imprisonment may make it more difficult for them to find employment later and plunge their children and family members into hardship. The perpetrator bears caregiving responsibilities, particularly women caring for children or disabled elderly family members. The offense is not driven by high profits. First-time offense. No involvement in organized crime or violence.

Offense driven by high profits. Involving minors. Involving violent activities, corruption and bribery, or money laundering. Involving organized crime.

In Taiwan, the regulation of drug supply offenses is highly unreasonable and truly in need of amendment, as evidenced by:

1. The minimum statutory penalties are too severe
   The penalties for the manufacture, transportation, and sale of drugs in Taiwan are as follows:
   Category 1 drugs: punishable by the death penalty or life imprisonment.
   Category 2 drugs: punishable by life imprisonment or a determinate sentence of 7 years or more.
   Category 3 drugs: punishable by a determinate sentence of 7 years or more.
   Category 4 drugs: punishable by a determinate sentence of not less than 5 years and not more than 12 years.
   
   

According to the Analysis of Finalized Judicial Sentences for Drug Manufacturing, Transportation, and Trafficking Crimes provided by the National Police Agency, it can be seen that over the past 10 years, the majority of convictions for trafficking Category 1 drugs resulted in sentences of 7 to under 10 years (while the minimum statutory penalty is life imprisonment); most convictions for trafficking Category 2 drugs resulted in sentences of 3 to under 5 years (minimum statutory penalty is 7 years); and most convictions for trafficking Category 3 drugs resulted in sentences of under 3 years (the minimum statutory penalty was 5 years before 2015, and 7 years thereafter). In other words, judges currently find the minimum statutory penalties for manufacturing, transporting, and selling drugs to be unreasonable, which forces them to continuously invoke Article 59 of the Criminal Code to exercise discretion and reduce sentences. Of course, one could argue that judges can lawfully apply discretionary sentence reductions on their own and therefore amendment is unnecessary; however, this blatantly subverts the role of Article 59 of the Criminal Code, which is intended to be applied as an exception. When the statutory penalty of a provision is so unreasonable that invoking Article 59 ("A punishment may be reduced at discretion if the circumstances of the commission of the offense are so pitiable that even the minimum punishment is considered too severe") shifts from an exception to the rule, does this not clearly highlight the unreasonableness of the relevant statutory provisions?

Furthermore, from the perspective of rational choice theory, unreasonable minimum statutory penalties also make it difficult to use sentencing distinctions to let perpetrators know which behaviors carry higher social culpability and should be avoided even more. Taking the crime of trafficking Category 1 drugs as an example, whether someone is involved in organized crime or merely makes a small-scale sale to friends and relatives, the statutory penalty is death or life imprisonment. Does such a legal provision instead imply to offenders that as long as they are suspected of trafficking, it will be at least life imprisonment anyway, so if they are going to do it, they might as well go all out?

Who Is Making Judges Look Like "Dinosaurs" (Out-of-Touch)?

The statutory penalties for transporting drugs in Taiwan are as stated above. However, using this provision to handle low-level individuals actually carrying drugs across borders in cross-border drug smuggling cases creates a problem of excessively harsh penalties. This is especially true for first-time offenders who receive minimal compensation and are exploited by cross-border drug syndicates. Some individuals do not even clearly understand what they are helping to carry, but simply went abroad because they were treated to a trip. Locking such a person in prison for such a long time serves no purpose other than ruining their life, nor does it accomplish anything in combating cross-border drug syndicates.

When a judge suspended the sentence of a person who carried amphetamines abroad in this manner, prosecutors leaked information to the media to lambast the judge. Two problems arise here: first, the unreasonable setting of statutory penalties puts judges in an untenable position; second, Taiwan has genuinely failed to properly discuss the diversity of behavioral types in drug supply crimes and the need for reasonable sentencing distinctions.

Ref: United Daily News, "Sympathetic Circumstances? Transporting 4 Kilos of Drugs Results in Probation; Prosecutors Slam Table in Anger."

Various offenses that appear distinct at first glance, yet carry drastically different penalties, are actually difficult to differentiate during trials

Taiwan's Narcotics Hazard Prevention Act separately stipulates the crimes of drug use, drug possession, possession of drugs with intent to sell, drug transfer, and drug trafficking, with varying degrees of severity. Taking Category 1 drugs as an example:

2. 
   Offense
   Penalty
   
   Drug Trafficking
   Death penalty or life imprisonment
   
   Possession of Drugs with Intent to Sell
   Life imprisonment or a determinate sentence of 10 years or more
   
   Drug Transfer
   Determinate sentence of not less than 1 year and not more than 7 years
   
   Drug Possession
   Determinate sentence of 3 years or less
   
   Drug Use (if assisting others in drug use, treated as an accessory)
   Determinate sentence of not less than 6 months and not more than 5 years
   
   
   
   These offenses appear clearly distinguishable at first glance, but in reality, they constitute a continuum of behaviors. Determining which specific offense should apply to these actions presents difficult judgment challenges.
   
   • I didn't sell drugs to someone else; a friend wanted to buy drugs, gave me the money first, and I just went to pick up the stash for him. ──Distinction between trafficking and assisting consumption?
   • Buying drugs in larger quantities is cheaper, so I rallied a group as a bulk-purchase organizer and bought them together with others, rather than selling drugs to anyone else. ──Distinction between trafficking and assisting consumption?
   • Buying drugs in larger quantities is cheaper, so I bought them upfront to consume slowly over time, not because I intended to sell them to others. ──Distinction between possession, possession with intent to sell, and attempted trafficking?
   • I bought the drugs for my own use, and only sold them to a friend at original purchase price/cost because they had a need. ──Distinction between transfer and trafficking?
   Currently, the evidence in legal practice that can relatively objectively prove the process is roughly wiretap transcripts. However, from wiretap transcripts, it is not easy to determine whether someone engaged in small-scale drug transactions is trafficking, transferring, or assisting consumption, because conversations in wiretap transcripts sometimes use code words or arrange meeting locations. Meanwhile, relying on witness statements frequently leads to contradictory testimonies.
   

How Exactly Should Drug Supply Offenses Be Amended?

As mentioned earlier, the direction should be toward lowering minimum statutory penalties while concurrently specifying which drug supply behaviors warrant higher penalties. As for what the specific statutory provisions should look like and how sentencing ranges should be structured, the recommended approach is as follows:

• Conduct comparative legal research: Understand the social conditions and crime control needs of comparative reference countries, as well as the controversies those laws face locally. Comparative law serves as a reference for discussion rather than direct adoption.
  
• Form a legal amendment discussion group composed of researchers and stakeholders to propose legislative recommendations.
  Researchers should categorize various behavioral patterns in Taiwan's domestic drug market, while judges, prosecutors, representatives of drug users, individuals with past involvement in the drug supply market, and human rights organization representatives should jointly discuss and confirm whether the elements of the offense and sentencing ranges are reasonable and whether application issues might arise. If guidance on better regulation is needed, comparative legal systems can be referenced. When referencing foreign systems, attention must also be paid to whether applying those systems in Taiwan would generate unexpected problems.
  
• Following legislative amendments, a rigorous policy outcome tracking and evaluation mechanism should be established. For example, what impact do lowered penalties have on crime rates and recidivism rates? Is there a need to adjust policies?
  

Perhaps driven by media pressure, the Judicial Reform National Consultative Conference hesitated to touch the issue of drug supply offenses out of concern that any changes would dampen anti-drug morale. Some committee members even stated that this proposal has nothing to do with the general public, and that amending it would leave the public indifferent. However, this article must point out that the JRF's Legal Aid Center frequently receives grievance cases concerning drug supply offenses, and a common problem among them is the confusion and unreasonableness in the application of various offenses and penalties. If we acknowledge that defendants also possess human rights, and that reasonable provisions of crimes and penalties are part of human rights, then we truly need to face this issue seriously.

Even if the Judicial Reform National Consultative Conference dares not touch this issue, I still earnestly hope everyone will carefully consider: Is the current design of drug supply offenses reasonable? Is a uniform heavy penalty truly effective? Just how heavy must a penalty be to be effective? Why does the practice of continuously escalating punishments—which increases the burden on the criminal justice system and ruins lives—continue to occur without rigorous evaluation of its effectiveness?

Regulation of the Drug Market: Is Legalization of Drug Supply Possible?

How drug policies can effectively intervene in the drug market is an important issue. Approaches generally fall into three major categories: total prohibition of the existence of a drug market, legal intervention to regulate the drug market, and non-regulation of the drug market altogether. Which approach is adopted depends on each country's assessment of health, human rights, and safety issues, and what approach is more conducive to protecting public health. The most common problem with total prohibition of the drug market is the emergence of a illicit drug black market. In situations where the government cannot eradicate the black market, it is mostly controlled by criminal organizations and constitutes a major source of economic revenue for them. Drug users essentially have to purchase drugs from the black market, where drug quality is likely to be adulterated with impurities, causing even greater harm to users' health. Conversely, completely unregulated drug markets would make the market highly commercialized, and merchants might use various methods to encourage drug use, which would also harm public health. Legal intervention to regulate the drug market is a novel attempt that may reduce the problems brought by the black market while avoiding the harms caused by excessive commercialization.

Legal intervention to regulate the drug market can be roughly divided into five basic models:

1. Medical Model: High-risk drugs and behaviors, such as injecting heroin or amphetamines, require a medical prescription and specific consumption venues.
2. Specialized Retail Pharmacies: Trained and licensed vendors may sell rationed controlled substances to registered users. Suitable for medium-risk drugs, such as powdered cocaine.
3. Licensed Retail: Applicable to low-risk drugs, such as cannabis.
4. Licensed Premises for Sale and Consumption: Similar to cannabis "coffee shops" in the Netherlands.
5. Unlicensed Sales: Applicable to the lowest-risk products, such as beverages containing caffeine. Additionally, good practices in tobacco and alcohol regulation can be referenced.

Understanding committee member Lin Wen-wei's proposal for the legalization of drugs (properly termed medicines) from this context reveals that the legalization of drug supply is essentially an acknowledgment of the limited state power that prevents the complete eradication of illicit drug black market transactions. How should we confront this reality? Whether or not to move toward the legalization of drug supply is open to further discussion, but what this proposal truly requires us to ponder is whether we can sincerely face the fact that state power is limited. Can we stop hypocritically pretending that as long as we maintain a forceful crackdown, the drug black market will gradually vanish, and the illicit acquisition of addictive drugs within our country's borders will henceforth be impossible?

Furthermore, this proposal highlights an issue that everyone is reluctant to face: Should we care about the physical harm that drug users may inflict upon themselves when acquiring drugs from the black market? The quality of black market drugs can be uneven, and substandard drugs harm users' physical health. Moreover, because black market drug quality varies, changing dealers while buying the same quantity of drugs could result in getting a much purer batch, leading to fatal overdoses. Of course, some argue that drug users choose to use drugs themselves and the public need not care about their health. However, research shows that drifting into addiction has multiple causes, part of which are social factors (neglect or abuse by family, alienation from schools and communities). Furthermore, I do not believe addiction has nothing to do with oneself or surrounding family and friends, because addiction involves not only the aforementioned social factors but also mental health factors. We truly do not know whether one day our family, friends, or even ourselves might come into contact with drugs due to mental health issues such as severe depression and fall into the abyss of addiction.

The legalization of drug supply is about addressing this underlying issue. To reiterate, whether legalization should be pursued and whether it is a good solution naturally requires thorough debate. However, slapping labels such as "Welcome drug people to immigrate to this ghost island" onto such discussions is truly regrettable and ignores the true core of the issue. It merely yields to the fear summoned by the name of drugs, hiding within the false safety net constructed by criminal penalties, ignoring the problem, and allowing it to spread further.