by James Bargent
Drug use is increasing in much of Latin America
A consensus has been building in Latin America that
drug use should be treated as a health and not a criminal issue. But
has this rhetoric become an on-the-ground reality?
A report by the Research Consortium on Drugs and the Law (CEDD) (
pdf)
analyzes state approaches to drug consumption in Latin America, finding
that despite recent shifts in government attitudes, punitive measures
enacted through the criminal justice system remain the norm -- even in
countries where drug use is not illegal.
According to the CEDD, criminalization stigmatizes drug users and
violates their fundamental rights, such as the right to health,
information, personal autonomy and self-determination. It has little
impact on consumption levels, while swallowing precious state resources.
Nevertheless, criminalization remains the dominant paradigm in the
countries the report examines, where legal reforms and calls for a new
approach have struggled to make an impact on the streets, as well as in
the court rooms and prisons.
The report argues that regional governments have not only failed to
implement reforms but have abdicated their responsibility to drug users
by leaving much of the drug treatment sector in private hands. It finds
that both public and private initiatives focus too much on promoting
abstinence rather than reducing harm, which, it says, has proven more
effective in mitigating the damage caused by drug use.
The report also singles out several approaches that are gaining
popularity in certain countries, but which researchers believe are
unproductive. This includes forced treatment and drug courts, where
subjects are offered a choice between treatment and criminal
prosecution.
The CEDD calls for an end to punitive policies, saying that drug use
should never be treated as a criminal matter and that possession and
cultivation for personal use should be effectively decriminalized, by
changing not only legal frameworks but also the practices and attitudes
of law enforcement and judicial bodies.
Researchers also recommend a new focus on education and provision of
information for prevention and harm reduction, and for serious
investment in evidence-based treatments. Such treatments, it argues,
should not clump all drug use together, instead differentiating between
problematic and non-problematic, and frequent and infrequent use.
In all, the report looks at eight countries; Argentina, Bolivia,
Brazil,
Colombia, Ecuador,
Mexico,
Peru, and
Uruguay.
Argentina
According to the CEDD, Argentina has adopted a
"prohibitionist-abstentionist" legal framework backed by a stigmatizing
discourse on drug users, which has "put users of those substances in the
paradoxical position of being 'criminals' and 'sick.'" The punitive
approach still dominates responses to drug use, and treatment and health
programs are closely linked to security measures.
Bolivia
Although drug use and possession for personal use are not illegal in
Bolivia, the CEDD argues that provisions for compulsory treatment for
both addicts and casual users amounts to de facto criminalization. In
addition, with quantities for personal use defined on a case-by-case
basis, people caught with as little as a gram of cocaine can be charged
with drug trafficking -- a charge also brought against those selling
small quantities.
Brazil
Brazil's current legal framework for drug use is based on the
"depenalization" of use -- meaning that users are not incarcerated but
face alternative sanctions. However, the law does not lay down criteria
for distinguishing between users and traffickers, leaving it to the
police and the judiciary to decide, which means that many users are
prosecuted as traffickers. Such contradictions are rife in Brazil's
approach, the CEDD says. The country has developed strategies
prioritizing prevention and harm reduction, recognizing the rights of
drug users and distinguishing between problem and non-problem users,
while also expanding compulsory treatment and introducing increasingly
punitive criminal justice measures.
Colombia
Drug use and possession for personal use is decriminalized under the
terms of Colombia's constitution, although this has been challenged
legally at various times. Recent legislation establishes the rights of
users, and emphasizes a health-based approach and harm reduction over
punitive measures. However, according to the CEDD, there are legal
ambiguities that allow for confusion and selective interpretation over
what is deemed possession for use and what is for supply. In addition,
the legal commitment to providing treatment services is patchily
implemented and quality can vary wildly.
Ecuador
Ecuador has a contradictory legal framework on drug use -- use is not
a crime under the constitution, but possession is a crime under the
law. The government has tried to reconcile this with criteria for
distinguishing between quantities for personal use and supply but, the
CEDD says, judges frequently choose to penalize possession, despite
evidence that the quantities involved are for personal use. Treatment is
predominantly in private hands and has a strong religious aspect, and
clandestine treatment centers have been exposed for cruelty towards
users. Since the publication of the CEDD's report, Ecuador has
enacted a new law designed to ensure that users and low-level offenders are not classified as traffickers.
Mexico
Since 2009, Mexico's legal framework has clearly defined the drug
quantities classified as personal use, which is not punishable by
incarceration. Up to 1,000 times over those quantities classifies as
small-scale trafficking (micro-trafficking) -- a crime that falls under
the jurisdiction of each individual state, while over 1,000 times the
amount classifies as drug trafficking and is a federal crime. According
to the CEDD, users continue to face criminalization, if not
incarceration, as even those caught with personal use quantities are
arrested and an investigation opened, while the thresholds are set so
low that many users fall into the category of suppliers. In cases of
arrested drug users, the Public Ministry is supposed to inform
healthcare service providers, which should encourage users to seek
treatment. However, the CEDD says, there is little clarity over how this
should work in practice.
Peru
Both the state and civil society are extremely conservative and
restrictive on drug policy, while police and the judiciary habitually
take a hard line towards drug use, according to the CEDD. Personal use
is not punishable under the criminal code, and legal guidelines
distinguishing between use and supply have been introduced. However, the
thresholds are low and anyone exceeding them is treated as a dealer or
trafficker. The report notes that Peruvian police often plant drugs on
users to push them over the threshold, or demand bribes not to do so.
According to the CEDD, the government avoids responsibility for
prevention and treatment, which is left almost entirely in
barely-regulated private hands.
Uruguay
The CEDD accuses Uruguay of double standards on drug policy, fully
legalizing production, sale and use of marijuana on one hand, while
taking a harder line on other substances through restrictive personal
use thresholds and compulsory treatment programs. Possession for
personal use of any drug is decriminalized, but what constitutes
personal use is left to the "free moral conviction" of the judge,
leaving it open to selective interpretation, which is often based on
whether the judge decides that the quantity found on a user could be
harmful to their health. Current legislation allows for arrested users
to be medically examined and, if determined to be addicts, face
compulsory treatment.
InSight Crime Analysis
The CEDD report adds to a wealth of
existing research
pointing to the failures of policies criminalizing drug use. Over the
last half century, such policies have achieved little except to fill
already overcrowded prisons, make otherwise law-abiding citizens into
criminals and turn addicts away from the help they need for fear of
punishment and stigmatization.
In much of Latin America,
drug use is growing rapidly,
fuelled by factors such as a growing middle class with disposable
income, a liberalization of social attitudes, and lower prices and
higher availability as criminal groups turn to the small profits but low
risks and high quantities offered by domestic drug markets. Under these
conditions, it is more urgent than ever for Latin American countries to
seek evidence-based strategies to deal with drug use, and the move from
a criminal to a health-based approach is a positive trend.
As highlighted by the CEDD report, this transition is often rocky,
and can be riddled with contradictions and ambiguities. While drug
policy is an area that demands serious attention, these contradictions
are perhaps an inevitable consequence of attempts to change the paradigm
that has dominated for the best part of a century. Overcoming decades
of hardline policies and social stigmatization of drug use, which have
created deeply ingrained attitudes in both state institutions and the
general population, will not be easy.
Nevertheless, this approach only addresses half of the problem. The
negative impact of drug use is not limited to users, but includes the
devastating violence and corruption caused by criminal groups that
control the trade. Latin America is one of the world's worst-affected
regions, with whole countries driven to the brink of becoming failed
states under the influence of drug trafficking.
The approach of decriminalizing and removing social stigma from drug
use is often accompanied by continued hardline policies tackling
production and distribution, or sometimes even a toughening up of such
stances to avoid criticism of going "soft on drugs." This creates its
own dangers, and may even strengthen the hand of organized crime. The
consumer market for drugs will likely continue to expand, meaning
growing profits to fight over -- and to use to corrupt state
institutions.
Rethinking the existing paradigm on drug use is a matter of urgency,
but unless it is part of an integrated approach that examines a change
in paradigm not only for consumption but also for production and
distribution, it may well exacerbate some problems while solving others.
T
aken from Insight Crime
