Amendments to the Narcotics Hazard Prevention Act Lacking Legislative Theory and Empirical Basis

The Executive Yuan submitted the amendment draft to partial provisions of the Narcotics Hazard Prevention Act to the Legislative Yuan for review in 2017. Among them, numerous provisions expanding or increasing penalties were passed in third reading today. Throughout the legislative discussions, there were many debates surrounding the necessity of expanding or increasing penalties; however, amid a public atmosphere demanding severe punishments, it has been difficult to directly challenge this presupposition. Under this climate, some provisions passed in the third reading thus exhibit problems of expanding or increasing penalties in the absence of both legislative theory and empirical foundations, as explained below.

Difficulties in Dichotomizing Use and Distribution: The Problem of Polarized Criminal Policy

From the amendment direction of partial provisions of the Narcotics Hazard Prevention Act this time, it can be observed that Taiwan's narcotics criminal policy is moving toward polarized treatments: providing treatment opportunities for users while imposing severe punishments on suppliers.

Providing treatment opportunities for users can be seen from the amendment to Article 24 of the Narcotics Hazard Prevention Act. This article amends the suspension of prosecution conditional upon the completion of drug addiction treatment for drug offenses to suspension of prosecution paired with diverse treatments, and requires prosecutors to consult medical institutions before granting a suspension of prosecution, and when necessary, to also consult other relevant agencies (institutions). This improves the past problem where suspension of prosecution conditional upon completing addiction treatment was criticized as failing to meet individual case treatment needs. In addition, this article also acknowledges the characteristic of addiction as a chronic disease and relapse as a normal process of recovery. Even if the suspension of prosecution is revoked, one is not restricted to choosing prosecution; instead, investigation may continue, and depending on the circumstances, observation-detention and compulsory rehabilitation systems may be utilized, or suspension of prosecution dispositions with different conditions or time limits may be made.

The tendency to impose severe punishments on suppliers can be seen from the amendment to Article 4 of the Narcotics Hazard Prevention Act, which raises the minimum statutory penalty for the crime of trafficking Category 2 narcotics from seven years to ten years; as well as the amendment to Article 9, which newly adds that penalties shall be increased by up to one-half for adults trafficking narcotics to minors, trafficking narcotics to a person known to be a pregnant woman, transferring, inducing others to use, manufacturing, transporting, trafficking, possessing with intent to traffic, or causing someone to use mixtures of two or more narcotics by means of violence, coercion, deception, or other illegal methods, and so forth. Raising the minimum statutory penalty for trafficking Category 2 narcotics from seven to ten years is already equivalent to the minimum statutory penalty for murder. Furthermore, many of those offenses whose penalties are increased by up to one-half are already very heavy in their original penalties; for example, the statutory penalty for manufacturing, transporting, or trafficking Category 1 narcotics is inherently the death penalty and life imprisonment; for causing someone to use Category 1 narcotics by means of violence, coercion, deception, or other illegal methods, the statutory penalty is the death penalty, life imprisonment, or imprisonment for not less than ten years.

The seemingly clear dichotomous logic of "providing treatment opportunities for users and imposing severe punishments on suppliers" encounters difficulties when confronting real drug use contexts. One of the gray areas existing in reality is user-dealers involved in small-scale transactions due to drug addiction. For user-dealers involved in small-scale transactions, the primary reason for trading is to support their own drug use. The objects of transactions for some individuals are often other friends who use drugs. Sometimes, because buying a bit more at once is cheaper, when friends come asking, they sell some to friends. It is also possible that after using up their own, they temporarily obtain some from a friend and pay for it. Such reciprocal interpersonal networks are actually a part of the daily lives of some drug users.

This is very different from the traditional imagination of super-profits and syndicate-style drug trafficking. To prompt these individuals to leave the drug exchange network, relying on severe punishments cannot truly achieve this goal; what the government should do is assist drug addicts in resolving their addiction problems. In addition to leading to the long-term isolation of drug addicts from society and the loss of employment, what is worse is that drug addicts can establish more illegal drug interpersonal networks within prisons, thereby causing even more circulation and harm of narcotics.

Currently, government policy values providing drug users with opportunities for treatment, which is commendable. However, considering the complexity of the supplier profile, a reasonable approach in narcotics criminal policy would rather be to expand judges' room for sentencing based on individual case circumstances. International narcotics policy research suggests that, on the one hand, severe punishments should be imposed on those whose crimes are driven by high profits, who involve minors, or who are implicated in organized crime, violent activities, corruption and bribery, or money laundering; whereas on the other hand, those involved in narcotics supply-related crimes due to addiction should also gain treatment opportunities, and minor offenders, such as small-scale exchanges/transactions among relatives and friends, could even utilize criminal diversion measures to provide treatment in lieu of punishment.

"Large-scale Possession" Threshold Lacks Basis, and Improper Legislative Model Risks Prolonging Problems

This legislative amendment has another major controversy, which is that Article 11 of the Narcotics Hazard Prevention Act lowers the threshold for large-scale possession of Category 3 and Category 4 narcotics from 20 grams in pure net weight to 5 grams. The reason given is that currently Category 3 and Category 4 narcotics on the market mostly exist in the form of low-purity narcotics mixed and disguised with other substances, such as coffee packets or candy packets; one might need to possess nearly a hundred packets of drug coffee or candy packets to reach a pure net weight of 20 grams. Enacting provisions in the law to increase penalties for possessing narcotics exceeding a certain quantity was originally based on the legislator's view that the intent to traffic in the crime of possession with intent to traffic is difficult to prove, and therefore explicitly stipulating that large-scale possession should be subject to increased penalties. Behind this is the intent to deter large-scale possession for supply purposes; hence, possession of narcotics for personal use should naturally be avoided from being penalized with increased punishments. However, trends in international narcotics policy research do not recommend explicitly stipulating in law what quantity of narcotics constitutes "large-scale possession" to increase penalties. The fundamental reason is that it is impossible to establish a reasonable standard for possession quantities; personal narcotics possession quantities vary due to factors such as type, form, method of consumption, degree of addiction, and regional customs of trading patterns, and a high degree of discretionary space exists in individual cases. Moreover, although Taiwan's narcotics legislative model divides narcotics into Categories 1 to 4, there are numerous different types of psychotropic substances within each category. It is hardly imaginable upon what basis the standards for large-scale possession of different categories of narcotics were established. Furthermore, Taiwan also lacks empirical research on community drug use patterns, and the standard for large-scale possession of narcotics has degenerated into wet market bargaining, completely lacking any basis.

After the Executive Yuan version of the bill lowered the standard for large-scale possession of Category 3 and Category 4 narcotics to a pure net weight of 5 grams, legislators proposed during the third reading process that possessing a pure net weight of 5 grams of Category 3 and Category 4 narcotics should incur increased penalties, whereas possessing a pure net weight exceeding 10 grams for Category 1 narcotics and exceeding 20 grams for Category 2 narcotics should be required for increased penalties, demanding the lowering of the thresholds for large-scale possession of Category 1 and Category 2 narcotics to maintain proportionality. In addition, citing zero tolerance for narcotics, some legislators also demanded that the threshold for large-scale possession of Category 3 and Category 4 narcotics be further lowered to a pure net weight of 1 gram before penalties should be increased. It can be foreseen that in the future Legislative Yuan, someone will inevitably hold high the banner of zero tolerance for narcotics, and in the absence of empirical research, advocate lowering the standard deemed as large-scale possession to deter the circulation risks of narcotics across all categories, or change pure net weight to net weight, thereby engendering endless legislative problems.

Increasing Penalties Lacks Empirical Evidence, Narcotics Policy Conceals Hidden Worries

Finally, during the discussion process of this legislative amendment, we continually encountered a severe flaw in Taiwan's narcotics criminal policy, which is the problem of lacking rigorous empirical research. Debates during legal amendments often involve the understanding of specific social problems and their causes, as well as the judgment of social effects produced by specific policies. These should actually not merely be personal experiences or subjective speculations, but ought to be based on systematic and reliable empirical research.

The problem of lacking rigorous empirical research appears not only in the aforementioned determination of the threshold for large-scale possession of narcotics, but also in the enhancement of penalties for narcotics supply offenses. For example, Taiwan previously raised the statutory penalties for manufacturing, transporting, and trafficking Category 3 and Category 4 narcotics in 2015. At that time, the penalty for manufacturing, transporting, and trafficking Category 3 narcotics was raised from imprisonment for not less than five years to imprisonment for not less than seven years; the penalty for manufacturing, transporting, and trafficking Category 4 narcotics was raised from imprisonment for not less than three years and up to ten years, to imprisonment for not less than five years and up to twelve years. The legislative reason was: Category 3 and Category 4 narcotics show a trend of increasing prevalence; to deter manufacturing, transportation, and trafficking, their penalties were thus increased. Since the legal amendment, there has been no rigorous empirical research that can tell the citizens what social effects simply increasing penalties actually produce? Has it truly deterred the circulation of Category 3 and Category 4 narcotics? Or is the effectiveness of deterring circulation lackluster, requiring reliance on other approaches? How much social cost has the approach of raising minimum statutory penalties actually added? And what are the concrete benefits gained?

This legislative amendment continues to use the same reasoning, raising penalties on the grounds that Category 2 narcotics show a trend of increasing prevalence in order to deter manufacturing, transportation, and trafficking. If Categories 1, 2, 3, and 4 narcotics continue to be prevalent in the future, will penalties continue to be raised then? In fact, punishment and criminological research show that increasing penalties suffers from the problem of diminishing marginal deterrence; heavier and heavier penalties do not become increasingly effective, but rather prove increasingly less effective.

If Taiwan cannot transform "severe punishment deterring crime" from a taken-for-granted belief into a hypothesis that must be tested, it may fall into a cycle where continued prevalence of narcotics leads to continuous legislative increases of penalties. To what extent this can truly improve the narcotics problem remains deeply questionable.