Towards more proportionate sentencing laws in Thailand

In June 2013, IDPC co-organised an experts roundtable with the Thailand Ministry of Justice Rights and Liberties Protection Department (RLPD). The meeting focused on how Thailand’s sentencing framework might be reformed to include a distinct category for people who use drugs and also engage in low level dealing to fund their drug use (often referred to as ‘user-dealers’, eg. refer to the European Monitoring Centre for Drugs and Drug Addiction). The roundtable follows on from a seminar held in September2012, co-organised by IDPC, RLPD and the Transnational Institute, to discuss and review effective legal frameworks for managing drug-related problems. For more background, see the IDPC blogpost on the seminar.

Thailand imposes a harsh regime for people who use or are dependent on drugs. Where an individual receives a positive urine test for use of a controlled drug, a court may sentence him or her to a minimum sentence of 6 months in a compulsory centre for drug users (CCDU) or as an outpatient in a community hospital. Their record with police is only deleted when they are deemed to have ‘passed’ the rehabilitation programme. Where an individual has not passed, they are required to go through the court sentencing process again which can lead to a term of imprisonment, or another term of ‘rehabilitation’ in a CCDU or community hospital. But where an individual tests positive for drug use and is also charged with another offence, including possession and supply of any quantity of drug, criminal penalties (involving a fine and/or term in prison) will apply for both drug use and any other offence.

The imposition of criminal penalties for the use and possession of drugs—whether for the ultimate purpose of personal use or commercial gain—conflicts with the principles of proportionality of sentencing for drug offences. Such drug “offences” are often committed because of occasional drug use, drug dependency or to meet basic economic needs. In these circumstances, services such as treatment, education, aftercare, rehabilitation or social integration should be offered as more humane, effective and proportionate alternatives to conviction and imprisonment. A proportionate sentencing framework would also incorporate these elements:

1. Distinctions between supply offences by referring to the type of drug involved, scale of the illicit activity, and role and motivation of the offender, eg. a distinction would be implemented between serious or organised traffickers, and micro-traffickers (low-level dealers or smugglers).
2. For micro-trafficking offences, reduced or provisional sentences, as well as alternatives to imprisonment, should be promoted.
3. The quantity of the drug involved should not be the only or major factor in determining the sentence for a drug offence. The socioeconomic circumstances in which an offence was committed and the financial gains of the offender should be considered as important mitigating factors. In circumstances where a person dependent on drugs is imprisoned, the provision of evidence-based drug treatment and services, along with HIV prevention services, should be ensured.

In response to the discussion of proportionality of sentencing, some roundtable participants were of the view that the problem with Thailand’s sentencing frameworks for people who use drugs was not the drug control laws but its implementation, which led to drug users being sent to prison instead of rehabilitation programmes. Government officials with responsibility for implementing Thailand’s rehabilitation programmes acknowledged that although compulsory centres remained a feature of the country’s treatment programme, more voluntary options were being introduced. One official commented that one key way that Thailand distinguished between different types of drug supply offences was through imprisoning large-scale traffickers in one facility, and low-scale traffickers in another facility—but acknowledged that Thai laws do not currently recognise user-dealers as requiring a different response such as alternatives to imprisonment.

A representative of the 12D network—the Thai coalition of civil society organisations advocating for harm reduction—urged policy officials to accept that it is common for people dependent on drugs to relapse in their drug use, even after participating in rehabilitation programmes, and not to impose punitive measures for relapses. She recommended that the government evaluate its investments in law enforcement and health interventions, to assess the benefits of investing more in measures aimed at addressing the health impacts of drug use. She also highlighted the need for the government to provide welfare services to meet the needs of communities, especially children, associated with people who use drugs, eg. where a mother or father has been imprisoned or detained in a CCDU and is not able to ensure the welfare of their children.

Researchers from the Chiangmai University Research Institute for Health Sciences presented the findings of their study on the experiences of people who use amphetamine-type stimulants (ATS) within the criminal justice system in Thailand. Their findings concluded that the majority of people in prison for drug offences are for offences related to ATS and amongst whom rates of HIV and tuberculosis are increasing. The study identified problems as including the implementation of arrest quotas for police which provides incentives for police to arrest people who use drugs (although police have also been known to refer users to treatment services), the detention of people suspected of using drugs while awaiting a urine test which exposes them to a range of police abuses, the lack of spaces in voluntary drug treatment centres which can increase the chances of people who use drugs ending up in prison or compulsory centres, and ATS users charged with criminal offences, such as possession and supply of drugs, not being eligible for rehabilitation programmes. Some of the key recommendations resulting from the study were:

• alternatives to imprisonment should be implemented for people who use or are dependent on drugs and commit other low-level offences
• people who use drugs should be diverted away from the criminal justice system and into voluntary community and/or drug treatment services, and
• arrest quotas for police should be eliminated.

A representative of the Law Reform Commission ended the experts roundtable on a positive note by saying that both Thai drug laws and their implementation need to be reviewed, including police practices towards people who use drugs, with the aim of reforming drug policies away from the theme of ‘war on drugs’. He noted that a key part of reform involved changing public perceptions, or misperceptions, about what constitutes good drug policy. The Law Reform Commission is currently reviewing Thailand’s drug laws and may be able to include proportionality of sentencing on its agenda.

Key resources

Please keep watching this space for updates on the review of Thai drug laws. A summary report of discussions at the experts roundtable will be published soon on the IDPC website, and an IDPC briefing paper on drug policy in Thailand is planned for publication at the end of 2013.

For further analysis and briefing on proportionality of sentencing for drug offences, you can check the briefing papers, which form part of the Series on Legislative Reform of Drug Policies published jointly by the Transnational Institute and IDPC:

• Conviction by Numbers: Threshold Quantities for Drug Policy
• Drugs, Crime and Punishment: Proportionality of Sentencing for Drug Offences

Keep up-to-date with drug policy developments by subscribing to the IDPC Monthly Alert.