Using the Constitutional Interpretation on the Cultivation of Cannabis as an Opportunity to Review Drug Policies

Grand Justices Interpretation No. 790 was handed down on the afternoon of March 20, ruling the "crime of cultivating cannabis" to be partially unconstitutional and partially constitutional. This interpretation has a significant impact on the development of drug legislation and warrants careful examination.

Why Did This Constitutional Interpretation Case Arise?

The origin of this petition for constitutional interpretation stems from an issue that has plagued practical workers for a long time. According to Article 12, Paragraph 2 of the Narcotics Hazard Prevention Act, the crime of cultivating cannabis with the intent to manufacture narcotics carries a minimum statutory sentence of five years' imprisonment. According to Article 4, Paragraph 2 of the Narcotics Hazard Prevention Act, the manufacture, transportation, or sale of cannabis (a Category 2 narcotic) carried a minimum statutory sentence of seven years' imprisonment prior to 2020. While both offenses allow for sentence reduction under Article 59 of the Criminal Code when the circumstances of the crime clearly evoke sympathy, only the latter allows for sentence reduction based on a confession pursuant to Article 17, Paragraph 2 of the Narcotics Hazard Prevention Act; the former does not. Consequently, in practice, if a defendant is charged with the crime of cultivating cannabis, the court can at most reduce the sentence to one-half of the minimum statutory sentence pursuant to Article 59 of the Criminal Code—which is two years and six months—making it ineligible for commutation to a fine or probation. Conversely, if a defendant is charged with the crime of manufacturing cannabis (the crime of manufacturing a Category 2 narcotic), they have the opportunity to obtain probation through a confession and sentence reduction under Article 59 of the Criminal Code for extenuating circumstances (reducing the minimum statutory sentence to one-half, and then further reducing it by one-half, potentially down to one year and nine months. According to Article 74 of the Criminal Code, the condition for pronouncing probation is a sentence of imprisonment of two years or less).

According to practical jurisprudence, the crime of cultivating cannabis is consummated as soon as the cannabis sprouts seedlings, and pruning leaves marks the consummation of the crime of manufacturing cannabis. In other words, if a defendant plants one or two cannabis plants for personal use, upon germination they will face a minimum sentence of two years and six months. However, if the cannabis continues to grow and they begin pruning the leaves, they actually gain an opportunity for probation.

Because of the aforementioned circumstances, in our experience as attorneys handling cases, we have previously argued during the transitional phase between these two points that the acts simultaneously constitute consummated cannabis cultivation and attempted cannabis manufacture, asserting that the latter should apply to allow for a confession-based sentence reduction. We have also argued that the failure of Article 17 to include the crime of cultivating cannabis in the sentence reduction provisions constituted a legislative omission and a violation of the principle of equality, warranting mutatis mutandis application. However, these arguments were all rejected by judges. The line of reasoning in this petition for constitutional interpretation resembles attorneys' case-handling approaches, focusing on whether the exclusion of the crime of cultivating cannabis from confession-based sentence reductions violates the principle of equality.

The Grand Justices' Interpretation: The Penalty for Cultivating Cannabis is Too Severe and Inconsistent with the Principle of Proportionality Between Crime and Punishment

However, the Grand Justices' interpretation did not hold that the exclusion of the crime of cultivating cannabis from the scope of confession-based sentence reductions under Article 17, Paragraph 2 of the Narcotics Hazard Prevention Act is unconstitutional. The Grand Justices' reasoning for not declaring it unconstitutional was that the legislative purpose of Article 17, Paragraph 2 of the Narcotics Hazard Prevention Act is to expedite the finalization of criminal proceedings. Compared to the scope of confession-based sentence reductions under Article 17, Paragraph 2—namely, serious crimes such as the manufacture, transportation, and sale of narcotics, as well as relatively minor offenses such as the transfer of narcotics under Articles 4 through 8 of the Narcotics Hazard Prevention Act—the collection of evidence and determination of criminal facts for cultivating cannabis with the intent to manufacture narcotics are relatively straightforward. The legislature made differential treatments based on criminal policy, which is not particularly unreasonable.

Nevertheless, based on practical experience, the courts' evidentiary burden in establishing the crime of cultivating cannabis with the intent to manufacture narcotics is no easier than for other offenses listed as subjects for sentence reduction under Article 17. Even if potted cannabis plants are seized from a residence, it cannot necessarily be determined who cultivated them. Furthermore, proving the intent to manufacture narcotics requires finding drying equipment, lighting equipment, potting soil, or fertilizer. After all, motives for cultivating cannabis vary widely: some plant it for ornamental purposes, some as salad greens, some for religious reasons, or for academic research. Manufacturing narcotics is not the sole purpose, and the costs of investigation and trial are no lower. The Grand Justices' deduction remains open to debate. Compared to the crime of cultivating cannabis, which has the nature of an inchoate offense, the crime of manufacturing cannabis carries a higher degree of culpability, yet it is eligible for sentence reduction. It is a great pity that the Grand Justices glossed over this point, responding merely with a choice of criminal policy.

Although the Grand Justices did not adopt the view that the inability to apply confession-based sentence reductions to the crime of cultivating cannabis violates the principle of equality, they directly pointed out that the penalty for cultivating cannabis is excessively heavy and inconsistent with the principle of proportionality between crime and punishment, declaring this article unconstitutional for violating the principle of proportionality under Article 23 of the Constitution. This hits the core of practical issues because the real reason courts exhaust all means to reduce sentences is that the minimum statutory penalties in certain provisions of the Narcotics Hazard Prevention Act are excessively severe, lacking reasonable room for sentencing discretion. While I was browsing my phone at the New Taipei District Court waiting for the constitutional interpretation result to come out, anxiously refreshing the Grand Justices' website page, I recalled the cases I was handling—whether a defendant grew one, three, or five cannabis seedlings, regardless of whether the motive for cultivation was to relieve anxiety for personal use or simply out of curiosity, and without regard to the scale or whether there was commercial activity, the sentences all fell between two years and six months and two years and eight months, mandating imprisonment with no room for negotiation.

To me, labeling individuals whose criminal circumstances are minor and sending them to prison destroys existing social bonds, which is equivalent to the state manufacturing the next generation of crime. At the same time, we must note that such circumstances do not only appear in the crime of cultivating cannabis, but also in the crime of trafficking narcotics. If we can imagine the existence of drug lords, we can certainly also cite various cases where the punishment is disproportionately heavy relative to the minor nature of the offense, whether it be a group-buying organizer who pooled money to purchase cannabis and collected funds, a host who split expenses with participants after a drug party, or a fellow enthusiast who simply handed a friend one gram of cannabis and accepted a small errand fee. Even more worrisome is that following the passage of the new law in 2020, the probability of these individuals being charged with drug trafficking and sent to prison has increased dramatically. This is because the new law raised the minimum statutory sentence for manufacturing, transporting, or selling Category 2 narcotics from seven years to over ten years of imprisonment. Unless they meet the criteria under Article 17, Paragraph 1 (disclosing the source of the narcotics and leading to the apprehension of the principal offender or accomplices), Paragraph 2 (confession), or Article 59 of the Criminal Code (extenuating circumstances), it is difficult to contend for probation. Lacking mitigating clauses for minor circumstances, more stories of individuals trapped in prison despite minor circumstances will continue to unfold.

Let the Constitutional Interpretation on the Cultivation of Cannabis Be an Opportunity to Review Drug Policies

The important reminder of Interpretation No. 790 is that using sentence reduction provisions to alleviate the excessively harsh penalties in drug legislation is ultimately not a fundamental solution, as different sentence reduction provisions have their own legislative purposes and limitations. We must expend more effort addressing the internal issues of proportionality between crime and punishment for various offenses under the Narcotics Hazard Prevention Act, as well as the external conflicts of equivalence in punishment among different crimes, so as not to stray too far from reasonable drug legislation. Under the impetus of this constitutional interpretation case, how various factions will propose drafts for amending the crime of cultivating cannabis, whether they will simultaneously address drug legislation that heavily penalizes offenses while lacking mitigating clauses for minor circumstances, and how they will petition for constitutional interpretation regarding the continuously escalating severe penalties for various offenses under the Narcotics Hazard Prevention Act will be key to the future development of drug legislation and are well worth continued attention.

※ This article was published in Up Media on Mar. 24, 2020