Sentencing of Women Convicted of Drug‑Related Offences
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Sentencing of women convicted of drug‑related offences A multi‑jurisdictional study by Linklaters LLP for Penal Reform International Sentencing of women convicted of drug‑related offences: A multi‑jurisdictional study by Linklaters LLP for Penal Reform International Linklaters LLP and Penal Reform International would like to thank all staff from Linklaters and other contributing firms who volunteered their time for this study as detailed in the Acknowledgements on page 156. They would also like to thank the International Drug Policy Consortium for their input and for co‑publishing this study. This publication may be freely reviewed, abstracted, reproduced and translated, in part or in whole, but not for sale or for use in conjunction with commercial purposes. Any changes to the text of this publication must be approved by Penal Reform International. Due credit must be given to the co‑publishers and to this publication. Enquiries about reproduction or translation should be addressed to [email protected]. This publication was produced with the financial assistance of Linklaters LLP. The contents of this document are the sole responsibility of Linklaters LLP and Penal Reform International. Please note that this report considers relevant laws across 18 jurisdictions, but does not purport to be a comprehensive review of all of the law and case law on this topic. Penal Reform International Headquarters 1 Ardleigh Road London N1 4HS Email: [email protected] Twitter: @PenalReformInt Facebook: @penalreforminternational www.penalreform.org Linklaters LLP One Silk Street London EC2Y 8HQ Telephone: +44 (0) 20 7456 2000 Twitter: @LinklatersLLP www.linklaters.com International Drug Policy Consortium 61 Mansell Street London E1 8AN Telephone: +44 (0) 20 7324 2974 Twitter: @IDPCnet www.idpc.net First published in February 2020 ISBN: 978‑1‑909521‑67‑4 © Linklaters LLP and Penal Reform International 2020 Printed on 100% recycled paper. Sentencing of women convicted of drug‑related offences A multi‑jurisdictional study by Linklaters LLP for Penal Reform International Report on Argentina, Australia, Colombia, Costa Rica, Ecuador, England and Wales, France, Germany, Hong Kong, Japan, Mexico, New Zealand, the Philippines, Poland, Portugal, Russia, Spain, and the United States. Cover photo Produced by the Washington Office on Latin America (WOLA) as part of a photo series. Photographer and producer: Jessamine Bartley‑Matthews. Woman, Sara, aged 50, fled her family at age 13 to escape sexual abuse at the hands of her uncle. With no education or opportunities, she became drug dependent and worked in the sex trade, and was eventually arrested for selling small quantities of crack to support her own consumption. Out of desperation, she attempted to bribe the police officer arresting her for selling drugs with the equivalent of US$3.75. She is currently serving a combined seven‑year plea‑bargained sentence for the two offenses. See more at: womenanddrugs.wola.org/photo_essay/failed‑by‑the‑system. CONTENTS Contents Juridictions surveyed 4 Executive summary 5 Multi‑jurisdictional responses: high‑level summary 15 Chapter 1: Argentina 38 Chapter 2: Australia 42 Chapter 3: Colombia 58 Chapter 4: Costa Rica 62 Chapter 5: Ecuador 66 Chapter 6: England and Wales 72 Chapter 7: France 80 Chapter 8: Germany 88 Chapter 9: Hong Kong 96 Chapter 10: Japan 100 Chapter 11: Mexico 102 Chapter 12: New Zealand 106 Chapter 13: Philippines 112 Chapter 14: Poland 118 Chapter 15: Portugal 124 Chapter 16: Russia 128 Chapter 17: Spain 134 Chapter 18: United States 138 Resources 154 Acknowledgements 156 Linklaters LLP for Penal Reform International | Sentencing of women convicted of drug‑related offences | 3 JURISDICTIONS SURVEYED Jurisdictions surveyed 4 | Linklaters LLP for Penal Reform International | Sentencing of women convicted of drug‑related offences JURISDICTIONS SURVEYED Argentina Australia Colombia Costa Rica Ecuador England and Wales France Germany Hong Kong Japan Mexico New Zealand the Philippines Poland Portugal Russia Spain the United States Linklaters LLP for Penal Reform International | Sentencing of women convicted of drug‑related offences | 5 EXECUTIVE SUMMARY Executive summary Key findings Drug‑related offences are known to have a particular guidelines (including mandatory minimum sentences), and disproportionate impact on women. This report thus limiting their impact. In cases where they have considers five key questions relating to the sentences been taken into account, it is difficult to quantify the imposed on women for drug‑related offences across effect on the sentence given. criminal justice systems in 18 jurisdictions. In a number of jurisdictions covered, non‑custodial The key finding is that the complex reasons and sentences are the more common form of sentences for pathways of women’s confrontation with criminal justice low‑level drug‑related offences for women (for example, systems for drug‑related offences are not adequately in England and Wales, Germany and New Zealand). In reflected in legislation or (where existing) sentencing contrast, in Russia, non‑custodial sentences are only guidelines, nor sentencing practices across the issued in about 4% of drug‑related offences cases. Data 18 jurisdictions studied for this report. suggests that in some jurisdictions, like France, prison terms handed down to female offenders appeared less Drug legislation and sentencing guidelines in the severe than for male offenders, with reasons suggested majority of jurisdictions surveyed fail to take account including that first‑time female offenders tend to be of, or consider, the typical circumstances and roles prosecuted for less complex offences and they have of women’s involvement with drugs. While there is a lower reoffending rate. This correlates to evidence a variety of considerations mentioned in a number that women tend to commit minor non‑violent crimes, of jurisdictions’ legal instruments that can mitigate often related to poverty and in a context of violence culpability or lessen a sentence for a woman prosecuted and discrimination.1 At the other end of the spectrum, or convicted for drug‑related offences, the impact on in Hong Kong, a look at a sample of cases involving their sentence received is less certain. Factors typically drug trafficking by women in situations of vulnerability include consideration of pregnancy, single‑parent (including one pregnant woman) shows harsh prison status, or other circumstances such as experience sentences as long as 14 to 20 years been common. of violence or coercion, role in the crime, or status Similarly, in the Philippines drug offences attract prison of vulnerability. Where such factors are explicitly terms ranging from 12 years and one day to 20 years or mentioned, they are given weight of differing degrees or life imprisonment. discretion is limited by the applicable law or sentencing Sentencing range for women convicted for drug-related offences 14–20 YEARS 12–20 YEARS NON-CUSTODIAL SENTENCES HONG KONG PHILIPPINES IMPRISONMENT Non-custodial sentences are In the Philippines drug-related the most common sentences offences attract prison terms for low-level drug-related offences ranging from 12 years to 20 years for women in England and Wales, or even life imprisonment. Germany, New Zealand. 1. UN Special Rapporteur on violence against women, ‘Pathways to, conditions and consequences of incarceration for women’, A/68/340 (2013). 6 | Linklaters LLP for Penal Reform International | Sentencing of women convicted of drug‑related offences EXECUTIVE SUMMARY Background and international > A 2017 UN report highlighted legal framework links between poverty, family The number of women and girls in prison, estimated roles and drug‑related offences to be more than 714,000, is increasing: from 2000 to 2017, this figure globally increased by more than 50%, committed by women, raising while the overall prison population increased by around concerns at their ‘overincarceration’ 20%. It is clear from country‑based research that the number of women in prison has not grown dramatically for ‘transporting drugs (as mules), because of an increase in criminal activity, but because having a secondary role in of political choices, including harsh drug policies.2 the commission of crimes or Drug policies are known to have a particular and disproportionate impact on women, and their children. performing low‑level high‑risk Eighty‑two per cent of all women in prison in Thailand tasks, often at the request of are imprisoned for a drug offence; in the Philippines, the proportion of women in prison for a drug offence is 53% their partners’. and in Peru and Costa Rica it is more than 60%. In Brazil, 63% of women in prison in 2014 were there because of minor drug‑related offences – compared to a quarter of This makes them typically easy targets for drug men.3 The recent United Nations (UN) Global Study on enforcement authorities, even though it does little to Children Deprived of Liberty estimated that in 2017 there disrupt drug‑trafficking networks. Furthermore, a UN were approximately 19,000 children living in prison with report indicated that more serious offenders, mainly a primary caregiver (normally their mother).4 The number male, escape imprisonment or have their sentences of children affected by their mothers’ imprisonment reduced by entering plea‑bargaining deals and providing is significantly more than this however, as globally assistance to the prosecution, which women are usually 9 the vast majority of