[NGO Statement] Drug Offenses Require Reasonable Sentencing Discretion

On November 11, the Legislative Yuan reviewed the Executive Yuan's draft amendments to the Narcotics Hazard Prevention Act. Civil society organizations disagree with the provisions that raise the minimum statutory penalties, as drug offenses should allow for reasonable sentencing discretion and the amendments ignore the chronic problem of prison overcrowding. Our appeals are as follows:

The patterns of trafficking Category 2 narcotics vary greatly; equating the sentencing range to that of homicide is unreasonable

Raising the minimum statutory penalty for trafficking Category 2 narcotics from seven to ten years (Article 4, Paragraph 2 of the Draft) actually impacts those whose circumstances are the least serious and most deserving of sympathy.
Regarding recommendations for aggravating or mitigating sentences, the following factors should be considered:

Mitigating Factors

Aggravating Factors

The offender comes from a vulnerable and impoverished socioeconomic community/environment, and imprisonment may make it harder for them to find employment later, plunging their children and family into hardship. The offender has caregiving responsibilities, particularly women caring for children or disabled elderly family members. The offense is not driven by high profits. No involvement in organized crime or violence.

The offense is driven by high profits. Involvement of minors. Involvement in violent activities, corruption, bribery, or money laundering. Involvement in organized crime.

Under the sentencing range stipulated in the draft, trafficking Category 2 narcotics is essentially equated with the crime of homicide (Article 271 of the Criminal Code: "A person who commits homicide shall be sentenced to death, life imprisonment, or imprisonment for not less than ten years"). This completely fails to reflect the diverse and varied concrete sentencing contexts, forcing judges in practice to frequently rely on Articles 57 and 59 of the Criminal Code to mitigate sentences. By ignoring the already unreasonable statutory sentencing discretion and further raising the minimum statutory penalties, this draft not only fails to achieve severe punishment for major drug lords, but instead forces the most minor offenders to spend longer periods in prison.

Furthermore, Article 9 of the draft proposes various amendments to expand and aggravate penalties by up to 50% for specific types of drug trafficking acts; however, the maximum statutory penalties under current law are essentially sufficient to impose severe punishments.

Patterns of drug possession vary; reasonable sentencing discretion is required

Article 11 of the current Narcotics Hazard Prevention Act provides for aggravating penalties for the possession of "large quantities" of drugs. The problem, however, is that what constitutes a "large quantity" is scientifically difficult to define. Depending on an individual case's degree of addiction, method of consumption, and the type and pattern of the drugs consumed, there may be considerable variations in quantity. Explicitly defining the possession of a specific gram weight of narcotics as a "large quantity" is legislation inherently prone to generating doubts.

Article 11 of this draft amendment lowers the threshold for criminal punishment for possessing Category 3 and Category 4 narcotics from a net weight of pure substance of 20 grams or more to 5 grams or more. It also changes "net weight of pure substance" to simply "net weight" for possessing 10 grams or more of "pure substance net weight" of Category 1 narcotics, and similarly for the possession of 20 grams or more of "pure substance net weight" of Category 2 narcotics under Paragraph 4. This results in a single law simultaneously harboring two different methods for calculating drug possession quantities, leading to a chaotic legislative style. Moreover, if mixed drugs are involved, how they should be calculated will create even greater difficulties in future practical application.

Additionally, the Judicial Yuan has responded to the Ministry of Justice's proposal by opposing this amendment, noting that it should avoid conflicting with the intent of Article 40 of the Convention on the Rights of the Child regarding the principle of judicial intervention as a measure of last resort.

The draft ignores the chronic problem of prison overcrowding

Finally, given that Taiwan's prisons are currently overcrowded, frontline guards are overworked, and correctional manpower is insufficient, sending more people to prison without adequate supporting measures will likely not solve social problems. Instead, it will increase the risk of minor offenders being exposed to criminal contamination and crowd out resources for the correctional treatment of serious offenders.
We call upon the Legislative Yuan to consider the basic legal principles of criminal policy, face squarely the dilemma of prison overcrowding and shortages in custodial and correctional personnel, approach the drug problem with a pragmatic attitude, and carefully review the drug-related draft amendments.

Issuing Organizations

Covenant Watch
Taiwan Association for Human Rights
Judicial Reform Foundation