Amicus Curiae Brief to the Supreme Court Criminal Grand Chamber | Legal Issues Concerning Observation and Rehabilitation

1. Issue Presented The Observation-and-Rehabilitation Timing Approach or the Offense-Timing Approach?

   On September 18, 2020, the Supreme Court referred a conflict in legal interpretations concerning observation and rehabilitation under the Narcotics Hazard Prevention Act to the Criminal Grand Chamber. The dispute concerns Article 20, Paragraph 3: when the provision applies the preceding two paragraphs to a person who again commits an Article 10 drug-use offense more than three years after release upon completion of observation and rehabilitation or compulsory rehabilitation, what event determines whether the three-year requirement is satisfied? Is the period measured from completion of the previous observation and rehabilitation or compulsory rehabilitation (the "observation-and-rehabilitation timing approach"), or by reference to the most recent drug-use offense that resulted in prosecution, conviction, or execution of sentence (the "offense-timing approach")?

   For example, suppose a person used a Category 2 narcotic on December 1, 2010. Under Article 20, Paragraph 1, the prosecutor petitioned for observation and rehabilitation, and the person was released on April 1, 2011 after being found not to have a continuing tendency to use narcotics. The person then used a Category 2 narcotic again on February 1, 2012. Because this was not a first offense and occurred within three years after completion of the prior treatment, Article 23, Paragraph 2 applied: no new observation and rehabilitation was ordered, and the prosecutor instead sought a summary judgment, resulting in a sentence commutable to a fine. The person used a Category 2 narcotic again on July 1, 2014. That third use occurred more than three years after completion of the earlier observation and rehabilitation, but within three years of the preceding drug-use offense. Under the observation-and-rehabilitation timing approach, Article 20, Paragraph 3 would apply and the prosecutor should petition for observation and rehabilitation; under the offense-timing approach, the prosecutor could not do so.

2. Shift in Interpretation How Should "Reoffending After Three Years" Be Understood?

   The text of Article 20, Paragraph 3 starts from "release upon completion of observation and rehabilitation or compulsory rehabilitation." Read together with Article 23, Paragraph 2, the statutory structure appears straightforward: if a person commits another drug-use offense within three years after release, the case is prosecuted or set for trial under Article 23, Paragraph 2; if the person commits another drug-use offense after three years, the prosecutor petitions for observation and rehabilitation under Article 20, Paragraph 3. The interpretive dispute has instead centered on what "reoffending after three years" means. One view requires a three-year period without another drug-use offense-the offense-timing approach. Another asks only whether three years have elapsed since completion of observation and rehabilitation or compulsory rehabilitation-the observation-and-rehabilitation timing approach. A still harsher view, developed under the former five-year rule, held that once a person committed another drug-use offense within the statutory period and was prosecuted, the person permanently lost access to observation and rehabilitation for later drug-use offenses, even if those later offenses occurred more than five years after the original treatment (the "subsequent-offense disqualification approach"). This was the approach adopted in the Supreme Court's 7th Criminal Divisions Meeting Resolution of 2006 and 5th Criminal Divisions Meeting Resolution of 2008 and was followed in practice for many years.

   That changed after the amended Narcotics Hazard Prevention Act took effect on July 15, 2020. The Supreme Court moved away from the subsequent-offense disqualification approach. The First Criminal Division adopted the observation-and-rehabilitation timing approach in Judgment 109-Tai-Shang-3135, reasoning that the change to a three-year period reflected a shift toward a more lenient criminal policy and that an intervening drug-use offense should therefore not bar renewed access to observation and rehabilitation. Similar views appeared in the Second Division (109-Tai-Shang-3291), Third Division (109-Tai-Shang-3751), Fourth Division (109-Tai-Shang-1409), and Sixth Division (109-Tai-Shang-3522).

   The Seventh Criminal Division, by contrast, adopted the offense-timing approach. It pointed to the amendment's legislative explanation: where a person does not use Category 1 or Category 2 narcotics again until more than three years after release from observation and rehabilitation or compulsory rehabilitation, that interval may indicate a possibility of overcoming addiction, making renewed observation and rehabilitation for physical dependence and compulsory rehabilitation for psychological dependence appropriate. On this view, the amendment merely shortened the period in light of medical expertise and did not necessarily signal a broader shift toward leniency. Even the Seventh Division, however, did not return to the subsequent-offense disqualification approach. It considered it too harsh to deprive a person permanently of another opportunity for observation and rehabilitation merely because the person had used drugs again within three years after treatment, and therefore relaxed the older rule to the offense-timing approach.

   The scale of this interpretive change is striking because the statutory text barely changed. Apart from replacing "five years" with "three years" and making a minor wording change in the cross-reference to the preceding paragraphs, Article 20, Paragraph 3 remained substantially the same. Yet the amendment prompted a major shift in interpretation. More importantly, both the offense-timing approach and the observation-and-rehabilitation timing approach rely on the 2020 amendment as the basis for interpreting the same provision while reaching opposite results. Legal texts can support competing readings, but once the analysis is framed in policy terms, an understanding of the development of the treatment system and of addiction becomes indispensable to evaluating the relationship between criminal justice and people who use drugs and to selecting the better interpretation.

3. Legislative History Development of Taiwan's Treatment System for People Who Use Drugs

   Taiwan's current framework is commonly described as a dual-track system. The first track, created in 1998 under a policy of conditionally removing punishment without decriminalizing the conduct, treats people who use drugs as "patient-offenders" and uses observation and rehabilitation and compulsory rehabilitation (here, "institution-based treatment dispositions"). The second track, added in 2008, uses a disposition of deferred prosecution conditioned on completion of addiction treatment (here, "community-based treatment dispositions"). Under this dual-track structure, cases are divided into "first offenses or reoffending after three years" and "reoffending within three years." For the former, a prosecutor may petition for observation and rehabilitation under Article 20, Paragraph 1 or issue a disposition of deferred prosecution under Article 24, Paragraph 1. For the latter, a prosecutor cannot again petition for observation and rehabilitation, but may prosecute under Article 23, Paragraph 2 or issue a disposition of deferred prosecution under Article 24, Paragraph 1.

   This structure developed through several rounds of legislation. For institution-based treatment, when the Narcotics Hazard Prevention Act was enacted in 1998, the legislative explanation to Article 20 adopted a policy of removing punishment without decriminalizing the conduct and substituted rehabilitation-oriented measures for criminal punishment, with rehabilitation facilities attached to hospitals. In 2003, to avoid disputes over application of the law, the statutory trigger was changed from "after a disposition of non-prosecution or a ruling not to submit the case for trial" to "after release upon completion of observation and rehabilitation or compulsory rehabilitation." Rehabilitation facilities were also permitted to be established in hospitals or detention centers rather than being required to operate within hospitals. In 2009, Paragraph 4 was added to provide employment assistance after completion of treatment. In 2020, recognizing the difficulty of overcoming addiction, Paragraph 3 shortened the period from five years to three. For community-based treatment, the 2008 amendment added Article 24, allowing deferred prosecution conditioned on addiction treatment as an alternative form of intervention; Category 2 narcotics were brought within its scope in 2013. Although the 2020 amendment left the effective date of the revised Article 24 to be set separately by the Executive Yuan, the amended text also recognized differing forms of addiction and permitted conditions other than addiction treatment, allowing more diversified dispositions of deferred prosecution.

   In simplified terms, institution-based treatment emerged in 1998 as the drug-control system began to view people who use drugs not only as offenders but also as patients. Community-based treatment followed in 2008, using diversion to reduce labeling and disruption of social ties and to allow people to remain in the community. The law later added employment support after release, shortened the relevant period from five years to three in recognition of the difficulty of overcoming addiction, and acknowledged that not every person who uses drugs is necessarily addicted by allowing a wider range of deferred-prosecution conditions. This brief account cannot capture the entire history, but it provides the institutional context needed for the discussion that follows.

4. Analytical Framework Starting from the Interaction Between Criminal Justice and People Who Use Drugs

   The interaction between criminal justice and people who use drugs is complex. Whether treatment should be provided, who should receive it, what form it should take, how success should be measured, and how drug use during or after treatment should be addressed are interrelated questions shaped by different understandings of addiction. Given the limited scope of this article and the issue before the Grand Chamber, the discussion below focuses on addiction knowledge and uses three questions-the legal treatment of renewed drug use, short-term custodial sentences, and the availability of less restrictive sentencing measures-to assess the policy direction of Taiwan's treatment system and, in that context, Article 20, Paragraph 3.

   • (1) Understanding Renewed Drug Use Through Harm Reduction

     Addiction and treatment are dynamic processes. A person may use a substance again during treatment; clinically, this may be described as relapse. Relapse can reflect many different circumstances, including a return to earlier social networks, an urgent need for assistance, high-risk situations, self-efficacy, coping skills, and the availability of community support. A person who had stopped using may also blame themself after a relapse and enter a cycle of repeated use driven by negative emotions. Relapse is therefore a difficult but important moment in treatment and is often understood as part of the treatment process itself. Criminal law, however, tends to translate "using again" into "reoffending." How the justice system responds depends on what it means to overcome addiction and to recover. From a harm-reduction perspective, improvement does not necessarily require total abstinence. Reducing the frequency of use-for example, from once every three days to once a week-while gradually restoring daily routines, understanding the relationship between the person and the substance, and reducing harm may itself represent progress. Recovery is centered on reducing the disruption that substance use causes to health and daily life and improving quality of life. On that understanding, criminal justice should accept relapse as part of treatment and separate renewed use from criminal recidivism as far as possible. Taiwan's system already reflects this principle to some extent. Unlike Article 20, Paragraph 3, Article 24, Paragraph 1 places no comparable time limit on a prosecutor's authority to grant deferred prosecution. And renewed drug use during a deferred-prosecution period does not automatically require revocation under Article 253-3 of the Code of Criminal Procedure and Article 12, Paragraph 4 of the applicable addiction-treatment rules. If Article 20, Paragraph 3 is interpreted consistently with that approach, a drug-use offense prosecuted, sentenced, or executed within three years after completion of observation and rehabilitation or compulsory rehabilitation should not, by itself, bar renewed access to observation and rehabilitation once more than three years have elapsed since release.

   • (2) Reducing the Use of Short-Term Custodial Sentences

     Under the older Supreme Court resolutions, Article 20, Paragraph 3 was interpreted narrowly: anyone who used drugs again within the relevant period after completing observation and rehabilitation or compulsory rehabilitation could not receive observation and rehabilitation again. If the prosecutor did not grant deferred prosecution, the case proceeded to court. Many defendants then failed to qualify for probation or noncustodial alternatives, or were not given another opportunity by the sentencing judge, and were sent to prison. Of the 250,656 people whose drug-use convictions became final between 2006 and 2015, only 29,322 (11.7%) avoided imprisonment through a fine in lieu of imprisonment, community service, or probation; 221,334 (88.3%) entered prison, including 84,471 who received short-term custodial sentences of six months or less. Criminology and criminal-policy scholarship has long criticized short custodial sentences as having little rehabilitative effect, exposing people to harmful influences in prison, and making reintegration harder through criminal labeling. Their use should therefore be minimized.

     Particular caution is warranted when imposing short-term custodial sentences for drug use. A high proportion of people who use drugs meet criteria for substance use disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), or have co-occurring mental-health conditions. Imprisonment may stop drug use temporarily through physical separation, but it does not address the causes of substance use and may even expose people to other channels for obtaining drugs in prison. The stigma of incarceration can further worsen already difficult circumstances. In addition, without adequate drug-safety education, people released from prison may fail to account for reduced tolerance and dosage, increasing the risk of fatal overdose. From this perspective, the system should expand responses other than short-term incarceration and give prosecutors meaningful opportunities to use treatment-based dispositions for people with addiction-for example, by making more effective use of deferred prosecution. As one form of treatment disposition, observation and rehabilitation should, as a matter of institutional design, take priority over short-term incarceration. That consideration supports the observation-and-rehabilitation timing approach. This conclusion, however, rests on how the treatment system should be structured; it is not an endorsement of the way observation and rehabilitation currently operates in practice.

   • (3) Preserving Access to Less Restrictive Sentencing Measures

     Drug use is not only a matter of addiction; it is embedded in social networks. People who use drugs may share substances to avoid contact with violent dealers or the risk of arrest, or simply because members of the same network all use drugs. A person may therefore be both a user and a supplier, sometimes without profit or for only a small fee. Criminal law, however, can treat these intertwined behaviors as drug trafficking. Under Taiwan's policy of severe punishment for trafficking, even very small profits can trigger severe penalties. For trafficking in Category 2 narcotics, the minimum statutory sentence is ten years. Even where a defendant confesses and receives a reduction under Article 17, Paragraph 2 of the Narcotics Hazard Prevention Act, or obtains a reduction for mitigating circumstances under Article 59 of the Criminal Code, probation or other noncustodial outcomes may still depend on surrender under Article 62 of the Criminal Code or on identifying upstream suppliers leading to an arrest under Article 17, Paragraph 1 of the Narcotics Hazard Prevention Act. Article 74, Paragraph 1 of the Criminal Code further limits probation based on prior sentences for intentional offenses. A custodial sentence for a drug-use offense can therefore make probation unavailable for later offenses during the relevant period, even for comparatively minor conduct-including small-scale sharing within a drug-use network. By contrast, under Article 23, Paragraph 1 of the Narcotics Hazard Prevention Act, completion of observation and rehabilitation or compulsory rehabilitation results in a disposition of non-prosecution rather than a criminal sentence. Interpreting Article 20, Paragraph 3 under the observation-and-rehabilitation timing approach would allow more people charged with drug use to receive treatment and then non-prosecution, reducing the collateral effects of a short custodial sentence, preserving access to less restrictive sentencing options for later minor offenses, avoiding an additional criminal record, and better supporting reintegration.

5. Conclusion An Opportunity to Rethink Institution-Based Treatment

   Observation and rehabilitation and compulsory rehabilitation receive far less attention than deferred prosecution. The Supreme Court's referral of this interpretive conflict to the Criminal Grand Chamber therefore provides an opportunity to reconsider institution-based treatment. Following a policy-oriented approach and focusing on the interaction between criminal justice and people who use drugs, the analysis above supports the observation-and-rehabilitation timing approach. If renewed drug use is understood through harm reduction, short-term custodial sentences are minimized, and access to less restrictive sentencing measures is preserved, Article 20, Paragraph 3 should require only that the current drug-use offense occur more than three years after release from the most recent observation and rehabilitation or compulsory rehabilitation. Intervening drug-use offenses should not change that result.

   That does not mean the current observation-and-rehabilitation and compulsory-rehabilitation procedures are satisfactory. Institution-based treatment still requires substantial reform. The 2003 amendment allowing rehabilitation facilities to be established in hospitals or detention centers, rather than requiring them to be located in hospitals, was already a significant retreat from the original legislative design. In practice, the system closely resembles custodial management. There are too few full-time psychologists and social workers to provide adequate treatment resources, and the system continues to carry considerable stigma. Observation and rehabilitation also interrupts a person's existing life for up to two months, and compulsory rehabilitation for a person found to have a continuing tendency to use drugs restricts liberty for an even longer period-between six months and one year. Compared with a sentence that can be converted to a noncustodial alternative, or with a court setting a single aggregate sentence for multiple drug-use offenses committed within the relevant period, institution-based treatment does not necessarily result in a shorter deprivation of liberty. That helps explain why some people who use drugs would rather be prosecuted for the drug-use offense.

   None of these problems will disappear because of the Grand Chamber's interpretation. Taiwan must continue improving the treatment of people who use drugs, pay closer attention to the interaction between criminal justice and substance use, and reduce the adverse effects of the justice system on people who use substances. It is also important to anticipate the practical consequences of the interpretive choice. New admissions for observation and rehabilitation fell from 9,501 in 2009 to 3,786 in 2019, reflecting a long-term decline. If the courts definitively adopt the observation-and-rehabilitation timing approach, more cases will enter the institution-based treatment system. Relevant agencies should prepare early by improving the quality of institution-based treatment and making fuller use of community-based treatment, so that the rights of people receiving treatment are not compromised.

※ JRF submitted this amicus curiae brief to the Supreme Court on October 25, 2020. For readability, the author has adjusted some wording without changing the substance of the original brief.