Analysis of criminal proportionality in the abstract sense

• Pages: 33-46
• Author: Rodrigo Uprimny Yepes,Diana Esther Guzmán,Jorge Parra Norato

32 33

Addicted to punishment Dejusticia Working Paper 1

more serious now than it was in 1950, because it does not result in direct

harm. Crimes commied by drug trackers to protect and regulate their

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

clearly increased -- are another maer. But the seriousness of those other

crimes is di#erent from the seriousness of the production and tracking

of controlled substances. And the upward trend in punishments, from ve

years in prison to 15 or 30 years, indicates the disproportionality associ-

ated with drug-related crimes.

It may be argued that these upward trends are not specic to drug-

related crimes, but reect a general punitive tendency in Latin American

countries. Although this potential critique does not change the issue of

proportionality, we have chosen to consider it separately. erefore, an

additional element of analysis is o#ered, which is the comparison of pen-

alties for drug-related crimes with the maximum penalties allowed by

criminal legislation in each country.

Table 1 shows this comparison for 2012, because the diculty of

obtaining earlier criminal codes in all of the selected countries made it

impossible to gather the data needed to compare trends. We therefore

compare only the maximum penalty allowed in each countr y, the longest

maximum penalty for all drug-related crimes, and the maximum speci-

cally for the crime of drug tracking.

Bolivia and Peru are emblematic cases. In those countries, some

drug-related crimes are punished with the most severe penalty allowed

by the legal system. at would mean, in theory, that they are the most

serious crimes in criminal legislation. As noted, however, they are actually

crimes in which the harm is not clear and which are considerably less seri-

ous than murder, which will be discussed below.

is would suggest that drug-related crimes are characterized by a

more intensive punitive approach that is part of a general tendency to use

punitive measures that seems more or less common to all Latin American

criminal legislation, or, in other words, a disproportionalit y within the

general disproportionality that exists for other crimes. A s shown in the

next section, however, the disproportionality tends to be greater for drug-

related crimes than for other crimes.

is punitive approach within a punitive approach is most evident

in Colombia and Mexico. ese two countries have the longest possible

maximum penalties of the seven countries studied, with max imum sanc-

tions of 60 years, reecting the punitive nature of their criminal legisla-

tion. Although they are not very long compared to the maximum possible

sentence, penalties for drug-related crimes are equal to or longer than the

maximum penalties in most of the other countries. So not only i s there a

general tendency toward a punitive approach overall in these countries,

but within that can be found a particular and specic manifestation of the

punitive approach: the disproportionality in the treatment of drug-related

crimes.

Analysis of criminal proportionality

in the abstract sense

e discussion so far points to similar tendencies in Latin America with

regard to various conducts dened as crimes and the lengths of penalties

for drug-related crimes. ese include a steady increase in the number

of conducts penalized, the lack of good legislative practices in changing

legislation on sensitive issues, and the increase in the lengths of both the

minimum and maximum penalties. ese, in turn, seem to indicate a ten-

dency toward maximization of the use of criminal law in drug control ef-

forts, which raises questions about basic guarantees for defendants under

criminal law.

is section analyzes proportionality in the strict sense. As indicated

in the section on conceptual boundaries, we compare the way in which

countries in the region have dened drug-related crimes and other crimes

that are clearly serious and have an impact on society: murder (homicido

simple), rape (violación) and aggravated robbery (hurto con violencia sobre

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for drug trafcking

Argentina 35  15

Bolivia   25

Colombia   

Mexico   25

Peru 35 35 15

Ecuador 35 16 16

Brazil   15

Source: Compiled by authors