Side event: The role of the judicial system on the war on drugs at Latin America

Organized by the Brazilian Network for Harm Reduction and Human Rights, the Brazilian Drug Policy Platform, the Center of Studies for Law, Justice and Society, and Instituto RIA

Vera da Ros, REDUC: We conceived this side event to think about the role of the judicial system in the war on drugs in Latin America; challenges but also opportunities. REDUC exists since 1998 and we want to think of the judicial system because of the difficulties we find with regard to the judicial system and need solutions.

Luciana Zaffalon, PBPD: Considering the Latin American context, is the judicial system working to resolve the issues regarding the war on drugs or their role pivotal in the problem at hand? When we look at the criminal justice and public security, a question appears: What are the responsibilities of the judicial system? Prosecuting offences, controlling acts of state abuse, resolving conflicts, underpinning rights. We have more than 62.000 (…)1 in 3 inmates have been prosecuted for drugs. 64% of women. Who are these people being arrested? We have two separate police forces with two different aims – a civil police, for investigations, and a military police for immediate surveillance and repression of criminal or illicit acts. We would expect inmates to be prosectured by the civil police after investigations. But 87& are being arrested by military policy. 48.5% subjected to a violent arrest. 78% of these arrests were only witnessed by the military police in charge. 97% of the arrested don’t posess a firearm and 69% of them are alone. Who are these inmates? Almost all have very low education (more than 50% don’t even have primary education; 54% are Black people). Who are the judges and prosecuted? They make up 0.08% of the richest people in the country. The annual salary of a judge in Brazil is 139,780 EUR; twice the salary of a Germany Supreme Court judge. Their income is paid with public money. The percentage of the GDP paid by the Brazilian State on the judicial system is 1.3%; more than 10 times our neighbours and some European countries. The “War on drugs” seems more like a matter of willfull blindness of the judicial system. The law was reformed in Brazil in 2006; people who use drugs are not meant to go to prison…yet they are arrested and taken to prison as dealers. The average dealing charge for cannabis is 39.8g. The amount of people in jail after the reform in Brazil, the increase in the prison population is steeper. 10 years after the law reform, the Brazilian Drug Policy Platform did some research through a survey among parliamentarians. Deputies (68%) and senators (79%) said no. In the same year this law passed, we passed also the “Maria da Penha Law”; a great mechanism to fight violence against women. One must recall that every 9 minutes a woman is raped in Brazil, 3 feminicides a day. But only 1% of people in jail are imprisoned because of feminicides. Small drug offences seem to be more of a concern than feminicides. In Brazil, the judicial system is part of the problem.

Zara Snapp, Instituto RIA: In Mexico, the judicial system offers solutions but it’s also a driver of criminalisation. In 2006, Mexico declared a “war on drugs”, which militarised public security. We have seen this continue ever since and the new government’s proposal of a “National Guard” worries because of its potential to perpetuate this approach. WE saw a significant increase in human rights violations ever since. This data comes from the government but we know that a lot goes unreported. Some 30,000 have been “disappeared”. Families have created organisations to try to find them, alive (in treatment facilities, in human trafficking, etc.) but also deceased (as tips get to these organisations about the existence of mass graves). We hope the new government will offer support in their quest for justice. 41 journalists and 110 human rights defenders have been killed between 2012-2017. We also know that during pre-trial detention, people are regularly tortured as a means to extract information; with human rights organisations trying to bring these cases to justice. But impunity reigns supreme for these cases. A total of 200,000 military personnel have been deployed. The use of lethal force is rampant. 1.4 civilians killed for every police officers; 4 civilians for every military officer. Impunity levels are close to 98%. So, what happens with drug control? Very low thresholds according to the “Ley General de la Salud”. The country also passed a “Law against Narcomenudeo” (microtrafficking), which criminalises folks that possess more than the threshold, and treats people like traffickers when they might be in possession of amounts for personal use. The approach to people who cultivate plants deemed illicit is also criminalising, affecting and fuelling conflict in poorer communities. The impact of the repressive approach has been devastating. In terms of the “solution”, the Supreme Court in Mexico has set jurisprudence (5 favourable consecutive cases with the same legal criteria entail all courts need to judge similar cases in the same way). This is what happened with cannabis prohibition. Now Congress has 90 days to legislate (until October) on rights of people who use and cultivate cannabis. The legislative proposal follows four principles: actively confront the dynamics of oppression and privilege, recognises the existence of groups that have been historically vulnerable, generates affirmative and reattribute actions to level the balance of justice, destines resources towards the repairing of damages.

Isabel Pereira, Dejusticia: Studying the evolution of criminal codes in the region, we realise that they have been creating new crimes and adding new behaviours associated to these crimes. At the beginning of the 20thCentury, 2 main offences associated to drugs. Now 50 related behaviours. Gradual increase in the penalties associated to these offences over the last 60 years. Peru: increase from 2 years to 25 years. In Bolivia: 20 years max. In Colombia: max. 30 years. The sanctions are disproportionate. Sometimes the sanction for homicides is lower than for drug offences. There’s no link between the deprivation of liberty and the harms associated to the behaviour. On “prison overdose” and overcrowding. For 2014-15, more than 170,000 people deprived of liberty for drug related crimes in the region. 20% of the prison population in the 10 countries studied. Many countries above 100% overcrowding capacity. Some countries over 300%. Most imprisoned there for drug related offences. In Argentina, 85% of people didn’t finish high school. In Colombia, 79% first offenders. The judicial system pays little attention to mitigating factors (socioeconomic factors, primary caretakers,…). Women who are poor, have no access to public defenders, primary caretakers. Abuse of pre-trial detention. Latin America has the highest number of people deprived of liberty without a sentence. Over 60%. I wanted also to talk about the role of the high courts. Some progress in the region. Contradiction in decriminalisation of use, but criminalisation of possession. In Colombia, threshold personal use is 20g. A soldier was arrested with more than 20g. The Supreme Court created a figure called “supply for a longer-term dose”. Because he was dependent, and there was no attempt to commercialise, then it a supply offence shouldn’t apply. But to assume “dependence” because someone is in possession of a higher amount is problematic to say the least. And, crucially, it leaves the person under the authority of the crime and justice system. Judicial systems in the region are very willing to apply laws in ways that deprive freedom, despite alternatives available.

Question: Drug courts are often presented as a solution but we have heard about the judicial system.
Question: On drug courts, yesterday the Special rapporteur (…) issued a statement on drug courts and how they’re responsible for human rights violations. You also mentioned prison overcrowding. UNGASS explicitly talks about addressing this. But it would seem things are worsening. What should be a recommendation to the different authorities? UN and State authorities.
Luciana – A key issue is to fix the disproportionate impact of the war on drugs on communities in situations of vulnerability. In Brazil, if one’s rich, white, educated, the likelihood to end up in prison for one’s own drug use is minimal compared to the rest. It’s fundamental to address this.
Zara – The US government and CICAD have promoted the drug courts model actively in the region. We have talked to beneficiaries and families in a qualitative study and found that the majority of folks were involved in the system for alcohol or cannabis. And on the latter, for micro-trafficking (and very low amounts). These are not people who struggle with their drug use. But they’re poor and their communities are targeted by the police. You’re subject to “treatment” despite not needing it, you have to go regularly to the court, your freedoms are limited, keeping your job becomes difficult, your children can be taken away. Some people are grateful, however, because some services and opportunities are offered…which is often the first time these people receive any support from the State. Other jurisdictions seem to have been more successful. But we see a lot of subjectivity in this system. And it doesn’t fix the structural issue of uneven/unequal application of the law.
Isabel – Courts in Chile, Mexico, Colombia for minors. In terms of what the UN family should do, there’s a wonderful document by the Coordinating Executive Board that the UN family should promote in order to mitigate the excessive reliance on criminal penalties as a means to have an impact on social realities.

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