InterCambiando (exchanging) ideas on drug policy reform
In this edition:
For
those of us working on drug-related problems and drug policy issues, the year
2003 began with intense debates worldwide and also with a renewed effort to
defend the rights of citizens. The 46th Session of the Commission on
Narcotics took place in Vienna, April 8-18, 2003, and a wide range of
organizations were present to protest the current war against drug users.
At
Intercambios, we share the concern
for current drug policies, which are based on standing United Nations
Conventions and continue to be supported by the UN.
In
this edition of InterCambiando, we take you closer to the meeting that
evaluated world policy on this topic. We also share the contributions of those
who have been working for years with drug users.
Like
other NGOs throughout the world, we propose to debate this topic without
prejudices, from a rigorous scientific position and with a basic ethical
pledge: to recognize the rights of users as citizens, and to speak up against
those who only offer them prison and darkness.
Yet,
the majority of governments still prioritize the war on drugs.
Encouraging
signs, however, have begun to appear. Without traveling far, we can see that
Brazil is arguing possible modifications to current drug policy.
Here,
we have also taken interesting steps and in this edition we will share our
advances. During the launching of the Regional Project on AIDS and Drugs, the
National Minister of Health recognized the importance of ‘reducing harm’ when
one cannot avoid the consumption of certain substances.
Moreover,
we will share an analysis of the reality of drug policy in our country. We are
reinvigorated to see how the media are slowly recognizing that drug policy is a
topic on the public agenda that still requires attention.
With
this second newsletter we propose to continue intercambiando ideas.
Report:
Vienna 2003 / While governments continue supporting the war, alternative
positions gain space.
On
April 16-17, ministers and public officials reaffirmed their commitment to
fight against drugs. The ministers also reconfirmed the necessity for
international cooperation, and at the same time they expressed worry about
policies and activities that favor the legalization of drugs.
There
wasn’t the least recognition of the failure of the strategy designed in 1998 to
eradicate the cultivation of coca and cannabis by 2008, they didn’t consider or
discuss any possible alternatives to prohibition, nor did they evaluate the
unwanted consequences of prohibitionist policies.
The
activists in favor of the reform of the Conventions had waited a long time for
this meeting of the Commission on Narcotics. Many of them arrived at the United
Nations to protest current drug policies.
Debates
and workshops were held at the University of Vienna. At the Civic Center, where
the UN meeting took place, a series of experts brought to the table the
difficulties of the current system of prohibition and planned a generous number
of alternative policies.
Despite
many of the events of the meeting, there were evident signs of change,
categorized as ‘screams in agreement’ by Martin Jelsma, of the Transnational
Institute. The most important of these advances was the British delegation’s
solid defense of the Internal Ministry’s decision to reclassify cannabis.
This
policy was attacked by the International Narcotics Control Board (INCB),
supervisory body of the Commission on Narcotics, which demanded compliance with
the Conventions and accused the United Kingdom of taking a dangerous step with
possible repercussions worldwide.
The
British delegation, advised by Minister of Health Bob Ainsworth, referred to
scientific evidence on which he had based his decision, which was an exception
in the midst of the predominantly alarmist tone of the INCB report. Far from
the plenary assembly, INCB officials embarked upon a heated discussion with the
German delegation, which had been noted in the INCB’s report for their policy
on safe injection rooms. Marion Caspers-Merck, named Secretary of State for
Drug Affairs by the Parliament, supported the German interpretation of the
Conventions, affirming that they permit the establishment of such rooms, and
issued a report that demanded an equal, realistic and flexible international
drug policy.
Perhaps
the most significant progress was the circulation of an internal document,
prepared by the Legal Affairs Section of the UNDCP (United Nations Drug Control
Programme). Under the title “Flexibility of treaty provisions with respect to
harm reduction approaches,” the document
critiques the Conventions’ lack of flexibility regarding replacement therapy,
needle exchange programs and safe injection rooms.
In
a thinly veiled reference to decriminalization, a French judge, one of the
authors of the document, asserted that “avoiding prison for drug users is a
good measure.”
Given
the recent push for change among several members of the EU (Holland, Spain,
Greece, Portugal, Belgium, Germany, and the United Kingdom) and given the
growing evidence of the failure of prohibition, this could be a sign of
important changes in the current system of drug control.
Source:
Axel Klein, ENCOD
At
the meeting in Vienna, more than 160 European Union Parliament representatives
made a public appeal to the UN to open a debate on alternative policies to drug
prohibition.
In
Madrid, Marco Cappato (Italian E.U. representative), Luis Yáñez (Spanish
Socialist Worker’s Party - PSOE), Marisa Castro (United Left - IU), and the
philosopher Fernando Savater, presented the International Antiprohibitionist
League’s declaration to the UN, supported by 163 representatives and more than
2000 people.
The
UN Conventions of 1961, 1971 and 1988 prohibit the production, trafficking,
selling and consumption of various substances for non-medical reasons.
Nonetheless, according to those who have signed the appeal, the last 30 years
have shown that prohibition has provoked their increase.
Representative
Yáñez clarified that they are not asking that drugs ‘become legalized world
wide, but that alternative policies to prohibitionism must be proposed.’
According
to Marco Cappato, the UN should at least reclassify some substances (hash is
considered the same as heroin) and take into account alternative experiences to
prohibition that several countries have carried out, such as the controlled
supply of heroin in Switzerland.
TO BE INSERTED HERE: (Peter Piot (UNAIDS): “Cooperation with drug
users produces better results than persecuting them.”)
The
European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) completed an
analysis on alternatives to prison for criminal drug consumers. The seminar was
carried out by the European institute in December 2002 and the conclusions were
revealed in April of this year. One conclusion is that courts that specialized
in drug offenses were effective in reducing drug-related crimes in regions
where specialized drug treatment programs did not exist, as long as they
encouraged the creation of treatment services as an alternative to punishment.
It
also demonstrated that treatment as an alternative to prison is effective in
reducing drug consumption and criminal activity. At the same time, health is
improved and labor is increased.
The
first specialized courts operate in Scotland and Ireland, and according to the
EMCDDA the police, authorities, and treatment services have united, ‘to prevent
recurrent delinquent behavior of drug users, to reduce drug dependence and to
reduce harm associated with drugs.’
More
than 60% of imprisoned women in our country are in prison for drug violations,
crimes that comprise a quarter of all incarcerations and the majority of cases
in the Federal Court.
Last
January, theft crimes reached 38% of the total imprisonment cases in the
Federal Penitentiary Service. Twenty four percent of detentions occur because
of violations of the ‘Drug Law’ No. 23.737, which number 2331 cases of a total
of 9888.*
In
fact, drug law violations have continued to increase over the past two decades.
Minor
drug trafficking is the main cause of detention of women without regard to
nationality. These women are routinely used as ‘mules’ that transport the
substances.
*
Source: Federal Penitentiary Service
According
to the Studies in Justice Administration Forum (FORES), of 23,000 cases that
were in federal justice courts in 2001, 12,934 were for drug offenses. In other
words, of that year’s total budget (12,800,000 pesos), more than half was spent
on drug violations cases. Of those cases, 284 were denied, 28 expired, 8,856
were dismissed and 1,808 were closed. Only 153 cases (slightly more than 1%)
went to court. ‘And you can count on one hand the number of those that received
a sentence,’ said federal judge Rodolfo Canicoba Corral. He explains: ‘The
majority of cases are possession of drugs for personal use, and it is very
difficult for judges to resolve these cases.’ ‘The law has many problems and
possession for personal consumption is very ill-favored. The addict is sick,
and a punishment will not make him stop using. The best solution is
prevention,’ explains Canicoba Corral. He proposes ‘to create special,
interdisciplinary courts, so that judges can work together with doctors,
psychologists, sociologists. They should perform a more tutelary function,
rather than repressive.’
-Are
you in favor of decriminalizing drug possession?
-It
has been proven that imprisonment does not discourage drug use. I don’t believe
that we must penalize the user. That is too simplistic. The State should
contain and prevent.
Representative
Irma Pantella, vice president of the Commission on Drug Addiction of the Lower
Chamber, agrees: ‘Focusing on cases of drug possession for personal use rarely
leads to detention of drug traffickers.’
From
Diario Clarin, 19 May 2003.
In
our country, Law 23.737 (1989) established that possession of drugs for
personal use is considered a crime, with a penalty of up to two years in
prison. However, possession of drugs has not always been considered a crime in
Argentina.
After
1926, those who possessed alkaloids, drugs and medicinal substances were
penalized if they could not justify ‘a legitimate reason for their possession.’
In 1968, Law 17.567 modified the situation, and explicitly stated that drug
possession for personal use was not in violation of the law. This continued
until 1974 when Law 20.771 was sanctioned, and possession of drugs was
punishable with up to six years in prison, even if it was intended for personal
use. In 1986 the Supreme Court declared this law unconstitutional. Finally, in
1989 the current law (23.737) was sanctioned, and possession of drugs for
personal use was again considered a crime.
These
variations can be understood within the historical context of our country, as
well as in the current situation of other nations. Like Argentina, some
countries have authorized laws that offer a repressive response to drug use,
with punishments of imprisonment of at least one year (Finland, Guatemala,
Belgium, Ecuador, United Kingdom, Dominican Republic, Ireland, Cuba, Germany,
Brazil, and El Salvador, among others).
In
some legislations it is considered a crime, although the sanction also requires
treatment for drug dependence: Bolivia and Venezuela for the case of drug
possession for personal use; Greece, Panama, and Nicaragua, when signs of
dependence are apparent. Others offer a less repressive response to the
consumption of drugs. Some countries impose fines (Spain, Chile, Portugal, Luxembourg,
Ireland, Costa Rica); or they revoke a license, such as a driver’s license or
license to own guns (Italy); or they impose minor prison sentences of up to one
month (Nicaragua), six months (Sweden, Canada, Norway, Austria) or one year
(France, Estonia).
Finally,
there are countries whose own laws explicitly exclude the possibility of
controlling for the possession of drugs for personal use (in certain cases in
Peru, Paraguay, Uruguay, Mexico).
As
in our country, many of the legislations consider the possibility of avoiding
the imposition of a punishment, as long as it is a condition to receive
treatment (Finland, Belgium, Ecuador, Spain, Portugal and Austria – for drug
dependents) or suspending the punishment until a new infraction is committed
(Portugal and Austria, for non-dependent users).
It
is important to emphasize that some legislations recognize distinctions among
different substances. On one hand, with respect to behavior related to
consumption of cannabis derivatives (marijuana, hash, etc.), lighter
punishments are imposed (Ireland, Cuba, Canada and Luxembourg). On the other
hand, differences are acknowledged in terms of weight and quantity of the
substance (Paraguay, Dominican Republic, Venezuela, Nicaragua).
However,
to have a complete idea of what is happening in these countries, it is not
enough to know only what the laws say. It is also necessary to know how they
are applied. The experiences in countries such as Holland and the United
Kingdom show that despite legislations that impose punishments for the use of
drugs, those that enforce the law often decide not to persecute certain
behaviors that they consider not to be harmful. In Holland, this practice
follows the sale of cannabis derivatives in certain quantities and in certain
circumstances.
In
the case of France, a governing board of the Ministry of Justice advised that
they give drug users alternative therapies and leave incarceration as a last
resort.
Even
in some European countries they have proposed changes at the legislative level
to decriminalize the use of cannabis derivatives in small quantities (Belgium,
Greece) or to offer less punitive treatment (United Kingdom).
Given
the various options to deal with this issue, we propose not to copy models but
to think about whether the response of our legislation is the most effective.
On
March 12, the project ‘Prevention of Drug Abuse and HIV/AIDS in the Countries
of the Southern Cone’ was presented at the National Ministry of Health.
The
National Minister of Health, Ginés González García, emphasized that ‘we must
recuperate lost time and look for results that make Argentina healthier for
everyone.’
‘The
recipe is to look for strengths within society to diminish risks, and to
diminish harm,’ said Minister González García. Dr. Laurent Zessler, UNAIDS
representative for the Southern Cone, explained that ‘drug users will receive
condoms and disposable needles. We will strengthen health services to drug
users. This is a very important step in the fight against AIDS in the
Mercosur.’
The
Management Committee was represented by Graciela Touzé, president of
Intercambios, a Buenos Aires-based NGO, and Executive Secretary of the project,
who maintained that ‘the meaning of these actions plays out in each corner of
the neighborhoods, in each drug user that feels recognized as a person.’
This
project includes needle distribution programs and involves the users themselves
in preventive actions. During the following week, the mass media paid
significant attention to this topic, encouraging the debate about this new
focus on heath assistance to drug users. On March 13th, for example,
Página 12 published an extensive article entitled ‘Official push for harm reduction
policy’ and on the 14th the Nation published their second article
about the same event, in this case a one-page report entitled ‘The delivery of
condoms and syringes, focus of a discussion.’
AIDS
AND DRUGS IN THE SOUTHERN CONE / Seminar with national legislators
On
May 8, Intercambios and the Commission on Addiction Prevention and Control of
Drug Trafficking of the National Chamber of Representatives carried out a
seminar entitled ‘Public Policy on AIDS and Drugs. Harm Reduction Strategies.’
The
meeting’s objective was to analyze public policy on AIDS and drug abuse, and
their relation to the current legislation. The representatives and advisers
that were present exchanged ideas with the presenters with the objective of
offering a response from the public health perspective on the advance of
HIV/AIDS in drug users. Participating discussants were: Dr. Laurent Zessler
(UNAIDS Coordinator for the Southern Cone), María Nilda Sodá (President of the
Commission on Drug Addiction and Drug Trafficking Control), Irma Pantella (Vice
President of the Commission on Addiction Prevention and Control of Drug
Trafficking), Dr. Gabriela Hamilton (Executive Director of the National Program
against AIDS of the National Ministry of Health), Dr. Sonia Quiruelas (Advisor to
the Secretariat of Prevention of Drug Addiction and Fight against Drug
Trafficking), Dr. Claudio Bloch (Director of AIDS Coordination of the City
Government of Buenos Aires, GCBA) and Graciela Touzé (President of
Intercambios).
Also
present at the debate were legislators of the commissions of Prevention of Drug
Addiction and Drug Trafficking, Human Rights, Social Action and Public Health
and Penal Legislation.
The
legislators listened to the proposals of the different actors and committed to
move the debate to complement harm reduction programs with adequate
legislation.
Lawyer;
Criminologist; Doctor of La; University Professor; Criminal Court Judge
Exactly
thirty years ago, Howard Becker coined the phrase ‘moral entrepreneurs’ to
allude to organizations, groups or individuals who push for – directly or
indirectly – the creation of legal rules in general and in particular,
punishments, and support for those who are in charge of the application of such
laws.
They
were named this way because they undertake the mission of creating a new part
of society’s moral constitution, from a code of good and bad; he also
categorized the entrepreneurs as ‘crusaders,’ for their tendency to see their
mission as sacred, imposing their own convictions on everyone else.
As
such, it’s already enough to look unfavorably upon these champions of the good
– through their own optic – asserts Becker, with respect to two other risks
generated by the moralizing impulse.
First,
he criticized many moral crusaders for obtaining support among groups or
persons whose motivations are less pure than those of the ‘moral
entrepreneurs.’ Second, he revealed a characteristic of all moral crusades,
consistent with their greater preoccupation for the ends rather than the means
of their business, and their correlate: when formulating specific rules, the
crusader turns to ‘experts.’ The lawyer frequently plays this role, as
legislative formulation is his specialty; but the psychiatrist is also called
with assiduity to perform that role. The crucial point is that when the
crusader leaves the formulation of the rules in the hands of others, he opens
the door to those who will create the rules in their own interests.
Becker’s
observations still hold today: the campaigns of the ‘moral entrepreneurs’ –
certain policies and media lobbyists – usually supported and financed by
various interest groups, have delegated the task of pushing certain ethical
values in rules of conduct to lawyers and psychiatrists, taken as valid without
accepting any tests to the contrary.
The
results of this nonsense are obvious: a legion of drug users and mere holders
inhabit the Federal Justice statistics; lawyers and doctors of growing industry
of drug rehabilitation are content; and drug traffickers, grateful to their
victims for carrying the inert weight of the supposed symbolic function of the
penal law.
Round Table: ‘Drug Policy. A
necessary debate.’
Thursday,
June 12, 6:30pm, University of Buenos Aires (UBA), Tucumán 3177, Room 109.
Organized
by the Secretary of Culture and University Extension of Social Sciences of UBA
and Civil Association Intercambios
Opening
remarks: Prof. Federico Schuster,
Dean of the Department of the University of Buenos Aires
Discussants:
Dr. Guillermo Aureano, licensed in
Political Science at UBA and Doctor of Political Science at the University of
Montreal, Canada.
Dr. Horacio R. Cattani, Professor of Law and
Criminology (UBA – UNLZ), Federal Court Judge.
Dr. Mariano Ciafardini, Subsecretary of
Criminal Policy and Penitentiary Affairs. National Ministry of Justice,
Security, and Human Rights.
Graciela Touzé, President of Civil
Association Intercambios. Teaching researcher, Department of Social Sciences of
UBA.
Dr. Juan
Carlos Vasco Martinez, lawyer. Professor, Department of Social Sciences of UBA.
‘True
drug traffickers,’ stated the President of Brazil, Luis Ignacio Lula da Silva,
‘are not found in the neighborhoods where the poor are pressured and resort to
crime in order to feed themselves each day.’
Lula
showed signs of aiming high in the fight against crime and asserted, ‘Today, as
it is, we must confront the multinational industry of organized crime. It
counts on arms, it counts on policy, it counts on judicial power, it counts on
business and it counts also on international participation.’
While
the president expressed his will to overlook minor drug offenders in order to
focus on drug traffickers, the Minister of Justice of Brazil, Márcio Thomaz
Bastos, maintained that the decriminalization of drug use helps to combat the
drug trafficker.
Minister
Bastos was on his way to look for legal tools to support Lula and asserted: ‘I am
in favor of the decriminalization of drug use.’
Celia
Szterenfeld, educator and therapist. Celia has worked for 12 years on the
prevention of the AIDS epidemic in Brazil, leading the NGO Integrated Program
on Marginality (PIM) in Rio de Janeiro. She is the director of ABORDA
(Brazilian Harm Reduction Association) and adviser to REDUC (Brazilian Harm
Reduction Network).
Has Lula’s government changed any
aspect of drug policy in Brazil? In what sense?
Drug
policy still hasn’t been defined and we are hopeful. We want SENAD (National
Anti-Drug Secretary) to become a National Secretary on Drug Policy, and that a
civilian takes that post. And we want the law to be revised.
In
our favor, we have the text of the government program of PT that was presented
at the campaign for the current government. In it, there is a distinct focus on
this question, attentive to humanitarian questions and flexible to the
monolithic vision of the ‘war on drugs.’
But
we know that many powerful people support the ‘war on drugs,’ because of
ideology or because of economic interests. We hope that the government defines
a policy that pays attention to the organized civil society committed to human
rights. In the end, we are only proposing that Brazil discusses and implements
its own drug policy, that realizes the local questions and is as inclusive as
possible with its citizens.
How
was Minister of Justice Márcio Bastos’ declaration received, which was in favor
of making the law more flexible?
Not
only the Minister of Justice, but also the National Secretary of Public
Security, Dr. Luiz Eduardo Soares, and various influential government
politicians already understood the importance of directing the construction of
a more realistic and pragmatic drug policy, examining tested alternatives in
Europe and adapting them to our reality. For now they have personally indicated
that they are in favor of the decriminalization of the user, but they won’t
establish that position as Ministers until the government establishes a
position. But it is clear that we are
optimistic, seeing so many people in decision-making positions who are
sensitive to changing the repression of user’s rights.
Intercambios
is a non-governmental organization created in Buenos Aires in 1995. Their
mission is to study and call attention to problems related to drug use.
This
newsletter was made possible with the support of the Fund for Drug Policy
Reform, administered by the Tides Foundation, New York.