Statement | Letting the Constitution Catch Defendants in Drug Cases Where the "Punishment Outweighs the Offense" – Constitutional Litigation Guidelines and Template Petitions Released

For a long time, Article 4, Paragraph 1 of the Narcotics Hazard Prevention Act (offense of manufacturing, selling, or transporting Category 1 narcotics)—which carries a statutory penalty of only the death penalty or life imprisonment—has been questioned by scholars and the legal community. On December 23, 2021, the Constitutional Court accepted this unconstitutionality controversy, and has since consolidated 43 cases, finally providing an opportunity to review the aforementioned unreasonable provisions.

Regarding the aforementioned penal provisions, the Judicial Reform Foundation believes that there is a high probability that they violate the International Covenant on Civil and Political Rights, the "principle of proportionality between crime and punishment," and the "proportionality principle," thereby rendering them unconstitutional. To assist the public in protecting their reasonable constitutional rights, we are hereby publicly releasing constitutional litigation guidelines and template petitions for free use by individuals intending to file an application (please refer to the explanations and template petitions in the attachment), and remind the public who received relevant judgments before January 4, 2022, that they must file by July 4, 2022.

1. The statutory penalty for the "offense of manufacturing, selling, or transporting Category 1 narcotics" is excessively severe, violating the principle of proportionality between crime and punishment and the proportionality principle

   Our Foundation's assertion that the "offense of manufacturing, selling, or transporting Category 1 narcotics" is unconstitutional does not mean that these acts should go unpunished, but rather that because the penalties are excessively severe, a large number of individual case injustices have occurred in judicial practice.

   Article 4, Paragraph 1 of the Narcotics Hazard Prevention Act stipulates: "Those who manufacture, transport, or sell Category 1 narcotics shall be sentenced to death or life imprisonment; those sentenced to life imprisonment may be concurrently sentenced to a fine of up to New Taiwan Dollars 30 million." When most people see such severe penalties, they likely assume that the targets of punishment are major drug lords or drug trafficking syndicates that pose a significant threat to social order. In reality, however, small-scale, sporadic sales with minimal profit also fall under this provision. Regardless of the severity of the circumstances, as long as the law is broken, the minimum statutory penalty faced is "life imprisonment." In practice, courts in many cases determine that the statutory penalty is excessively harsh and mitigate the sentence by one degree, yet the sentence still starts at 15 years, leaving judges deeply helpless.

   Below are actual cases illustrating the excessive severity of sentencing in individual cases (more cases can be found among those already accepted by the Constitutional Court):

   Case 1

   A sold 1 packet of heroin (net weight 0.073 grams) to Lin for NT$800; a few days later, A sold another packet of heroin (net weight 0.023 grams) to Hsu for NT$1,000. The aforementioned acts were acquitted by the court of first instance; however, upon appeal, the second instance court convicted A of the offense of selling Category 1 narcotics, modifying the sentence to 18 years of imprisonment; the case became final after the Supreme Court dismissed the appeal.

   Case 2

   B sold 1 packet of the narcotic heroin (gross weight approx. 0.2 grams) to Lin for NT$1,000, completing the transaction. The aforementioned act was sentenced to 7 months of imprisonment by the court of first instance for the offense of transferring restricted medicine (acquitted of the charge of selling Category 1 narcotics); however, upon appeal, the second instance court convicted B of the offense of selling Category 1 narcotics. The case was remanded by the Supreme Court, retried, and ultimately finalized upon the Supreme Court's dismissal of the appeal, resulting in a sentence of 15 years and 1 month of imprisonment.

   Case 3

   C purchased cocaine from abroad via the dark web and was intercepted by our nation's customs during transport (net weight 3.0903 grams). Police officers subsequently posed as postal workers to investigate and arrested C (C denied the crime and did not state whether the motive was for profit or personal use). C was subsequently convicted of the offense of transporting Category 1 narcotics by the court of first instance, and sentenced to 15 years and 6 months of imprisonment; the second instance court also dismissed C's appeal.

   Comparing this with other provisions of the Criminal Code reveals an even more absurd phenomenon: the punishment received for selling drugs to a buyer is, in principle, harsher than the crime of murder. Furthermore, the punishment for drug trafficking, regardless of the severity of the circumstances, carries a statutory penalty heavier than that for criminals who hijack trains or airplanes, or those who poison beverages in convenience stores resulting in the death of others. Placed in comparison, this further highlights the unreasonableness of the penalty provisions in the Narcotics Hazard Prevention Act.

2. If it is unconstitutional, what will happen?

   If the Justices, after deliberation, deem that the "offense of manufacturing, selling, or transporting Category 1 narcotics" is indeed unconstitutional, it does not mean these acts will go unpunished; rather, it will require legislators to review "how to appropriately punish them."

   To elaborate further, nuanced distinctions may need to be made based on the offender's motive, the quantity of narcotics, the amount of profit gained, the organizational structure, and the division of labor between upstream and downstream participants, rather than using "life imprisonment" as the baseline penalty regardless of the severity of the circumstances. For example, regarding drug trafficking, the United Kingdom adopted the "Drug Offences Definitive Guideline" in 2012, which, in addition to considering the type of narcotics, differentiates the seller's role as playing a leading, significant, or lesser role to administer varying degrees of punishment.

   However, our nation's drug control policy has consistently stemmed from a single, flat imagination, centering on harsh punishments and becoming increasingly punitive without ever establishing meticulous regulations. The new Narcotics Hazard Prevention Act, which took effect on July 15, 2020, even raised the minimum statutory penalty for manufacturing, transporting, and selling Category 2 narcotics from 7 years to 10 years of imprisonment. Such harsh legislation will inevitably lead to the continuous occurrence of various cases where the punishment outweighs the offense. In this regard, legislators bear the unshirkable responsibility to rethink "how to appropriately punish."

3. Affirming the Agency of Corrections' attention to the rights of inmates, and looking forward to reviews and debates on drug control policy from all sectors

   Because inmates currently serving sentences in correctional institutions find it relatively difficult to obtain relevant information, our Foundation wrote a letter to the Agency of Corrections on May 27 of this year, requesting that relevant rights information be publicized to inmates. Upholding the stance of protecting the lawful rights and interests of inmates, the Agency of Corrections promptly issued an announcement. In this regard, our Foundation affirms the Agency of Corrections and relevant correctional institutions for their emphasis on inmate rights, and looks forward to more in-depth reviews and debates on drug control policy in future Constitutional Court proceedings and the Legislative Yuan.

In the past, the Judicial Reform Foundation has assisted in filing for constitutional interpretation regarding cases where citizens appealed against heavy sentences for micro-scale drug trafficking. To help more citizens in similar situations protect their rights and receive fairer treatment in sentencing, we have revised and publicly released the template petitions for all sectors to reference or use free of charge for public interest purposes. Citizens intending to apply are requested to review the attached instructions (including the requirements for filing and applicable circumstances) and submit them accordingly. Additionally, among the related cases already accepted by the Constitutional Court, publicly available petitions can also be queried and referenced.

Due to the launch of the new constitutional litigation system this year, the public must pay attention to the new regulations regarding the application period (this applies to other cases as well). Citizens who received a final and conclusive judgment on or before January 4 of this year must file by July 4 of this year; if the judgment was received thereafter, it must still be filed within 6 months from the date of service.

Attachments

1. Explanation of Article 4, Paragraph 1 of the Narcotics Hazard Prevention Act and Related Unconstitutionality Controversies
2. Application for Legal Norm Constitutional Review (Article 4, Paragraph 1 of the Narcotics Hazard Prevention Act) PDF  Word
3. Application for Legal Norm Constitutional Review (Article 4, Paragraph 2 of the Narcotics Hazard Prevention Act) PDF  Word
4. Application for Legal Norm Constitutional Review (Article 5, Paragraph 1 of the Narcotics Hazard Prevention Act) PDF  Word