Side event: Alternatives to incarceration in Latin America and the Caribbean

Side event organised by the Washington Office on Latin America, the International Drug Policy Consortium, Dejusticia, the Social Science Research Council, and Colectivo de Estudios Drogas y Derechos

Sergio Chaparro, DeJusticia. I want to thank the organisers of the event, especially SSRC. I want to highlight 3 facts from our report ‘Irrational punishment: Drug laws and incarceration in the Americas’:

  1. The Americas have an incarceration epidemic. We have incarceration rates per continent, and the Americas rate is 3/4 times Africa and Europe’s rate. The prison population has grown 2.5 times faster than the general population. These figures are perhaps overestimated because of the inclusion of the USA. But almost all Latin American countries are also seeing their incarceration rate increasing fast. These are indicators we can use if we want to use the UNGASS outcome document implementation.
  2. One of the main factors driving incarceration is an addiction to punishment for drug related offences. I have a chart here showing the evolution of people incarcerated in general and those for drug offences. Those grew 267%. American countries have an addiction to punishment: adding crimes and increasing penalties for drug offences to control an expanding illegal market. But this has not had an effect on demand and supply in drugs. We looked at the symptoms for this: an increase in minimum and maximum penalties. This is why trafficking cocaine is more serious than rape or murder. Harsher rules including mandatory pre-trial detention, mandatory sentences, restrictions on constitutional rights, less procedural benefits for those caught in flagrante (e.g. in Mexico), restricted access to probation and parole as drug crimes are considered as most heinous crimes.
  3. Incarceration has focused on minor drug offenders: 1/5 of people incarcerated are there for drug offences. Most for low level and non violent crimes. They shouldn’t be incarcerated. Incarceration has also had an impact on discriminated populations. For women, those incarcerated for drug offences represent between 24 and 80% of the female prison population. There is a similar trend for youth and blacks.

Rebecca Schleifer. The USA is the leader of the pack in terms of incarceration with about 1/5 of people incarceration for non violent drug offences. There-s clear evidence that black people and white people are involved in the same rate in drug markets, but black communities are disproportionately imprisoned. Are we trying to address drug dependence? Overcrowding? What about racial disparities on law enforcement? What alternatives would be appropriate? I’ll give you some background on drug courts. While they’re referred to as homogenous entities, but there’s a range of different models. They tend to exclude people who were charged with serious crimes in the past, and who could suffer from drug dependence. The diversity of models complicates understanding. IN general, they monitor progress with drug testing, frequent hearings were confidential matters are discussed, they also use punitive measures (an essay, brief periods of incarceration, etc.).

In the US, most courts require the defendant to plead guilty to get treatment. After you complete the court proceeding, you can have your sentence waived or reduced, but if you fail to complete you might end up spending more time in jail. Dispositional models are mostly post-plea. Are drug courts cost effective? And if so, compared to what? Studies show mixed results. Usually, measured against high costs of incarceration. But drug courts can be costly. They require a whole team. Prosecutors, drug testing operators, etc. Most courts require you to pay court costs and restitution, payment of drug testing fees as a condition of graduation. The failure to pay fines could have you kicked out of the programme and imprisoned. This might aggravate social and racial inequalities in the criminal justice system. Most states and thefederal government have dispositions for expungement ant erasure of convictions. But the (…) record might still say your record was expunged. Even if you complete the programme, government agencies might be notified you were arrested, etc. This information is available to the general public.

If we were to analyse if people involved in drug courts spend less time in prison, the results are mixed. They increase criminal justice supervision and expose people to receive higher penalties they would otherwise receive. In terms of treatment, one of the mainstay affirmations is that it contributes to access to treatment. But people dependent on drugs should not rely on the criminal justice system to access treatment. Research suggest  that some people involved with the system do not have a problem with dependence or addiction. The judges might see this as the most humane option.

Many drug courts and practices lead judges to make medical decisions. In the US, for instance, where opiate addiction is in crisis, some courts ban methadone treatment, a recognised option for people dependent on opiates, in contradiction of international standards, and threatening health and human rights of people who use drugs. Important do disentangle the issues related to drug dependence and mass incarceration. Drug courts could aggravate the problems of a bloated criminal justice system. We need to think how we could implement reforms to implement access to health outside of the criminal justice system and reduce overcrowding.

Tania Ramirez. This presentation is based on the findings of the SSRC looking into the US experience to drug courts and how relevant it is for Latin American countries seeking to establish drug courts. There are many other options to alternatives to incarceration. We are just looking at drug courts here as they are being considered all over the region. I will contextualise drug courts in the region and issue recommendations. Drug courts have operated in the region for a while. The general discourse has been established with support from CICAD. Drug courts function in 11 countries across the region. In some of these countries such as Argentina, they are pilot programmes. In others, they are public policy and implemented in different states in the country. Bahamas and others are considering their adoption. There is no unified model of drug courts in the USA but there are some main characteristics. In Latin America there are similarities and differences.

There are two basic requirements to enter the programme: receive a diagnosis of drug use and involvement in drug-related crime, no use of violence. In most cases, participants are first-time offenders. According to data, the most frequent crimes committed are crimes against property, domestic violence and drug possession – simple possession is one of the most frequent crimes reported. In other countries, these offences are excluded. But the issue here is that many people are being sent to drug courts for simple possession. In Latin America, the suspension of criminal proceedings can have two major impacts: no starting criminal proceedings and not having a criminal record. We have found that drug courts are not a mass mechanism. There are still few participants in the programmes. Some have only a max of 20 participants. There is also a dire lack of available information on how they function and their impact, and there needs to be better independent evaluations. This is a problem for governments wishing to expand the programmes. We must consider the political context of each country before establishing such systems – they have different demographics, health systems, etc.

Talking about treatment, health systems don’t have good, quality treatment systems across the region, and many human rights violations have been reported in many countries of the region. There is also a serious lack of human and budgetary resources. In countries where drug use and possession are still criminalised, more than 80% of participants were charged with drug possession. In the Dominican Republic, all participants were charged with this drug crime. Drug courts can also have negative incentives such as cherry picking.

For those countries considering drug courts, we need to focus on:

  • Diagnosis – which problem are they trying to tackle, and are there no other mechanisms to consider?
  • A deep understanding of the target population
  • The available treatment options and whether the conditions are in place for a pilot project.

For countries already implementing drug courts:

  • Conduct a systematic analysis before expanding the model
  • Conduct an independent evaluation of any pilot programme before expanding the programme to other regions
  • Not make single possession as a punishable offence
  • Ensure access to quality treatment, avoid drug testing
  • Adopt a gender perspective
  • Understand that the role of the judges is key, but they are not health professionals
  • Establish systems for the collection of data and information, establish indicators and share this information widely.

Sergio Chaparro, DeJusticia. The debate on alternatives has mainly focused on treatment. But what happens with other drug offenders who also need a more humane response. A number of alternatives have been developed in a number of countries. I encourage you to read the CICAD report on alternatives to incarceration. The next alternatives I will present are based on that report, and another report by CEDD.

There are different kinds of alternatives based on different criteria:

  • Decriminalisation, that is, removing criminal sanctions
  • Dejudicialisation: we can have diversion mechanisms without using the criminal justice system. If we do this, we use administrative diversion mechanisms
  • Diversion through the criminal justice system
  • Release from prison when the sentence has already been imposed.

I will expose lessons learned. For cost-effective reasons, alternatives limiting entry in the criminal justice system are better than others and you can use less resources – such as LEAD in Seattle, and the diversion commissions in Portugal. We have also alternatives such as in Costa Rica where women are given another option for introducing drugs into prisons, with a public network supporting the women finding jobs and training. If we combine the first diversion with this public network, we have two main features that these alternatives should have. We must remove all legislative and practical barriers for people who cannot benefit from these alternatives. Civil society should also be included in the design and implementation of these alternatives. A nation should not be judged on how they treat their privileged but on how they treat the forgotten.

Questions and answers:

Rebecca. Many drug courts are ill equipped to determine factors of involvement in the programme. It’s a waste of resources to have people who are not dependent in the programme, but it also imposes criminal punishment for no reason. If you miss your court dates, you will be in trouble. In the USA, also, most people enter drug courts for marijuana offences.

Tania. Not only drug courts are problematic, but there is also a relation between drug use and criminal behaviour that should not be made, and this is the basis of the drug courts model.

Coletta Youngers, WOLA. One issue that did not come up here is the issue of juvenile drug courts.

Jasmine Taylor, OSF. You mentioned that most drug court referrals are related to marijuana, how is this a waste of resources?

Rebecca. There is no treatment for marijuana use, you have to go under supervision for that and they go through the system for treatment they don’t need. Some miss their court dates, miss their fees, etc. and still end up in prison.

Tania. There are juvenile drug courts in Chile and Mexico and most are for simple drug possession, mostly for cannabis, then for cocaine. This is a very problematic trend.

Cleia Noia, SSRC. Drug courts models are being replicated for juvenile drug courts.

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