Expert Seminar on Proportionality of Sentencing for Drug Offences

Transnational Institute (TNI), International Drug Policy Consortium (IDPC) & Sentencing Council
May 20, 2011

prop-seminarThere has in recent years been a renewed interest in the principle of proportionality in sentencing policy for drug offences. There has been official analysis of the issue by the International Narcotics Control Board (INCB) and several national initiatives that have inscribed a requirement for proportionality when sentencing in statute or penal code, asserted it through the courts, or, as with the UK Consultation on sentencing for drug offences by the Sentencing Council of England and Wales, are continuing to explore the concept through policy processes.

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Proportionality has indeed become an essential safeguarding tool for fundamental human rights but, as regards sentencing, it is nevertheless inextricably linked to the question of punishment, and specifically, how much punishment should be inflicted. Accordingly, the current trend in many jurisdictions for decriminalization of drug offences has raised the spectre that proportionality may be an inappropriate concept by which to determine the appropriate response to drug offences because of the inherent presupposition of punishment. Moreover, the lack of consensus across the international and domestic drug-policy bodies as to what parameters should be used to determine the harmfulness of controlled substances and, in any event, the inability of these bodies to assert scientific recommendations over political considerations has cast into doubt the ability to gauge proportionality of sentencing for drug offences as this requires a measurement of the severity of a sentence against the seriousness (i.e. harm) caused by an offence.

In this context, it seemed timely to explore the concept of proportionality as a policy and legal tool and accordingly the seminar had two objectives. First, broadly, to consider the meaning of the concept and its relevance, utility and practicality in determining effective and humane sentencing for drug offences. Second, to discuss and feed into the current UK consultation on sentencing for drug offences which touches on many of these themes.

In particular, the UK consultation has raised the question as to whether an offender’s ‘role’ (as a reflection of their level of involvement in the drug trade) makes for a good parameter when measuring seriousness and with it proportionate sentencing. This, being felt to be a question of international application, was allocated particular attention in the expert seminar. Likewise, the treatment of drug ‘mules’ was given separate attention in the seminar, as it is in the UK consultation, because it seemed that not only do such cases engage many of the issues set down for discussion but that with this group so often subject to exceptionally punitive disposals, there was real call for urgent debate.

The Expert Seminar on Proportionality of Sentencing for Drug Offences was an initiative of the Transnational Institute (TNI) working together with the International Drug Policy Consortium (IDPC) and co-hosted by the Sentencing Council of England and Wales (SC).  The seminar was the third in a series of expert discussions on drug policy designed to feed into moments of opportunity for policy and law reform at national and international level with detailed technical analysis and through examples of best-practice from across different jurisdictions.

The seminar was held under Chatham House rule to ensure confidentiality and to allow participants a free exchange of ideas. A total of 31 people attended and comprised a mixture of domestic and international policy officials, the judiciary, and practitioners as well as representatives from non-governmental organisations and academic institutions.

Four themes were covered over the course of the day:

?  Proportionality; the International Human Rights Perspective

? The UK Experience and Consultation on Sentencing for Drug Offences

? The Concept of Proportionality with a Focus on Different Levels of Involvement in Drug Offences

? Drug ‘mules’

Background papers were disseminated to all participants in advance of the discussion. Further, each theme was prefaced by the introductory remarks of key participants, in order to stimulate reflection and dialogue, followed by frank discussion. The outcomes of the seminar were summarized in a consultation response to the to the Sentencing Council for England and Wales Consultation on the Drug Offences Guidelines. Mike Trace, the moderator of the seminar, and Chair of IDPC, was also invited to provide an oral testimony to the Sentencing Council on the issue of sentencing. During his oral testimony, Mr Trace drew most of his advice on the knowledge he had gained during the seminar.

See also: Sentencing for Drug Offences in England and Wales: Law Reform without Legislative Reform, by Genevieve Harris, Series on Legislative Reform of Drug Policies Nr. 5, June 2010