Some unresolved legal issues relating to punishment of offenders in criminal law and their effect on sentencing policies: the case of drug abusers
Some unresolved and controversial concepts of criminal law and their effect on sanctions
Examples of penal policies in relation to drug-related offences
Author: S. K. CHATTERJEE
Pages: 59 to 76
Creation Date: 1984/01/01
Some unresolved legal issues relating to punishment of offenders in criminal law and their effect on sentencing policies: the case of drug abusersS. K. CHATTERJEE
Senior Lecturer in International Law, City of London Polytechnic, London, United Kingdom of Great Britain and Northern Ireland
The sentencing policy of a country is based on extra-legal considerations, such as political, social and moral principles, although the sentencing procedure employs legal principles. In imposing sentences the concepts of recklessness, negligence or liability are controversial, but they seem to be determining factors or at least play an important role in most legal systems. Sanctions do not need any legal justification, they are mostly value-oriented. The deterrence theory of sanctions still seems to be playing a significant role. Despite its lack of legal support, sanctions seem to serve a purpose in society, even though they are not quantifiable or certain. In the case of drug-related offences, there often exists a tendency to disregard the criminal acts of drug addicts. Although the education and rehabilitation of drug addicts are believed to be efficacious; from a legal point of view the incidence of contributory offence, that is, in certain circumstances the participation of the addict himself, in enhancing illicit trafficking in drugs cannot be ignored. However, illicit traffickers must be subject to severe sanctions of law.
Generally speaking, sentencing policy in relation to crimes is based on the assumption that the alleged criminal must experience the sanctions of law. The grounds for such an assumption are as follows:
That society should be protected from criminals;
That sanctions of law will deter the criminal from committing crimes in the future.
Sanctions of law are usually determined by public authorities prompted by considerations of general deterrence and the avowed duty of law enforcement officers to uphold the morality of deterrence. Thus sanctions of law may not necessarily be based on scientific principles or precepts; on the contrary, they seem to rest on Kant's moral principle 1 that despite his becoming a means for some other end, man should always be treated as an end in himself. Although Kantian principle finds support from theologians and moralists, it is value-oriented, and indeed, the question of its being empirically verified does not arise at all. Value-oriented ideas may lead to prescribing disproportionate punishment. Punishment does not need any legal justification. It may maintain a concomitant relationship with one's own conviction of values. The relationship between law and punishment is, therefore, complementary and not indispensible. But societies being as they are, sanctions are necessary; they serve a purpose. Hart said that "even those who look upon human laws as a mere instrument for enforcing 'morality as such (itself conceived as the law of God or Nature) and who at the stage of justifying punishment wish to appeal not to socially beneficial consequences but simply to the intrinsic value of inflicting suffering on wrongdoers who have disturbed by their offence the moral order, would not deny that the action of criminal legislation is to set up types of behaviour (in this case conformity with a pre-existing moral law) as legal standards of behaviour and to secure conformity with them.' 2 Therefore, sanctions should command not only obedience to the law, but also a standard of behaviour. There are two difficulties in this value-oriented criminal sanction system. First, sanctions are based on imprecise values, in other words, there always exists a margin of approximation in the determination of sanctions. Secondly, whose behaviour and whose morality are the accepted norms? If one says that it is society's standard of behaviour and morality, then one suggests that society has a means to indicate such a standard, and that means is indeed effective. One should not ignore the interventionist policy of the legislature in this respect. Sanctions which in most cases are value-oriented, and are products of an interventionist policy, can punish an offender of values unduly harshly or leniently. Should this be done?
This aspect of the sanction-imposing formula based on value-oriented ideas has something to do with the so-called deterrence effect of sanctions. Hart said that "there is very little evidence to support the idea that morality is best taught by fear of legal punishment.'' 3 Peters seemed to have held similar views when he said that "whether punishment often has this effect on individuals is an empirical question.'' 4 On the other hand, it could be said that deterrence as a mechanism of prevention of crimes is based on fear rather than instilment of moral inhibition. 5 Fear or moral lessons cannot necessarily be a deterrent when gains from crime are enormous. Illicit drug traffickers and bank robbers are examples of this point. There may be a need for social reforms and legislation to ensure that the so-called unsociable person is not, on the basis of a value-oriented ill-founded moral dictum, made subject to undue physical and psychological punishment.
1 I. Kant, "Metaphysische Anfangsgründe der Rechtslehre", Das Staatsrecht Allgemeine Anmerkung E, vol. 2, chap. 1, 1797.
2 H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford, Clarendon Press, 1968), p. 8.
3 H. L. A. Hart, Law, Liberty and Morality (Oxford, Oxford University Press, 1963), p. 58.
4 R. S. Peters, Ethics and Education (London, George Allen and Unwin, 1966), p. 274.
5 H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford, Clarendon Press, 1968), p. 236.
Sanctions in criminal law are closely connected with the intention of the accused or what is known as mens rea (guilty mind) in English criminal law. It would be inappropriate to go into details of the theoretical controversies pertaining to intention or guilty mind in the context of this article. It should, however, be emphasized that in the case of drug-related crimes an offender may commit an offence or crime without having been motivated by a guilty mind. A drug addict, for example, requiring mental health treatment, should not be made subject to the same regime of punishment as an illicit drug trafficker. Whereas the action of an illicit drug trafficker is accompanied by guilty mind, in the case of a drug addict requiring mental health treatment, guilty mind does not usually exist. But a drug addict can commit the actus reus of a crime, that is, in this context, a drug offence. Recklessness and negligence, the two very important elements of crime, should be considered from an objective point of view in the case of drug addicts. In fact, knowledge of a risk is not sufficient to constitute recklessness. A drug addict may be indifferent to the risk associated with illicit drug use. In the case of an illicit drug trafficker, however, the risk must have been unjustified, and hence recklessness becomes relevant to his act.
Both the Anglo-American legal system and the system prevailing in the Federal Republic of Germany accepted the Roman law maxim, actus non facit reum, nisi mens sit rea. Interestingly enough, the principle enshrined in this maxim developed differently under the two systems. Whereas law in the Federal Republic distinguishes between dolus (intent - Vorsatz) and culpa (negligence - Fahrlässigkeit), in the Anglo-American system there exists the concept of recklessness in many cases of crime. It is to be wondered whether under the Anglo-American system, not only a drug trafficker but also a drug addict who voluntarily decided to be an addict should not be accused of recklessness or negligence or irresponsibility. An addict's fault may lie in allowing himself to become an addict while being fully aware of the fact that addiction will progressively weaken self-control.
If, however, me test of insanity is resorted to, then the basic distinction between the Anglo-American test of insanity and the test used in the Federal Republic of Germany is that whereas the former defines insanity in purely cognitive terms, the latter also considers the volitional element in its definition. It should be taken into account, however, that in the case of drug addicts, mental incapacity, if any, may gradually grow as a result of voluntary drug-taking. Even partial delusion may be caused by an addict. In the United States of America, according to the Durham Rule, 6 the source of incapacity is 'mental disease or mental defect'. Under the Anglo-American system, therefore, the case for the defence lawyer would primarily be to establish mental defect or disease of the mind and thereby to find mitigating circumstances against recklessness or negligence or irresponsibility. Practice in the Federal Republic in this respect appears to be quite instructive. Under the criminal law of that country, irresponsibility may be based on impairment of consciousness, pathological mental derangement or mental infirmity. Incapacity arising from any of these sources may be consequential upon the actor's cognitive or volitional inability to realize the consequences of his act. There exists a difference between inability to control one's will and inability to evaluate. Cognitive incapacity, that is, the incapacity to pass rational judgements, stands for an incapacity to evaluate generally. Volitional incapacity, on the other hand, needs to be established by medical and psychiatric evidence with a view to offering the lawyer guidance as to the determination of punishment. There is neither a clear definition of mental disease nor any consensus as to how to devise an acceptable definition of it. 7
6"Insanity and the criminal law: a critique of Durham v. United States Symposium", University of Chicago Law Review, vol. 22, 1955, p. 317.
Furthermore, there is an important connection between the institution of punishment and the concept of responsibility. A person is responsible for something if he is answerable for his deeds. In other words, there exists a kind of nexus between punishment and accountability or responsibility, despite the fact that the latter is not based on any legal rule. Therefore, a legal sanction, that is, punishment, is imposed on an assumed yardstick of responsibility based not on any legal rule but on certain extra legal considerations, such as morality. Considering the matter from this point of view, one might ask whether self-induced drug addiction is a criminal offence, although no such question arises in regard to an obvious offence, namely, illicit trafficking in drugs. What often tends to be ignored is that self-induced drug addiction is in itself a crime because it violates not only rules of criminal law but also the yardstick of responsibility to the addict himself and also towards society at large.
The choice of the penal policies of the countries referred to below is not based on any specific criterion. The countries have been selected at random. The availability of their legislation in the E/NL. Series, issued by the United Nations, has of course to a certain extent contributed to their choice. It is important to mention that in many countries drug-related offences are dealt with not only by enforcing specific legislation enacted for such offences, but also in conjunction with the penal code or criminal code of that country.
7H. Fingarette, The Meaning of Criminal Insanity (Berkeley, University of California Press, 1972), chap. 1.
In Austria, 8penal sanctions relating to drug offences are governed by the Narcotic Drugs Act, 1951 ( Bundesgesetzblatt No. 234), as amended by the Narcotic Drugs Amendment Act, 1971 ( Bundesgesetzblatt No. 271), the Penal Code Adaptation Act ( Bundesgesetzblatt No. 1974/22) and the Narcotic Drugs Amendment Act, 1977 ( Bundesgesetzblatt No. 1978/532).
Section 6 of the Act, which refers to the causation of penal sanctions provides that:
Persons who wittingly and in violation of these provisions produce, import, export or trade in narcotic drugs in such quantities as to constitute a general danger to human life or health shall be guilty of an offence against the public health and shall be liable to terms of imprisonment of from one to five years, or, in the case of aggravating circumstances, and in particular when the offender is a member of a ring, to terms of imprisonment not exceeding 10 years. Fines not exceeding 225,000 schillings may be imposed in addition to such imprisonment.
The amount of the fine shall be so assessed as to exceed the profit which was derived or was intended to be derived from the punishable act. If the maximum fine imposable by law does not suffice, it may be exceeded, but shall not exceed twice the amount of the profit. A term of imprisonment imposed in default of payment of a fine may not exceed one year.
The objects used in the punishable act or the proceeds therefrom shall be declared confiscated if they are owned by the offender or an accomplice or accessory to the offence or if they were owned by such persons at the time of the seizure. In other cases, they may be declared confiscated. Similarly, materials and apparatus used for manufacture or processing may be declared confiscated, and also vehicles used for transport other than vehicles owned by a public transport undertaking if the owner of the vehicle was aware that it was to be misused for unlawful purposes.
If the objects or their proceeds cannot be seized or are not declared confiscated, a fine equal to the value of such objects or their proceeds shall be imposed. The fine shall be imposed in the judgement, but if it only subsequently transpires that the confiscation cannot be executed, the fine shall be imposed without argument in court. The parties shall be informed of the decision, and appeal may be lodged within three days.
The term of imprisonment imposed (in addition to the sentence for the offence) in default of payment of a fine, and the term of imprisonment imposed in default of payment of a fine imposed in lieu of confiscation, shall not in the aggregate exceed a total of 18 months.
8Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Austria, Narcotic Drug Act, 1951 (E/NL.1979/26, 28 August 1981).
The Austrian Narcotics Act has also provided for confiscation of the objects used in the punishable act or the proceeds therefrom. It is interesting to note that Section 7 of the Act provides that:
"If no specific person can be prosecuted or convicted, the objects used in the punishable act or the proceeds from such objects may be declared confiscated, providing that grounds for such action exist."
Legislative Decree No. 11245, 9 which was passed in order to give effect to the provisions of the international treaties on narcotic drugs, provides for a rather rigid system of imposing sanctions upon those who may be violating it. Article 107 of this Decree provides that:
"The penalties prescribed in this Act may not be reduced or remitted since they apply to public and socially dangerous offences."
In Colombia, Decree No. 756 of 23 April 1976 10was promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances. Whereas article 30 of the Decree provides for specific penalties for pharmaceutical laboratories guilty of the misuse of products under specific control, article 29 provides that:
"Any act which contravenes the provisions of this Decision shall be regarded as a misuse of products subject to special control, and shall be punishable by the appropriate legal penalties."
The Misuse of Drugs Act, 1977 11 has made elaborate provisions for penalties for various drug-related offences. 12This Act has even made provisions for penalties in respect of drug-related offences committed by a person presumably of Irish nationality outside the territorial jurisdiction of Ireland. The maximum term of prison sentence appears to be 14 years.
9Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Bolivia, Legislative Decree No. 11245 (E/NL. 1975/10 - 11, 3 July 1975).
10 Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Colombia, Decree No. 756 of 23 April 1976 (E/NL.1978/27 - 31, 3 August 1979).
11Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Ireland, the Misuse of Drugs Act, 1977 (E/NL.1978/6, 7 May 1979).
12Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Ireland, the Misuse of Drugs Act, 1977 (E/NL.1978/6, 7 May 1979), sections 20 and 27.
Act No. 685 of 22 December 1975 13 entitled "Control of Narcotic Drugs and Psychotropic Substances. Prevention and Cure of Dependence on Such Drugs or Substances and Rehabilitation of Persons Dependent on Them" has made very elaborate provisions for sanctions. A total chapter consisting of 10 articles has been devoted to penal provisions. The acts for which penalties have been prescribed encompasses drug-related illicit activities, criminal facilitation of the use of narcotic drugs or psychotropic substances, conspiracy to commit an offence, inducement to use narcotic drugs or psychotropic substances etc. Penalties for various drug-related illicit activities seem to be reasonably heavy.
In Japan, punishment of drug-related offences is governed by the following three different sets of legislation:
Law No. 252 of 30 June 1951 - Stimulants Control Law
Law No. 14 of 17 March 1953 - Narcotics Control Law
Law No. 71 of 22 April 1954 - Opium Law
Chapter VIII of Law No. 252 (articles 41 - 45) deals with penal provisions concerning offences relating to misuse and abuse of stimulants. The chapter covers offences ranging from illegal possession to illicit trade and manufacture and falsification of reports. The maximum punishment prescribed is either imprisonment with forced labour for not more than 10 years and a fine not exceeding 1,000,000 yen in consideration of the extenuating circumstances or imprisonment with forced labour for a fixed term of over 1 year and a fine of not more than 3,000,000 yen in consideration of the extenuating circumstances.
13Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Italy, Act No. 685 of 22 December 1975 (E/NL.1976/13, 1 July 1977).
14Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Japan, Law No. 252 of 30 June 1951 - Stimulant Control Law (E/NL.1979/15, 8 July 1981).
15Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Japan, Law No. 14 of 17 March 1953 - Narcotics Control Law (E/NL. 1979/16, 8 July 1981).
16Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Japan, Law No. 71 of 22 April 1954 - Opium Law (E/NL.1979/17, 8 July 1981).
The penal sanctions concerning offences relating to misuse and abuse of narcotic drugs under Decree Law No. 14 (chapter VIII, articles 64 - 76) seem to be more harsh than the corresponding ones under Decree Law No. 252. Under Decree Law No. 14 an offender may be liable to penal servitude from 3 years to life or both to penal servitude from 3 years to life and a fine not exceeding 5,000,000 yen according to circumstances (article 64.2.2), or in respect of certain other offences an offender may be liable to penal servitude for a limited term of not less than 1 year or both to penal servitude for a limited term of not less than 1 year and to a fine not exceeding 3,000,000 yen according to circumstances.
The maximum sanction under Decree Law No. 71 concerning misuse and abuse of opium is penal servitude for a limited term of not less than 1 year or both penal servitude for a limited term of not less than 1 year and a fine not exceeding 3,000,000 yen according to circumstances (article 51.2).
The Health Code of the United Mexican States 17 contains provisions of sanctions in respect of drug-related offences. Article 439 of the Code provides that:
"Contraventions of the rules laid down in this Code, in the regulations thereto and in other provisions deriving from it shall be subject to administrative penalties imposed by the health authorities, without prejudice to such penalties as may be applicable should the contraventions be legal offences."
The penalties which have been included in article 440 of the Code (e. g. fines, annulment of permit, confiscation etc.) could have been much more precise and detailed.
In New Zealand, the levels of punishment for drug-related offences have been increased by the Misuse of Drugs Order (No. 2) 1978, 18 amending the Misuse of Drugs Act, 1975. The amended provisions contained in sections 38 - 47 are as follows:
17Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Mexico, The Health Code of the United Mexican States (E/NL.1977/37 - 38, 13 March 1979).
18Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, New Zealand, The Misuse of Drugs Order (No. 2) 1978 (E/NL.1979/10 - 11, 25 June 1981).
FINE MAY REFLECT ILLICIT GAINS. In any case where any person is convicted of a drug dealing offence and the Court by which he is convicted is satisfied on the balance of probabilities that any money or assets owned by the offender at the date of his trial has or have been acquired by him directly or indirectly from the offence, the Court may, having regard to the amount of such money or the value of such assets, impose a fine greater than it would otherwise have imposed on the offender for the offence.
COURT MAY IMPOSE GREATER FINE HAVING REGARD TO PREVIOUS DEALINGS. (1) In any case where any person is convicted of a drug-dealing offence (in this section referred to as the primary offence) and the Court by which he is convicted is, on the application of the Crown,
Satisfied beyond reasonable doubt that, before the commission of the primary offence, the offender had engaged in any conduct (other than conduct that constituted the primary offence) that constitutes a drug-dealing offence; and
Satisfied on the balance of probabilities that any money or assets owned by the offender at the date of his trial has or have been acquired by him directly or indirectly from such conduct,
"the Court may, having regard to the amount of such money or the value of such assets, impose a fine greater than it would otherwise have imposed on the offender for the primary offence.
Where the prosecutor intends to seek leave to adduce evidence of the matters referred to in subsection (1) of this section, he shall give written notice of his intention and of the particulars of the evidence to be adduced to the Court and to the defendant as soon as practicable after the conviction is entered, and in any event not later than five days before the date set for sentencing.
Notwithstanding anything in subsection (2) of this section, where the Court is satisfied that the information on which such an application for the exercise of the Court's powers could be based has come into the prosecutor's hands too late for him to give five days' notice as required by that subsection, the Court may allow the prosecutor to give such shorter notice as may be necessary in the circumstances, but shall, if requested to do so by the defendant, postpone sentencing to a date not earlier than five days after the prosecutor gives such notice.
COURT'S POWER NOT TO BE EXERCISED IN CERTAIN CASES. (1) The power conferred by section 39 (1) of this Act shall not be exercised by any Court,
" (a)In respect of any conduct in relation to which the defendant has been charged with a drug-dealing offence but acquitted of that charge;
" (b) In respect of any money or assets in relation to which the power has been previously exercised by any Court.
"(2) The powers conferred by sections 38 and 39 (1) of this Act shall not be exercised by any Magistrate's Court so as to impose a fine greater than the maximum prescribed by section (6) (3) of the principal Act.
INABILITY OF OFFENDER TO EXPLAIN SOURCE OF MONEY OR ASSETS MAY BE EVIDENCE. (1) Where, in any case to which section 38 of this Act applies, the offender fails to explain to the Court's satisfaction the source of any money or assets owned by him, the Court may accept that as evidence that the money or assets was or were derived by the offender from the Offence,
"(2) Where, on any application for the exercise of the Court's power under Section 39 of this Act, the Court is satisfied in accordance with subsection (1) ( a) of that section that the offender has committed any previous drug-dealing offence, and the offender fails to explain to the Court's satisfaction the source of any money or assets owned by him, the Court may accept that as evidence that the money or assets was or were derived by the offender from that previous drug-dealing offence.
COURT MAY TREAT ALIENATED PROPERTY AS OFFENDER'S. Where, in any case to which section 38 or section 39 of this Act applies, it appears to the Court that any disposition of money or assets has been made, whether for value or not, by or on behalf of or by direction of or in the interests of the defendant to defeat the exercise of the Court's power under those sections, the Court may, on the application of the prosecutor or of its own motion, treat the money or assets as belonging to the offender for the purposes of those sections.
"Enforcement of Fines
ENFORCEMENT OF FINES IMPOSED IN SUPREME COURT. Where the Court sentences an offender on conviction on indictment of a drug-dealing offence to pay a fine and that fine is not paid within 14 days thereafter, or within such further time as may be allowed or fixed for the payment thereof, the following provisions shall apply:
" (a) The Registrar shall inquire into the means of the offender, and shall
"(i) Where the offender is detained in a penal institution, issue a warrant to produce the offender; or
"(ii) Issue a summons in the form prescribed for the purpose of section 89 (1) (a) of the Summary Proceedings Act 1957 (with any necessary modifications) requiring the offender, unless he sooner pays the amount outstanding under the conviction, to appear at the time and place appointed in the summons; or
"(iii) If in the opinion of the Registrar a warrant is necessary to compel the attendance of the defendant, issue a warrant to arrest him and bring him before the Court to enable the offender to be orally examined as to his means;
" (b) For the purpose of the Registrar's inquiry into the offender's means the provisions of subsections (2) to (10) and (12) to (17) of section 89 of the Summary Proceedings Act 1957, with any necessary modifications, shall apply;
" (c) In addition to the powers conferred on the Registrar by subsection (4) of section 89 of the Summary Proceedings Act 1957, the Registrar may issue a warrant for the production of any inmate (other than the offender) of a penal institution whom he believes may be able to furnish him with any relevant information;
" (d) On completion of his inquiry, the Registrar shall make a report as to the offender's means, so far as he has been able to ascertain them, to the Judge who imposed the fine or, if that Judge is unable to act, any other Judge;
" (e) The Judge to whom a report is made under paragraph ( d) of this section shall consider the report, and may make such order as he thinks fit, including an order
"(i) For the remission of either the whole or part of the fine; or
"(ii) For the issue of a writ of sale; or
"(iii) For the immediate imprisonment of the offender; or
"(iv) Allowing time for payment or allowing payment by instalments;
" (f) For the purposes of sections 19 E and 19 F of the Crimes Act 1961, any order made by a Judge under paragraph (e) of this section shall be deemed to have been made under section 19D of that Act;
" (g) Any money or assets treated as the offender's pursuant to section 42 of this Act shall be deemed to be property of the offender and amenable as such to any order of the Judge under paragraph (e) of this section.
ENFORCEMENT OF FINES IMPOSED IN MAGISTRATE'S COURT. Where any Magistrate's Court sentences an offender on conviction of a drug-dealing offence to pay a fine, the following provisions shall apply:
" (a) For the purpose of his inquiry into the offender's means under section 89 of the Summary Proceedings Act 1957, the Registrar shall, where the offender is detained in a penal institution, issue a warrant to produce the offender to enable the offender to be orally examined as to his means;
" (b) In addition to the powers conferred on the Registrar by subsection (4) of section 89 of the Summary Proceedings Act 1957, the Registrar may issue a warrant for the production of any inmate (other than the offender) of a penal institution whom he believes may be able to furnish him with any relevant information;
" (c) Any money or assets treated as the offender's pursuant to section 42 of this Act shall be deemed to be the property of the offender and amenable as such to any order of the Court or the Registrar under any of the provisions of Part III of the Summary Proceedings Act 1957.
"FINE IMPOSED IN MAGISTRATE'S COURT MAY BE ENFORCED IN SUPREME COURT. Where any Magistrate's Court sentences an offender on conviction of a drug-dealing offence to pay a fine and the Registrar of that Court is satisfied that payment of that fine may be more effectively enforced in the Supreme Court, he may file a certificate to that effect under his hand in that Court, containing full particulars of the conviction and the amount of the fine, and thereafter payment of the fine shall be enforced as if the fine had been imposed in the Supreme Court.
"46. GARNISHEE PROCEEDINGS. (1) For the purpose of enforcing the payment of any fine imposed by any Court on conviction of an offender of a drug-dealing offence, a sum that stands to the credit of the offender with any person (including a bank or savings bank) and that is on deposit with that person or is held by him in a current or other account (including a deposit account) shall be deemed to be a sum due or accruing to the Registrar enforcing the fine and shall be attachable accordingly, notwithstanding that any of the following conditions applicable to the deposit or account, that is to say,
" (a) Any condition that notice is required before any money is withdrawn;
" (b) Any condition that a demand for payment must be made;
" (c) Any condition that a personal application must be made before any money is withdrawn;
" (d) Any other condition (other than a condition that a deposit book, receipt for money deposited, or other like document must be produced before any money is withdrawn),
"has not been satisfied.
"(2) In exercising his powers under section 43 of this Act or sections 19 to 19E of the Crimes Act 1961 or, as the case may require, under Part III of the Summary Proceedings Act 1957, the Registrar may require any person who has in his possession or knows the whereabouts of any deposit book, receipt for money deposited, or other like document relating to the deposit or account of the offender to deliver that book, receipt, or document to the Court or to disclose its whereabouts to the Court, as the case may require; and for that purpose the Registrar may summon any such person to appear before him at such time and place as he may specify, or issue a warrant for the arrest of that person so that he may be brought before the Registrar.
"(3) In this section the term "savings bank" includes the Post Office Savings Bank, a trustee savings bank established under the Trustee Savings Banks Act 1948, and a private savings bank established under the Private Savings Bank Act 1964.
PAROLE. (1) Where any person is convicted of a drug-dealing offence and is sentenced to imprisonment for a term of 10 years or more, the Judge imposing the sentence may at the same time make an order to the effect that the offender shall not have his case for release under Part V of the Criminal Justice Act 1954 considered by the Prisons Parole Board until the expiration of such period, not exceeding 7 years commencing with the date on which the order is made, as the Judge may specify in the order.
"(2) Where any person is convicted of a drug-dealing offence and is sentenced to imprisonment for a term of less than 10 years, the Judge imposing the sentence may at the same time make an order to the effect that the offender shall not be recommended by the Prisons Parole Board for release under Part V of the Criminal Justice Act 1954 until the expiration of such period, not exceeding seven-tenths of the term of the sentence commencing with the date on which the order is made, as the Judge may specify in the order."
Under the Prohibition (Enforcement of Hadd) Order, 1979 19 (Article 25),
"Whoever attempts to commit an offence punishable under this Order or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished, in the case of an offence punishable under Article 8, 20 with rigorous imprisonment for a term which may extend to two years, and in other cases, with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such whipping or fine as is provided for the offence, or with any two of, or all, the punishments."
19 Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Pakistan, The Prohibition (Enforcement of Hadd) Order, 1979 (E/NL.1979/22, 1 June 1981).
20 The title of this article is: Drinking Liable to Hadd.
In Portugal, Act No. 21/77 of 23 March 1977 21 prescribed the regime applicable to psychotropic substances. Articles 19-21 deal with penal sanctions in the event of violation of this Act. Basically, unauthorized purchase, sale or possession of psychotropic substances form the basis for convictions, and any breach of the statutory provisions in this regard 22 will be punished by imprisonment for 8 to 12 years with hard labour and a fine of 250,000 to 1 million escudos. This is the maximum punishment prescribed by the above-mentioned legislation.
Criminal justice policy is heavily influenced by the opinions of policymakers based on presumptions as to the responsiveness of offenders to sanctions. The alternative or complement to sanctions is thought to be correctional training programmes. Correctional training programmes should not have a generalized approach making all offenders of similar types subject to the same programmes. They should be individualistic, and formulated in the light of the offender's correctional strategies and the availability of resources to meet those strategies. In most countries the system of penal sanctions still appears to be based on traditional concepts; they are value-oriented and narrow. On the other hand, correctional rehabilitative programmes, taken collectively, may have only a small effect on crime rates, 23 and the general belief as to the effect of stigmatization by imprisonment is of doubtful foundation. The crime rate is fairly independent of the incapacitation of offenders when the supply of offenders is elastic. 24
Drug offenders may be broadly categorized in two groups: consumers of drugs, authorized or not, who obtain drugs from illicit sources; and unauthorized drug suppliers and those authorized suppliers who are in breach of regulations as to supply of drugs. In the drug-trafficking business, all parties concerned, including addicts, may be accused of contributory offence. Whereas economic gain motivates suppliers to be engaged in the illicit trade in drugs, psychological needs prompt addicts to obtain supplies even from illicit sources, The dictates of strict law would require that all parties be punished. Indeed, if a drug addict is himself an illicit trafficker, according to strict law, he deserves punishment for being an offender of the law on two counts. Assume that there are no drug addicts in the world, but only illicit drug traffickers, then the latter party should be punished severely if they also motivate people to become drug addicts. But assume again that there are drug addicts only and no illicit drug traffickers, then the problem arises whether drug addicts prompted ordinary people to become illicit drug traffickers. The real answer is, without attempting to justify which category of offenders came first, that each party needs the other. In imposing sanctions on both types of offenders, there therefore arises a dilemma: the degree of contributory offence. It would certainly be outrageous to suggest that illicit drug traffickers should not, in the circumstances, be subject to severe punishment. Similarly, it would be unrealistic not to make provisions for treatment of drug addicts, rather than making them only Subject to severe punishment. Drug addicts are in most cases victims of circumstances, but the question still remains whether they, prior to their becoming addicts, chose to become addicts, particularly when the consequences are obvious to themselves. If the answer is in the affirmative, then from the point of view of 'intention' and actus reus, the two generally accepted elements of crime, there would be no major difference between a drug addict and an illicit drug trafficker. One distinct difference between them would be that whereas the addict decides to do harm to himself, the trafficker attempts to do harm indiscriminately to members of society. A drug addict can also be a drug trafficker. It would be unkind to say that drug addicts have criminal intent, but legal logic suggests otherwise. Any attempt to elicit attribution of criminality does not take away the fact of a drug addict committing an illegal act in most situations. However, according to criminologists, social workers, medical practitioners and psychologists, attribution of criminality to drug addicts may conflict with the process of therapy and treatment. Moreover, it is, in reality, always much easier to detect drug addicts than illicit drug traffickers, and therefore, it would be a sensible act to make efforts to ensure that drug addicts receive proper treatment and education with a view to their social re-integration.
21Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Portugal, Act No. 21/77 of 23 March 1977 (E/NL.1979/5-7, 2 April 1981).
22 Laws and regulations promulgated to give effect to the provisions of the international treaties on narcotic drugs and psychotropic substances, Portugal, Act No. 21/77 of 23 March 1977 (E/NL.1979/5-7, 2 April 1981), articles 3 and 5.
23A. D. Witte, "Work release in North Carolina - A program that works?", Law and Contemporary Problems, vol. 41, No. 1 (1977), p. 230.
24E. van Den Haag, Punishing Criminals: Concerning Very OM and Painful Questions (New York, Basic Books, 1975).
The primary purposes of a sentencing policy are twofold: correctional and deterrence. Where economic gains of crimes are enormous, no sentencing policy, however stringent it may be, will attain those two purposes. Such is the case of illicit drug traffickers. Drug addicts, on the other hand, despite their being contributory offenders, are the losers; in their case, perhaps drug education would be helpful. Both the Single Convention on Narcotic Drugs, 1961 25 and the 1971 Convention on Psychotropic Substances 26 have provided for treatment and rehabilitation of drug addicts.
25 Single Convention on Narcotic Drugs, 1961 (United Nations publication, Sales No. 62.XI.1).
26 Convention on Psychotropic Substances 1971 (United Nations publication, Sales No. A/C/E/F/R/S.78.XI. 3).
Article 38 of the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961 27 provides that:
"Measures Against the Abuse of Drugs
"1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends.
"2. The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of drugs.
"3. The Parties shall take all practicable measures to assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread."
Article 20 of the Convention on Psyhotropic Substances provides that:
"1. The Parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved, and shall co-ordinate their efforts to these ends.
"2. The Parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of psychotropic substances.
"3. Parties shall assist persons whose work so requires to gain an understanding of the problems of abuse of psychotropic substances and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of such substances will become widespread."
Punishment is not only permissible but also desirable. It is socially necessary in order to maintain laws. Nevertheless, punishment must be consistent with its aims. Although some experts believe that "men may be led to control their passions by the threat of unpleasant treatment if they do not do so,'' 28 punishment must not be extreme or unduly heavy or inhuman. There is no guarantee that the same offender will not be reconvicted, even for an offence similar to the one that led to his first conviction. Individual deterrence, individual incapacitation and general deterrence are the three main approaches to crime prevention. Their individual or collective application and effect have not been clearly established. Sentencing policies in most legal systems are based on the belief that "To allow the offender to get away with impunity would undermine the point of having rules in the first place; it may engender a sense of unfairness in the law-abiding members of the community and so undermine the general attitude that the law is to be obeyed. The offender for his part does not have good grounds for feeling unfairly treated if the community responds to his breaking the law in some way which is to his disadvantage." 29 How much punishment and on what principles should the levels of severity in punishment be set will remain a debatable question for some time to come. Article 36 of the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and Article 22 of the 1971 Convention on Psychotropic Substances have provided for elaborate system and method of punishment of drug abusers. Both the Conventions have rightly maintained that the penal provisions must be subject to the constitutional limitations of the contracting parties, their legal systems and domestic laws. The United Nations can only give its Member States guidelines as to how to deal with matters affecting international life and society. 30
27 Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961 (United Nations publication, Sales No. A/C/E/F/R/S.77. XI.3).
28 J. Michael and H. Wechsler, "Rationale of the law of homicide", Columbia Law Review, vol. 37, 1937, pp. 1261 - 1325.
It is to be noted, however, that although responsible persons would have no sympathy for illicit drug traffickers, it should be seriously considered whether by imposing heavy or undue sanctions only the incidence of illicit drug trafficking may be minimized. At the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders 31 it was noted that the main causes of crime in many countries are "social inequality, racial and national discrimination, low standards of living, unemployment and illiteracy among broad sections of the population." Most of these reasons may contribute to the commission of economic crimes, such as illicit drug trafficking. Consequently, article 38 of the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and article 20 of the 1971 Convention on Psychotropic Substances are also applicable to illicit drug traffickers, the fundamental reason being that society should share the blame too. The Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders recognized that imprisonment cannot be wholly dispensed with. Nevertheless, it acknowledged the importance of developing alternatives to the sanction of imprisonment, 32 and called upon all Member States to take effective measures to prevent practices of torture and to punish person, found guilty of such practices. 33 The Congress very rightly pointed out that "... success in crime prevention can be achieved only through a specific analysis of crime trends inherent in a given country and region, as well as through the use of the means and methods of crime prevention which correspond to the country's historical, socio-economic and cultural peculiarities.'' 31 It is therefore incumbent on the Member States of the United Nations to take effective measures on this matter 34 and to seek guidelines and perhaps technical assistance from the United Nations in that connection. The initiative must come from the Member States, since law enforcement is a matter over which they have sole control.
29D. Galligan, "The return to retribution", in Crime, Proof and Punishment, C.Tapper, ed. (London, Butterworths, 1981), p. 157.
30S. K. Chatterjee, Legal Aspects of lnternational Drug Control (The Hague, Martinus Nijhoff, 1982), pp. 436-439; 445-446 and 482-485.
31 Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Report (United Nations publication, Sales No. E.81.IV. 4).
32 Ibid., p. 13.
33 Ibid., p. 10; see also United Nations General Assembly resolution 3452 (XXX) of 9 December 1975, by which the General Assembly of the United Nations adopted the Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
34 Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Report (United Nations publication, Sales No. E.76.1V. 2), pp. 12 - 14.