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.
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.
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’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.
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 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.
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.
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.
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.
SEE ALSO: Coverage of Drug Policy
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.