A proposal from Intercambios Civil Association
15 IDEAS FOR A NEW DRUG POLICY
1.-Decriminalize possession of drugs for personal use. The use of drugs is a private act and having drugs for personal consumption should not constitute a crime.
The National Supreme Court ruled that the regulation that penalizes possession of narcotics for personal consumption is unconstitutional due to its incompatibility with Article 19 of the National Constitution which protects privacy. In the case of possession for personal use, the individual in question should neither be detained nor subjected to administrative or legal processing. The penal code must not confuse drug users with other players in the production and/or trafficking of drugs.
2.-Eliminate educational and medical security measures from the Narcotics Law. Education and health care are basic rights and should not be converted into a means of prosecution and punishment by the penal system.
Persons who use drugs should not be the object of punishment simply because of this fact. Education and treatment for problems associated with drug use should be guaranteed within the field of public, social, healthcare, and educational policies.
3.-Decriminalize cultivation for personal consumption. Domestic cultivation and regulated initiatives of associations of cannabis cultivators are forms of avoiding drug trafficking and crime.
Cultivation for personal consumption should not be a crime. The penal code must not confuse those who cultivate plants for personal use with the different players in the production and/or trafficking of drugs.
4.-Specify the legal definitions of “simple possession” and/or “possession with intention to sell”. It is important to specify the parameters regarding circumstances, connections with networks of trafficking and production, and other evidence.
Using the term “possession” for persecuting acts of trafficking, without greater specifications, can lead to the persecution of behaviors linked to drug users, to the point that users must often prove that their conduct is not connected to trafficking, reversing the burden of proof. International experience indicates that specifying a particular quantity in order to define the term “simple possession” can prove inconvenient and misleading. It is necessary that the understanding of simple possession be formed in accordance with proven parameters that take into account the complexity of the topic at hand. The drug law currently provides a wide margin for police discretion in the case of arrests. These arrests, in many cases, lead to violent situations that involve grave violations of human rights.
5.-Reduce the degree of punishment for minor players in the drug trafficking network. The lowest-level players tend to be impoverished individuals who are currently penalized as though they are a part of organized crime.
Evaluating the definition of the penalty should be based on the following question: what is the role of this person in the overall structure? Is it the same if the person in question is a poor, unemployed youth who makes drug deliveries to middle class homes through a poor neighborhood as compared to government employees complicit in large-scale trafficking? It is necessary to reduce the level of punishment for minor players in vulnerable situations who currently earn 4 to 15 years in prison (Law 23,737, Article 5) and to establish a proportional set of penalties in accordance with the level of engagement in the crime.
6.- Modify the Customs Code to reduce the level of punishment because of smuggling to the so called “mules”. A person who carries a small quantity of drugs across the border can currently be sentenced to up to 16 years in prison.
Article 866, second paragraph of the Customs Code, is currently applied without taking into account the true level of involvement in the drug trafficking structure of persons who act as “mules”, (usually poor women, single mothers, and immigrants), who, for transporting minimal amounts of drugs across the border, are accused of illegal smuggling with sentences that reach from 4 years and 6 months to 16 years in prison.
7.-Maintain the current decriminalized status of the possession and use of the coca leaf in its natural state. These acts are not crimes in Argentina and this position in regard to cultural uses and practices should continue. The possession and consumption of coca leaves form a part of the cultural and ancestral practices of segments of the country’s population, particularly in the north where they chew and make infusions with the leaves. Changing this definition would threaten the rights of citizens of the country to practice their own culture. The commercialization of the leaf for these purposes should also not be touched by the law.
8.-Create a National Program of Comprehensive Care for Drug Users. Drug users should be guaranteed universal access to services for prevention, treatment, rehabilitation, harm reduction, and social integration.
It is essential that a National Program of Comprehensive Care for Drug Users has the budget and human resources necessary to structure a network of varied services that serve to diverse issues (universal and selective prevention, low-threshold services, crisis aid, outpatient services, detoxification centers, day centers, therapeutic communities, and services for social support, education, and labor). This network of services must integrate and coordinate resources under different administrative departments as well as departments in the public and private sectors. It must also promote care and treatment of drug users within all levels of the public health system (general hospitals, primary health centers, and healthcare units). It is imperative to support the creation and expansion of currently nonexistent or insufficient services, prioritizing those aimed specifically at women, children, and adolescents.
9.-Prioritize outpatient treatment and different alternatives to psychiatric hospitals. The treatment of drug users should respect the Mental Health Law 26,657.
As indicated by the law 26,657, inpatient hospitalization “may only be carried out when it offers greater therapeutic benefits than all other possible forms of intervention (…) The institution should promote maintained connections, contact, and communication of the inpatient with his or her family, friends and with the social and work environment” (art. 14) and “should be as brief as possible” (art. 15).
10.-Ensure that drug treatment services are based on scientific evidence and are in accordance with ethical principles (Law 26,657, Art. 7 c). Services should avoid discrimination and favor access to treatments that have been proven effective.
The State is obliged to supervise the compliance, on the part of drug users treatment centers, with the criteria of availability, accessibility, acceptability, and quality, as outlined in the General Observation Num. 14: The right to enjoy the highest attainable standard of health (article 12 of the International Covenant on Economic, Social, and Cultural Rights).
11.-Include harm-reduction strategies within the policies for comprehensive care of drug users. It is necessary to ensure the diversity and wide range of care services.
The objectives of the harm reduction strategies are to improve the quality of life of persons who use drugs, reducing the risks for collective and individual health. Their effectiveness has been proven in treating the most vulnerable drug users and in the prevention of problems associated with the use of drugs by individuals who continue consumption. These strategies include outreach actions that make contact possible and promote the progressive accessibility to health services; for this reason they should constitute the first links in a comprehensive care network.
12.-Respect the right of every person who uses drugs to choose the moment and type of treatment. Nobody should be obligated to begin, suspend, or accept a particular treatment.
Informed consent requires clear communication of the alternatives and the conditions of the treatments. The treatment should be based on the bioethical principle of personal autonomy. Involuntary admission should only occur in exceptional cases and with the intervention of the civil justice system and established oversight organizations. In the case of children, special attention should be paid to ensure that healthcare and infancy policies guarantee their treatment on the basis of the International Convention on the Rights of the Child, watching over their well-being, protection, and growth as independent persons.
13.-Facilitate unrestricted access to healthcare treatment for incarcerated individuals with drug consumption problems. The accessible services should be similar to those available in their communities.
In no case should their legal position be used as an argument for impeding the initiation or continuation of treatment.
14.-Strengthen the mechanisms of State control over services aimed at drug users. It is the responsibility of the State to guarantee the quality of the treatments and respect towards the dignity of persons in treatment.
It is necessary to implement a coordinated system for the registration, supervision, and control of public and private services aimed at drug users, in accordance with the health standards and norms. This responsibility of the State should reach all initiatives, even those that fall outside of the integrated network of services.
15.-Formalize within the design of policies and treatment programs opportunities for social participation. It is necessary to involve civil society, academia, and drug users themselves.
It is necessary to implement multi-sector spaces among the distinct areas of the government and to include the participation of diverse players. The goal of this effort is to generate systematic and transparent mechanisms for formulating public policies aimed at drug-related problems.
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