Reform proposals and reform to the drug laws in Chile

01 January 2010
Article

A short history of reform and reform proposals to drug laws in Chile

Legislative proposals to change the status of marijuana in Chilean society go back some time.  In June 2003, Senator Nelson Ávila present a bill that would have modified Clause 1 of Article 2 in Law 19.366, decriminalizing the planting, cultivating or harvesting of  species from the cannabis family and other plants from which narcotic or psychotropic substances are derived for personal use or consumption.  Senator Ávila argued that instead of combatting the sale and trafficking of narcotics, the existing system fomented it.  “Legalizing cultivation for personal use or consumption would allow users access to supply without having to depend on drug trafficking networks” and “our legislation allows for individual and private use, but at the same time penalizes cultivation and (users) have no option but to turn to drug traffickers. In other words, what we are doing is ridiculous,” said Senator Ávila at the time.   His initiative met strong opposition in Congress, particularly from Senator Jaime Orpis (UDI), who has become known for his fierce opposition to liberalizing of cannabis.  

Senator Ávila presented another bill in March 2005 to authorize “personal cultivation of plant species from the cannabis family with therapeutic ends.” The bill was shelved.

In June 2007, Chile enacted Law 20.084, the Adolescent Criminal Responsibility Law (Responsabilidad Penal Adolescente—LRPA) that lowered to 14 from 16 the age limit for criminal responsibility of minors.  This law established maximum sentences of five years for minors between the ages of 14 and 16.  Sentences could be as long as 10 years in prison for minors over the age of 16. 

Several years later, in May 2008, Senator Ávila, now a member of the Radical Party (Partido Radical—PRSD), questioned the government’s decision to include marijuana on the list of dangerous drugs.   In Article 1 of Decree 867, published in February 2008, cannabis is placed on the list of narcotic or psychotropic drugs, along with heroin, methamphetamines, opium, and cocaine, among others.  This classification has legal consequences, given that judges no longer have the possibility of reducing penalties for charges related to the sale of cannabis.  The sale of small quantities of marijuana now carries sentences between 18 months and five years in prison. 

In September 2009, several members of Congress presented a bill that would authorize therapeutic use of cannabis, “allowing patients to possess a plant for these effects and increasing the penalties for micro-trafficking.”

In March 2011, a private company, Agrofuturo, obtained a license from the SAG (Agriculture and Livestock Service, Servicio Agrícola Ganadero) to grow cannabis for medicinal and research purposes.  The SAG resolution was based on the drug law (Law 20.000), which states in Article 9 that authorization for growing cannabis species will be awarded by this agency.  Decree 867, which regulates the norm, also establishes mechanisms for this authorization.  The Public Health Institute (Instituto de Salud Pública—ISP) forced the agency to revoke its ruling, because the law prohibits the development of any pharmaceutical product using cannabis.  The National Council for Narcotics Control (Consejo Nacional para el Control de Estupefacientes—CONACE), now known as SENDA, also reacted against this measure, calling for a review of the drug law “with the goal of finding a formula to block these kinds of permits.” 

ttd-chileIn November 2011, the government adopted Drug Treatment Tribunals (Tribunales de Tratamiento de Drogas—TTD) as a national public policy.  The objective of these tribunals is to provide mechanisms for defendants with drug problems to avoid prison if the sentence is less than three years.   Treatment is voluntary and rehabilitation is done under the direct supervision of a judge.  Use of the TTDs has been promoted in Latin America by the Inter-American Drug Abuse Control Commission (CICAD), part of the Organization of American States (OAS), as a solution to problems related to drugs.  Chile is one of the OAS members with TTD programs in several cities.   The U.S. Embassy in Chile has also played an important role in the TTDs since their inception.  One of the most serious criticisms of the program is that it requires abstinence as a condition for participation.  This requirement excludes a large number of people who would be interested in reducing consumption or consume in conditions that pose fewer risks for their health and social context. 

In May 2012, former President Ricardo Lagos publicly expressed his position in favor of decriminalizing drug consumption “given that the war against drugs is being lost and it is necessary to find new alternatives.”  Lagos has reiterated this position several times since then.

In June 2012, Senators Fulvio Rossi (PS) and Ricardo Lagos Weber (PPD) presented a bill that would regulate marijuana consumption.  It includes only one article, which states:  “Modify Article 50 of Law 20.000 concerning Illicit Narcotics Trafficking, adding the following final clause: Without detriment to what is stated in this article, the individual who cultivates in his/her home species from the genus cannabis sativa, as long as it is for personal consumption and/or therapeutic use, will be exempt from criminal responsibility.” Also exempt from criminal responsibility will be those who possess or transport on their person a specific quantity of cannabis sativa.  An implementing regulation will determine the quantity.

fulvio-rossi2 Text of the Rossi Law bill

The principal objective of this proposal and its two components, one related to cultivation for personal use and the other for therapeutic use, is to establish a precise determination between carrying and possessing cannabis for personal consumption.

Senators Rossi and Lagos Weber also have asked that the National Service for Drug and Alcohol Prevention and Rehabilitation (SENDA) be moved from under the Interior and Public Security Ministry to the Health Ministry so that it can concentrate on public policies for rehabilitation and prevention campaigns.

In August 2012 President Piñera signed the Prevention of Drug and Alcohol Consumption bill.  According to the initiative, the country’s schools are required to have a drug and alcohol prevention strategy and a person in charge of applying it.

A bill amending art. 4 of Law 20,000 which establishes criteria for the quality and purity of drugs was presented on January 2013. The project aims to set new standards of quantity (weight) and quality (purity) of marijuana, to facilitate differentiation between drug dealers and consumers. The project, which has not been without controversy, some sectors fear could contribute to increase  arrests of marijuana users, is now being debated in the House of Representatives.

In June 2013 a group of lawmakers asked the Department of Law Assessment (a unit of the House of Representatives in charge of evaluating the performance of different laws) an assessment of Law 20.000.

A few days after her inauguration, President Michelle Bachelet spoke in favour of a revision of the law 20.000