Criminal offences pertaining to illicit drugs are typically defined with reference to the quantity of the narcotic substance involved in the offence. In general, the principle is that the more drugs that are involved, the more serious the offence is, and the longer the corresponding prison sentence will be. I have, in practice, come across at least four problems with defining drug offences in this way:

Many drug laws today incorporate the important principle that a drug user is not a criminal but a person who may be in need of help and care. Regardless of how much drugs a person is caught with, if that possession is a consequence of drug use, then the possession is merely a corollary or an extension of drug use. A common modus operandi used by dealers in East Asia is to demand that drug users take part in drug distribution as a way of financing their drug use. In such cases, the possession is effectively the culmination of the use of drugs. Nonetheless, because the law defines the offence based on the quantity of drugs the accused is in possession of, drug using distributors end up being prosecuted.
If possession of drug quantities, which fall well within the range of what is reasonable for personal consumption, remains a criminal offence, then the criminal justice system will continue to unwittingly arrest, prosecute and convict large numbers of drug users, not on account of their drug use per se, but because they have been in possession of drugs. This creates a paradox whereby the act of using drugs is decriminalised, but as soon as the drug user takes possession of drugs an offence is committed for which he or she can be charged, convicted and sentenced. The consequence of this is that drug use is, in effect, re-criminalised, and the benefits of decriminalisation are largely forfeited.
No drug is 100 percent pure. The laws typically refer to the weight of the pure substance. A package of heroin may weigh 100 grams, but if the purity of that heroin is only 40 percent, then the offence involves 40 grams of heroin, not 100 grams. Due to the lack of forensic technology and capacities in many countries, law enforcement agencies have faced challenges in accurately determining purity and the weight of the pure substance. Even where the analysis equipment is available, the necessary chemicals have to be continuously imported, which leads to frequent shortages. Often officials proceed on rough estimates, for instance, that one yabaa tablet is equivalent to 0.1 gram of methamphetamine. In other cases, only a small sample is tested. However, as UNODC notes, ‘the purity of methamphetamine tablets vary considerably…The actual weight may vary from tablet to tablet and batch to batch as they are produced under clandestine conditions. Considering tablet purity alone can be misleading as tablets of different weights contain different amounts of methamphetamine even if the purity is the same.’ Hence these approximations are unsatisfactory so long as the severity of the offence is determined exclusively with reference to the weight of the drugs involved in the offence.
Experience from around the world suggests that the people who are made to perform the risky task of physically transporting drugs are typically not the people in charge of the operation. In other words, very often there is a negative correlation between the quantities of drugs a person is carrying and the person’s significance in the drug industry. This also means that it is ineffective to sentence couriers to death or to long prison terms, since they are very easily replaced. It has been argued that such sentences can deter people from taking on assignments as couriers, but regrettably the truth is that the drug cartels have had no difficulties recruiting couriers, even in the jurisdictions with the most unforgiving drug laws.

The solution to this conundrum might be to place less emphasis on drug quantities and instead pay more attention to the functions and motives of the people who work in the illicit drug industry. This would allow criminal justice systems to direct its resources towards the people who orchestrate, manage, and control the drug industry, instead of pursuing non-violent and relatively minor participants in the market.

So far, I have not come across any legislation in the world, which defines drug offences primarily with reference to the degree of control or responsibility that an accused person has in the drug manufacturing and distribution network. Is there any jurisdiction in which the severity of a drug offence is determined not by how much drugs a person is carrying, but by how much influence that person has over the trade and marketing of drugs? Is there a law which asks: is the accused a person who planned and managed drug operations, as opposed to merely a person who followed instructions or acted out of necessity? Is there a legal system which considers the motives of the accused – was the defendant’s engagement in the drug industry driven primarily by a profit motive, or was he or she involved mainly as a consequence of a drug use disorder?

If you know of examples of such legislative approaches, please send a note to Marcus Baltzer at mbaltzer@governancejustice.org