The Drug’s Legal Nightmare

Andean governments remain unable to separate the consequences of drug trafficking from the long-term effects of international anti-narcotic policies, both at the political, legal and social level. Even politically alternative Latin American governments, such as those of Chavez, Castro or Morales, are reluctant to make changes to the current prohibitionist paradigm. Some political analysts claim that the US influence on Latin America is waning, but the continent’s streets are still a favourite setting for the drugs war. Police raids are increasing, and detention rates for drugs offenders also continue to rise. Meanwhile, half of the Latin American population lives below the poverty line (with large numbers trying to migrate to US), and many of these people see no clear difference between choosing licit and illicit activities.

Colombia and Peru, supported by the US, continue to promote hard-line anti-drug policies. President Uribe still believes that the drug problem and terrorism are almost the same thing, and that government policies should be directed against both of them. More than 500 Colombians had been extradited to the US for drug offences during Uribe’s administration. Felipe Calderón, Mexico’s new president, has recently extradited 15 Mexican drug kingpins. However, extradition can weakens a country’s own justice system. At times, it has also failed to result in convictions in the US courts, as the Simon Trinidad case showed recently.

On the other hand, the recent investigation and prosecution of congressmen and state governors in Colombia, because of their links with paramilitaries, shows the extent of the problem. The non-selective application of law enforcement measures, the favoured paradigm among international policy-makers, has had adverse effects on the Latin American street. The same approach underlies US policy, which goes some way to explaining the US saw over 1.8 million Americans arrests for drug offences in 2005, a contributing factor towards it having the world`s highest incarceration rate.

Colombia’s aerial eradication programme, which is managed by private contractors who are not liable for its consequences, is another dangerous mistake. In 2006, the fumigation of 160,000 hectares in complex Amazon environments proved ineffective, while the illicit drug trade remains as flexible as ever. The new Calderón government, meanwhile, started its term of office by launching a huge military offensive in Michoacán, Tijuana and Acapulco in order to destroy crops and criminal organisations. None of these measures have prevented the immense drug development in the region, however.

In an increasingly borderless world of global trade liberalisation, coca production and trafficking is extensive. At least 210,000 hectares are planted with coca crops in the Andean region, yielding approximately 300,000 tons of coca. 750 tons of cocaine are produced in the region per year.

Illicit activities – smuggling, drugs, money laundering, etc – are overwhelmingly a response to the extreme poverty of societies in much of the Global South, such as that experienced in the 560 favelas in Rio de Janeiro, or by the 1 million people living in Lima’s San Juan de Lurigancho district. Even in the US, cannabis is the biggest cash crop, with a market value of US$ 35 billion, compared to US$ 23 billion of corn and US$ 17.6 billion of soybean. This is the result of contradictions between small peasant agriculture and free market agribusiness. Local farmers everywhere in the world are undercut by cheap and subsidised imports, posing an enormous challenge for the international community: how to reduce rural poverty, and prevent the recourse to illicit activities that increase jail population.

Moreover, violent groups such as FARC and, to a lesser extent, Sendero Luminoso (SL) and other “war lords” in the coca producing valleys continue to benefit from the drug war`s turbulence, which has cost over US$ 4,000 million in Colombia alone since 2000. Plan Colombia, with its stated aim of reducing by half the coca growing areas, was never accomplished. But the narrow view of security underlying it has increased forced migration and rural displacement among Colombians; the paramilitaries and traffickers’ impulse to engage in a “dirty war”; and has bred pervasive corruption among State officials – as was clearly demonstrated by a recent investigation in Colombia on the relationship between congressmen, state governors, the military and paramilitaries. In different ways, Colombia and Afghanistan are at the front line of one of the core dilemma we have faced over the last 25 years: namely, that armed conflict provides fertile ground for drugs trafficking, while the drug industry is in turn fuelled by the economics of guerrilla war. Simultaneously, anti-drug plans undermine any state effort to gain the trust of rural populations. As an example, the continued SL presence in Huallaga and Apurímac brings political and economic benefits, both to militaries and corrupt local politicians.

In 2006 alone there were 2,221 drug-related murders in Mexico, and almost 9,000 during the six years of the Fox administration. 5,000 murders are committed each year in Guatemala, according to UN figures, many of which are drug-related. 60 per cent of world kidnappings are made in Latin America, and the continent has –according to the UN, an average of 30 gun murders for every 100,000 people. Same problem with these stats: what proportion drug-related? The recent wave of violence from the Tijuana cartel in Mexico shows how state efforts are easily overwhelmed by organised assaults by the drug cartels.

Meanwhile, drugs continue to become cheaper, more easily available and of better quality, while national markets are flooded with both natural and synthetic drugs. Statistics on seizures show that they amount to less than 10 per cent of the total produced, though this figure various according to the source. There are 475,000 cocaine users in Spain, predominantly among younger and socially excluded people.

There is an evident lack of political will and effective policies among Andean states, which are failing to tackle the real problems underlying drug production: extended social marginality, deep poverty and a lack of job opportunities. There is a need for real domestic and international security, fair and free trade, between Northern and Southern economies. This should be accompanied by a radical shift on drugs policies globally, but especially in Latin America. The challenge for the international community is how to convert a present and real threat into a legitimate and democratic state response. It seems as if there is only one solution: indiscriminate prohibition, but recent experience shows that this is not true. Prohibition does not forbid anything. International policies need to learn from local experiences all around the world.

The South American criminal system – the police, prosecutors, the justice and prison systems - is in deep crisis, despite the many efforts to change it. With its questionable procedures and counterproductive enforcement measures, the justice branch is among the worst and most socially illegitimate of all state institutions. The region’s prison systems are close to collapse. More people are being imprisoned daily, as the state pursues a single-track and futile response to the demand for drugs.

In Peru there are 36,000 inmates in 82 prisons, whose capacity is only 20,000. 75 per cent of the prison population have not been sentenced, so they are formally innocent. 16 per cent of the total prison inmates are drugs offenders, with possession and consumption the main offences. But within the prison system, drugs are more available than they are on the street, which represents the most evident contradiction of the current “supply reduction” policies. Most of the inmates have the same social and economic background: they are unemployed, young and poor. Drug offenders cannot ask for any prison benefits, such as work and education, so the criminal system contradicts its stated aims.

Democracies have failed to prevent crime and rehabilitate offenders. Moreover, they can’t approach the drugs issue without putting in question their own institutions, such us the justice system. Yet our societies and politicians are still asking for “more security” within national boundaries, bringing together the efforts of the police, armed forces and media. More repressive laws and discourses are the direct consequence of ineffective policies towards the real causes of the illicit drugs dilemma. It seems that the more we do at the institutional level, the worse the reality becomes.

To conclude, I will briefly describe what I consider to be the short-term solutions to ease the current situation. A complete rethink and overhaul of the anti-narcotics criminal system and, in particular, of the prison system is needed.

• Andean countries need to make a major shift in their drugs, development and justice policies. They should stop the current trend towards more arrests for minor drug offences (consumption, small-scale supply), more criminal trials, and the increasing use of imprisonment.
• The system needs to be more precise in its aims. The judiciary needs faster procedures, and needs to overhaul its many outdated procedures. There needs to be a recognition that the threat of jail is not a solution to cultivation, consumption or delinquency problems, or even a real disincentive to the possession of drugs.
• Criminal proceedings should be restricted to major drug offences, with other administrative measures used to deal with lesser offences.
• The prison population should be targeted by state sponsored rehabilitation programmes, if any change is expected in the medium term;
• Prison inmates convicted of drugs offences should be allowed to replace jail sentences if they can show that they can stop using drugs for long periods of time.