Thailand Law Journal 2018 Spring Issue 1 Volume 19

2.4      The ever-increasing pressure on criminal justice systems

Due to the ever-greater numbers of people convicted of drug offences, the pressure on criminal justice systems around the world is increasing. Case backlogs are building up, remand rates are climbing, and prisons are becoming ever more over-crowded. The UNODC reports that the global increase in drug-related crime is driven mainly by a rising number of offences related to drug possession. Moreover, the vast majority of drug offenders in prison are described as ‘low-level offenders’ (UNODC 2013).

It is not easy to obtain figures as to how big the financial burden of prosecuting and incarcerating low-level drug offenders is, especially not in countries in which such data is not published. It has been estimated that expenditure by EU countries on drug offenders in prisons is within the range of 3.7 billion to 5.9 billion euro annually (European Monitoring Centre for Drugs and Drug Addition 2014).20 In addition to that, there are of course all the costs associated with the administration of justice from arrest to appeal. In many Asian countries, low-level drug cases make up the majority of all criminal cases, thus consuming significant portions of the resources allocated for law enforcement and criminal justice. Thailand offers a good example; in 2013, 65 percent of all prisoners there were charged with or convicted of drug offences.21 In 2016 that figure was up to 70 percent. This follows a trend that has seen the number of drug convictions double over the last decade according to figures from the Thai Department of Corrections.22 Since the launch of its ‘war on drugs’ in 2003, Thailand has become home to the world’s sixth largest prison population, as well as having the world’s highest incarceration rate for women; the majority of whom are imprisoned for low-level drug offences. It is estimated that about 10 percent of those in prison for drugs are incarcerated for personal use offences (Lai 2014),23 while approximately 60 percent are in for drug supply related offences.24
Commenting on this, the UNODC Regional Director for South East Asia noted that ‘the situation has approached a noticeable crisis point. The reality is that talk has not yet moved to action, and the prison population is still growing.’

The situations in Laos and Cambodia are similar.25 The deputy director general for the Cambodian Ministry of Interior’s General Department of Prisons recently said: ‘The number [of inmates] goes up every day, not down. This is not just a local problem. Prisons in Siem Reap, Banteay Meanchey and Battambang, were each quite overcapacity in December, before the crackdown [on drug dealers and users] began. I don’t know for how long we can cope with this method…26In neighbouring Laos, Deputy Minister of Public Security, Brigadier General Kongthong Phongvichit in July 2015 reported to the National Assembly that ‘one prison in Vientiane can accommodate between 400 - 500 people but the number of prisoners there actually exceeds 1200.’27 He went on to say that ‘despite the fact that the government has allocated a significant budget to construct new prison facilities some of the prisons in the provinces cannot accommodate the rapidly rising number of prisoners.’28 The Lao Commission for Drug Control recently noted that ‘over the last five years, there has been a three-fold increase in the number of drug-related arrests in Laos, and law enforcement and criminal justice authorities in our country have been overwhelmed.’29

Thailand, Cambodia and Laos are examples of countries that have sought to retain high deterrence, using possession based drug legislation. This has given rise to large numbers of criminal cases and many people having to serve relatively long prison terms. While conditions and resources differ from one country to another, similar problems have been encountered in many countries across Asia.30

2.5      Catching the wrong people

Another problem with possession based drug laws is that in many jurisdictions it has diverted law enforcement resources towards the bottom end of the drug industry, where the people who perform the risky tasks of transporting the drugs are found, away from the top end of the industry, where people seldom touch drugs and certainly do not carry around quantities that exceed trafficking thresholds. In China, Ko-Lin Chin describes how ‘the authorities were frustrated that they were only catching and punishing drug mules and not the big bosses.’ (Chin 2009:207) A police officer in Ruili explained that ‘no doubt, there are big drug dealers living in this area and we know who they are. However, we cannot just go out and arrest them because we do not have the evidence against them. Nowadays, big drug dealers rarely touch the drugs.’ (ibid.)  Reporting from a recent drug trafficking trial in Singapore, Arjun Malik writes: ‘The word “drug trafficker” often evokes images of a wealthy drug kingpin profiting royally off the suffering of addicts. In reality, those executed [in Singapore] are very rarely the kingpins who command the drug trade. Instead, like the defendants in this case, they are mostly poor, low-level drug couriers who may have little knowledge of what they are getting themselves into.’(Malik 2016)

In Laos, it was noted how ‘thousands of low-level dealers and consumers have been arrested, charged and convicted, and tonnes of drugs have been confiscated. This may have caused temporary disturbances in some distribution networks, but it is unlikely to have had any notable effect on the drug business as a whole.’ (LCDC 2016) Just as in China, this has given rise to a degree of frustration among officials and citizens alike. In 2015, National Assembly President, Honourable Ms Pany Yathotou noted that ‘only small-time dealers have been apprehended so far and it is disappointing that the ringleaders have escaped punishment.’31 Similar sentiments have been echoed on repeated occasions in meetings and in the media.

In a discussion paper published as part of the consultations for legal reform, it was explained that ‘one of the main reasons for why law enforcement has been so focused on what Honourable Ms Yathotou refers to as ‘small time dealers' is because the law, as it stands, defines drug offences in terms of the how much drugs a person is in possession of. But the individuals who control the drug industry, who invest in it, who manage its operations, and who reap its vast profits – they will never be found in possession of as much as a trace of any illicit narcotic substance. There will always be several layers of middlemen blurring the links between the kingpins and the operations of the drug industry. (Baltzer 2015) 32

There is no detailed research in South East Asia on exactly what proportion of drug offenders can be labelled ‘low level'. In the US, however, it was found and only a relatively small percentage of inmates could be described as ‘unambiguously low-level.’ Alternatively, not many were ‘kingpins.’ Rather, most fell into a middle spectrum representing different degrees of seriousness that depend on what factors were emphasised. These findings dampened hopes of dramatically reducing prison populations by getting out of prison those who are unambiguously low-level drug offenders. They simply did not represent the majority of incarcerated drug offenders. The research nonetheless found that ‘“drug courier exceptions” to sentencing laws that apply to minor role offenders possessing large quantities could have a greater prison reduction impact.’ (Sevigny and Caulkins, 2004)