Technical Report on Alternatives to Incarceration for Drug-Related Offenses
Convinced that responses to the drug problem should be comprehensive, centering on public health and human rights perspectives, the Government of Colombia, with the support of the Inter-American Drug Abuse Control Commission (CICAD), is committed to encouraging the debate on alternatives which allow for a focus on the individual, moving beyond approaches solely based on repression.
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The Report on the Drug Problem in the Americas, undertaken by the Organization of American States (OAS), confirms that the use of a punitive approach in response to consumption has meant that the populations most vulnerable to problematic use have been discouraged from access to timely information, public health services, and treatment and prevention programs in general.
Furthermore, academic studies and reports from civil society organizations have indicated that indiscriminate repression, including applying severe sanctions for consumption and possession of small quantities, has especially affected the lowest levels of the drug trafficking chain. This situation has aggravated the problem of prison overcrowding that a number of countries in the region are facing. In this context, drug policy has come into conflict with the respect for human rights. The situation of women and their increasing participation in drug-related crimes is especially worrying.
Given this reality, it is necessary to understand crime as a social phenomenon and not a fact of nature. For this reason, the State’s reaction to crime must start with the analysis of its origins within the community, since only by determining the reasons which bring some members to engage in criminal activity, can it be addressed adequately. The reflexive use of criminal law – frequently manifested in the proliferation of new crimes, increases in sentences, and the indiscriminate incarceration of a large number of offenders – can create fleeting sensations of relief in a society. However, the use of criminal law as the State’s only reaction not only leaves the origin of the problem intact, but also places large burdens on the resources of the justice system, and more importantly, in the eyes of a community that could see its actions as inefficient, increases the perception that its repeated intervention no does help to address the problems it seeks to solve.
With regard to the fight against drugs, the last four decades show that policies have been developed on the assumption that activities related to all illicit substances should be controlled in the same way, with the understanding that all of the links in the drug trafficking chain merit the same treatment. This perception is mistaken and requires reconsideration in order to allow for differential approaches and responses by the State, not only for different types of drugs, but also for the different types of people who are part of the problem.
It is necessary to highlight that criminal law is understood as the gravest response of the State to criminal behavior, and as such should be the last resort when attempting to solve social problems. Moreover, the use of criminal law should be strictly limited to those cases in which an individual abandons the sphere of personal liberty to infringe on the rights of others.
The problem of small cultivators is less simple, but because of its complexity, deserves thorough examination before deciding if criminal law is the only possible method of combating illicit cultivation, and if this is true, if it is appropriate in all cases. Repression itself is insufficient if the State does not offer small cultivators viable alternatives to improve their living conditions, in such a way that they have the option to choose, under conditions of equality, between bringing their activities into the parameters of the law or continuing to operate outside it. Because of this, Colombia’s efforts in the last few years have not exclusively focused on eradication. Rather, they have been complemented by social interventions in affected regions.
At the other extreme of the drug trafficking chain, large criminal organizations take advantage of the needs of drug consumers and small farmers to amass fortunes through the large-scale production and distribution of illicit drugs. Over the course of recent years, their desire for easy money, and the power they can derive from it, has led to a great escalation of violence in countries such as Colombia, where the people murdered in feuds between criminal groups dedicated to drug trafficking can be counted in the thousands. There is no doubt that criminal law is indispensable in the face of these actions. While severely sanctioning those who commit these crimes is perfectly valid, this reaction by the State is insufficient if it also does not effectively and comprehensively combat the drug trafficking carried out by criminal organizations, as this is the real cause of the problem.
From a criminal policy perspective, those countries affected by the drug problem must recognize that the strategy of attacking all tiers of the drug trafficking chain through isolated and exclusive application of criminal law has diluted the human and material resources of the justice system, and has not succeeded in definitively dealing with these criminal organizations.
In light of this, and committing to continue and deepen the regional debate on drug policy, the Colombian government, as Chair of CICAD, proposed the creation of a Working Group aimed at identifying alternatives to incarceration in the framework of the Fifty-Fourth Regular Session of the Commission. This was held in December, 2013, in Bogota. This initiative was endorsed and approved by the Commission in May, 2014.
The Working Group had as its central objective the identification and analysis of different alternatives to incarceration using available evidence and drawing from the perspectives of strengthening public health and emphasizing human rights. Three elements of this objective, as we understand them, guided the development of this report.
First, “evidence” implies the analysis and exchange of experiences under a rigorous approach allowing us to identify what has worked and what needs improvement. Second, “public health” is a fundamental component that emphasizes prevention, the non-stigmatization of drug users, and the recognition of their rights. Third, “human rights” implies humanizing drug policy by making its main objective the protection of the individual in an environment of opportunities and social inclusion.
It is important to highlight that countries in the region have progressively been promoting alternative solutions to a purely punitive approach, especially for consumption and possession for personal consumption, understanding that the use of drugs is a subject that must be addressed from a public health perspective, and that the limited resources of the State must be used in an efficient manner.
These alternatives include decriminalization of drug consumption, suspension of criminal consumption sanctions, and the adoption of administrative sanctions, as well as the diversion of cases to treatment and educational services, among others.
This report should serve to help those countries deeply committed to the fight against the drug problem to examine, in an open and informed manner, the wide and varied spectrum of alternatives at their disposal to combat, not only all levels of the drug trafficking chain, but also offenses related both directly and indirectly to drugs. It is a pleasure for the Ministry of Justice and Law, for the Working Group and for the Inter-American Drug Abuse Control Commission, to offer countries, policy-makers, and the wider public, a document containing a spectrum of alternatives to incarceration in order to contribute to the enrichment of understanding of one of the most serious aspects of the drug problem.
Yesid Reyes Alvarado
Minister of Justice and Law – Colombia