This article was published in the 2015-2016 edition of the Latin America Policy Journal.
By Zara Snapp
In the last twenty years, violence in Latin America has reached staggering levels. Although Latin America and the Caribbean are only 8 percent of the global population, the region accounts for 33 percent of the global homicides.[i] The highly integrated corruption in government and community institutions has resulted in weak rule of law and public institutions unable to withstand pressure from organized criminal groups.[ii] Although diverse factors contribute to violence and institutional fragility, a key aspect has been and continues to be that the majority of coca-based products, including cocaine, is produced by three countries—Colombia, Peru and Bolivia—as well as Mexico being the second largest producer of illegal poppy and a high producer of cannabis.[iii]
With the United States as the world’s largest consumer of cocaine,[iv] consumption in Brazil steadily rising,[v] and Europe coming in as a close third, demand is clearly not diminishing, and without it decreasing in the United States and Europe, it is unlikely that Latin America will reduce its production. The geopolitical reality of the region means that a shift in policies is needed to address the actuality on the ground, rather than assuming that the current strategy of attacking supply and demand reduction is sufficient. Therefore, new policy innovations are required to address the issues of drug producing countries and prioritize policies that increase institutional capacity, rather than destabilizing them through corrupt, inefficient policies. Latin America has witnessed a growing understanding that drug policy reform—including decriminalization, excarceration, and legally regulated markets—can be a key step towards reducing the power of organized crime and violence, while increasing institutional strength and attacking levels of impunity.
Countries across the region have taken concrete steps towards reducing the power of organized crime through separating the cannabis market from other illegal substances, implementing medical cannabis programs, and creating thresholds of specific amounts of drugs permitted for personal use. These policy reforms demonstrate a commitment to exploring new ways of addressing the issue of drugs, often without directly challenging the international drug control system.
To contextualize these changes, it is important to understand the regime that governs international and national drug laws. Beginning with the Single Convention on Narcotic Drugs in 1961, as amended by the 1972 Protocol,[vi] the international drug control system has established three primary legal instruments (1961, 1971, 1988) which seek to eradicate cannabis, coca, and poppy plants globally in order to combat the “evil” menace of drugs. The 1961 Convention created four lists or “schedules” of controlled substances which provided a process through which new substances could be scheduled without needing to modify or change the existing treaty. The Convention currently contains more than one-hundred different substances that are categorized according to the control under which they are subjected.[vii] Although the deadline for gradually eradicating opium poppy was 1979 and the deadline for coca and cannabis in 1989, many within the international community continue believing that a drug-free world is possible. Others, including the author, would argue that it is neither possible nor preferable to live in a world without plants, which have traditional, cultural, medical, and therapeutic purposes.
Within ten years, the international community determined that the Single Convention would not be sufficient to address these issues, and the 1971 Convention on Psychotropic Substances was drafted.[viii] The 1988 Vienna Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances delineated responsibilities for states to impose criminal sanctions to combat all aspects related to illegal production, possession, and traffic of drugs, as the criminal market became more globalized. This Convention established the strategy of the “war on drugs” and, for the first time, classified drug users as possible criminals. Mexico, along with other producing Latin American countries, advocated for this change in order to create greater shared responsibility between consumer and producer states.[ix]
The conventions provide the “dual obligation of governments to establish a system of control that ensures the adequate availability of controlled substances for medical and scientific purposes, while simultaneously preventing abuse, diversion and trafficking,” thus prohibiting any non-medical use, such as we have seen in regulated, cannabis markets in Colorado, Washington, Alaska and Oregon.[x] For this reason, countries with medical cannabis or medical heroin assisted therapy are not breaching the Conventions, but regulated, legal markets of non-medical use could be viewed as breaking international law.
Along with failing to reduce consumption, production and trafficking over the past fifty years, in 2008 the United Nations recognized several supposedly “unintended consequences” of the current prohibitionist drug control system including: the creation of a large criminal market, ruled by violence; the displacement of production and transit to new areas, termed the “balloon effect;” the diversion of government resources from health to law enforcement; the displacement of use towards new, often riskier drugs; and the stigmatization and marginalization of people who use drugs.<[xi] Even with this acknowledgement, the majority of the world has not significantly changed its strategy, and as a result, we see countries without the capacity to confront externalities such as increased violence and corruption. For many countries it is nearly impossible to combat the global illicit drug market, with an estimated value of US$435 billion per year.[xii]
Latin America has played a significant role in the global drug policy debate, with Mexico, Colombia and Guatemala calling on the United Nations secretary general to hold a special session on drugs to review and evaluate the current strategy.[xiii] The United Nations General Assembly Special Session on drugs will take place from 19 April to 21 April 2016 in New York City. Although it would only seem that incremental changes would be on the table, the true shift comes from individual countries beginning to explore or already implementing drug policy reforms. A new paradigm is beginning to emerge in which the human rights and health of people who use drugs and the larger community are taken into account. Harm reduction as a concrete evidence-based practice for both drug use and drug policy is beginning to take shape and Latin America has been leading that charge.
While being disproportionately affected by the current militarized war on drugs strategy, Latin America is also emerging as one of the most progressive regions regarding drug policy innovations. Having been deeply affected by the negative consequences of this strategy, countries have begun implementing policy changes with generally positive results.
Case of Uruguay
In 2013, the president of Uruguay, Jose Mujica, began reviewing ways of regulating the production, distribution and use of cannabis. Following an extended legislative debate, passing first through the House of Representatives and later through the Senate, the bill was signed into law on 24 December 2013.[xiv] The initiative regulates both the medical and non-medical cannabis market, promoting information, education, and prevention, while also respecting the rights of users. By approving this law, Uruguay became the first country in the world to regulate the market from seed to sale, using a strict regulatory model. Within international forums, Uruguay has defended this decision saying they are giving precedence to their international human rights obligations, over drug control measures.
The Institute for Regulation and Control of Cannabis was subsequently created for monitoring the process, providing licenses, and evaluating advances in the law. The Uruguayan government decided to begin the implementation of the non-medical market first, since they knew that the majority of users belonged to that category. To ensure that the legal market undermines the illegal market, the government has decided to set a fixed price depending on the potency and variety of the plant. Penalties for buying or selling cannabis on the black market have increased with the approval of the law, since the government has created safe and secure pathways to access. Only residents of Uruguay are allowed to participate in the cannabis market and the limit is 40 grams per month.
Users have three ways of accessing the plant: Cultivating up to six plants in their home for personal use, without producing more than 480 grams per year and by registering with the government; joining a cannabis social club, which has between fifteen and forty-five members and up to ninety-nine plants (proportional to the number of members); or purchasing at government-run pharmacies.
Cultivation for personal use has grown over the last year and several cannabis clubs are operating with members taking on greater roles in politics. Licenses were recently approved for the state-regulated cultivation, but have not begun to be sold in pharmacies. It is estimated that 4,400 people are cultivating and seventeen clubs are currently operating.[xv] By separating the cannabis market from other illicit drugs, the government seeks to protect the rights of cannabis users.
Case of Jamaica
In 2015, a series of amendments of laws partially decriminalized cannabis and paved the way for a legal, medical marijuana market in Jamaica, a country where the drug has long been culturally entrenched. The bill to amend the Dangerous Drugs Act decriminalized the possession of ganja—which is marijuana with higher levels of THC—up to 56 grams and established a cannabis licensing authority to regulate the cultivation, sale, and distribution for medical, scientific, and therapeutic purposes, opening the door to a legal medical marijuana industry in Jamaica.[xvi]
The possession of 2 ounces or less of ganja is no longer an offense that results in an arrest or going to court and does not imply having a criminal record. However, possession can lead to a fine of $500 Jamaican dollars (approximately one US dollar) and possession of over 2 ounces remains a criminal offense in which offenders can be arrested, charged, and tried in court, with a possible fine, imprisonment, or both. It is important to mention that these rules do no apply for the possession of the drug for religious purposes as a sacrament in adherence to the Rastafarian faith, for medical or therapeutic purposes as prescribed by a registered medical doctor, or for scientific research.[xvii] Since the bill was passed in early 2015, there have been 14,000 fewer arrests for cannabis, which directly impacts the lives of those who would have been incarcerated or given a criminal record.[xviii]
Case of Colombia
During the twentieth-century, drug policies in Colombia were heavily influenced by the international drug control system and their relationship with the United States. Although little concrete progress has been made to date, the prevailing tendency today seems to shift towards less repression and more protection of the weakest sectors in the drug economy: growers and consumers. Drug use in Colombia is prohibited by the constitution, and there are laws banning it in certain specific circumstances, but it does not represent a criminal offense, rather possession of a specific quantity for personal use is permitted and is not a crime. The thresholds for personal use must not exceed 20 grams for cannabis, 5 grams for hashish, and 1 gram for cocaine.[xix]
In 2015, President Juan Manuel Santos, signed a decree that fully legalized medical cannabis, allowing Colombia to join the long list of countries that are at the forefront of drug policy reform. Even though a 1986 law previously allowed the manufacture, export, and sale of cannabis for medical and scientific purposes, until last year the practice was not formally regulated. The new policy will make it easier to buy and sell the plant for medical reasons. Under the decree, growers will be able to apply for licenses from the National Narcotics Council, while those seeking to manufacture cannabis-based drugs will apply for permits from the Health Ministry, which will grant permits to export to countries where they are allowed.[xx]
Case of Ecuador
Ecuador has one of the most severe drug laws of all the countries. The Law on Narcotic Drugs and Psychotropic Substances has created an ongoing situation that violates both human and civil rights. The law establishes that someone carrying a few grams of marijuana could potentially end up serving a twelve-year sentence, including several categories under which someone may be accused, such as possession, smuggling, or trafficking, but people are often sentenced under more than one category—which is, in fact, unconstitutional.[xxi]
During 2014, in a progressive move, Ecuador released thousands of jailed drug “mules”, as part of a new policy that sees them as victims, not just criminals. Under the country’s new criminal law, a person caught with fewer than 50 grams of drugs can receive up to six months in prison, and a person smuggling up to 2 kilos may receive up to three years. Only those moving more than 5 kilos would receive a heftier sentence of as many as thirteen years in prison.[xxii] For the thousands of people released from prison, primarily women, it gave them a new opportunity in life. However, last year, the country decided to modify the criminal code and toughen penalties once again, backtracking the criminal justice reforms. The modification increased penalties for small-scale drug sellers from two-to-six months to one-to-three years, and for medium-scale trafficking from one-to-three years to three-to-five years.[xxiii] At a time when the United States and countries in Latin America are taking meaningful steps towards a criminal justice reform, Ecuador unfortunately went one step forward and two steps back.
Case of Mexico
Without a doubt, the Mexican experience is indicative of failed policies towards drugs. Implementing a frontal combat against drug trafficking has resulted in more than 160,000 people killed.[xxiv] Given its punitive laws, the economical and security situation is in decline, although Mexico has attempted to address the issue inefficiently. In 2009, the legislative body approved a series of reforms to the General Health Act and the Federal Criminal Code. These reforms established a table showing the maximum permitted quantity for personal and immediate use. It is not a crime to use psychoactive substances in Mexico, but the possession of a drug for the purpose of using it is classified as a crime. Even so, possession does not carry a prison sentence so long as the quantity does not exceed the limits established by the table. The limits are as follow: two grams of opium, 50 grams of heroin, 5 grams of cannabis, a 0.5 grams of cocaine, 0.015 milligrams of LSD, 40 milligrams of MDA or MDMA, and 40 milligrams of methamphetamine. If a person is found carrying above the permitted threshold, they can be punished as a small-scale trafficker, and if the amount is 1000 times higher, then the person can be imprisoned as a high-scale trafficker.[xxv] The current legislation has led to criticism because, even though possession—within these quantities—and consumption is not a criminal offense, growing, buying, or selling drugs is illegal and punishable and thus leads to legal ambiguities. For example, between 2009 and 2013, 140,860 people were detained at the federal level for consumption of drugs.[xxvi]
In 2015, a civil society organization presented an appeal to the Supreme Court to request permission to cultivate and transport marijuana for non-medical purposes, establishing that the current legislation violates the human right to make personal decisions. Using the argumentation of the constitutional right to the “free development of the person,” the Supreme Court ruled to allow cultivation and consumption of the plant for those four people.[xxvii] The decision created precedent and has provoked a national and legislative debate on the rights of adults to use substances in their development as people. While the decision is a decisive step forward, it does not create jurisprudence for cannabis regulation. Four more cases, using the same argumentation, would need to have positive ruling from the Supreme Court for law-makers to be forced to legislate, something which could happen over the next two years. In the meantime, legislators are drafting a bill that will hopefully undo the current contradictions between the judicial ruling and the current General Health Act.
The efforts undertaken thus far demonstrate the capacity of societies to overcome the stigma related to drug use and begin to address not only some of the potential harms of them, but also the harms that have been perpetrated in communities in the name of drug control. Moving away from prohibition, we find countries actively debating the need for legal regulation as a means to take resources away from organized crime, free up government resources to prioritize high-impact crimes, and build institutional capacity to confront the true issues of inequity, corruption, and economic vulnerability.
The world is shifting. There is now an overwhelming agreement among intellectuals and academics that punitive policies have not and will not reduce either consumption or production of currently illicit plants. Former presidents, heads of state, and high-level personalities, such as former UN Secretary General Kofi Annan, have spoken out about these failed policies, advocating for a legal regulation—not because drugs are without risk, but because of the possible risks they pose.[xxviii] United Nations agencies such as the UN Development Program, the UN University, and the UN Office of the High Commissioner on Human Rights have written scathing reports that indicate that the current strategy has not worked and in many cases has stifled development, violated human rights, and denied access to health services.
The approach implemented over the past one hundred years has failed. It is time for a new paradigm shift. Latin America and the Caribbean are leading the way by implementing policies that over time will reduce the power of organized crime and increase human security and development for their communities.
Zara Snapp was born in Mexico and raised in the United States. As a member of the Secretariat of the Global Commission on Drug Policy, Zara focuses on communications, Latin America, and international drug policy reform. She has a bachelor’s degree in political science from the University of Colorado at Denver and a master’s in public policy from the John F. Kennedy School of Government at Harvard University (2010), where she was a Truman scholar and Public Service fellow. She has worked for diverse organizations such as the Kellogg Foundation, the National Democratic Institute, the Denver Tent City Initiative, and Mi Casa Resource Center on issues of comprehensive sexuality education, housing and homelessness, judicial reform, democracy, and governance programs. Zara is the author of Dictionary of Drugs, published by Ediciones B in 2015 in Mexico.
[iii] Central Intelligence Agency, The World Factbook. 2013. https://www.cia.gov/library/publications/the-world-factbook/fields/2086.html
[iv] United Nations Office on Drugs and Crime, World Drug Report 2015, p. 53, 2015, available at: https://www.unodc.org/documents/wdr2015/WDR15_Cocaine.pdf
[v] Ibid p. 54
[vii] United Nations, The International Drug Control Conventions, Schedules of the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, September 25, 2013, available at: https://www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/1961_Schedules/ST-CND-1-Add1_E.pdf
[ix] United Nations, Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, available at: https://www.unodc.org/pdf/convention_1988_en.pdf
[x] Ensuring balance in national policies on controlled substances: guidance for availability and accessibility of controlled medicines. Geneva: World Health Organization; 2011, available at: http://www.who.int/medicines/areas/quality_safety /guide_nocp_sanend/en/index.html, accessed December 22, 2015
[xi] United Nations Office on Drugs and Crime, World Drug Report 2008, 2008, available at: https://www.unodc.org/documents/wdr/WDR_2008/WDR_2008_eng_web.pdf
[xiii] Washington Office on Latin America, Latin American Leaders Bring Drug Policy Debate to the United Nations, 30 September 2013, avaliable at: http://www.wola.org/commentary/latin_american_leaders_bring_drug_policy_debate_to_the_united_nations
[xiv] CBC News, Marijuana legal in Uruguay as President Mujica signs law, December 24, 2013, available at: http://www.cbc.ca/news/world/marijuana-legal-in-uruguay-as-president-mujica-signs-law-1.2476025
[xv] El Espectador, Marihuana medicinal puede crear pequeño polo de desarrollo en Uruguay, Feb. 24, 2016. http://www.elespectador.com/noticias/salud/marihuana-medicinal-puede-crear-pequeno-polo-de-desarro-articulo-618536
[xvi] Transnational Institute, Statement by minister of justice on the dangerous drugs (amendment) bill for post cabinet press briefing, available at: http://www.druglawreform.info/images/stories/documents/Statement-to-Press-Briefing-Ganja-Law-Reform-21-01-2015.pdf
[xvii] Transnational Institute, Drugs and Democracy, Jamaica, available at: http://www.druglawreform.info/component/flexicontent/items/item/5537-jamaica
[xviii] Jamaica Gleaner. 14,000 Fewer Persons Arrested On Ganja Changes Since Changes To Law – Bunting. January 26, 2016. http://jamaica-gleaner.com/article/news/20160126/14000-fewer-persons-arrested-ganja-changes-changes-law-bunting
[xix] ACNUR, Ley 30 de 1986, Estatuto Nacional de Estupefacientes, available at: http://www.acnur.org/t3/fileadmin/Documentos/BDL/2008/6460.pdf?view=1
[xx] Presidencia de la República, Colombia, Noticias, Cecember 23, 2015, available at: http://es.presidencia.gov.co/noticia/Noticia/Presidente-de-la-Republica-firmo-decreto-sobre-uso-de-cannabis-con-fines-medicos-y-cientificos
[xxi] Transnational Institute, Systems overload: drug laws and prisons in Latin America, 2011, available at: http://druglawreform.info/images/stories/documents/Systems_Overload/TNI-Systems_Overload-def.pdf pag 52
[xxii] Global Post, Ecuador is freeing thousands of convicted drug mules, October 6, 2014, available at: http://www.globalpost.com/dispatch/news/regions/americas/141003/ecuador-releases-drug-mules-victims
[xxiii] Drug Policy Alliance, Ecuador Backtracks on Criminal Justice Reforms, Increases Penalties for Drug Selling, 10 February 2015, available at: http://www.drugpolicy.org/news/2015/10/ecuador-backtracks-criminal-justice-reforms-increases-penalties-drug-selling
[xxiv] Breslow, Jason, The Staggering Death Toll in Mexico’s Drug War.July 27, 2015 http://www.pbs.org/wgbh/frontline/article/the-staggering-death-toll-of-mexicos-drug-war/
[xxv] Ley General de Salud, Congreso de la República, November 12, 2015, México
[xxvi] Colectivo de Estudios Drogas y Derechos (CEDD). Usuarios de drogas y las respuestas estatales en América Latina. http://www.drogasyderecho.org/index.php/es/?option=com_content&view=article&id=19&catid=8&Itemid=141
[xxvii] Zaldívar, Arturo, Amparo 237/2014, available at: http://www.sitioswwweb.com/miguel/Amparo_en_Revisio__769_n_237-2014.pdf
[xxviii] Global Commission on Drug Policy, War on Drugs, June 2011, available at: http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Commission_Report_English.pdf