DRUG DECRIMINALIZATION: A TREND TAKES SHAPE

COMMENTARY ARCHIVES, 28 Oct 2009

Coletta A. Youngers and John M. Walsh

Latin American frustration with the “war on drugs” is growing. Harsh anti-drug laws have failed to stem apparently rising drug use, and incarceration rates are climbing—up 40 percent on average in Mexico and South America over the last decade—with more drug users and low-level dealers behind bars. But high-level drug traffickers carry on with impunity.

Increasingly, many countries are leaning toward decriminalization as an alternative approach, hoping that it will be effective both in reducing consumption and dealing with associated health problems. This approach treats drug abuse as a public health and social policy issue rather than as a criminal justice problem. The goal is to encourage addicts to seek help, reduce prison overcrowding and free law enforcement to focus on dismantling drug-trafficking organizations.

Decriminalization proposals often spark fears that drug use will rise, but experts such as the University of Maryland’s Peter Reuter find no evidence of this in the case of personal marijuana consumption.

On August 25, the Argentine Supreme Court ruled that it was unconstitutional to impose criminal sanctions for the personal possession of drugs. Although narrowly written, the judgment paves the way for legislation that would decriminalize the possession of illicit drugs for personal consumption.

Just days before the Argentine ruling, Mexico followed a similar path with a law decriminalizing possession of small quantities of drugs and mandating increased prevention and treatment programs. Those apprehended with a minimal amount of drugs—for example, 0.17 ounces (5 grams) of marijuana or 0.02 ounces (500 milligrams) of cocaine—will be encouraged to seek treatment, which becomes mandatory after the third arrest.

The rationale: allow law enforcement to instead target small-scale dealers and criminal networks. However, the new law sets a low threshold in differentiating between a consumer and a seller and applies harsher penalties for small-scale dealing. It may also send more recreational drug users to jail.

Uruguay, which never criminalized drug possession for personal use, takes a more holistic approach. Instead of a quantitative cut-off between what is considered consuming and dealing, judges—in accordance with a 1974 law—evaluate the specific circumstances and assess why the individual possessed the drugs. Some legal analysts view this as arbitrary, but such discretion can prevent consumers from ending up in jail.

In Brazil, legislative changes in 2002 and 2006 led to the partial decriminalization of possession for personal use, replacing prison sentences with mandatory treatment and community service. Discussion is underway on further reforms that would fully decriminalize consumption and ensure proportionality of sentences for convicted drug dealers.

Some of the most far-reaching reforms are set to be implemented in Ecuador, where the Ministry of Justice is completing draft legislation that would decriminalize consumption and ensure proportionality of sentences in drug cases. Ecuador’s new constitution, approved in September 2008, states that “addictions are a public health problem” and mandates government agencies to develop prevention and treatment programs.

Ecuador is known for having one of the region’s harshest anti-drug regimes. A small-time trafficker faces a 10 to 25-year sentence but a convicted murderer can only be sentenced up to 16 years. As a stop-gap measure until the new legislation is approved, the government of President Rafael Correa pardoned more than 2,000 drug “mules”—those carrying small amounts of drugs—who fulfilled three criteria: first-time offenders, those caught with a maximum of 4.4 pounds (2 kilograms) of any drug and those who completed 10 percent of the sentence (or a minimum of one year).

Despite the trend toward decriminalization and the lack of evidence that changes in personal possession laws make any difference in drug-use rates, skeptics worry that decriminalization sends the wrong message. They argue that such policies legitimize drug use, encourage young people to experiment with illegal drugs and could lead to increased drug-related crime.

Such is the case in Colombia. President Álvaro Uribe has proposed recriminalizing consumption in an attempt to reverse a 1994 decision by the Colombian Constitutional Court that declared it unconstitutional to punish drug possession for personal use. Colombian adults can possess up to 0.7 ounces (20 grams) of marijuana and 0.03 ounces (1 gram) of cocaine, among other substances, for consumption in their own homes and not face criminal sanctions. But the president sees this as inconsistent with efforts to curtail drug trafficking.

Since 2003, the Colombian President has unsuccessfully tried five times to overturn the court’s ruling and amend the constitution. Another proposed constitutional amendment is working its way through the Colombian Congress simply stating: “The possession and consumption of narcotic or psychotropic substances is prohibited.” But the Colombian Supreme Court recently reaffirmed the 1994 Constitutional Court ruling.

As many Latin American countries opt for some form of drug decriminalization, the U.S., long a promoter of criminal sanctions to rein in drug abuse, has largely kept quiet. Although the reaction, or lack thereof, from the administration of President Barack Obama should not be confused with agreeing with decriminalization, the Latin American reforms come at a time when the drug war is coming under question in the U.S. as well.

A federal Sentencing Commission initiative allows more than 19,000 drug offenders to apply for early release over the next 30 years. Numerous state governments, many facing fiscal crises, have moved to scale back harsh drug sentencing statutes that helped fuel the incarceration boom in recent decades. But, it appears that many countries in Latin America are already charting a different course.

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