Conclusions

• Pages: 46-48
• Author: Rodrigo Uprimny Yepes,Diana Esther Guzmán,Jorge Parra Norato

46 47

Addicted to punishment Dejusticia Working Paper 1

ese data suggest that Latin American legislation violates the prin-

ciple of proportionality described by Ferrajoli (2000, 402), which states

that “if two crimes are punished with the same penalty, it means the legislative

branch considers the seriousness to be equivalent, while if the penalty for one

crime is more severe than that established for the other, the rst crime is consid-

ered more serious than the second.” In this case, the opposite is true: the less

serious crime is punished with a penalty equal to or exceeding the penalty

for the more serious crime.

In conclusion, disproportionality in the punishment of drug-related

crimes in Latin American legislation is evident since 1970. is practice

is generalized in the seven countries studied and reached a peak in 1990,

although that does not imply a change in approach, as explained above.

Conclusions

Proportionality in penalties is not just a principle associated with the pos-

tulates of criminal law as a mechanism of last resort and of minimum crim-

inal law, but it also constitutes a substantive guarantee for defendants and

people convicted under criminal legislation. It protects those who play the

weakest role in the criminal process and maintains a balance between the

goal of protecting potential victims through the prevention of additional

crimes and the goal of protecting possible defendants against unjust and

excessive punishment.

Any state policy that uses criminal law must therefore respect and

guarantee strict compliance with the principle of proportionality. Other-

wise, various human rights would be violated, which is unacceptable in

constitutional regimes. Latin American countries, in particular, should do

all they can to ensure that drug polic ies are a proportional response that

guarantee respect for the rights of all actors related to any phase of the

drug business.

is study, however, provides sucient grounds to conclude that

the trend in drug control policy in the region is toward the maximum

use of criminal law and a consequent disproportionality in the treatment

of drug-related crimes. i s tendency is evident in the fact that both the

number of drug-related conducts penalized and the lengths of the penal-

ties have increased steadily since 1950. is has degenerated into such a

punitive approach that in a single body of legislation, 50 or more drug-

related conducts are penalized and penalties of 30 or more years in prison

are imposed.

e disproportionality in drug policies in Latin America is con-

#rmed by a comparison to other crimes that societies consider more se-

rious and that cause far greater, more concrete and more direct harm to

protected legal interests. e punit ive response to drug-related crimes is

equal to or more severe than the penalties established for the crimes of

murder, rape and aggravated robbery. e greater severity of penalties for

drug-related crimes not only ignores proportionality, but also contradicts

the Latin American social sensibility that would rather punish a murderer

or rapist than a person who deals or uses drugs.

is study has also corroborated at least two other characteristics

of criminal drug legislation in Latin America that help maintain and ex-

pand disproportionality. e #rst is the generalized presence of de#cien-

cies in legislative practices that could hamper protection of the rights of

people charged with and convicted of drug crimes, such as the tendency

to include a large number of verbs used to describe a criminal oense in a

single article of the law, which leads to the same penalty being imposed for

crimes with dierent degrees of seriousness. e second is the existence

of a punitive approach (in drug legislation) within a punitive approach

(in the criminal justice system in general), which was identi#ed by the

similarity between sanctions for drug-related conducts and the maximum

penalties established in criminal law.

Given this obvious disproportionality in the treatment of drug-relat-

ed crimes in Latin America, there is an urgent need for countries to take

adequate measures to change the situation and implement drug policies

that respect human rights and basic criminal guarantees.

Reinforcing this, the people most aected by the disproportional-

ity of crimes and penalties tend to be the most vulnerable members of

Latin American societies and the weakest links in the tracking chain. As

was documented in the study, Systems Overload: Drug Laws and Prisons in

Latin America, the criminalization of the cultivation, manufacturing, com-

mercialization, tracking and even use of controlled substances generally

involves people who live in more precarious socio-economic conditions

and have less formal education. ey also tend to constitute the weakest

links in the drug business.43

43 This was conrmed by an earlier CEDD study that concluded that the main

victims of excessively repressive drug control policies are low-income peo-

ple with little formal education, who play a smaller role in the drug cycle

and are easily replaced in the various phases of the drug economy. See