The government has provoked a firestorm of debate over its proposal to revise the limits on the amount of drugs that a person can be caught with and still be tried in drug court.

While proponents of the government’s plans argue that the revised limits give the judiciary more leeway when dealing with addicts, critics say the new law will open the door for traffickers to get off with a lighter sentence. 

Those who work with drug offenders and with people struggling with substance abuse say the issue is more complex than portrayed.

Caritas director Anthony Gatt told Times of Malta that in principle, the organisation would not want to see prison terms imposed on people with a genuine drug problem. Conversely, neither should those who are not addicted be able to evade prison if they deserve it.

Caritas is currently formulating its official position on the subject.

However, the first impression, Gatt said, was that the introduction of drug court had yielded positive results because addicts were given the option of treating their habit rather than going to jail. 

Some Caritas clients made a genuine effort to tackle their addiction but were still facing legal issues after being caught with amounts that made them ineligible for drug court. It would benefit such people not to be incarcerated once they had already been rehabilitated, Gatt said.

"Wherever you draw the line, there are people who are going get hurt by the limitation:

But, he added, safeguards should be in place to ensure that the wider margins would not be used by drug traffickers to bypass prison.

“We cannot have a situation where someone who sells drugs for financial gain, and not because they are substance dependent, use the drug court to evade the consequences of their actions, and are allowed to manipulate the system and resume their activity,” he said. 

Caritas clients asked for feedback believe that widening the margin for drug court could give rise to abuse.

“The sentiment we are seeing among clients is that a person who is addicted to drugs and also sells drugs is rarely in possession of more than 100 grams. They feel the change would leave too much wiggle room for people to manipulate the system.

“Then again, I understand that it’s difficult to draw the line. You have to have mercy on those who deserve it but some will never find the will to stop until they’ve hit rock bottom.”

Noel Xerri, CEO of the Oasi Foundation, expressed similar sentiments, saying that the average drug user did not consider the amounts proposed as being for personal use.

Research shows there are different categories of drug suppliers.

The foundation works with people who have resorted to trafficking to fund their drug addiction, got caught with an amount exceeding the limit for drug court, and were looking at the possibility of jail despite making real progress through rehabilitation and personal change.

“You could very well have people who start out with an addiction problem and try to maintain that lifestyle by selling drugs to fund their personal use,” he said.

“Generally speaking, once they are caught and made to deal with the root of their addiction, the need for drug trafficking stops. In such cases, the system, especially the drug court, is very effective at instigating change.”

Acknowledging that the court needed a guideline, Xerri said that ideally, the courts would treat every individual according to their circumstances.

“Wherever you draw the line, there are people who are going get hurt by the limitation. However, I think that the system should evaluate every person on a case-by-case basis. There are several ways to test whether a person is genuinely an addict or not.

“If the approach was to judge on the merits of every case, then the guidelines would not be restrictive and nobody would be harmed.”

Ultimately, traffickers do not benefit from the traditional treatment and rehabilitation services offered to addicts because their motivations and their needs are different, Xerri continued. 

But when the trafficking takes place to sustain drug use, then there should be the flexibility to give addicts the help that they deserve. 

“We don’t believe that the limits should go up, per se, but there should be more leeway for addicts who deal in drugs to be processed and get help first.”

'Court has discretion'

Justice Minister Jonathan Attard clarified that the reform will not revise the amounts set for personal use – it was still a crime to be caught with the amounts of drugs. 

The court was being given the discretion to convert itself into a drug court when it was morally convinced that addiction was behind the crime and that rehabilitation would be beneficial.

“These numbers are indicative and have nothing to do with personal use.

They are a benchmark for the judiciary to use when the crime of trafficking or aggravated possession is committed by a person seeking to finance their drug habit rather than for personal gain. It creates the possibility for the court to set that person on the right path,” Attard said.

“A drug trafficker, whether they get caught with 100 or 500 pills or more, is going to be treated like a trafficker and one hopes that the courts inflict a just and strong penalty that serves as a deterrent for all those who seek to deal in drugs for financial gain.” 

The courts, Attard continued, already have the power to assess whether a person is genuinely motivated by addiction. 

The reform would also give the drug reform board more power to appoint more experts who would monitor the individual through drug court. 

Under the proposals, the board’s recommendation should not simply be a yes or no as to whether a person merits drug court but should include a detailed justification so that the court could make a more informed decision. 

Attard said that the new maximums were proposed after a review of recent case law and were motivated by the need to allow the court not to impose jail time when it believed it had a genuine case of addiction. 

“Malta still has the highest penalties for drug trafficking in Europe and I think even beyond, because here you can get up to a life sentence,” Attard said.

“But we also need to give those who are genuine victims the opportunity to rebuild their life and start down the right path.”