Overview of criminal drug control legislation in Latin America

• Pages: 16-33
• Author: Rodrigo Uprimny Yepes,Diana Esther Guzmán,Jorge Parra Norato

16 17

Addicted to punishment Dejusticia Working Paper 1

with large-scale drug tracking. Nevertheless, in some countries the pun-

ishment is equal, and in a few cases, a small-scale marihuana dealer is pun-

ished as if he were Pablo Escobar.

Before beginning the comparative analysis, the recent evolution of

drug-related crimes should be examined. is preliminary analysis is use-

ful, as explained in greater detail below, as it reveals a tendency toward

gradual increases, which could be a factor of disproportionalit y in itself,

because in a democracy, the criminal punishment of any conduct should

be the exception and should respond to serious and clear objective causes.

A tendency to maximize punishment is therefore suspect.

e analysis of trends also highlights commonalities at particular

points in the evolution of criminal legislation in the region. If we can iden-

tify common moments at which countries tend to maximize penalties, we

may #nd that there is also a common cause that merits study.

For these two analyses, both the comparative and the historical,

the laws were identi#ed that de#ne dr ug-related crimes from the 1950s

through 2011 in each of the seven selected countries in Latin America.

Once identi#ed, the laws, including their content, were organized system-

atically in separate, country-speci#c #les. Researchers from CEDD veri-

#ed the information gathered for each of their countries to ensure that it

was reliable and current, and provided access to laws that were not avail-

able via Internet or in other sources in Colombia. at information was

subsequently supplemented with data from each country ’s criminal code

on penalties for the crimes chosen for comparison. e authors used this

information for the comparative analysis.

Overview of criminal drug control legislation

in Latin America

is section presents two analyses of criminal legislation de#ning dr ug-

related crimes in seven countries in the region: 1) an analysis of historical

trends from 1950 until 2012,21 and 2) the identi#cation of some speci#c

characteristics of those trends.

21 Although in some countries, such as Argentina, Colombia, Brazil, Mexico

and eru, drug crimes were dened in criminal legislation in the s

and s, for a comparatie analysis it is more appropriate to begin with

the s, because by then most countries had criminal drug laws, and it

is therefore a date that mars the intensication of the war on drugs and

the generalized use of criminal law towards that end.

Analysis of trends in the criminalization of drugs

e #rst cr iminal legislation on drugs in Latin America was passed in

about the 1920s and was characterized by criminalizing very few drug-

related conducts and applying relatively light penalties. In Argentina, Law

11.309 of 1924 punished only the clandestine introduction of drugs, their

sale and improper prescription w ith a penalty of six months to two years

in prison.22 In Colombia, Law 11 of 1920 imposed #nes for tracking or

use,23 and in Mexico, the #rst regulations were established in 1916, 1923

and 1927, and included prohibitions without de#ning speci#c crimes or

establishing prison terms.24

A review of cur rent criminal legislation leads to the hypothesis that

there is a tendency to maximize the use of criminal law to address the

drug problem in Latin America. Unlike those of the 1920s, current laws

establish severe penalties for a large number of drug-related conducts. Co-

lombia is a very good example: While the #rst drug control laws imposed

only #nes on only two dr ug-related conducts, the current Criminal Code

includes 50 verbs used to describe a criminal oence (Descriptive Verbs,

hereaer also referred to as descriptive verbs) – in other words, punish-

able conducts -- and includes penalties of up to 30 years in prison, which

can be increased in the case of an aggravated oense.

In testing this hypothesis, several trends in these laws emerge in two

speci#c areas: the number of drug-related conducts criminalized and the

length, in years, of the prison terms imposed for those conducts. e fol-

lowing section examines each of those trends, indicating their character-

istics and nuances.

Gradual increase in the number of conducts

described as criminal

From the standpoint of guarantees, criminal law is constrained by the prin-

ciple of minimal intervention.25 According to this pr inciple, criminal law

22 Corda, .. ().

23 primny and uzmn ().

24 ernndez ().

25 erraoli (: ) explains the principle of minimal interention as us-

tication for criminal law as follows:  criminal system is ustied only if

the sum of the violence – crimes, retaliation and arbitrary punishment

– that it can prevent is greater than the violence represented by unpre-

vented crimes and the penalties established for them. Such a calculation

is, of course, impossible. ut the punishment can be ustied as the lesser

16 17

Addicted to punishment Dejusticia Working Paper 1

with large-scale drug tracking. Nevertheless, in some countries the pun-

ishment is equal, and in a few cases, a small-scale marihuana dealer is pun-

ished as if he were Pablo Escobar.

Before beginning the comparative analysis, the recent evolution of

drug-related crimes should be examined. is preliminary analysis is use-

ful, as explained in greater detail below, as it reveals a tendency toward

gradual increases, which could be a factor of disproportionalit y in itself,

because in a democracy, the criminal punishment of any conduct should

be the exception and should respond to serious and clear objective causes.

A tendency to maximize punishment is therefore suspect.

e analysis of trends also highlights commonalities at particular

points in the evolution of criminal legislation in the region. If we can iden-

tify common moments at which countries tend to maximize penalties, we

may #nd that there is also a common cause that merits study.

For these two analyses, both the comparative and the historical,

the laws were identi#ed that de#ne dr ug-related crimes from the 1950s

through 2011 in each of the seven selected countries in Latin America.

Once identi#ed, the laws, including their content, were organized system-

atically in separate, country-speci#c #les. Researchers from CEDD veri-

#ed the information gathered for each of their countries to ensure that it

was reliable and current, and provided access to laws that were not avail-

able via Internet or in other sources in Colombia. at information was

subsequently supplemented with data from each country ’s criminal code

on penalties for the crimes chosen for comparison. e authors used this

information for the comparative analysis.

Overview of criminal drug control legislation

in Latin America

is section presents two analyses of criminal legislation de#ning dr ug-

related crimes in seven countries in the region: 1) an analysis of historical

trends from 1950 until 2012,21 and 2) the identi#cation of some speci#c

characteristics of those trends.

21 Although in some countries, such as Argentina, Colombia, Brazil, Mexico

and eru, drug crimes were dened in criminal legislation in the s

and s, for a comparatie analysis it is more appropriate to begin with

the s, because by then most countries had criminal drug laws, and it

is therefore a date that mars the intensication of the war on drugs and

the generalized use of criminal law towards that end.

Analysis of trends in the criminalization of drugs

e #rst cr iminal legislation on drugs in Latin America was passed in

about the 1920s and was characterized by criminalizing very few drug-

related conducts and applying relatively light penalties. In Argentina, Law

11.309 of 1924 punished only the clandestine introduction of drugs, their

sale and improper prescription w ith a penalty of six months to two years

in prison.22 In Colombia, Law 11 of 1920 imposed #nes for tracking or

use,23 and in Mexico, the #rst regulations were established in 1916, 1923

and 1927, and included prohibitions without de#ning speci#c crimes or

establishing prison terms.24

A review of cur rent criminal legislation leads to the hypothesis that

there is a tendency to maximize the use of criminal law to address the

drug problem in Latin America. Unlike those of the 1920s, current laws

establish severe penalties for a large number of drug-related conducts. Co-

lombia is a very good example: While the #rst drug control laws imposed

only #nes on only two dr ug-related conducts, the current Criminal Code

includes 50 verbs used to describe a criminal oence (Descriptive Verbs,

hereaer also referred to as descriptive verbs) – in other words, punish-

able conducts -- and includes penalties of up to 30 years in prison, which

can be increased in the case of an aggravated oense.

In testing this hypothesis, several trends in these laws emerge in two

speci#c areas: the number of drug-related conducts criminalized and the

length, in years, of the prison terms imposed for those conducts. e fol-

lowing section examines each of those trends, indicating their character-

istics and nuances.

Gradual increase in the number of conducts

described as criminal

From the standpoint of guarantees, criminal law is constrained by the prin-

ciple of minimal intervention.25 According to this pr inciple, criminal law

22 Corda, .. ().

23 primny and uzmn ().

24 ernndez ().

25 erraoli (: ) explains the principle of minimal interention as us-

tication for criminal law as follows:  criminal system is ustied only if

the sum of the violence – crimes, retaliation and arbitrary punishment

– that it can prevent is greater than the violence represented by unpre-

vented crimes and the penalties established for them. Such a calculation

is, of course, impossible. ut the punishment can be ustied as the lesser