Thailand Law Journal 2018 Spring Issue 1 Volume 19

2. Problems with the possession-based drug offence

2.1      Users and dealers – the elusive threshold quantities

The possession-based drug offence typically relies primarily and sometimes exclusively on thresholds to determine who is a user and who is a dealer. This has given rise to an endless debate around where the metaphorical line in the sand ought to be drawn, and different jurisdictions have arrived at radically different conclusions as to how much of any given drug can reasonably be deemed to be for personal use. It has proven impossible to agree on standard threshold quantities, even among jurisdictions that have a close cooperation around drug law enforcement, such as within the European Union (Harris 2011).7 Even within a federal country like Australia, state jurisdictions have set very different thresholds to differentiate between users and the various levels of dealers and traffickers (Hughes 2014). While legal scholars and politicians have wrangled over what the limits ought to be, medical practitioners have pointed to the futility of trying to come up with universal measures for how much of any drug can be deemed to be for personal use. Doses vary considerably depending on individual circumstances such as usage patterns and history, but also on drug purity and accessibility. Furthermore, the assumption that a person is a dealer or a trafficker just because he or she is in possession of drugs amounting to more than what can be consumed in a day or two has also proven to be misleading (Harris 2011). Methamphetamine users in Vientiane pointed out that because they can get a discount for purchases of ten tablets or more, many users sought to buy their methamphetamine in quantities that exceed the 0.3 gram threshold in the Lao Penal Code, thereby falling into the category of presumed traffickers.8 This pattern of users buying drugs in larger quantities as a cost-saving measure has been documented in many other countries too (Harris 2011).

2.2      The missing correlation between culpability and drug quantities possessed

The possession-based model assumes that there is a direct correlation between how much drugs a person is in possession of and the culpable intent of that person. Experience and research suggest that in respect of many categories of drug offenders this is often is a false assumption. This paper examines three examples of drug offenders who, between them, are likely to make up the bulk of drug offenders in most countries in the world.

2.2.1    The couriers

Couriers carry drugs paid for and owned by someone else.9  Because of this, the quantity of drugs to be carried is always decided by the person who pays for the drugs; the investor in the project. In order to make a profit, a critical quantity must be carried. Just what that critical quantity is depends on drug prices, operating costs and available funds for investment. In her research in Latin America, Dr Jennifer Fleetwood also found that ‘investors were wary about the possibility of employing someone [a courier] who might rob them or report them to the police and spent considerable time recruiting people whom they perceived to be adequately trustworthy, reliable and who were unlikely to be stopped by customs.’ For this reason ‘investors preferred to limit the risks and expenses…by sending quite significant amounts with one mule…’ (Fleetwood 2011:383) It is clear that the quantity of drugs carried is seldom something the courier has any influence over, and it certainly bears no correlation to any intent or culpability on the part of the courier, since the quantities are determined by the investor, not by the courier, based on prevailing market conditions (Chin 2015, Fleetwood 2011).10

Research on those who act as drug couriers consistently concludes that they (a) are often unaware of exactly what they are carrying; (b) typically come from vulnerable and marginalised segments of society; (c) are frequently driven by poverty and economic hardship, and; (d) may have little or no awareness of the severe penalties they face if caught (Chin 2009 and 2015, Green 1991, Sudbury 2005). Professor Ko-Lin Chin has found that in Myanmar and China pregnant women or women with babies are often recruited to carry drugs as they are less likely to be searched by law enforcement officials (Chin 2009). Other couriers have been forced into transporting drugs for someone else and have faced threats of violence against their loved ones if they try to resist (Sudbury 2005, Fleetwood 2010). A methamphetamine trader from Mae Sai put it bluntly: ‘…once you are in, there’s no way out in this business. Many people here are killed when they try to get out.' (Chin 2009) Once couriers have assumed their role, they are typically powerless. Recruiters of couriers have stated that they often mislead those recruited when it comes to both how much they are going to be transporting and the drug in question (Chatwin 2011). In sum, we know that those recruited to carry drugs for others ‘are being held responsible for decisions, circumstances and issues outside their knowledge, experience and control…’ (Green 1998:9)