Nilo (not his real name) was arrested in a police buy-bust operation for selling 40 grams of marijuana for P2,000. His arrest happened during Duterte’s nefarious war on drugs, and Nilo is lucky to be alive. He now faces a life in prison.
From how it happened, the buy-bust operation was in step with the law. According to the Comprehensive Dangerous Drugs Act of the Philippines (Republic Act No. 9165), he is accused of selling (Section 5) and possessing (Section 11) prohibited drugs, which carries the penalty of life imprisonment. Nilo’s egg is cooked; he is only 19 years old.
It wasn’t like this before. Back in the day, the penalties depended on the amount of drugs involved. Not everybody caught selling drugs received a life sentence.
Many politicians propped up themselves as tough on crimes and proposed the death penalty for selling prohibited drugs no matter the amount involved. If not for the moratorium on the death penalty by then-president Gloria Macapagal-Arroyo, Philippine jails would be teeming with death row tenants. The moratorium lowered the penalty to life imprisonment.
The cookie-cutter treatment of all drug offenders under our law — regardless of the amount of drugs involved — has caused serious congestion in Philippine jails. Drug suspects are charged with a non-bailable offense and face months, if not years, of pre-trial detention.
Many innocent detainees spend years of incarceration before their cases are finally dismissed. The 2024 Global Commission on Drug Policy Report says 90% of all pre-trial detainees in the Philippines (81,000) are for drugs-related cases.
Many drug offenders are minor players in the illegal drug trade. They operate in barangays to supply small-time users. The real drug lords are seldom caught. On any regular court day, the small-time drug offenders represent a sizable number of the total court cases in the day’s dockets.
Failed effort
The law’s harsh penalty is supposed to deter drug dealers and stem the supply of prohibited drugs. But long prison terms have never dampened supply as the enormous profits in the nefarious industry negate any deterrent effect of the draconian penalties. The anti-drugs law has not achieved its intended outcome: staunch illegal drugs in our communities. Instead, it has disproportionately impacted the poor, the foot soldiers in the drugs enterprise. As foot-soldiers are easily replaced, the illegal drug trade has not abated.
At the Quad committee of the House of Representatives, the Dangerous Drugs Board (DDB) has reported a drop in the demand of illegal drugs from the mid-2000s to the present by an estimated 70%. Since 2012, the rate of prevalence, since that big drop, has remained steady to around 1.6 million users in the country.
The DDB has attributed the decline in drug use to, “government-led and health- and human rights-based approaches.” It seems that the impact of the anti-drugs law and the Duterte drug war on reducing demand is minimal. (The big dip in prevalence happened previous to 2015, before Duterte became president in 2016.)
And yet, there’s no evidence that the supply side has abated at all. The drugs law has not deterred drugs syndicates from continuing their criminal activities. According to police authorities, the Philippines is now a transshipment point for central American drug cartels for their Asian market.
Those caught in the dragnet of the law are charged and penalized regardless of the amount of drugs involved. Plea bargaining is hardly an option for small-time drug dealers. (The Supreme Court has set not more than 0.99 gram of shabu, and not more than 9.99 grams of marijuana, as the threshold for plea bargaining for drug selling.)
In the case of Nilo, he faces 30 years of imprisonment for selling 40 grams of weed, a penalty similar for anyone smuggling billions of pesos worth of prohibited drugs. Why is the penalty for small-time drug dealers the same with big-time drug lords? Punishment should fit the crime.
No one will argue against throwing the book at the drug lords; lock them up and throw away the keys. But why should somebody, like Nilo, be punished the same way as the drug lords? In Nilo’s case, he is caught selling weeds, which is legal in many jurisdictions in Europe and the United States. There are efforts to legalize marijuana in the Philippines, and yet Nilo is facing life imprisonment, putting his life to waste, and denying him the possibility of rehabilitation to be a productive member of society.
Until weeds are legalized in the Philippines, Nilo, should face jail time for selling 40 grams of weed, but not for life. Life imprisonment for such a small-time offense is disproportionate.
People like Nilo should be given a chance to become useful members of society after serving commensurate jail time. We don’t need to destroy their lives for a mistake in choosing the wrong way to make a living. In the case of Nilo, at 19 years old, his prefrontal cortex — the brain part responsible for important skills, such as decision-making, logical thinking, and many more cognitive skills required for maturity — has not yet even fully developed, which, according to science, happens at 25 years old. For a youthful mistake, his life will be wasted. Punish all drug offenders for their debt to society, but in a fair and proportionate way.
Unexpected consequences
The draconian anti- drugs law has unexpected consequences as well.
First, the law has brought congestion in our jails. Because drug selling is a non-bailable offense, accused face months, if not years, of pre-trial detention until their cases are decided. Jail congestion drains our resources, and places detainees in sub-human conditions. Detainees, especially women, also face abuse and human rights violation. Small-time drug dealers should be allowed bail while being tried and given lighter sentences, if convicted, to decongest our jails. This would free up resources for our jails and improve their conditions.
Second, the law has bred corruption in law enforcement drug operations. The draconian penalties become tools for extortion on arrested offenders. The malevolent ecosystem engendered by this draconian law motivates police rascals to plant evidence and short-cut the ‘case build-up’ phase for drug operations, especially on small-time drug dealers. By planting evidence, arresting these offenders becomes plain-sailing making them easy-picking for extortion.
Congestion has turned our jails into the most expensive real estate in the country. “Rental” for sleeping space inside jails could cost at least 10,000 pesos a month, making many jail wardens millionaires from the miseries of detainees.
Now that the Quadcom hearings have revealed the excesses of the Duterte drug war, let’s take this opportunity to reform our draconian anti-drugs law.
Our draconian drugs law has been the fulcrum of our drugs policies for years, which has escalated the rates of incarceration, eroded human rights, and disproportionately impacted the marginalized communities.
We need to shift to proportional punishment and decriminalize use and possession to decongest our jails. We should prioritize human rights, health and dignity in our drug policy and not use it as a tool of repression. To do so is not to be ‘soft on crime’ but to mount an evidence-based humane, just and sensible approach in dealing with our drug problem. – Rappler.com
Jojo Lacanilao is a practicing lawyer. His career spanned for more than 30 years serving in various capacities in the public and private sectors.