Americas Quarterly

DRUG

Decriminalization:
A Trend Takes Shape

COLET TA A. YOUNGERS AND

JOHN M. WALSH

Latin American frustration with the “war on drugs” is grow- ing. 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 criminal-ized 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.