A Comparative and Analytical Essay

Sri Lankan and American Drug Policy:

Mr William Martz San. Francisco State University

As a prospective student of law having studied political science and international relations at SFSU I have been given the opportunity to serve a 3 month period of internship with the notable Godfrey Cooray Associates, a leading law firm in Negombo. During this time, I have been tasked with comparing the policies, codes, and approaches regarding illegal drugs in both Sri Lanka and in the United States, my home country. Both nations have taken steps in an effort to curb the use and prevalence of numerous drugs presumed dangerous, and have therefore deemed a variety of substances to be illicit. The codification to illegality, and the push to eliminate this blight is manifested by high incarceration rates for drug offenders, often accompanied with lengthy remands, heavy fines, and stiff prison sentences.

Although particular drugs have been made illegal at different times in the United States, often gradually and in several stages for a given substance. Most drugs were not outlawed with a single actof prohibition. The first regulatory act of major importance came in 1915 when the United States implemented the international opium convention, setting the guidelines for controlling the sale, distribution, manufacture, and importation of the drug. In 1970 the Comprehensive Drug Abuse and Prevention and Control Act was implemented, combining all federal drug laws under one statute, leading to what has become known in America as the "war on drugs". This led to the establishment of the Drug Enforcement Administration (DEA) in 1973, the organization that seeks to mitigate drug prevalence and investigate new substances that have a propensity for abuse. The DEA is also tasked with targeting high level distributors and manufacturers, while local police are tasked with targeting and arresting low level offenders. The DEA along with the Department of Health and Human Services also determine how and at what level a given drug should be classified, based upon medical value and its proclivity for addiction and abuse. American drug classification or schedules based upon their propensity for abuse combined with their medical benefits. They are labeled as I, II, III, IV, and V, where schedule 1 is considered to be of no medical value whatsoever.

Contrastingly, Sri Lanka’s history concerning the use of drugs dates back centuries, to ancient indigenous groups as well as practices found in Ayurveda medicine. However, the first major legislation of importance – putting in place the methodology used today – was the Poisons, Opium, and Dangerous Drugs Ordinance of 1936, subsequently amended in 1984 and followed by Sri Lanka becoming a party to the 1988 UN Drug Convention, forming the modern day basis of Sri Lankan drug law. This was again improved upon in 1994 with the Counter Narcotics Master Plan. This trajectory is fairly similar to that seen in the US. The same year America’s DEA came into place, 1973, also saw the creation of Sri Lanka’s Police Narcotics Bureau (PNB). The mission of the PNB is to reduce the supply of drugs in the country by concentrating its efforts on "high level syndicates whilst the area Police are entrusted with the responsibility of arresting street level drug dwellers". While he Ministry of Defense (MOD) has oversight authority and is ultimately responsible for counternarcotic operations. The division of responsibility – similar to that found in the US – is indicative of the significance both countries attach to tackling not only the use and sale of drugs, but also the manufactureand importation of illicit substances.

There are however important differences in how the laws of today are applied in the two countries. Most significantly regarding sentencing, and how reprimands are enforced on convicted offenders. The laws of both countries oblige judges to enact mandatory minimum sentences pursuant to the sentencing guidelines that are applicable to the nature of the offence. Therefore, the sentence is predicated upon a predetermined criterion that prescribes the administration of punishment. See tables for required penalties in both the US and Sri Lanka.

Although the notion of imposing mandatory minimum sentences exists in both legal systems, it is important to note a number of compelling differences within these structures. In the Sri Lankan system the law is much more strict, and the imposition of penalties considerably more severe. This can be seen in the quantity of drugs it takes to for the accused possessor to incur a harsh punishment. As shown in the table above; simply possessing 2 grams or more of heroin in Sri Lanka will incur a punishment of death (although no one has been executed in Sri Lanka sine 1976) or life imprisonment for the accused. Whereas in the US an individual accused of possessing 100 plus grams of heroin will receive five 5 years’ imprisonment, and 10 years’ imprisonment for 1 kilogram or more of heroin for a first offense, second offenses incur more severe penalties. The difference in the length of time one can be imprisoned relative to the quantity of drugs seized is apparent. It is also worthwhile to note that the death penalty cannot be used as a sentence in a drug case under any circumstances in the US. Additionally, cannabis in the US has been legalized in six states and largely decriminalized to a simple infraction in several others, whilst the drug maintains a fully illicit status in Sri Lanka. Other variables in the systems can be seen in the guidelines governing recidivism; in the US the punishment for repeat offenders is clearly delineated, while in Sri Lanka the act of discerning the punishment for repeat offenders is left to the discretion of the judge, and can be over the listed maximum penalties which apply to first time offenders. Meaning that there is much more ambiguity within Sri Lankan law regarding the sentences applied to repeat offenders, thus granting more leeway for judges to use their own discretion in these cases.

It is without question that drug abuse is damaging to the health, safety, and wellbeing of a society, and that it bears heavily upon the sanctity of the people living within affected communities. The prevalence of addiction not only reduces productivity and hinders development but also proves harmful to family structures, and can be detrimental to the future potential of children who face drug abuse within the household, or amongst their family members. Yet lengthy remands followed by harsh sentences requiring extended prison terms for relatively minor drug offences may not be the most helpful or productive means of addressing the problem. Mandatory minimum sentences play a prominent role in increasing incarceration rates in both the US and Sri Lanka, by requiring that a at least a certain amount of time be served for specific offences. Yet these rules were designed to target high level distributors, not the low level offenders who are so often caught up in them. The laws that necessitate judges implement these sentences if the accused is convicted do not allow for any form of extenuating or mitigating circumstances to be taken into account. Mandatory minimums are set by congress in the US and parliament in Sri Lanka, the judges who actually arbitrate the cases have little input in determining prospective sentences, yet they still require the judges to implement the minimum sentence even if the judge hearing the case believes it to be overly severe. This has been a concern of many American judges for some time. In the US the minimum sentencing laws have greatly contributed to an overcrowded prison system where a significant number of inmates are nonviolent drug offenders. This in turn has led President Obama to grant clemency to some 673 people by commuting their sentences for what he believes to be unduly harsh penalties for drug offenders who have not been convicted of a violent crime. If one is sentenced to life in prison – or even death – there is no opportunity for rehabilitation, and the accused is denied any form of a second chance. This can be harmful not only to the individuals involved, but also their families and even society at large. A number of states in the US have also instituted special drug courts whose aim is to promote rehabilitation for the offender rather than sending the cases to trial. These courts impart greater discretionary powers on the judges during sentencing. Thus allowing for more prudence, and a greater level of discernment to be utilized, and subsequently put into practice by the judges based upon the merits of each specific case. Sentencing in such courts often involves a probationary period where the accused has to submit to regular drug tests, and attend a treatment program, failing to do so will then often see the sentence reverted to jail time.

Drug treatment programs – which exist in both the US and Sri Lanka– can also play an integral role by aiding in the rehabilitation of addicts. This not only helps by treating those already addicted but may also reduce the numbers of users who turn to selling drugs to support their own habit, thus lessening availability to some extent. This approach would be particularly applicable to Sri Lanka where highly addictive heroin is ever more prevalent – often smuggled from India – and continues to flow into the country. More arrests are now made for the drug than all other substances combined. The first half of 2016 has seen the seizure of more heroin than ever before, even more heroin has been impounded this year than cannabis, which was traditionally the drug most confiscated in Sri Lanka according to data published by the PNB. This points to an alarming trend where heroin appears to be increasingly commonplace, and thus poses a greater threat to the nation and its people than any other illegal substance. This becomes all the more worrisome given the highly addictive nature of the drug, and its relatively low purchase price. The disproportionate levels of heroin seizures in Sri Lanka relative to the size of the country’s population is also alarming, leading some to speculate that Sri Lanka may be used as a transshipment point. Especially given that seizures only represent 10% of total trafficking in a given country (a commonly accepted figure espoused by the UNODC). This not only serves to iterate the importance of stemming the flow of drugs that enter the country, but it should also emphasize the importance of tackling the problem from within. It is a problem that is both external – given that Sri Lanka does not produce opium poppies – as well internal given that consumption, with all of its burdens on society, is on the rise.

Furthermore, I would like to sincerely thank Godfrey Cooray Senior Attorney-at-Law, Aravinda Fernando-Attorney-at-Law, Ruwantha Cooray Attorney-at-Law, Rukmal Cooray Attorney-at -Law, Roy Fermando Attorney-at-Law, Amelka Ranaweera, Vishmi Wickramarathne , Ruwanmalee Cooray and all of their colleagues at Cooray Associates for their support and guidance. Their help, insight, and hospitality have been of great value, without which this article would not have been possible.



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