addicted to punisjment the disproportionality of drug lwas in latin america

8/12/2019 Addicted to Punisjment the Disproportionality of Drug Lwas in Latin America

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Working Paper 1

Rodrigo Uprimny YepesDiana Esther GuzmnJorge Parra Norato

ADDICTEDTO PUNISHMENT:

Te disproportionality

of drug laws in Latin America


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Working Paper 1


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Rodrigo Uprimny Yepes

Diana Esther Guzmn

Jorge Parra Norato

ADDICTED TO PUNISHMENT:Te disproportionalityof drug laws in Latin America

RODRIGOUPRIMNYYEPES Director of the Centro de Estudios de Derecho,

Justicia y Sociedad (Dejusticia) and professor at the

National University of Colombia

DIANAESTHERGUZMN Senior researcher at the Centro de Estudios deDerecho, Justicia y Sociedad (Dejusticia) and profes-

sor at the National University of Colombia

JORGEPARRANORATO Researcher at the Centro de Estudios de Derecho,

Justicia y Sociedad (Dejusticia)

* In addition to the authors, researchers from the Colec-

tivo de Estudios Drogas y Derecho (CEDD) participated

in the research for this study: Alejandro Corda (Argenti-

na-Intercambios Asociacin Civil); Luciana Boiteux and

Joao Pedro Padua (Brazil); Rose Ach (Bolivia-Accin

Andina); Jorge Paladines (Ecuador-Universidad An-

dina); Coletta Youngers (USA-WOLA); Catalina Prez

Correa (Mexico-CIDE); Pien Metaal (Netherlands-TNI);

Jerme Mangelinckx and Ricardo Sobern (Peru-

CIDDH). For more information about CEDD and its

researchers, see: http://ww.w.undrugcontrol.info/en/

about-us/partners/item/3915-colectivo-de-estudios-

drogas-y-derecho-cedd..


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5Dejusticia Working Paper 1

In Lain America, rafficking cocaine so i can be sold o someone whowans o use i is more serious han raping a woman or deliberaely killing

your neighbor. While i may seem incredible, ha is he conclusion o a

rigorous sudy o he evoluion o criminal legislaion in he region, which

shows ha counries judicial sysems mee ou harsher penalies or ra-

ficking even modes amouns o drugs han or acs as heinous as sexual

assaul or murder.1

How have we reached such an unjus and irraional poin? In recen

decades, especially he 1980s, Lain American counries, influenced by an

inernaional prohibiionis model, ell ironically ino wha we migh

meaphorically call an addicion o punishmen.

Addicion2creaes he need o consume more and more drugs, which

have less and less effec; ulimaely, he problemaic user simply consumes

drugs o avoid wihdrawal. Drug legislaion in Lain America seems o have

ollowed a similar pah. Counries have an ever-growing need o add crimesand increase he penalies or drug rafficking, supposedly o conrol an ex-

panding illegal marke, while his increasingly puniive approach has less and

less effec on decreasing he supply and use o illegal drugs.

1 To cite just a few examples, in Bolivia the maximum penalty is 25 years for

drug trafcking and 20 years for murder, which means penalties are harsh-

er for trafcking drugs than for killing another person. In Colombia, the

maximum penalty is 30 years for trafcking and 20 years for rape, which

means that under Colombian law, it is more serious to trafc psychoactive

substances for someone who purchases them voluntarily than to subject

a woman to violence and rape her. Similar conclusions were reached in

nearly all the Latin American countries we studied.

2 There is signicant academic debate about the terms addict and addic-

tion, because they have acquired a negative political and moral connota-

tion. Although we use them here to reinforce the metaphor, we generally

believe that the term problematic drug user is more appropriate.

Dejusticia Working Paper 1

ADDICTED TO PUNISHMENT:

The disproportionality of drug laws in Latin America

This investigation was made possible by the Open society Foundations.

ISBN: 978-958-57338-8-6

Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia

Carrera 24 N 34-61, Bogot, D.C.

Telephone: (57 1) 608 3605

E-mail: [email protected]

http://www.dejusticia.org

This document is available at http://www.dejusticia.org

This report was translated from Spanish by Barbara Fraser.

Layout: Marta Rojas

Cover photos: Prisoners, Jess Abad Colorado ; Handcuffs, Marta Rojas

Printed by Ediciones Antropos

Bogot, January 2013


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6 7Addicted to punishment Dejusticia Working Paper 1

So jus as he problemaic drug user aced wih he declining effecs o

he drug auomaically increases he requency and amoun consumed, pub-

lic officials, seeing he scan impac o growing puniive repression, increase

he dose and requency. And our counries become addiced o punishmen,

which explains he disproporionae laws ha are discussed and documen-

ed in his paper.

Over he pas 60 years, his evoluion has aken place wihin he con-

ex o he so-called war on drugs.3 Te dominan worldwide policy on

illegal drugs has been heir prohibiion, an approach characerized by he

use o criminal law as he basic ool or combaing all phases o he business

(culivaion, producion, disribuion and rafficking), and in some caseseven drug use. Wih some nuances and significan variaion, he legislaion

in every counry in he world conains criminal provisions calling or impris-

onmen or he disribuion and rafficking o conrolled subsances.4

Tis is he resul o a long global process ha has had significan local

maniesaions. Following he erminology proposed by Boavenura de Sou-

sa Sanos, his process can be characerized as globalized localism,5because

he cause and sraegies o one paricular counry, in his case he Unied

Saes, gradually became an inernaional issue and gave rise o a significan

body o legislaion. Since he early 20h Cenury,6bu especially since he

3 The war on drugs refers to the policy promoted by former U.S. President

Richard Nixon in the early 1970s to ght the growing use of illegal drugs

at that time among young people in the United States. This is a zero toler-

ance policy that uses criminal law and force to crack down at all costs

on the supply of and demand for these substances and punish anyoneinvolved in any aspect of the business.

4 On the global practice of punishing drug-related conducts with prison sen-

tences that tend to be harsh, Gloria Lai (2012: 3) says: While most coun-

tries of the world have signed up to international (and for some, regional)

agreements recognizing the principle of proportionality, they often do not

incorporate the requirements of proportionality in their sentencing frame-

work of drug offences.

5 See Santos (1998: 57 and following pages).

6 In 1909, the rst international conference on the issue, the Shanghai

Conference, was held to discuss the harmful health consequences of

opium. The rst international tre aty, the International Opium Convention

(The Hague, 1912), drew on the main conclusion of the Shanghai con-

ference: to adopt strong regulation and control of opium production and

distribution in domestic law. Controls were gradually strengthened in the

Geneva Conventions of 1925; the International Convention for Limiting the

Manufacture and Regulating the Distribution of Narcotic Drugs, signed in

Geneva in1931; the Convention for the Suppression of the Illicit Trafc in

Dangerous of 1936; and other treaties.

1960s,7 imporan inernaional reaies have been adoped ha orm he

legal basis or he prohibiion o conrolled subsances. Beore ha, he in-

ernaional drug conrol regime was liberal, in he sense ha i did no re-

ally conain regulaions ha limied or prohibied heir use, producion and

ransshipmen.8

Tis inernaional prohibiionis legal ramework has had a grea local

impac around he world, especially in Wesern counries. By approving and

raiying hese reaies, counries agree o adjus heir domesic laws o he

prohibiions esablished in he reaies. As a resul, counries naional legis-

laion has gradually increased he use o criminal law in sraegies or com-

baing drugs. Tis can also be characerized as localized globalism,9becauseglobal regulaion has had significan naional and local impacs which have

prooundly ransormed he response o drug-relaed problems, wih hose

responses increasing more repressive.

Tis endency o use criminal law as a basic sraegy or combaing

drugs meris careul analysis or several key reasons. Firs, i implies a en-

dency o maximize he use o criminal law, conradicing he basic principle

ha criminal law should be a las resor.10Tis basic guaranee implies ha

criminal sancions can only be used when ully jusified. Second, i can affec

he basic righs and guaranees o a consiuional sae, such as he guaranee

o he proporionaliy o crime and punishmen.

7 Since the 1960s, three international treaties have established the prohi-

bitionist legal framework on drugs: 1) the Single Convention on Narcotic

Drugs of 1961, which calls for coordinated international action to com-

bat drug abuse and trafcking; 2) the Convention on Psychotropic Sub -

stances of 1971, which establishes an international system for control of

psychotropic substances, including synthetic drugs; and 3) the Conven-

tion against Illicit Trafc in Narcotic Drugs and Psychotropic Substances of

1988, which adopts comprehensive measures to combat drug trafcking.

8 As Jay Sinha (2001) notes, use of opium and coca, mainly as palliatives

and tranquilizers, was generalized in the 19th Century in Canada, the Unit-

ed States, Europe and Australia. Because there was less medical and legal

control over these drugs at that time, use was an individual decision that

did not meet with social disapproval.

9 See Santos (1998: 57 and following pages).

10 Criminal law experts Juan Bustos Ramrez and Hernn Hormazbal Ma-

lare (1997: 66) explain the principle of criminal law as a last resort as

follows: Criminal law must be understood as a last resortor, better yet,

an extreme case. This means that the state can only turn to it when all

other controls, both formal and informal, have failed. The seriousness of a

criminal law response means that criminal law must only be considered an

exceptional response to social conict.


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Tis repor explores wheher he recen evoluion o criminal legisla-

ion in Lain American counries wih regard o drug-relaed conducs re-

specs hese minimal guaranees o which criminal law should be subjec,

and especially wheher ha criminal legislaion can be considered propor-

ionae o he harm caused by prohibied conducs. Ulimaely, he quesion

is wheher he crimes and punishmens oulined in naional legislaion are

proporionae. I he answer is no, he conclusion should be ha hey may

even be unconsiuional wihin he ramework o a consiuional sae.

o address his quesion, he repor explores he recen developmen

o criminal laws on drug-relaed crime in seven Lain American counries:

Argenina, Bolivia, Brazil, Ecuador, Colombia, Peru and Mexico. Tesecounries were chosen based on wo basic crieria. Firs, hey are o academ-

ic imporance, because hey have differen drug-relaed problems, differen

geographic locaions, diverse conexs and differen poliical sysems. Ac-

cording o radiional caegorizaion, Colombia, Peru and Bolivia are consid-

ered producer counries; Mexico and even Brazil are considered ransship-

men counries.11Tey also represen he differen regions o Lain America,

rom he Souhern Cone o he urhes Spanish-speaking counry in Norh

America.

Second, here is a key pracical crierion, because hey are he coun-

ries represened in he Colectivo de Estudios Drogas y Derecho(CEDD), he

group ha carried ou his sudy, which seeks o ideniy he characerisics

o drug policy in he coninen and documen is effecs. Tis invesigaion is

a componen o he second phase o CEDDs research, which ocuses on ex-

ploring he proporionaliy o criminal legislaion in hose seven counries.12Tis comparaive analysis conribues addiional elemens o discussion o

he proporionaliy and reasonableness o prohibiionis drug policies.

11 These traditional categories have been questioned recently, as the dy-

namics of the global drug business have undermined many of them. For

example, while Colombia ranked as a drug producer in the 1990s, the

increase in domestic use points to it also becoming a consumer country.

For practical purposes, however, the classical categories mentioned are

useful for identifying differences in the countries domestic situations with

regard to drugs.

12 For more about CEDDs studies, see, among other works, reports by Meta-

al, P. and Youngers, C. (eds.) (2010) and Prez Correa, C. (ed.) (2012). The

individual reports about proportionality and drug laws in the seven coun-

tries studied by CEDD, are available at: http://www.wola.org/es/informes/

colectivo_de_estudios_drogas_y_derecho

Tis repor has hree main pars. Te firs provides a concepual and

mehodological overview o he elemens ha orm he basis o he analysis.

Te second describes he principal recen rends in criminal drug legisla-

ion in Lain America. Te hird analyzes he proporionaliy o drug-relaed

crimes and punishmen in he counries, comparing hem wih penalies or

oher serious crimes, ollowed by some conclusions.

Conceptual and methodological overview

Tis secion describes he concep o proporionaliy as used in his re-

por and how i is used o measure he proporionaliy o drug conrol leg-

islaion. Beore presening he concepual and mehodological elemens,however, an iniial reflecion is offered essenial or undersanding he

analysis on he harm done by conducs ha are defined in Lain America

as crimes relaed o conrolled subsances.

Tree key issues are he ocus o his secion. Firs is he issue o he

legal ineres supposedly proeced by he definiion o drug-relaed crime

and he harm acually done by hose conducs.13Second, an explanaion

is provided on wha is mean by proporionaliy and how i can be mea-

sured in criminal law. Finally, we discuss how proporionaliy is measured

in drug-relaed crimes and penalies adoped in he seven seleced coun-

ries in he pas 60 years.

Protected legal interest and harm

in drug-related crimes14

Beore examining he proporionaliy o dr ug-relaed crimes, we mus askwha legal ineres15is o be proeced (bien jurdico tutelado) by he defini-

13 Note about the English translation: This paper was written originally in

Spanish and included concepts and language developed in Latin Ameri-

can criminal law, which correspond mainly to civil law tradition. Legal con-

cepts in the civil law tradition, which are widely used in Spanish, French or

Italian, do not always have a precise English translation, because English

legal terms are strongly linked to the common law tradition. We have there-

fore adjusted some terms in this English version, explaining those terms as

necessary with the Spanish terms in parenthesis.

14 This preliminary discussion draws on and develops elements previously

discussed by the authors, particularly Uprimny, Guzmn and Parra (2012).

15 From here on, we draw on a guarantee-based concept of legal interests,

which is not reduced to the content of criminal law, but which requires,

as a necessary and sufcient condition, some sort of social agreement.

In speaking of the protected legal interest, therefore, we refer to a guar-


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ion o he crime and wha harm he law seeks o preven or punish. Tis

is crucial, because i drug policy is mean o address serious harm, i mus

be proporionaely serious. I, however, drug policies seek o preven or

punish lesser harm, hen i seems inuiively disproporionae o resor o

such sric criminalizaion.

Drug policies rooed in he prohibiionis paradigm perpeuae he

ollowing logic: Because cerain psychoacive subsances are considered

harmul and hazardous o public healh, he goal is o avoid heir use and

abuse by criminalizing heir producion and commercializaion. Te basic

purpose o drug policy, a leas in is design, is relaed o public healh, by

keeping people rom gaining access o ps ychoacive subsances because ohe harm heir use could cause.

Tis is largely refleced in he criminal legislaion o he seleced

counries, which saes ha public healh is he legal ineres proeced

by he definiion o drug-relaed crimes. Te criminal codes o Colombia,

Mexico and Peru consider dr ug-relaed crimes o be crimes agains public

healh. Oher counries, such as Brazil, Argenina, Bolivia and Ecuador,

where drug laws are independen o he Criminal Code, end no o es-

ablish he legal ineres being proeced. Considering he conex o hese

laws, however, i is possible o conclude ha hey also represen an a-

emp o proec public healh. In Brazil, or example, drug-relaed crimes

were included in he Criminal Code unil 1976, and during ha ime hey

were also included in he secion on crimes agains public healh.

By resoring o criminal prohibiion, however, drug policies have cre-

aed an illegal drug-rafficking marke, wih powerul organized criminalgroups ha have commited errible crimes ha affec all o our counries.

Tis someimes makes i difficul o ideniy he harm ha drug policies

are mean o preven, as some analyss may ocus on heir primary objec-

ive, which is o proec public healh, while ohers ocus on insrumens

o comba drug rafficking, which is a resul o prohibiion.

antee-based concept like that explained by Bustos Ramrez, J. and Hor-

mazbal Malare, H. (1997: 58) based on Ferrajoli: A theory of protected

legal interests in a social and democratic state () is grounded in society

and results from interactive processes within it. In a democratic state, they

are the outcome of participatory debate, where the hegemony attained

is willing to accept their future revision. The objects of protection, the le-

gal interests, stem from society and are therefore also subject to further

democratic debate. They are therefore dynamic in nature.

o deermine he legal ineres ha is acually proeced by defining

drug-relaed conducs such as he culivaion, producion and raffick-

ing o drugs as crimes, i is imporan o draw a disincion beween pri-

mary problems and secondary problems associaed wih illegal drugs

or conrolled subsances. According o auhors such as Louk Hulsman

(1987) and Ehan Nadelmann (1992), he ormer are problems caused by

he abuse o a psychoacive subsance, while secondary problems resul

rom prohibiionis policies.

One example illusraes ha difference: cirrhosis caused by he ex-

cessive use o alcohol or lung cancer caused by smoking are primary

problems, because hey resul rom abuse o he subsance. However, vio-lence by organized criminal groups ha conrol he producion and disr i-

buion o cocaine or HIV inecion o heroin users who share needles are

secondary problems, because hey are direcly relaed o he cr iminaliza-

ion o he producion and use o hose drugs.

Violence ha ends o be associaed wih drug rafficking (or nar-

co-violence) is no really a resul o he drugs hemselves, bu o prohi-

biionis policies ha end o creae large incenives or he ormaion o

organized criminal groups ha use violence o mainain heir power in he

drug business. In discussing he proporionaliy o drug-relaed crime and

punishmen, hereore, i is imporan o disinguish beween wha can

acually be proeced by he definiion o drug-relaed crimes and wha

canno.

We assume ha he proporionaliy o drug policies should be evalu-

aed based on heir primary purpose, which is o address public healhproblems direcly associaed wih he possible abuse o cerain drugs.

From ha sandpoin, he harm o be considered in his analysis is he

harm caused o he healh o members o sociey by he use and disribu-

ion o conrolled subsances.

I could be argued ha he definiion o hese crimes is mean o pro-

ec no only public healh, bu al so such legal ineress as personal ineg-

riy and naional securiy. Such an argumen would assume ha because

drug producion and rafficking resul in deahs and affec public securiy,

people who paricipae should ace criminal prosecuion.

As explained above, however, harm caused by or resuling rom

criminal aciviy ha is organized around he drug business is a second-

ary, raher han a primary, problem, as i resuls rom prohibiion and he

profis generaed because o prohibiion, no rom he conducs o culi-


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vaing, producing and disribuing cerain psychoacive subsances. Tese

legal ineress are and mus be proeced by laws regarding oher specific

crimes, such as murder or personal injury.

Once he proeced legal ineres by which he proporionaliy o

crime and punishmen should be evaluaed in he case o drug-relaed

conducs is clarified, he harm mus be more precisely defined. Firs, i

mus be deermined wha harm hese conducs can acually produce, or

he ype o wrongulness (antijuridicidad) ha hey can acually cause.

Second is he deerminaion o when he criminalizaion o a drug-relaed

conduc, such as producion or disribuion, is jusified.

I is clear ha public healh is a legal ineres ha meris proecion.Wha is no so clear is ha he producion and disribuion o psychoacive

subsances are serious hreas o ha legal ineres, or ha he definiions

o crimes in he Lain American counries sudied proec i adequaely.

Te reason is ha he criminalized conducs do no cause a specific harm,

bu creae he risk ha public healh may be affeced.

ransporing a cerain quaniy o drugs does no, in isel, cause spe-

cific harm o public healh or o he individual healh o a member o he

communiy; i only creaes he risk ha a users healh could be affeced

i he or she decided volunarily o obain and use hose subsances. From

ha sandpoin, conribuing o he culivaion, producion disribuion

or rafficking o drugs does no direcly affec an individual or collecive

legal ineres. I could creae a risk or encourage risky behavior, bu i does

no necessarily imply a specific hazard.

According o ha reasoning, no all harm or risks o human healhjusiy he criminalizaion o drug-relaed conducs. For example, he use

o conrolled subsances by an adul who reely decides o do so should

no be criminalized, as ha is a conduc proeced by he righs o privacy,

sel-deerminaion and ree will.

Colombias Consiuional Cour esablished a legal rule when i

decriminalized possession o a quaniy o drugs or personal use, which

is generally he philosophy o counries ha have eliminaed he crimi-

nalizaion o consumpion or ha seem o be moving in ha direcion. 16

16 Latin American countries where drug use or possession for personal use

has been decriminalized or that seem to be moving in that direction in-

clude Argentina, Brazil, Chile, Colombia, Mexico, Paraguay, Peru and Uru-

guay. For more about decriminalization of the use and possession of drugs

for personal use in various countries around the world, see Rosmarin and

According o he cour, consumpion is a conduc proeced by such un-

damenal righs as sel-deerminaion and personal auonomy. Te sae

canno punish such conduc because in a democraic order, only conducs

ha affec he righs o hird paries can be criminally sancioned.17

In conras, he criminalizaion o oher conducs is jusified in a

democraic consiuional sae because hey affec he righs o hird par-

ies. Tese include he disribuion o conrolled subsances o minors,

which could affec heir psychological or physical developmen and,

hereore, heir healh. For ha reason, oher people who paricipae in

he producion, disribuion and rafficking o conrolled subsances can

be punished criminally in a legiimae and proporionae manner.When esablishing proporionaliy beween he harm done by he

crime and he penaly deermined by he Congress, i is hereore impor-

an o remember ha drug-relaed conducs ha have been defined as

crimes end no o cause direc, specific harm. Only in he case o very

ew criminal conducs can specific, direc harm be proven; hese include

providing drugs o a minor, because he disribuion o drugs o children

and adolescens could affec he ree developmen o heir personaliies.

In mos definiions o crimes in Lain America, he wrongulness o

which hey reer is generally an absrac risk o harm o human healh.

Because his risk reers o he righ o hird paries, criminal penalies can

be jusified, as long as hey are proporionae and respec he basic guar-

anees offered o all people under criminal law.

Proportionality of punishment18

Te principle o proporionaliy is undamenal in criminal law, because i

reers o he guaranee o proporionaliy o punishmen ha daes back

o he Enlighenmen and is now enshrined in he Rule o Law. I is based

on he principle o legaliy and is relaed o he prohibiion o cruel, inhu-

man and degrading punishmen as a guaranee or he proecion o hu-

man digniy, which is esablished in various inernaional human righs

Eastwood (2012).

17 Colombian Constitutional Court, Sentence C-221 of 1994. M.P. Carlos Ga-

viria Daz.

18 In this discussion, we refer to the concept of abstract proportionality de-

veloped by authors in Uprimny, Guzmn and Parra (2012: 10 and following

pages).


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reaies,19as well as in he consiuions o mos o he counries included

in he sudy.20I is cruel and inhuman o punish a person wih a penaly

ha is no reasonably proporionae o he seriousness o his or her acion.

Despie he imporance o his principle, i is difficul o esablish

objecive crieria or deermining he proporionaliy beween he harm

done and he punishmen o be imposed. Tere mus be an exernal le-

giimacy rom being a moral and poliical problem -- or he penaly im-

posed in each case. A heoreical and mehodological approach based on

ha o Ferrajoli (2000: pp. 398 and ollowing pages) is used o analyze

he proporionaliy o dr ug-relaed crimes and punishmen in he seleced

Lain American counries.According o Ferrajoli, analysis o he proporionaliy o punishmen

can be broken down ino hree sub-problems: 1) he legislaive branchs

pre-deerminaion o minimum and maximum penalies or each acion,

2) he judges deerminaion o he penaly o be imposed in each specific

case, and 3) pos-deerminaion, or enorcemen o he penaly.

Tis paper ocuses on he firs o hose sub-problems, which is re-

erred o as absrac proporionaliy. Tis is he ocus, raher han he

oher aspecs, because absrac proporionaliy allows or he cleares and

mos efficien comparaive analysis o he seleced counries, as i is based

on a review o exising criminal legislaion. A comparaive sudy o he

penalies imposed and enorced would imply research coss and effor

ha could be in he erms used in his sudy disproporionae.

wo differen approaches can be used o deermine wheher crimi-

nal legislaion mees he crieria or proporionaliy. One is based on heheoreical principles proposed by various philosophers as crieria or de-

fining he minimum and maximum penaly or a paricular offense. Fer-

19 Norms of international law that provide legal support for the principle of

proportionality include Articles 5 and 29(2) of the Universal Declaration of

Human Rights, Article 7 of the International Covenant on Civil and Political

Rights, Article 5 of the American Convention on Human Rights and Ar ticle

49(3) of the Charter of Fundamental Rights of the European Union; it has

been similarly developed in jurisprudence of the Inter-American Court of

Human Rights and the European Court of Human Rights.

20 Although most of the constitutions do not explicitly mention the principle

of proportionality, but include constitutional guarantees similar to the pro-

hibition against cruel and inhuman punishment, some constitutions do

refer to the principle. Article 22 of the Mexican Constitution states that all

penalties must be proportionate to the crime being punished and the legal

right affected.

rajoli (2000: pp. 399 and ollowing pages) noes wo specific heoreical

principles: theadvantage of the crime must not be greater than the disadvan-

tage of the penalty; and the penalty must not be greater than the informal vio-

lence that the defendant would suffer, in its absence, by the aggrieved party or

other more or less organized forces.

Pre-deerminaion o he penaly can also be based on comparison

wih penalies or oher crimes defined in criminal legislaion, analyzing

wheher he punishmen or a cerain crime is disproporionae in com-

parison o penalies or oher crimes o greaer or equal seriousness. For

purposes o his invesigaion, he later opion was chosen because i

provides more empirical elemens or analysis. Absrac proporionaliyhereore reers o he analysis o proporionaliy used in he firs sage

o he definiion o he penaly, when he legislaive branch deermines

punishable offenses and heir corresponding sancions.

Elements for measuring proportionality

Te nex sep in he difficul ask o deermining wheher criminal drug

laws in Lain America are proporional is a comparaive analysis o he

penalies or drug-relaed crimes and oher serious crimes ha have a sig-

nifican social impac. For comparison, we have chosen murder, rape and

aggravaed robbery. Tis choice is based on he characerisics o hese

crimes, as all involve harm o proeced legal righs: lie, sexual reedom

and inegriy, and personal inegriy and propery. Tere is also a high rae

o hese crimes in Lain American counries, which makes comparison

wih drug-relaed crimes useul. I drug-relaed crimes are punished moreseverely han he ohers ha would be evidence o disproporionaliy, be-

cause he seriousness o he crimes used or comparison is greaer, or a

leas more obvious, han ha o drug-relaed crimes.

One final poin o clarificaion on he research mehodology is in

order. Te original inen was o perorm a differeniaed analysis o he

crime o rafficking, disinguishing beween penalies or rafficking small

quaniies o drugs (micro-rafficking or sree-level dealing) and raffick-

ing large amouns, which involves srong criminal organizaions (macro-

rafficking). However, legislaion in Lain America ends no o make his

disincion, which demonsraes anoher elemen o disproporionaliy:

Te same ype o penaly applies o wo considerably differen conducs,

because, as we have unorunaely seen in he region, he poenial harm

associaed wih micro-rafficking is clearly less han he harm associaed


10/29


wih large-scale drug rafficking. Neverheless, in some counries he pun-

ishmen is equal, and in a ew cases, a small-scale marihuana dealer is pun-

ished as i he were Pablo Escobar.

Beore beginning he comparaive analysis, he recen evoluion o

drug-relaed crimes should be examined. Tis preliminary analysis is use-

ul, as explained in greaer deail below, as i reveals a endency oward

gradual increases, which could be a acor o disproporionaliy in isel,

because in a democracy, he criminal punishmen o any conduc should

be he excepion and should respond o serious and clear objecive causes.

A endency o maximize punishmen is hereore suspec.

Te analysis o rends also highlighs commonaliies a paricularpoins in he evoluion o criminal legislaion in he region. I we can iden-

iy common momens a w hich counries end o maximize penalies, we

may find ha here is also a common cause ha meris sudy.

For hese wo analyses, boh he comparaive and he hisorical,

he laws were idenified ha define drug-relaed crimes rom he 1950s

hrough 2011 in each o he seven seleced counries in Lain America.

Once idenified, he laws, including heir conen, were organized sysem-

aically in separae, counry-specific files. Researchers rom CEDD veri-

fied he inormaion gahered or each o heir counries o ensure ha i

was reliable and curren, and provided access o laws ha were no avail-

able via Inerne or in oher sources in Colombia. Ta inormaion was

subsequenly supplemened wih daa rom each counrys criminal code

on penalies or he crimes chosen or comparison. Te auhors used his

inormaion or he comparaive analysis.

Overview of criminal drug control legislation

in Latin America

Tis secion presens wo analyses o criminal legislaion defining drug-

relaed crimes in seven counries in he region: 1) an analysis o hisorical

rends rom 1950 unil 2012,21and 2) he idenificaion o some specific

characerisics o hose rends.

21 Although in some countries, such as Argentina, Colombia, Brazil, Mexico

and Peru, drug crimes were dened in criminal legislation in the 1920s

and 1930s, for a comparative analysis it is more appropriate to begin with

the 1950s, because by then most countries had criminal drug laws, and it

is therefore a date that marks the intensication of the war on drugs and

the generalized use of criminal law towards that end.

Analysis of trends in the criminalization of drugs

Te firs criminal legislaion on drugs in Lain America was passed in

abou he 1920s and was characerized by criminalizing very ew drug-

relaed conducs and applying relaively ligh penalies. In Argenina, Law

11.309 o 1924 punished only he clandesine inroducion o drugs, heir

sale and improper prescripion wih a penaly o six monhs o wo years

in prison.22In Colombia, Law 11 o 1920 imposed fines or rafficking or

use,23and in Mexico, he firs regulaions were esablished in 1916, 1923

and 1927, and included prohibiions wihou defining specific crimes or

esablishing prison erms.24

A review o curren criminal legislaion leads o he hypohesis hahere is a endency o maximize he use o criminal law o address he

drug problem in Lain America. Unlike hose o he 1920s, curren laws

esablish severe penalies or a large number o drug-relaed conducs. Co-

lombia is a very good example: While he firs drug conrol laws imposed

only fines on only wo drug-relaed conducs, he curren Criminal Code

includes 50 verbs used o describe a criminal offence (Descriptive Verbs,

hereafer also reerred o as descripive verbs) in oher words, punish-

able conducs -- and includes penalies o up o 30 years in prison, which

can be increased in he case o an aggravaed offense.

In esing his hypohesis, several rends in hese laws emerge in wo

specific areas: he number o drug-relaed conducs criminalized and he

lengh, in years, o he prison erms imposed or hose conducs. Te ol-

lowing secion examines each o hose rends, indicaing heir characer-

isics and nuances.

Gradual increase in the number of conducts

described as criminal

From he sandpoin o guaranees, criminal law is consrained by he prin-

ciple o minimal inervenion.25According o his principle, criminal law

22 Corda, R.A. (2010).

23 Uprimny and Guzmn (2010).

24 Hernndez (2010).

25 Ferrajoli (2000: 336) explains the principle of minimal intervention as jus-

tication for criminal law as follows: A criminal system is justied only if

the sum of the violence crimes, retaliation and arbitrary punishment

that it can prevent is greater than the violence represented by unpre-

vented crimes and the penalties established for them. Such a calculation

is, of course, impossible. But the punishment can be justied as the lesser


11/29


has wo prevenive purposes. Te mos obvious is o preven crimes and

o proec people who could be affeced by hose crimes; less requenly

menioned is he prevenion o arbirary punishmen and he proecion

o deendans agains unnecessary punishmen.26

Exceeding he minimal use o criminal law o ulfill he firs purpose

o he derimen o he second is no permissible. Te increasing crimi-

nalizaion o a long lis o conducs, ar rom serving as a guaranee or he

vicims o hose crimes, may only lead o vicimizing hose conviced o

hem. Tis is even more problemaic considering ha, in mos cases, drug-

relaed crimes have no specific vicims because hose involved paricipae

volunarily in he il lici marke. Te heinous crimes commited by drugraffickers o proec heir business are obviously a differen mater. In

sudying drug-relaed criminal legislaion and is evoluion in he seleced

counries, we find ha he endency oward maximizaion o he use o

criminal law is associaed wih an increase in he number o drug-relaed

conducs defined as criminal since he firs drug laws were passed.

evil which is to say only if it is lesser, or less afictive and less arbitrary

in comparison to other, non-juridical reactions that could be assumed to

occur in its absence; more generally, the lower the cost of criminal law in

comparison to the costs of punitive anarchy, the more justied the state

monopoly on the power to punish.

26 Ferrajoli (2000: 335).

Tis upward rend is confirmed by he number o aricles in legisla-

ion in hose counries ha describe drug-relaed conducs. In mos cases,

he number increased rom abou wo in he 1950s o w ha is now a broad

array o aricles describing drug-relaed crimes, as shown in Figure 1.

Figure 1, like he graphs ha ollow, is based on key laws or each

counry and he changes hey represen in legislaion on illegal drugs. Be-

cause laws were passed in differen counries in differen years, however,

he legislaive changes are presened by decade, which enables hem o be

grouped and hereby illusrae he main rends over ime. Te horizonal

axis is hereore divided ino decades, raher han he individual years in

which he legislaive changes were made.Tis gradual and seady increase in he number o aricles describ-

ing drug-relaed conducs as criminal is even more eviden in Figure 2,

which shows he oal number o aricles o criminal legislaion ha de-

scribe drug-relaed crimes in he counries sudied. Each bar represens

he number o aricles describing drug-relaed crimes in Lain America

during he reerence period, as shown on he horizonal axis. Te colors o

he bars correspond o he counries seleced or he sudy.

Alhough in some counries, such as Brazil and Mexico, he number

o criminal aricles is relaively small no more han seven, despie some

increase here is a noable increase in he number o criminalized con-

ducs and in paricular he number o verbs used o describe a criminal o-

ense. Tis represens a regional rend, or a leas in he counries sudied,

where he number o aricles in legislaion increased rom ewer han 10

in he 1950s o nearly 100 oday.In Mexico, or example, criminal legislaion on drugs has been modi-

fied hrough reorms o he Criminal Code. As a resul, he endency has

been o keep he same number o aricles, bu o increase he number o con-

ducs described as criminal and he number o descripive verbs included.

Tis suggess a problem wih legislaive pracices in he descrip-

ion o drug-relaed conducs, which consiss o increasing he number o

verbs used o describe a criminal offense ha are ofen unrelaed or which

end o excessively expand each descripion o a crime or impose he same

penaly on conducs ha have very differen degrees o seriousness. Tere

are cases in which a definiion o a crime in a specific aricle may include

nearly 20 descripive verbs.27As a resul, he number o aricles in a crimi-

27 This is the case in the rst section of Article 197 of the Mexican Federal

No.

Article

s

30

Argentina

Bolivia

Colombia

Mexico

Peru

Ecuador

Brazil

25

20

15

10

5

01950 1960 1970 1980 1990 2000 Current

Years

Source: Compiled by authors

FIGURE 1.

Comparative evolution in the number of articles

in criminal legislation that describe drug-related conducts


12/29

21Dejusticia Working Paper 120 Addicted to punishment

nal law does no necessarily coincide wih he number o crimes defined,

le alone he verbs used o define a criminal offense.

Tis is he case in Peru. Te firs law analyzed, which daes rom 1921,

included a oal o eigh descripive verbs in five definiions o drug-rela-

ed crimes conained in a single aricle o criminal legislaion. Te curren

Criminal Code has 11 aricles criminalizing drug-relaed conducs, which

include 17 descripions o crimes and a oal o 62 descripive verbs. Tis

occurs no only in Peruvian legislaion, bu in al l o he counries sudied,28leading o he conclusion ha his problem o legislaive pracices resul-

ing in he prolieraion o aricles in criminal legislaion and he increasing

number o descripive verbs conribues o he endency o criminalize all

conducs relaed o he drug problem.

According o Zaffaroni, he prolieraion o verbs used o define a

criminal offense associaed wih drugs in some Lain American laws

should no be considered a sign o grea care in he sense o ensuring

Criminal Code of 1931, after its reform in 1978, and with the crime of

trafcking established in Article 48 of Law 1008 of 1988 in Bolivia, which

includes 15 descriptive verbs.

28 For data on the trend in the numbers of articles and descriptive verbs in

criminal legislation on drugs in Latin America, see Table 1 in the annex to

this paper.

greaer precision in he legal definiion, bu an effor o cover all possibili-

ies o a puniive approach.29Tis shows a desire o leave no loophole in

criminalizaion and implies an unprecedened exension o a puniive ap -

proach ha calls ino quesion he minimal guaranees o liberal criminal

law, including he aoremenioned principle o minimal inervenion o

criminal law.

Because couning aricles gives an imprecise picure, given he huge

increase in he number o descripive verbs included in he definiions, he

same analysis was perormed wih he verbs used o describe a criminal

offense, which more direcly reflec he conducs described and penalized.

Tis analysis shows even more clearly he upward rend in he numbero criminalized conducs in he seven counries sudied. Figures 3 and 4

show ha he number o dr ug-relaed criminal aciviies has ended o in-

crease over ime.

As Figure 3 shows, he increase in he number o verbs used o define

a criminal offense has been boh seady and consisen in nearly all he

Lain American counries sudied and is even more dramaic han he in-

crease in he number o aricles in criminal legislaion. In some counries,

29 Zaffaroni (2009).

No.

Articles

120

Brazil

Ecuador

Peru

MexicoColombia

Bolivia

Argentina

100

80

60

40

20

01950 1960 1970 1980 1990 2000 Current

Years


FIGURE 2.

Aggregate trend in number of articles on drugs

in criminal legislation

No.

ofverbsusedtodescribeacriminaloffense

80

Argentina

Bolivia

Colombia

Mexico

Peru

Ecuador

Brazil

70

60

50

40

30

20

10

01950 1960 1970 1980 1990 2000 Current

Years


FIGURE 3.

Comparative trends in the number of verbs used

to describe a criminal offense


13/29


such as Mexico, however, he upward rend is no as sharp, which could

sugges a slower increase. Neverheless, he increase is sill consisen. Te

Figure 4 illusraing he overall rend shows ha in he counries under

sudy, he number o descripive verbs in oher words, punishable con-

ducs -- increased rom abou 50 o more han 350 currenly.

Alhough he line graphs (Figures 1 and 3) or he seven Lain Amer-ican counries show a decrease in hese crime caegories a cerain poins,

hey are excepions o he rule. Te overall rend in he seven counries is

oward an increase in penalized drug-relaed conducs, as shown in he bar

graphs (Figures 2 and 4).

Even when here are subsanial differences beween he numbers

o criminalized drug-relaed conducs in wo counries (or example,

Mexican law currenly includes 36 verbs used o describe a criminal o-

ense, while Ecuadorian law conains 67), he aggregae daa show ha

since 1950, here has been a general and seady increase in he number o

criminalized drug-relaed aciviies. Proo o his is ha he oal number

o descripive verbs included in he definiion o drug-relaed crimes in

he seven counries rose rom 67 o 344 in jus 50 years (see Figure 4).

Te quesion is wheher here are sufficien objecive grounds o jus -

iy his exponenial increase in he number o criminalized drug-relaed

conducs. Alhough his would require a case-by-case sudy o he legis-

laures reasons or including new drug-relaed aricles, definiions or de-

scripive verbs in criminal legislaion, he answer, rom he sandpoin o

he guaranees provided by criminal law, is negaive.

Te disproporionaliy seems clear, because insead o seeking o

preven drug-relaed conducs ha are harmul o sociey, his increase in

he classificaion o drug-relaed crimes reflecs a desire o leave no loop-

hole in he puniive approach. Te goal is o max imize he use o criminal

law o punish all drug-relaed conduc, wheher or no i causes harm orjeopardizes a proeced legal ineres and regardless o wheher he prohi-

biionis policy has effecively addressed he problem o abuse o psycho-

acive subsances, which was is original purpose.

Gradual increase in penalties for drug-related crimes

Along wih he increase in criminalized drug-relaed conducs, penalies

havealso increased. While he firs drug conrol laws included minor pen-

alieso up o wo years in prison, or no prison erm a all, hose amouns

have muliplied over he years. A rend oward longer senencesis a sec-

ond elemen ha would sugges disproporionaliy in Lain American

criminal drug conrol legislaion.

o prove his upward rend, he lenghs o senences30esablished

or all drug-relaed crimes and or drug rafficking in paricular were sud-

ied and compared o all laws in he seven seleced Lain American coun-ries since 1950.

Firs, he lenghs o penalies or all drug crimes in each counrys

legislaion were analyzed, ocusing specifically on he highes minimum

penalyand he highes maximum penaly ha is, he lenghs o he high-

es minimum and highes maximum senencesor all dr ug-relaed crimes

in each counry s legislaion.31Figure 5 shows he rend oward an increase

in he minimum penalyor drug-relaed crimes.

30 The lengths of the penalties studied correspond to the simple form of each

drug-related crime. These penalties obviously increase in cases of aggra-

vated forms of the crime, but we chose not to consider those increases

because the legislation makes it difcult to calculate the corresponding

amounts.

31 For example, in current Colombian legislation, of all the drug-related

No.

ofverbsused

todescribeacriminaloffense

400

Brazil

Ecuador

Peru

Mexico

Colombia

Bolivia

Argentina

350

300

250

200

150

100

50

01950 1960 1970 1980 1990 2000 Current

Years


FIGURE 4.

Aggregate trend in the number of verbs used

to describe a criminal offense


14/29


According o he daa, he counry wih he mos marked upward

rend is Peru, where in less han 60 years, he highes minimum penaly

increased rom wo years o 25 years. Bolivia and Mexico also have high

minimum penalieso as much as 20 years in prison.

Analysis o he overall siuaion in Lain America seems o show a

seady increase over he pas 60 years. As he aggregae rend in Figure

6 shows, he highes minimum penalies or drug-relaed crimes have

increased considerably, confirming he endency o maximize he use ocriminal law in drug conrol effors.

Te highes maximum penalies ollow he same rend. Figure 7,

which compares he highes maximum penalies or drug-relaed crimes,

shows ha he Lain American counries in he sudy have ended o in-

crease heir mos severe sancions. Mexico and Peru repor he highes

maximum penalies, a 40 and 35 years, respecively. Alhough Ecuador,

crimes dened in the Criminal Code, the one with the longest minimum

penalty is the crime of aggravated use, construction, commercialization

and/or possession of semisubmersibles or submarines (Criminal Code

Art. 377B), with a minimum of 15 years in prison. The crime of trafcking,

manufacturing or possession of narcotics(Criminal Code Art. 376) has a

maximum penalty of 30 years in prison, which is more severe than the

maximum penalty for any other drug-related crime.

Brazil and Argenina repor he lowes max imum penaliesin he region,

hey also show a gradual increase in he severiy o sancions.

As wih he minimum penaliesillusraed in Figure 6, here has been

a seady upward rend in maximum penalies in Lain America over he pas

YearsinPrison

30

Argentina

Bolivia

Colombia

MexicoPeru

Ecuador

Brazil

25

20

15

10

5

01950 1960 1970 1980 1990 2000 Current

Year


FIGURE 5.

Comparative trend in highest minimum penalty

for drug-related crimes

YearsinPrison

120

Brazil

Ecuador

Peru

MexicoColombia

Bolivia

Argentina

100

80

60

40

20

01950 1960 1970 1980 1990 2000 Current

Year


FIGURE 6.

Aggregate trend in highest minimum penalties

for drug-related crime

FIGURE 7.

Comparative trends in highest maximum penalties


YearsinPrison

45

Argentina

Bolivia

Colombia

Mexico

Peru

Ecuador

Brazil

40

35

30

25

20

15

10

01950 1960 1970 1980 1990 2000 Current

Year



15/29


60 years. Figure 8 shows he aggregae highes maximum penalies or drug-

relaed crimes in he counries sudied. In he 1950s, he sum o he high-

es maximum penaliesin he region did no exceed 50 years, bu by 2011,

i had reached nearly 200 years, an overall increase o nearly 15 0 percen.

Te preceding saemens need o be nuanced somewha. Alhough

i is difficul o speak o an upward rend in he minimum and maximum

penalies or drug-relaed crimes beween 1950 and 1970, here has been

a clear increase since hen. Some specific cases illusrae his.

wo examples o he minimum penaly are worh ciing: 1) beween

1950 and 1970, he highes minimum penaly or various drug-relaed

crimes in Peruvian legislaion was wo years in prison, bu ha rose o a min-

imum o 15 years in 1980 or he crime o promoing or organizing criminal

gangs ha engaged in drug rafficking; 2) similarly, he minimum penaly

in Argenina unil 1970 was one year in prison, bu by 1980 ha rose o

five years or he crime o organizing or financing drug-relaed aciviies.

Te upward rend is even clearer or he maximum penaly. As Fig-

ures 9 and 10 illusrae, beween 1970 and 1980, he maximum penalies

rose rom six o 15 years in Argenina, rom five o 15 years in Brazil, and

rom five o 12 years in Colombia. Similarly, beween 1960 and 1970, hey

rose rom wo o six years in Argenina, rom zero32o 20 years in Bolivia,

rom 10 o 15 years in Mexico and rom eigh o 12 years in Ecuador.

32 The rst criminal law establishing drug-related crimes in Bolivia was Law

FIGURE 8.

Aggregate trend in highest maximum penalties


YearsinPrison

250

Brazil

Ecuador

Peru

Mexico

Colombia

BoliviaArgentina

200

150

100

50

01950 1960 1970 1980 1990 2000 Current

Year


FIGURE 9.

Comparative trend in the maximum penalty

for the crime of drug trafcking

YearsinPrison

35

Argentina

Bolivia

Colombia

Mexico

Peru

Ecuador

Brazil

30

25

20

15

10

5

01950 1960 1970 1980 1990 2000 Current

Year


FIGURE 10.

Aggregate trend in the maximum penalty


YearsinPrison

160

Brazil

Ecuador

Peru

Mexico

Colombia

Bolivia

Argentina

140

120

100

80

60

40

20

01950 1960 1970 1980 1990 2000 Current

Year


171 of January 10, 1962, so in 1950 there were no criminal penalties for

these conducts.


16/29


Tose rends are confirmed by analysis o he increase in penaliesno or all drug-relaed crimes, bu or one crime in paricular: drug ra-

ficking. Tis punishable aciviy is paricularly imporan because i is cen-ral o he drug economy. Ta makes he rend in he sancion or his

crime a good crierion or analyzing he growing repressiveness o drugpolicies.33

Penalies or drug rafficking show similar rends in drug conrol leg-islaion in he region. In general, penalies have increased since 1950, ex-

cep in a ew cases where hey have remained seady or decreased slighly.Only Peru is an excepion as he highes maximum senence o 15 years in

prison esablished in Decree Law 11005 o 1949 remained unchanged aso 2012.34A he same ime, he minimum penaly decreased slighly wih

he 1991 Criminal Code, alling rom 10 years in prison o eigh years, heonly ime he penaly or drug rafficking was reduced.

o veriy he endency oward longer senences or drug rafficking,he hisorical rend in he minimum, maximum and average penalies was

graphed.35Figure 9 shows he comparaive rend in he maximum penalyor he crime o drug rafficking. Colombia sands ou or a significan in-

crease in he lengh o penalies, which over 60 years rose rom less hanfive years o 30 years. Mexico, which has he second-highes maximum

penaly, also shows an upward rend, alhough i held seady in he laswo decades o he period sudied. Counries such as Peru and Brazil have

also held seady in recen years afer an iniial upward rend.

33 There are two other reasons for focusing specically on the crime of drug

trafcking: 1) it is a conduct that has been penalized since the rst drug

control laws appeared in Latin America, and 2) it has a signicant impact

on institutions, because a high percentage of the regions prison inmates

were sentenced for drug-related activities. On this topic, see Metaal and

Youngers (eds.) (2010).

34 To clarify, the military juntas Legislative Decree 122 of 1981, better

known as the Law of Repression of Illicit Trafcking of Drugs, established

that trafcking would be punished by no less than 10 years in prison,

without setting a maximum penalty. Because it is impossible to include

the absence of a maximum penalty without affecting the consistency of

the graph, and considering that this law was in effect for only three years,

we assume here that the maximum penalty for this crime in 1980 was still

15 years.

35 To clarify, these calculations correspond to penalties for simple drug traf-

cking. Some legislation treats other trafcking-related offenses separate-

ly, and those penalties are not included here. That is the case, for example,

with crimes such as the nancing of organizations dedicated to drug traf-

cking.

Figure 10 shows he aggregae rend in he maximum penalies or

he crime o drug rafficking. Tere is an overall upward rend in he re-

gion, alhough some counries have mainained heir penalies wihou

significan changes in he pas wo decades. Te increase ended o be

more significan beween he 1960s and 1980s. Te more drasic changes

seen during ha period may have been relaed o he approval o major

inernaional convenions on drugs (1961 and 1988) and he imporance

given o he issue in US oreign policy, especially afer Presiden Nixon

declared he so-called war on drugs.

Analysis o he minimum penalies or drug rafficking shows grea-

er dispersion in he rend among he Lain American counries sudied.Neverheless, a gradual increase is sill eviden. Ecuador seems o have

experienced he seepes and mos significan increases, alhough i has

held seady over he pas wo decades. Tis recen sabiliy in he lengh

o he minimum penaly is also seen in oher counries, such as Mexico,

Argenina and even Peru. Colombia is an example o a seady increase in

he penaly, especially since he 1970s, as Figure 11 shows.

As in he preceding cases, an overall analysis o Lain America shows

an upward rend in he lenghs o penalies. Te mos significan increases

in he maximum penaly or rafficking came in he decade beween 1960

and 1970, and laer around he beginning o he 1980s. Alhough some

FIGURE 11.

Comparative trend in the minimum penalty


YearsinPrison

14

Argentina

Bolivia

Colombia

Mexico

Peru

Ecuador

Brazil

12

10

8

6

4

2

01950 1960 1970 1980 1990 2000 Current

Year



17/29


increases have occurred since he 1990s, hey have generally been smaller

han in he earlier decades. Tis is refleced in Figure 12, which illusraes

he aggregae rend in he minimum penaly or he crime o dr ug raffick-

ing rom 1950 o 2011, he mos curren dae in he sudy.

Analysis o he average penaly or drug rafficking shows more clear-

ly he seady upward rend in he sancions, w hich appears more dramaic

or paricular counries a cerain imes. Te average penaly used here

and hroughou his paper is he simple average o he maximum and min-

imum penalies and was calculaed based on he penalies esablished in

each counrys legislaion. As Figure 13 shows, here was a seady and con-

sisen increase in mos o he counries unil he 1990s and he lenghs

o penalies have held airly seady since hen, excep in Colombia, where

here have been ur her significan increases.

Figures 9, 11 and 13, which show he comparaive rend in he

maximum, minimum and average penalies or he crime o drug raffick-

ing, confirm ha only Peruvian legislaion has no ollowed he general

rend o increasing penalies. Bu hey also show a generalized pracice opunishing drug rafficking more severely over ime in all seven counries.

While in 1950, he average penaly or his crime was no even five years

(excep in Peru, where i was 8.5 years), i currenly ranges rom 10 o 20

years in prison.

Figures 10 and 12, which show he aggregae rend in he max imum

and minimum penalies or drug rafficking, poin o he same conclu-

sion. While in 1950, he sum o he penalies in he seven counries was

34 years or he maximum and 4.5 years or he minimum, wih an average

penaly o 19.25 years, hose figures are now 141 years, 59.7 years and

100.4 years, respecively. Ta means ha in jus over 60 years, he aggre-

gae maximum penaly increased by 415 percen, he minimum by 1,327

percen and he average by 521 percen.

Tis specific analysis o penalies or drug rafficking confirms he

upward rend ha is eviden in penalies or all drug-relaed crimes. akenogeher, hese daa lead o he conclusion ha since 1950 in Lain Ameri-

ca, here has been a generalized endency o increase he lenghs o penal-

ies or dr ug-relaed crimes.

Tis increase in penalies would be jusified i here were a corre-

sponding increase in he harm associaed wih drug-relaed crimes. Pro-

porionaliy is mainained only i here is boh an increase in he penalies

and an increase in he seriousness and harm associaed wih he crimes

ha hose more severe sancions are mean o punish. I he harm did no

increase, he increase in he punishmen would no be jusified, because

here would be no objecive grounds or more severe punishmen.

Ta is he case wih drug-relaed crime. Tese are offenses ha do

no resul in direc harm excep in cases such as supplying drugs o mi-

nors. I is impossible o demonsrae empirically ha cocaine rafficking is

FIGURE 13.

Comparative trends in the average penalty


YearsinPrison

25

Argentina

Bolivia

Colombia

Mexico

Peru

Ecuador

Brazil

20

15

10

5

01950 1960 1970 1980 1990 2000 Current

Year


FIGURE 12.

Aggregate trend in the minimum penalty


YearsinPrison

70

Brazil

Ecuador

Peru

Mexico

Colombia

Bolivia

Argentina

60

50

40

30

20

10

01950 1960 1970 1980 1990 2000 Current

Year



18/29


more serious now han i was in 1950, because i does no resul in direc

harm. Crimes commited by drug raffickers o proec and regulae heir

illegal business, such as murders and bribery -- whose seriousness has

clearly increased -- are anoher mater. Bu he seriousness o hose oher

crimes is differen rom he seriousness o he producion and rafficking

o conrolled subsances. And he upward rend in punishmens, rom five

years in prison o 15 or 30 years, indicaes he disproporionaliy associ-

aed wih drug-relaed crimes.

I may be argued ha hese upward rends are no specific o drug-

relaed crimes, bu reflec a general puniive endency in Lain American

counries. Alhough his poenial criique does no change he issue oproporionaliy, we have chosen o consider i separaely. Tereore, an

addiional elemen o analysis is offered, which is he comparison o pen-

alies or drug-relaed crimes wih he maximum penalies allowed by

criminal legislaion in each counry.

able 1 shows his comparison or 2012, because he difficuly o

obaining earlier criminal codes in all o he seleced counries made i

impossible o gaher he daa needed o compare rends. We hereore

compare only he maximum penaly allowed in each counry, he longes

maximum penaly or all drug-relaed crimes, and he maximum specifi-

cally or he crime o drug rafficking.

Bolivia and Peru are emblemaic cases. In hose counries, some

drug-relaed crimes are punished wih he mos severe penaly allowed

by he legal sysem. Ta would mean, in heory, ha hey are he mos

serious crimes in criminal legislaion. As noed, however, hey are acually

crimes in which he harm is no clear and which are considerably less seri-

ous han murder, which will be discussed below.

Tis would sugges ha drug-relaed crimes are characerized by a

more inensive puniive approach ha is par o a general endency o use

puniive measures ha seems more or less common o al l Lain American

criminal legislaion, or, in oher words, a disproporionaliy wihin he

general disproporionaliy ha exiss or oher crimes. As shown in he

nex secion, however, he disproporionaliy ends o be greaer or drug-

relaed crimes han or oher crimes.

Tis puniive approach wihin a puniive approach is mos evidenin Colombia and Mexico. Tese wo counries have he longes possible

maximum penalies o he seven counries sudied, wih maximum sanc-

ions o 60 years, reflecing he puniive naure o heir criminal legisla-

ion. Alhough hey are no very long compared o he maximum possible

senence, penalies or drug-relaed crimes are equal o or longer han he

maximum penalies in mos o he oher counries. So no only is here a

general endency oward a puniive approach overall in hese counries,

bu wihin ha can be ound a paricular and specific maniesaion o he

puniive approach: he disproporionaliy in he reamen o dr ug-relaed

crimes.

Analysis of criminal proportionality

in the abstract sense

Te discussion so ar poins o similar endencies in Lain America wihregard o various conducs defined as crimes and he lenghs o penalies

or drug-relaed crimes. Tese include a seady increase in he number

o conducs penalized, he lack o good legislaive pracices in changing

legislaion on sensiive issues, and he increase in he lenghs o boh he

minimum and maximum penalies. Tese, in urn, seem o indicae a en-

dency oward maximizaion o he use o criminal law in drug conrol e-

ors, which raises quesions abou basic guaranees or deendans under

criminal law.

Tis secion analyzes proporionaliy in he sr ic sense. As indicaed

in he secion on concepual boundaries, we compare he way in which

counries in he region have defined drug-relaed crimes and oher crimes

ha are clearly serious and have an impac on sociey: murder (homicido

simple), rape (violacin) and aggravaed robbery (hurto con violencia sobre

TABLE 1.

Comparison of maximum penalty and penalties

for drug-related crimes, 2012

Penalty/

Country

Maximum

penalty

Maximum penalty for all

drug-related crimes

Maximum penalty

for drug trafcking

Argentina 35 20 15

Bolivia 30 30 25

Colombia 60 30 30

Mexico 60 40 25

Peru 35 35 15

Ecuador 35 16 16Brazil 30 20 15



19/29


Asapercentageofpenaltyformurder

250

200

150

100

50

0Argentina Bolivia Colombia Ecuador Mexico Peru Brasil

1970 1990 2012


la persona).36Alhough legislaion in differen counries uses differen er-

minology, inormaion was gahered abou he conducs and sancions cor-

responding o hese crimes covering he period rom 1970 o he presen. 37

Te underlying assumpion is ha he offenses chosen or compari-

son, especially murder and rape, are clearly serious acs ha cause consid-

erable individual and social harm. In ac, hey could be considered more

serious crimes han drug rafficking alone. Te closer he penaly or ra-

ficking is o he penaly or hose crimes, hereore, he more dispropor-

ionae i can be considered.

Alhough all orms o aggravaed robbery may no be considered

more serious han drug rafficking, i is included because i has a highsocial impac and here ends o be significan public pressure or more

severe punishmen. I is hereore useul or illusraing ha even in com-

parison o crimes wih a high socieal impac, penalies or rafficking end

o be exremely severe in mos o he regions counries. Te ollowing sec-

ion discusses he resuls o he comparisons.

Drug trafcking compared to murder

For he comparison, he lengh o penalies or drug rafficking as a per-

cenage o he lengh o penalies or murder is considered. Te logical as-

sumpion is ha punishmen or murder canno be similar o penalies or

rafficking, because murder is clearly more serious, as i resuls in concree

harm o a proeced legal righ o grea social imporance human lie and

personal inegriy.

A comparison o he increase in penalies or he wo crimes in re-cen decades hereore indicaes wheher he criminalizaion o drug-re-

laed crimes is excessive, saring rom he premise: Te closer he penaly

36 Aggravated robbery is dened as the taking of money or goods in the pos-

session of another, from his or her person or immediate presence, by force

or intimidation.

37 Unlike the calculations for the previous section of this paper, the period

covered in the comparative analysis of different types of crimes begins not

in 1950, but in 1970. The reason for this change is the difculty in obtain-

ing copies of the criminal legislation that was in effect in each country in

1950, which included the crimes of murder, rape and aggravated robbery.

We do not believe that this af fects the analysis, however, because as noted

above, the lengths of penalties for drug trafcking began to increase nota-

bly as of the 1970s. Because we were unable to obtain data about criminal

laws in Ecuador in 1970 and Peru in 1970 and 1990, this information is

represented as zero in the graphs of this part of the text.

or drug-relaed crimes is o he penaly or murder, he greaer he dispro-

porionaliy. Landmark laws rom each counry are used o answer he ol-

lowing quesion: I he penaly or he crime o murder is given a value o

100 percen, wha corresponding percenage is represened by he penaly

or drug rafficking? Tis exercise is repeaed or he maximum, minimum

and average penalies or he crimes being compared.

As Figure 14 shows, in he case o he maximum penaly, he coun-

ries wih he greaes disproporionaliy are Bolivia, Colombia and Ec-

uador.According o Figure 14, he ma ximum penaly or dr ug rafficking

is currenly greaer han he mos severe penaly or he crime o murder

in hree o he seven counries sudied: Bolivia, Ecuador and Mexico. 38

In Colombia, he maximum penaly or drug rafficking was equal o 133

percen o he maximum penaly or homicide in 1990, while in Bolivia i

was 250 percen.

Excep in Bolivia and Colombia, none o he legislaion sudied

shows a decrease in he percenage o he maximum penaly or drug ra-

38 In Bolivia, the maximum penalty for trafcking is currently 25 years in pris-

on, while the maximum for murder is 20. In Mexico, the maximum penalty

for trafcking is 25 years, while the maximum for murder is 24; and in Ec -

uador, while the maximum penalty for trafcking is 16 years, the maximum

for murder is 12 years in prison.

FIGURE 14.

Maximum penalty for trafcking as percentage of maximum

penalty for murder (1970-2012)

24

60 6050

250

125

36

133

80

0

133 133

60

75

104

0 0

75

25

75 75


20/29


Asape

rcentageofpenaltyformurder

1000

800

600

400

200

0Argentina Bolivia Colombia Ecuador Mexico Peru Brazil

1970 1990 2012


FIGURE 15.

Minimum penalty for trafcking as percentage

of minimum penalty for murder (1970-2012)

ficking in comparison o he maximum penaly or murder. Te case o

Mexico illusraes wha could be an upward rend in his percenage in

Lain American legislaion since 1970, as i rose rom 60 percen in 1970

o 85 percen in 1990 and 104 percen in 2012.

While he percenage relaionship declined beween 1990 and 2012

in he excepional cases o Bolivia and Colombia, ha did no imply a

reducion in he maximum penaly or drug rafficking. On he conrary,

in Bolivia, ha penaly remained he same over ha period (25 years in

prison), while he maximum penaly or murder increased (rom 10 years

o 20 years in prison). In Colombia, boh penalies increased. Te penaly

or rafficking rose rom 20 years o 30 years in pr ison, while or murder, i

increased rom 15 o 37.5 years. A decrease in he percenage alone here-

ore does no necessarily imply a decrease in he repressive use o criminal

law in he case o drug rafficking.

A comparison o minimum penalies produces similar resuls. In

hree counries Bolivia, Ecuador and Peru he minimum penaly or

drug rafficking is currenly higher han he minimum penaly or mur-

der.39Bolivia showed he greaes disproporionaliy in 1990, when he

39 In Bolivia, the minimum penalty for trafcking is 10 years in prison, while

the minimum for murder is ve years. In Ecuador, the minimum for trafck-

ing is 12 years, while the minimum for murder is eight years. And in Peru,

minimum penaly or drug rafficking (10 years in prison) was 10 imes

he minimum or murder (one year in prison).

Te only subsanial decrease in penalies occurred in Bolivia. Te

reason or his change in legislaion beween 1990 and 2012 was he same

as in he case o he average penaly: while he minimum penaly or ra-

ficking remained unchanged, he minimum or murder increased consid-

erably. In addiion, in cases such as ha o Colombia, alhough he per-cenage seemed proporionae over he las several decades (60 percen

and 61 percen), he minimum penaly or drug rafficking is paricularly

high (10.6 years in prison40), prevening judges rom oping or a ligher

senence in cases in which he conduc is less serious.

Finally, he average penaly allows analysis o he overall rend in leg-

islaion on boh maximum and minimum penalies or he crimes being

compared. Figure 16 shows wha was already analyzed in he preceding

the minimum penalty for drug trafcking is eight years, while the minimum

for murder is six years.

40 This does not take into account the penalty for dealing small amounts of

drugs, which has a prison term of 5.3 years. The same is true for calcula-

tion of the maximum and average penalty in the other comparisons in this

report.

1350 50

0

1000

200

660

0

150150

75 88 83

0 0

133

1750

8361

FIGURE 16.

Average penalty for trafcking as percentage

of average penalty for murder (1970-2012)

Asapercen

tageofpenaltyformurder

350

300

250

200

150

100

50


1970 1990 2012


21

58 58

0

318

140

25

104

0

140140

6879

97

0 0

88

23

697774


21/29


or rape and or drug rafficking is hereore useul or ideniying dispro-

porionae reamen o drug-relaed crimes.

Te same ype o percenage comparison is used as was used or

murder. A percenage nearly equal o or exceeding 100 percen would

confirm disproporionae punishmen or drug-relaed crimes. In heory,

o ensure a leas minimal proecion or he principle o proporional-

iy o punishmen, penalies or rape should be subsanially more severe

han or drug rafficking, given he greaer seriousness o he crime. I ha

is no he case, i confirms he disproporionaliy ha was eviden in com-

paring drug-relaed crimes o murder.

Figures, 17, 18 and 19 illusrae he rend in he percenage repre-sened by he maximum, minimum and average penalies, respecively, or

drug rafficking, compared o hose or he crime o rape.

As he preceding graph shows, he disproporionae reamen o

drug-relaed crimes is much more obvious when compared wih he crime

o rape. In all o he counries sudied, he ma ximum penaly or drug ra-

ficking is currenly equal o or greaer han he maximum or rape. Te

smalles percenage currenly is in Argenina (100 percen), where he

maximum penaly or boh is 15 years in prison, and Ecuador (100 per-

cen), where he same penaly is 16 years.

graphs: Te general rule is an increase in he penaly or rafficking as a

percenage o he penaly or murder.

Bolivia and Colombia remain he only cases in which here is a de-

crease in ha percenage, which, as noed above, responds no o a de-

crease in he penaly or rafficking, bu o a considerable increase in he

penaly or murder, which, in Colombia, is accompanied by an increase

in he penaly or rafficking. In Mexico and Brazil, here is a clear upward

rend rom 1970 o 2012, w hile in Ecuador, he penaly or rafficking has

been 1.4 imes as grea as he penaly or murder since 1990.

Tese hree graphs confirm he disproporionaliy o he punish-

men o drug-relaed crimes such as rafficking in comparison o a veryserious crime such as murder. Excep in Argenina -- where he average

penaly or rafficking represens 58 percen o he average or he crime o

murder and has held seady since 1990 -- he legislaion in he counries

analyzed has aken an increasingly repressive approach o drug-relaed

crimes.

Beween 1990 and 2012, five o he seven counries sudied (Bolivia,

Colombia, Ecuador, Mexico and Peru) a some poin considered longer

penalies (maximum, minimum or average) or he crime o drug raffick-

ing han hose esablished or murder. Te logic was he same in Brazil,

as he average penaly or drug rafficking, as a percenage o he average

or murder, has increased rom 23 percen in 1970 o 77 percen in 2012.

Beween 1970 and 2012, hereore, criminal legislaion in Lain

America has ended o enrench disproporionaliy in he reamen o

drug-relaed crimes. Unlike murder, which clearly has serious conse-quences or sociey, drug-relaed crimes cause no concree, direc harm.

However, he legislaion sudied does no reflec his difference in he

seriousness associaed wih each conduc, since i is no unusual in he

counries sudied or drug-relaed crimes o be punished as severely as or

more severely han he crime o murder.

Drug trafcking compared to rape

Rape is a very serious crime, considering is concree and specific harm o

a persons sexual reedom and inegriy.41A comparison beween penalies

41 Rape is a crime that implies the use of sexual violence and constitutes

an attack against the victims sexual freedom and integrity. Unlike drug-

related crimes, it causes concrete harm, both physical and psychological,

which can have repercussions for the persons life in society.

FIGURE 17.

Maximum penalty for trafcking as percentage

of maximum penalty for rape (1970-2012)

Asapercentageofpenaltyforrape

300

250

200

150

100

50


1970 1990 2012


40

100 100

125

250

167

63

250

0

200

100

150

188179

0 0

188

63

188

150150


22/29


In he oher counries, he maximum penaly or drug-relaed crimes

is considerably higher han ha or he crime agains sexual reedom and

inegriy. In Mexico, he percenage comparison is 179 percen, ollowed

by Bolivia w ih 167 percen, and Colombia and Brazil wih 150 percen.

Te disproporionaliy o hese maximum penalies was highes in 1990,

when he penaly or rafficking in Bolivia and Colombia was 2.5 imes

he maximum or rape.42Te daa hereore show ha he difference in he

seriousness o hese wo offenses is no refleced proporionaely in heir

maximum penalies, because he punishmen or drug-relaed crimes

seems much more severe han he punishmen or such an exremely

harmul crime as rape.While he comparison o maximum penalies reached 250 percen,

he minimum penaly comparison exceeded ha percenage by a wide

margin. In our counries, he minimum penaly or drug rafficking was

hree or our imes as long as he minimum or rape. Bolivia, Colombia, Ec-

uador and Mexico showed he greaes discrepancies in penalies or drug-

relaed crimes as compared o hose or rape, especially in 1970 and 1990.

In five o he seven counries sudied, he minimum penalies are

currenly longer or drug rafficking han or rape. Te greaes dispropor-

ionaliy is in Bolivia, where he minimum penaly or drug-relaed crimes

is wice ha o rape; w hile he ormer is 10 years in prison, he later is five

years. Alhough no refleced ully in he comparaive percenage, Ecua-

dor and Colombia have he highes minimum penalies or drug raffick-

ing, a 12 years in pr ison or Ecuador and 10.6 years or Colombia.

As wih he sudy o he maximum and minimum penalies, analysiso he average penalies also shows ha hose or drug-relaed crimes are

disproporionae. Only in Argenina is he penaly slighly higher or rape

(10.5 years in prison) han or drug rafficking (9.5 years in prison). In he

oher six counries, he average penaly or drug rafficking is equal o or

greaer han he average or rape. Bolivia and Mexico where he percen-

age comparison is 175 percen and 164 percen, respecively sand ou

in paricular.

Mos counries regisered he greaes disproporionaliy in 1990.

Wih he excpeion o Argenina, in all counries he average penaly was

42 In Bolivia, the maximum penalty for drug trafcking was 25 years in 1990,

while the maximum for rape was 10 years in prison. In Colombia, the maxi-

mum penalties were 20 years for drug trafcking and eight years for rape.

FIGURE 19.

Average penalty for trafcking as percentage

of average penalty for rape (1970-2012)

Asapercentageofpenaltyforrape

300

250

200

150

100

50


1970 1990 2012


33

90 90

144

250

175

55

260

0

233

100

190

220

159

0 0

164

55

164

125127

FIGURE 18.

Minimum penalty for trafcking

as percentage of minimum penalty for rape (1970-2012)

Asaperce

ntageofpenaltyforrape

350

300

250

200

150

100

50


1970 1990 2012


17

67 67

300

250

200

25

300

0

300

100

300

350

125

0 0

133

33

1008388


23/29


longer or drug rafficking. In Colombia, he penaly or drug rafficking

was 13 years in prison, compared o five years or rape. In Bolivia, here

was a difference o 10.5 years in prison in 1990.

Tese hree graphs lead o he conclusion ha drug rafficking has

been punished more severely han rape in mos counries, especially be-

ween 1990 and 2012. Alhough he disproporionaliy was greaer in

1990, ha does no mean he siuaion has changed much. As he graphs

show, in 2012, penalies or drug rafficking were no a all proporionae

o hose or a sex crime as serious as rape, a sign ha he counries con-

inue o impose more severe punishmens or less serious crimes.

As wih he crime o murder, he disproporionaliy o he reameno drug-relaed crimes is eviden when compared wih penalies or rape,

alhough he later crime seriously affecs wo o he legal righs mos im-

poran o sociey: sexual reedom and inegriy. By punishing drug-re-

laed crimes such as rafficking more severely, Lain American legislaion

conradics he principle o proporionaliy o punishmen.

A clarificaion is in order here. Tese conclusions should no lead

us o hink ha he soluion o his disproporionaliy is o increase he

lenghs o he penalies or he crimes used or comparison (murder and

rape), because ha would only mean aking an even more puniive ap-

proach, wih he coss ha his implies in erms o reasonable criminal

policy and human righs. Insead, i should lead o an evaluaion o he

acual harm caused by drug-relaed crimes and how o respond o ha

harm in a way ha is reasonable and proporionae.

Drug trafcking compared to aggravated robbery

Te las crime we compared aggravaed robbery does no cause as se-

rious harm as murder or rape, bu has a considerable impac on sociey,

because i occurs so requenly. Once again, a percenage comparison is

used, analyzing he lengh o he penaly or drug rafficking as a percen-

age o he penaly or aggravaed robbery. Because he later is considered

a more serious offense, he principle o proporionaliy implies ha i

should be punished more severely han drug raffickin

addicted to punisjment the disproportionality of drug lwas in latin america

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