Reforming drug laws to reduce prison populations in Latin America

Incarceration rates for drug offences in Latin America are steadily increasing at greater rates than for other crimes. Disproportionately high penalties, the excessive use of preventive detention, and sentences mandating jail time are all contributing to this issue. Indeed, the imposition of punishment based on the amount of drugs seized, without considering the role of the person committing the action, is a major factor in overcrowded prisons. Yet these policies fail to work towards the prevention of drug crimes, significantly undermine the drug market, or prevent organized crime from continuing to thrive. Most importantly, the policies do nothing to address the underlying issues that draw vulnerable people into drug trafficking, such as poverty, abuse, and lack of education.

Figure 1: Variation of incarcerated populations in Latin America

Faced with this situation, the Washington Office on Latin America, the International Drug Policy Consortium, the Inter-American Commission of Women of the OAS, and Dejusticia, began the task of collecting international experiences that foster an innovative approach to the traditional punitive response to the drug problem. Uruguay, Costa Rica, and Ecuador have all opted for alternative measures against the traditional punitive response to drug-related crime; these governments have experimented with measures that seek to reduce the damage caused by prison time on people in vulnerable conditions and who do not hold leadership roles in the drug market. These policies have also taken on the challenge to address inequality and poverty related issues of those who are punished for drug-related crimes, which are predominantly women and young people.

In Uruguay, the government has promoted a number of programs that are particularly aimed at preventing the commission of drug offenses, providing health care for people with some type of dependency, and advancing the reintegration of those who have been in prisons. These are financed through funds from the Decommissioned Property Fund, the entity responsible for the reception, inventory and administration of assets seized in cases of drug trafficking and money laundering. The programs have been especially targeted at women and trans women who are incarcerated.

Flickr/Washington Office on Latin America (WOLA)/CC BY-NC 2.0 (Some Rights Reserved).

Rather than only focusing on prison and sentencing reforms, local governments should push for major interventions directed to improve the economic, social and cultural rights of this population.

According to evaluations of these programs between 2011 and 2014, in the area of social inclusion, 50% of program participants were working and 72.7% of these were workng within the formal economy. In terms of drug consumption, 66% of those who participated in the programs no longer consume, 24% consume sporadically, and only 10% consume equal amounts or more than before.

In Costa Rica, the national drug law (Law 8204 of 2001) was amended in 2013 to include greater proportionality and to ensure that the law had a gender focus (article 77bis). This included differentiated criminal treatment for women who directly brought drugs into the prison compared to women who only helped others bring drugs (e.g., a reduction in prison sentences from 8 to 20 years to a sentence of 3 to 8 years). Each woman’s case is now treated uniquely, evaluated on a case to case basis. For examples, women considered vulnerable (e.g., impoverished, single mothers, elderly or disabled) are treated differently in sentencing compared to the general population.

But the change did not stop with legal reform. In 2014, a program called the "Interinstitutional Network" was created, which seeks to "remove vulnerable women from the criminal justice system and refer them to counseling, drug treatment and job training services", facilitating their access to economic subsidies, scholarships, vocational training and advising on the creation of small businesses. Additionally, it provides support for childcare so that women can work and study. While there have been no in-depth impact evaluations yet, the Public Defense Office has reported that as of October 2016, the network had helped 231 women in charge of 245 children.

Finally, there is the case of Ecuador. The country had one of the toughest drug laws in Latin America, which had contributed to an increase in overcrowding within the prison and penitentiary system (capacity reached 157%). In response to this situation, in 2008 the Constituent Assembly pardoned 2,300 people convicted of minor drug offenses, 30% of whom were women.

However, the government has since introduced contradictory regulatory reforms. In 2014 the penal code was amended by introducing more proportional penalties for drug offenses. It created different levels according to the scale of the drug traffic (minimum, medium and high), reduced penalties for minor drug offenses, and distinguished between traffickers and growers, between violent and non-violent crimes, and between traffickers and consumers. One year after the entry into force of the reform, the percentage of women incarcerated for drug offenses dropped to 43% of the total female prison population.

Regrettably, in spite of the significant results that the measure achieved in 2014, in 2015 the government promoted an increase in penal sanctions and a reduction of thresholds that define the minimum, medium, high, and large scale of traffic. The shift was puzzling given the other reforms, as the government provided no explanation for this change.

These three experiences show on the one hand that it is possible and useful to apply innovative approaches, but they also highlight the limits of these programs. Because the programs are predominantly seeking to reduce damages stemming from the increasing prosecution of individuals linked to drug offenses, they fail to create strong prevention programs that allow for action before criminal behavior takes place and that could reduce the conditions of poverty and lack of opportunities. For example, the predominant profile of women who are involved in drug related crimes is well known: poor women with dependents, with low education levels, unemployed, etc. Rather than only focusing on prison and sentencing reforms, local governments should push for major interventions directed to improve the economic, social and cultural rights of this population, particularly for vulnerable women who are so frequently cannon fodder in the drug market.

A version of this article was first published here on Dejuticia’s Global Rights Blog.