Drug policy innovations in Latin America

Event organised by IDPC, TNI, WOLA and CEDD

Ann Fordham, Introduction.This event is hosted by IDPC, CEDD, TNI, WOLA.Latin America has been at the forefront of the collateral damage created by the war on drugs. What we are seeing now is a series of seating presidents calling for an open debate on drug control.  Here we highlight some of the innovative approaches in the region.

Catalina Perez, CEDD. CEDD is a Group of lawyers and Experts on the law and drugs. We study the incarceration of people for drug offences in Latin America. Our last report was on users and human rights. Drug use is a public health concern. In Argentina 75% of sanctions were against people for possession offences. In most of the region, drug use remains criminalised. In others, people are caught for possession for personal use but end up being processed as dealers. In Mexico, most people being processed for drug offences are processed for marijuana offences.

What we also see is that there is a weak public health response, with very few resources dedicated to health, they are mostly focused on law enforcement. In addition, most treatment is compulsory.

Current legal frameworks focus on criminalisation, and create conditions for the criminalisation of users. There is a lack of commitment to treating use as a health issue.

Recommendations: possession and consumption should be decriminalised. We must be aware that thresholds are not necessarily the solution, they should be used but not as the only factor to be considered to address whether a person is a user or a dealer. Drug courts continue to be a problem. The full report with conclusions and recommendations is available on www.drogasyderecho.org.

Rodrigo Uprimny, DeJusticia. In the Americas there has been a tendency for change in the right direction in the field of drugs. There have been some changes, in some countries, around drugs issues.

Until very recently, we have been living in some addiction to incarceration. Since the 1980s, drug laws have expanded criminal sanctions in 2 ways – criminal sanctions for drugs offences were set up, and these were very high. Then, even minor drug offences led people to long prison sentences. This has two consequences: our countries have put in prison people who should not be there – they are not violent and have not done anything justifying incarceration. This is in itself unjust. But there are also massive human rights violations within our prisons (see Systems Overload report). Disproportionality in criminal law was blatant in Latin America for drug-related crimes, more than for rape, murder and other violent crimes.

In the last years, there have been interesting trends and changes. At CICAD, we studied many of these innovations in many different countries. We start in the USA, which has been the country pushing for more punitive approaches. We have seen searches for alternatives to incarceration at federal and state level. The LEAD diversion programme in Washington State is particularly interesting. HOPE is another example, using the police for diversion away from prison. At federal level, we have a programme called SMART and moves to change sentencing guidelines.

Ecuador has also adopted some interesting reforms. The leftist government in Ecuador has made changes to reduce the overcriminalisation of drug-related crimes.  Costa Rica has also reformed one article in its drug law to reduce prison penalties for women introducing drugs in prison. And this has enabled many women to leave jail.

In the Americas, we also saw changes on consumption – there is an agreement now that drug use should not be criminalised. The problem now is to implement this principle in an appropriate way.

At the OAS, we have worked on a paper on alternatives to incarceration – there are very different experiences already in place as alternatives to incarceration that fit within the flexibilities of the conventions. We documented experiences from all around the world around decriminalisation, diversion programmes, avoidance of privation of liberty, or reducing prison sentences. We documented at least 41 experiences that are already in place and can be used. We can have a powerful debate on this issue in the Americas.

Conclusion: we are experiencing an interesting time. But in some other countries, there are no changes at all. It is not a general trend. Second, there are limits even when there are advances, especially with regards to convention. We are living in interesting times, but not as interesting as some would like it to be!

Luciana Pol, CELS. There are interesting ongoing examples of how to reduce incarceration of women in Latin America. But this is limited. Women who are in prison for drug offences usually have many children and are in a very vulnerable situation. We also know that these women are not a threat to society. And they are easily replaceable by others, so there is no impact with their arrest.  We heard at the opening of CND that the conventions don´t push governments to incarcerate people for drug consumption. But in Latin America there has been a huge increase in incarceration rates, related to drug control. We also have an absence of criminal investigation strategies in Latin America. Reform should address this issue as well.

Our societies are very afraid and worried about narcos. In a way, incarceration is an expected response. Incarceration is one of the main indicators used for success. But this is a very unfair system for women caught in the middle. Many civil society groups and other bodies are working on this issue to tackle the inertia in the system.

Ecuador has changed its system. In 2008, it changed its constitution and decided to give a pardon for people condemned for drug offences, with some requirements: first offenders, involved in possession, transportation involving 2kg or less, already completed a year or 10% of their sentence. But they dealt with the emergency of prison overcrowding. It was not easy, the police and the prosecutors thought it was a very bad message to society. But the executive decided to go ahead and more than 2000 people were released. But the issue continued with prisons being once more overloaded with minor drug offenders. A bigger change was needed. What Ecuador did was to review its criminal code, which included: decriminalisation of consumption and of cultivation. Regarding trafficking, they decided to have three distinctions for defining the level of crime: criminal responsibility, substance involved, and scale of the traffic with thresholds (4 levels). This required rethinking drug policy and adopting a different approach. Ecuador addressed internal concerns and resistance with public opinion strategy and reflexions, as well as debates around prevention strategies.

Some countries are carrying out responses based on their cultural environment. The cultural factor is key to change. The other factor that is essential is the institutions. In Latin America we have weak institutions, corrupt police, etc. Reform in drug policy will not change these factors, and we therefore need to strengthen our institutions. We also have very dynamic sectors in our society which are willing to promote a change.

Pepe Mujica was asked in an interview if he expected if we would have problems with the regulation of cannabis. He said, of course! But then, how was your interview, was it perfect or was it full of mistakes which you corrected later with your experience and knowledge? We will face similar issues. This reflects the fact that reforms are exposed to international criticism. But we must learn and move ahead.

John Walsh, WOLA. There is a need to learn as you go. A regulated market for cannabis means that we will need to adjust learning from our mistakes. US reforms around cannabis are rooted in favourable public opinion and grassroots changes. Public opinion is now in favour of legalised cannabis markets.  There is a clear generational difference in opinion with younger people being more in favour. The ballot initiatives in Washington, Colorado, Oregon, Alaska and the District of Colombia cross the ideological spectrum. These changes are not irreversible, but they are very stable.

There are clearly challenges for US policy – the federal policy continues to be against legalisation of cannabis. A new administration in 2016 will decide how to respond to the moves. The system is also an all-cash industry, which creates problems for safety. There are also medical systems which have softened attitudes for recreational purposes, but it is not always the case. There are also issues regarding states that legalised cannabis which share borders with other states that have a more restrictive policy.

By contrast, Uruguay is a national law, it is no longer a state initiative. It is also not a popular policy – most Uruguayans remain sceptical. The Uruguayan system is very intentionally restrictive and very non-commercial – no branding, no advertising. This is hugely different from the USA. There are also exclusive choices on how to access cannabis: home crowing, clubs or pharmacies, with registry in official records. A key challenge will be  that this is too closely regulated, with the possibility that the legal market may be sidelined. However, despite these challenges, the Frente Amplio has been re-elected.

US foreign policy setting – we must recognise that this was not the federal plan. The Obama administration have reacted, and overall they reacted quite well. There is no low on whether states should follow a prohibitionist approach or another. The Brownfield doctrine is a political manoeuvre more than anything else. For the USA, this means that in 2016 California may hold a ballot. There will also be a general election and it is almost inconceivable that candidates will not take a position on cannabis. There will be more pressure, congressional action, some legal basis for states that legalise. The argument about the federal system will no longer be enough and the USA will need to think through how it can realign its domestic policy with the drug control treaties.

Tom Blickman, Transnational Institute. When President Mujica introduced its legalisation, he said that somebody should be first. But who will be second? And how about cannabis regulation in Europe? We don´t hear much about national level reform, but locally some interesting things happened. In the Netherlands, there is a big pressure against the coffee shops now. The backdoor for the coffee shops is not regulated, and this is posing problems in the Netherlands. The government is enforcing the law more and more. Mayors who had opened coffee shops were faced with cultivation issues and pressure for experiments on cannabis cultivation for coffee shops starting appearing. The most advanced stage is Spain with the cannabis social club model. There are around 600 clubs now there. For more information, please see: Cannabis policy models in Europe.

Questions and answers:

When we discuss quantity thresholds, we now have over 400 substances, so how do we develop these? In Australia, we gave up as this was an impossible task. I want an update on how things are progressing at setting up quantities. Should we have a general way of dealing with these or should we tackle each substance individually?

Catalina. It is not on the state to prove that possession is for use, but for the user to do so, which is not what should happen.

Rodrigo. The substances and quantities are already set out in the law.  The idea is to stick to some of the definitions we already have. But the issue is that many judges think that if you have a quantity superior to the one established in the law, they assume you are a dealer, even if you show you are a consumer. The quantities are a problem.

I want to discuss the process of law reform in Brazil in 2006. It led to a surprising increase in imprisonment of drug users. The law in 2006 said that incarceration was not to be used for drug offences, but another law called for jurisprudence from before should no longer be used.

Could you discuss the specific gender dimensions of the problem?

Luciana. The incarceration is itself a problem, but incarceration can also be extended to their children and elderly dependents. The social dimension is extended to their dependents. There are huge problems as children end up in prison, which requires resources form the states. Mostly women are heads of households, they don´t have links with criminal groups, but get engaged in the market because of lack of opportunity, or an event that forces them to do so. Criminalisation hits on them already in a very complicated moment in their lives. There are no facilities specialised for women, as well as for children. There are no mechanisms to help women decide what to do. The state does not provide them any assistance for where the children can stay. Women are often very anxious about where their children are going to stay during their sentence.

Given the experience of Portugal, what would your advice be for countries looking at decriminalization? What would be the appropriate amounts, to avoid unintended circumstances? Is there a disconnect between reality and the work of judges and police?

Rodrigo. In many Latin American countries, we know now we should not criminalise, but in practice they are criminalized. We don´t know what is the best practice.
Catalina. There is still a lot of stigma around the idea of decriminalization. There was a survey in Mexico a few weeks ago, and when asked about legalization, they say no, when they are asked if people should go to jail they say no, but when you ask if they should be criminalized, they say yes. So there is a way to ask questions in a better way. 

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