Thailand: the overcriminalization of meth, a failed moral crusade

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Pascal Tanguay is an independent consultant who has lived in Thailand for the past 17 years. From 2011 to 2015, Pascal directed the national response to prevent HIV among people who inject drugs in Thailand. He was then deputy director of the Law Enforcement and HIV Network. He continues to support civil society organizations, governments and United Nations agencies towards evidence-informed, human rights-based approaches to drugs across Asia. Here, Pascal discusses the overcriminalization of meth-related crimes in Thailand and its consequences.

In 2010, a young woman was sentenced to 25 years in prison for crossing from Laos to Thailand with 1.5 methamphetamine (or yaba) tablets. Around the same time, two young men were each sentenced to life in prison for possession of the same yaba tablet, found in the car they drove from Thailand into Laos.[1]

These cases are not exceptional by Thai standards. The 24 prisoners I interviewed in 2016 were sentenced to a total of 825 years in prison (and four death sentences) for possession of 138 methamphetamine tablets in aggregate, representing a six-year prison sentence for every tablet seized.[2] In the global context, Thailand is a major outlier: the Global Commission on Drug Policies singled out Thailand for the “devastating consequences” of its “aggressive law enforcement practices targeting drug users.”[3] ICPR’s recent research on sentencing law and practice in a diverse group of ten jurisdictions also situated Thailand’s approach to sentencing drug importation at the extreme end of the international spectrum. It showed that the same offence of importing 400 grams of heroin would likely lead to a sentence of between six months and 20 years in nine of the countries, whereas in Thailand the sentence would be death, or life imprisonment.

The mystery of ‘yee-tok’

There is limited information about how Thai sentencers come to their decisions. This is not surprising given that Thailand does not have public sentencing guidelines or transparent sentencing processes like many other countries do. Instead, sentencing decisions are guided by the yee-tok, an informal confidential document accessible only by judges, unique to each court, that carries no formal compliance checks and balances.[4]

The Thai Penal Code prescribes a range of mitigating factors that sentencers may ‘if appropriate’ take into consideration when determining whether to impose a lesser sentence. This allows the judge to reduce the sentence by up to half based on factors which include the person’s age, mental capacity, temperament, ignorance of the law, provocation and admission of guilt. Yet the Code remains largely silent about how the court should first determine the sentence from the statutory range set for the offence. This lack of guidance, and the wide discretion as to whether mitigating factors apply, along with the lack of transparency in how the yee-tok works, all combine to compel sentencers to align with political imperatives, such as the need to achieve deterrence. In essence, Thai sentencers potentially support and accelerate politically driven moral crusades by imposing disproportionately severe punishments.

The blunt instrument of over-incarceration

Thailand has waged a ruthless war on drugs that relies on deterrence, with harsh punishment as its engine. Drug control efforts have prioritized law enforcement activities, while prevention and treatment strategies have directly supported law enforcement objectives, rather than public health ones. In parallel, the Thai criminal justice system has struggled to distinguish between recreational users, drug dependents, petty dealers and organized crime, and law enforcers have been encouraged to focus on street-level policing, incentivized to target people who use drugs through salary uplifts linked to arrest quotas, with devastating results: data from 2015 shows that almost 40% of all arrests were related to drugs;[5] and 80% of the Thai prison population was incarcerated for drug-related crimes in 2020.[6]

Meanwhile, the Thai prison system has been overcrowded for years, operating at almost 150% of capacity. Thailand currently has the sixth largest prison population globally, and the highest female incarceration rate: around 90% of incarcerated women are drug law offenders.[7] Yet as arrests, seizures and the number of drug law offenders continue to rise, growth in the illicit drug market in Thailand has outstripped the law enforcement response.

The politics of meth sentencing

In this repressive environment, overcriminalization is especially overt for meth-related crimes. Evidence shows that "Thailand’s harsh drug laws punish meth violations nearly 10 times more severely than heroin violations, while both drugs are scheduled in the same category."[8]

The political impetus behind the war on drugs has clearly influenced Thai sentencing. Despite recent reforms to reduce drug-related incarceration,[9] the overarching political environment continues to favor repression over rehabilitation, public health or proportionate justice. Whether the yee-tok enshrines political imperatives or not is impossible to tell given limited transparency. However, this is a fair assumption, given that sentences for breaching the same articles of the Penal Code differ depending on the substance in question, rather than on codified mitigating factors.

Disproportionately harsh responses towards drugs – and particularly meth[10] – offending is reflected across the whole criminal justice system – from policing practices and strategies on the ground, to highly punitive sentencing leading to the over-incarceration of drug law offenders. These harsh responses are normalized by the inflammatory discourse of government officials, echoed in local media. The ‘zero tolerance’ model that Thai society has largely bought into has become so compelling that it has led to unfortunate and unintended consequences, in that political agendas are being prioritized over adherence to the principles of proportionality, parity and transparency which should underpin sentencing.

More data, more transparency

Additional research is urgently needed into how inconsistencies arise in sentencing for drug-related crimes in Thailand, to inform a review of policy and of legal instruments – including the yee-tok. Historical analyses – like the one presented in a recent report published by the Thailand Institute of Justice[11] – can offer insights into how sentences for meth-related offences have become more punitive over time compared to those involving other drugs, despite falling under the same articles of the Penal Code. Similarly, the lived experience of incarcerated drug law offenders should be documented through ethnographic studies, to highlight the devastating personal, familial, social, cultural, legal and financial impacts of such punitive sentences. 

Global evidence consistently shows that the war on drugs has failed, that criminalization of drug-related crimes has not produced the intended results but has had unintended consequences that have caused significant harm to society.

It is high time that Thailand stop its failed moral crusade, abandon punitive practices and update its legal instruments to produce fair and proportionate sentencing outcomes, especially for drug offences.