Statement: Individual Cases of Heavy Penalties for Minor Offenses Remain Unresolved and Drug Control Policies Need Reform – Statement on the Constitutional Court’s Ruling on the "Case of Trafficking Category 1 Narcotics"

On August 11, 2023, the Constitutional Court rendered ROC Constitutional Court Judgment No. 13 of 2023 regarding the "Case of Trafficking Category 1 Narcotics," holding that the provisions mandating only the death penalty or life imprisonment for trafficking, manufacturing, or transporting Category 1 narcotics are unconstitutional to the extent that they are overly severe. The Justices found no constitutional doubts in other respects. In response to the public attention and legislative issues sparked by this ruling, our Foundation presents three appeals and issues the following statement:

1. In this instance, the Constitutional Court failed to appropriately establish objectively verifiable acceptance criteria for other pending cases involving the same legal issues, which warrants review. To fairly safeguard the rights of the people guaranteed by the Constitution, we urge the Constitutional Court to clarify its criteria for accepting constitutional litigation cases in the future.

2. Taking the opportunity of this constitutional ruling, we urge the Ministry of Justice to broadly reference foreign prevention measures and, at a time when heavy-penalization policies have encountered bottlenecks, comprehensively review our country's drug control policies.

3. This constitutional ruling addresses only a tiny fraction of "extremely minor" cases and objectively raises no concerns regarding "condoning" or "harboring" drugs. We urge public figures and the media to base their relevant commentaries on facts to minimize public misunderstanding and confusion, thereby facilitating rational discussion on the policies.
    

1. Accurately Understand the Intent of the Ruling and Avoid Misleading the Public

   According to the ruling of the Constitutional Court, the unconstitutional scope of the "crime of trafficking Category 1 narcotics" in this instance applies only to circumstances where the facts of the case are "extremely minor." For cases falling outside this category, original punishments and sentencing remain unaffected. Regarding the circumstances deemed "extremely minor" by this ruling, reference may be made to the following:

   Petitioner Category	Criminal Record	Circumstances of Trafficking Category 1 Narcotics	Quantity of Drugs Trafficked	Consideration (NTD)	Sentence (Imprisonment)
   Criminal Division 2, Tainan Branch, Taiwan High Court	Drug use	Trafficked 1 time personally	Unknown weight	NTD 800	16 years (First instance)
   Criminal Division 2, Taiwan High Court	Drug use	Lived depending on co-defendant, jointly trafficked with them	Unknown weight	NTD 1,000	7 years and 7 months (First instance)
   Criminal Division 2, Changhua District Court	Unknown	Trafficked 1 time alone	Unknown	Unknown	Suspended trial
   Petitioner 4	None	Answered phone calls for cohabiting boyfriend and successively trafficked 3 times under his instructions	Unknown weight	NTD 1,000 NTD 2,000	15 years and 3 months
   Petitioner 5	None	Jointly trafficked 1 time with older brother	0.45 grams	NTD 500	15 years and 2 months
   Petitioner 6	None	Answered phone calls for a friend and negotiated a transaction, trafficking 1 time	0.4 grams	NTD 1,500	15 years and 4 months
   Petitioner 7	None	Trafficked 1 time personally	Unknown weight	NTD 3,000	15 years and 2 months
   Petitioner 8	None	Successively trafficked to the same buyer 2 times on the same day	Unknown weight	NTD 500 NTD 1,200	15 years and 8 months

   From this, it can be observed that in situations lacking a criminal record, and where both the quantity trafficked and the consideration are minimal, constrained by the statutory penalty of a minimum of life imprisonment, petitioners were all sentenced by courts to fixed-term imprisonment of over 15 years in accordance with the law, even when courts applied sentence reductions. Comparing their criminal conduct and sentencing from legal and general societal perspectives, this indeed constitutes excessively severe punishment. In other words, the aforementioned cases are not "drug lords" as imagined by the general public; for "drug syndicates" or cases with non-minor circumstances, this ruling does not alter the standards of punishment and sentencing.

   In fact, this offense is the most heavily punished crime in our country; even the statutory penalties for crimes such as murder, kidnapping, or hijacking transportation vehicles are lighter than this offense. Within this scope, we believe that the conclusion of the Constitutional Court's ruling is appropriate, and there is absolutely no element in its content or conclusion that encourages drug trafficking.

   What is concerning is that following the issuance of this ruling, some media outlets and public figures have misled citizens with narratives such as "embracing drugs," "lenient sentencing for drug trafficking," "grassroots efforts to crack down on drugs rendered loose by the judiciary," and "condoning drugs," which may lead the public to mistakenly believe that our judiciary tolerates the rampant spread of drugs and could confuse public understanding of drug control policies.

   Regarding this, our Foundation feels deeply uneasy and therefore hereby urges all sectors of society and the media to base their commentaries and reports on this ruling on facts; while also taking into account the human rights violations caused by excessively heavy sentences in the aforementioned cases. Only through rational dialogue can we collectively find effective methods to prevent the harms of drugs.

2. Cases of "Minor Offenses with Severe Penalties" Persist, Raising Questions About the Fairness of the Constitutional Court's Case Acceptance

   Although the Justices dealt with 8 individual cases this time, cases of "minor offenses with severe penalties" in judicial practice extend far beyond this. Justice Lin Chun-yi also pointed out that the sentence-reduction provision of Article 59 of the Criminal Code, "circumstances are pitiable," has traditionally been applied extremely strictly in practice. Yet in these types of cases, applying Article 59 of the Criminal Code has instead become the norm!

   Referring further to statistical data published by the Ministry of Justice, among the 12,130 individuals who committed the "crime of trafficking Category 1 narcotics" over the ten-year period from 2008 to 2018, only 1.1% were sentenced to the "minimum penalty" of life imprisonment. While it cannot be said that sentences were reduced due to "pitiable circumstances" in the remaining 99% of cases (sentences can also be reduced for surrender or informing on upstream suppliers), it is nevertheless apparent that in judicial practice, judges universally encounter situations where they find penalties excessively heavy and struggle to render such judgments.

   However, regarding this pervasive phenomenon, the Justices merely "handpicked" 8 cases, while dismissing over 99% of cases without review, thereby blocking avenues for public remedy. Justice Huang Chao-yuan also pointed out: "Such a peculiar result can be called a massacre of applications rarely seen in the history of constitutional interpretation in our country." Indeed, regarding the following unaccepted cases, which casually bind individuals with fixed-term imprisonments of 15 years or more, their appropriateness is manifestly open to doubt:

   Petitioner Category	Criminal Record	Circumstances of Trafficking Category 1 Narcotics	Quantity of Drugs Trafficked	Consideration (NTD)	Sentence (Imprisonment)
   Wu ○-○	Unknown	Jointly trafficked 1 time	0.45 grams	NTD 3,000 (purchased on credit, unpaid)	15 years
   Chi ○-○	Banditry, robbery	Jointly trafficked 1 time	Unknown weight	NTD 1,000	17 years
   Ch'en ○-○	Unknown	Jointly trafficked 2 times	0.4 grams 0.4 grams	NTD 500 NTD 500	7 years and 8 months 15 years and 1 month
   Chou ○-○	Prior drug offenses	Trafficked 2 times personally	0.073 grams 0.023 grams	NTD 800 NTD 1,000	15 years and 2 months 15 years and 2 months
   Yang ○-○	Unknown	Trafficked 3 times personally	Unknown weight Unknown weight Unknown weight	NTD 3,000 NTD 1,000 NTD 1,000	16 years and 2 months 16 years 16 years
   Liu ○-○	Unknown	Jointly trafficked 1 time Trafficked 2 times personally	0.8456 grams Unknown weight Unknown weight	NTD 3,000 NTD 2,000 NTD 2,000	16 years 15 years 15 years

   Citizens who applied for this constitutional litigation objectively faced the exact same legal issues. In the end, however, only a tiny minority of people were accepted by the Constitutional Court and given the opportunity for sentence reduction. For the petitioners whose cases were not accepted, after receiving dismissal rulings with unclear reasoning such as "failure to specifically state unconstitutional arguments," they may still face severe sentences of 15 years or more due to minor offenses, instilling a deep sense of unfairness. We believe that the Justices' case acceptance criteria in this case objectively lacked persuasiveness. In this regard, we urge the Constitutional Court to avoid repeating past mistakes in the future and to clarify case acceptance criteria in order to fairly uphold the constitutional rights of the people.

3. The Ministry of Justice Should Promptly Amend Laws and Comprehensively Review Our Country's Drug Control Policies

   In this ruling, the Justices also demanded that the legislature review the excessively severe problems of the current "crime of trafficking Category 1 narcotics" within two years, pointing out that the "quantity of drugs" seized may have reference value.

   It is worth noting that as this offense serves as the anchoring point for statutory penalties of related crimes, once sentence lengths are adjusted, the statutory penalties for other offenses—such as the "crime of trafficking Category 2 narcotics" and "possession of Category 1 narcotics with intent to traffic"—which are likewise as heavy as "life imprisonment or fixed-term imprisonment of 10 years or more," also necessitate concurrent review. In addition to the quantity of drugs seized, considerations such as whether drug trafficking acts are operated in syndicates or yield exorbitant profits should also be taken into account when deciding whether to differentiate punishments.

   From a legislative perspective, apart from the "extremely minor" cases highlighted by the Justices, the current law subjects both "drug syndicates" and "sporadic trafficking by individual users" to the same heavy penalties, raising concerns of excessive severity for the latter. This unbalanced situation fails to align with the criminal policy philosophy of "balancing leniency and strictness" and leaves room for review.

   The motivation for engaging in drug trafficking stems primarily from its exorbitant super-profits. Under current law, mechanisms such as "expanded confiscation" and "heavy monetary fines" are available; if the profits of drug traffickers can be decisively severed at the root, it becomes much more possible to undermine the motivation for drug trafficking at its source.

   Throughout successive legislative amendments, although lawmakers have continuously increased custodial penalties for drug trafficking acts, statistical data shows no reduction in related crimes. In this regard, our Foundation urges that the Ministry of Justice should take the opportunity of this constitutional ruling to broadly reference foreign prevention measures; at a time when heavy-penalization policies have encountered bottlenecks, alongside revising the "crime of trafficking Category 1 narcotics," it should simultaneously comprehensively review our country's drug control policies.

Press Contacts

Lü Cheng-yen, Attorney-at-Law, Director of the Legal Policy Department, Taiwan Judicial Reform Foundation
Phone: 02-2523-1178 #37
Email: elvin@jrf.org.tw