This legislation would complete seven significant steps in drug policy under the administration of President Rafael Correa. To understand the nature of the new draft legislation, it is important to examine it in light of Ecuador’s current drug policy.
The First Six Steps
After Rafael Correa won the presidency in 2006, a constituent assembly was formed to develop a new constitutional framework for the country. While that work was under way, the first step of drug policy reform was taken in July 2008, with the so-called pardon for drug trafficking “mules.” This marked a clear break with the pain caused by mass incarceration under Law 108, as more than 2,000 people regained their freedom. Shortly afterward, the second step came with Article 364 of the new Constitution (2008); this provision established as a principle, for the first time, an express prohibition against criminalizing consumers and shifted the focus on the social issue of drugs from a criminal approach to one of health policy. What other countries had accomplished through the courts or public policy, Ecuador achieved by modifying its Constitution.
A year later, the government decided not to renew the United States’ Forward Operating Location (FOL) in Ecuador, closing the so-called “Manta Base,” which dated back to a November 1999 agreement on the military interdiction of drug traffickers signed by then-President Jamil Mahuad. Besides posing dilemmas related to national sovereignty and meddling in Colombia’s armed conflict, the Manta Base was used to intercept dozens of boats carrying undocumented migrants northward. This was the third step.
The fourth step in drug policy reform came just days after the Organization of American States (OAS) published the report, “The Drug Problem in the Americas,” in May 2013. The National Council for Control of Narcotic and Psychotropic Substances (Consejo Nacional para el Control de las Sustancias Estupefacientes y Psicotrópicas, CONSEP), Ecuador’s national drug policy-making body, issued a decree that for the first time aimed to establish thresholds of tolerance to avoid criminalizing users of illicit drugs. The parameters included maximum allowable amounts of ten grams for cannabis and two grams for cocaine base paste, removing them from criminal prosecution under Article 62 of Law 108—in other words, away from the easiest and most ambiguous criminal category used by police agencies: “carrying or possession.”
In June 2013, the Correa Administration decided to withdraw unilaterally from the preferential tariffs granted by the United States as compensation for the “War on Drugs” in the Andean countries (Andean Trade Promotion and Drugs Eradication Act, ATPDEA). This marked the fifth step, amid rumors that involved Ecuador in the possible granting of political asylum to Edward Snowden, who was sought by the United States for having leaked classified information. With non-renewal of ATPDEA looming, the Ecuadorian government made public its decision to stop receiving financing in that form, and instead offered the United States a similar amount (US$23 million annually) to promote training in human rights and the elimination of torture.
The sixth step combined political and legislative measures, with the signing into law of the Organic Comprehensive Criminal Code (Código Orgánico Integral Penal, COIP) in February 2014. This code repealed the criminal provisions of Law 108, which amounted to more than 60 percent of its passages. COIP reformed all criminal categories of drugs to allow greater proportionality, considering that Ecuador had become one of the countries with the harshest sentences in the region. While possession used to carry a sentence of 12 to 16 years, up to a cumulative total of 25 (Art. 62 of Law 108), criteria are now established that divide the types of trafficking into four levels and impose a penalty of two to six months for small-scale cases (Art 220 of the COIP). Less than three months after it took effect, 2,000 people regained their freedom as a result of the implementation of the principle of favorability or the more benign subsequent law.