Failed drug policies in Latin America: the impact on prisons and human rights

Around the world, attempts at controlling the use and sale of drugs through criminal sanctions have resulted in extreme levels of incarceration for drug-related offences, serious overcrowding in prisons, deterioration of prison conditions, increased violence inside and outside prison, and depleted resources available for rehabilitation, education or treatment. In Latin America, for example, nearly a third of all detainees are in prison for drug-related offences. However, is the tide turning?

In this last of our expert guest blogs for our anniversary year, Luciana Pol, Senior Fellow on Security and Human Rights at Center for Legal and Social Studies (CELS) in Argentina welcomes initiatives in several Latin American countries to start to recalibrate the criminal justice response to drugs and welcomes the inclusion of human rights perspectives into next year’s Special Session of the UN General Assembly on the World Drug Problem (UNGASS) in April 2016.

The so-called “War on Drugs” waged over the last four decades has had a tremendous impact on security operations and judicial and prison systems in Latin America – to the point where nearly one-third of all detainees are incarcerated for non-violent drug-related crimes. The emphasis on drug control through criminal sanctions and police and military action to combat drug trafficking has ravaged many communities, some of which experience levels of violence equivalent to a civil war with tens of thousands of lives lost in recent years. But the ever-increasing involvement of security forces and armed forces has not achieved the goal of these policies, which is to reduce the supply of prohibited substances. The criminal organisations that dominate these illegal markets continue to operate, and they easily replace members who are killed or imprisoned.

Human rights organisations in Latin America have identified many serious impacts on people’s rights stemming from the “War on Drugs”. The fact that so many people are being incarcerated for non-violent drug-related crimes further overpopulates prisons in the region. This situation often leads to a number of related problems: the degradation of detention conditions, increased violence inside penitentiaries, even more limited access to education and proper medical attention, and so on.

Some prisoners are users detained for possessing a relatively small amount of drugs. Many others are street dealers or drug couriers. Pre-trial detentions of drug-related crime suspects are abusive and often drag on for years before there is a final judicial verdict. In Bolivia, Brazil, Ecuador, Mexico and Peru, for example, pre-trial detention is compulsory for drug-related crimes, regardless of whether they are minor or major offences. To combat organised crime, some countries have established special norms. This is true of Mexico, where the accused can be held in custody for up to 80 days without having any formal charges filed against them. Overall, in the last 50 years, drug laws in Latin America have criminalised more and more actions while also increasing penalties for those crimes.

The number of women incarcerated for drug offences is particularly striking. According to recent studies, most female prisoners have been arrested for drug-related crimes. Some estimates include: between 75% and 80% in Ecuador; 64% in Costa Rica; 60% in Brazil; and between 65% and 80% in Argentina. Women are more vulnerable to entering the drug business due to high female unemployment rates and the economic responsibility they bear for their children. In fact, women are often the only source of income for their families. In addition, more frequently than men, women may be victims of deceit and violence perpetrated by their partners or relatives, and end up being their accomplices. The impact of drug laws on imprisoned women, their families and communities can be devastating. In some countries, young children are raised by their mothers inside jail cells, which raises a whole host of concerns about rights violations.

Generally speaking, drug laws are especially tough on the most vulnerable sectors of the population. For these people and their families, the impact of incarceration is much more harmful than the hazard that imprisonment was intended to prevent.

Some countries in the region (with Mexico, Colombia and Guatemala at the forefront) have started calling on the international community to review these policies and develop alternatives to the punitive response. Others have modified their drug laws in the hope of reducing incarceration levels. Ecuador has taken several measures to limit the criminal response to minor drug offences, starting with a pardon for “drug trafficking mules” that resulted in releasing 2,232 people from prison. This was followed by a broader revision of the proportionality of drug sentences included in the new Criminal Code. The country has eliminated the criminalisation of drug users, defined possession thresholds by substance type, and introduced distinctions in sentences for traffickers based on three types of criteria: 1) the level of responsibility; 2) the substance involved; and 3) the scale of the trafficking. Costa Rica has changed its law on psychotropic substances to enable sentence reductions and access to other penal benefits for women tried for bringing drugs into jail and who are in a situation of vulnerability. Uruguay has advanced towards a regulated cannabis market as a way of reducing the violence associated with trafficking. Jamaica is deciding the decriminalisation of cannabis for medical and religious purposes.

From a Latin American perspective, drug policies are creating human rights dilemmas primarily because of the widespread violence they have engendered and their severe impact on judicial, penitentiary and security systems. The lack of public health responses to deal with increasing consumption is also a concern.

Without question the Special Session of the UN General Assembly on the World Drug Problem (UNGASS), to be held in April 2016, will be a crucial space for debating the human rights impact of drug policies. Last month, the United Nations Human Rights Council took a fundamental step toward ensuring that this perspective is present at the UNGASS, approving a resolution that requests that the UN High Commissioner for Human Rights produce a technical report on this issue. It is time to engage in a truly open debate and start re-thinking the methods – and goals – of the international drug control regime.

About the author

Luciana Pol is a senior fellow on security policy and human rights at the Center for Legal and Social Studies (CELS), an Argentine human rights organization and think-tank founded in 1979.

About this blog series

To mark our 25th Anniversary and prepare for the Crime Congress in Qatar in April 2015, PRI is running a series of monthly expert guest blogs, addressing interesting current trends and pressing criminal justice challenges in criminal justice and penal reform.

Blogs are available here on our website and as podcasts on the 25th of each month from May 2014 to April 2015. All blogs in the series so far can be found here.