Overview of drug laws and legislative trends in Chile.
Chile is another Latin American country that is taking forward reforms to its drug laws. There is quite a lot that is promising in the drug policy proposals presented by Michelle Bachelet’s new government. These proposals recognise that there is a growing international tendency to adopt new approaches in drug policies, based on health. The proposals also show a willingness to reassess the inclusion of cannabis in the list of Class A drugs. Among other measures, they would regulate quantities for personal use, which would lead to an improvement in how drug users are treated in practice.
For the latest news on drug law reform in Chile click here.
As with other countries in the region, the debate in Chile in recent years has often revolved around the issue of cannabis, especially liberalization of laws regarding cultivation for personal use and consumption. According to the National Service for Drug and Alcohol Prevention and Rehabilitation (Servicio Nacional para la Prevención y Rehabilitación del Consumo de Drogas y Alcohol—SENDA), use and supply of cannabis constitute more than 90 percent of all controlled substances.
In 2012, senators Fulvio Rossi and Lagos Weber presented a bill to decriminalise the home growing and personal use of cannabis. Although the bill caused some controversy in the media, it was not met with the same ridicule as a similar bill presented nine years before. This is a sign of a shift in public opinion with regard to marijuana. The senators’ proposal also triggered a wider debate in the country, indicating that there is now more awareness of the positive aspects of decriminalisation. Cannabis has become more accepted in Chilean society, and even right-wing members of parliament have expressed their willingness to discuss the possibility of legalising the medicinal and/or recreational use of cannabis.
The drug policy proposals presented during Michelle Bachelet’s campaign for the presidency aim at a "new approach to drug policies, based on health rather than public safety alone", according to Asuntos del Sur, and include a prevention and rehabilitation strategy. Bachelet’s proposal also contemplates making "legal and administrative changes to reduce the drug law’s tendency to encourage crime", according to Ibán de Rementería, an expert with the Chilean Harm Reduction Network. This seems to be the direction that the new administration will take.
According to a 2013 study by Asuntos del Sur’s Latin American Drug Policy Observatory, the idea of decriminalising drug use and treating it as a public health issue, as proposed by the OAS in one of its scenarios, has the support of 70 per cent of survey respondents in Chile. And according to a report by SENDA (2012), 68.4 per cent of people say they are in favour of marijuana being used for therapeutic purposes. Other studies reveal that 40 per cent of Chileans want marijuana use to be legalised. As these figures indicate, public opinion too is tending towards easing restrictions on the use of marijuana.
2. What are the current drug laws in Chile
The current legislation, Law 20.000, was passed and published in February 2005. It substituted Law 19.366, passed in 1995, which punished illicit trafficking of narcotics and psychotropic substances. Law 20.000 introduced the legal figure of micro-trafficking, establishing penalties for this crime. The law does not prohibit personal and private consumption of any drug, although it does penalize consumption in groups. It does not establish a threshold for quantity, and the distinction between trafficking and consumption is left to the discretion of the judge. Its implementing regulation, Decree 867, published in 2007 by the Interior Ministry, specifies what drugs, plants and substances are illicit. This decree places cannabis and its derivatives on the list of “hard drugs that produce high levels of toxicity or dependence,” which requires the application of maximum penalties for crimes related to this substance. Decree 143, published August 18, 1997 by the Justice Ministry, requires the Civil Registrar to keep a registry of all people sentenced for crimes involving drugs.
Law 20.000, passed in 2005 and reformed in 2007, introduced a legal figure that did not exist in prior legislation, establishing penalties for micro-trafficking that is categorized as possession of small quantities of drugs. The law maintains penalties for trafficking, which run between five and 15 years in prison, and includes penalties for trafficking small quantities, with jail time between 541 days and five years, unless the accused can demonstrate that the substance is for personal consumption. Another important modification introduced by Law 20.000 is the possibility of police officers working as undercover agents.
Article 4 of the law does not prohibit personal consumption in private of any drug: “Individuals who, without due authorization, possess, transport, hold or carry on their person small quantities of drugs that produce physical or psychological dependency, or the raw materials used to obtain these drugs, will be punished with no less than 541 days and up to five years in prison, unless they can justify that it is for medical treatment or exclusively for personal use or consumption in the short term.” While the law does not state that determined drugs can be consumed, consumption of any drug is neither penalized nor fined.
Article 50 refers to penalties when substances are consumed in public places: “Individuals who consume drugs or narcotic or psychotropic substances referred to in Article 1 in public places or spaces open to the public, such as streets, paths, plazas, theaters, movie theaters, hotels, cafes, restaurants, bars, stadiums, dance or music halls, or in educational or training centers, will be punished with the following penalties.” It mentions “obligatory participation in prevention programs for up to sixty days, or treatment or rehabilitation, in this case up to one hundred eighty days in institutions authorized by the competent Health Service” and/or fines, participation in determined community service, and suspension of driver’s license. “The same penalties will apply to those who consume these drugs in private places or settings, if there was agreement for this purpose.”
Law 20.000 formally decriminalized drug possession for immediate personal use in a private setting. Drug use or possession in public places is a crime punishable with fines, mandatory treatment, community service and/or suspension of the individual’s driver’s license. Cannabis use is not penalized, but growing the plant is “unless one can justify that it is for exclusive personal consumption and use in the short term” (Article 8). Possession for personal use can be punished with minor fines, community service or participation in rehabilitation programs. While the majority of cases end with fines being suspended or only with administrative sanctions, a large number of people detained with small quantities do end up in prison.
The law makes no reference to specific quantities -- it does not mention grams or weight in general -- but the implementing regulation passed in 2007, Decree 867, does characterize and penalize holding or possessing prohibited drugs that are trafficked as the act or intention of transferring these substances to a third party. Judges in each case have the power to decide if a person is a consumer or trafficker.
3. What reform proposals and reform to the drug laws have recently occurred in the country?
Legislative proposals to change the status of marijuana in Chilean society go back some time. In June 2003, Senator Nelson Ávila present a bill that would have modified Clause 1 of Article 2 in Law 19.366, decriminalizing the planting, cultivating or harvesting of species from the cannabis family and other plants from which narcotic or psychotropic substances are derived for personal use or consumption. Senator Ávila argued that instead of combatting the sale and trafficking of narcotics, the existing system fomented it. “Legalizing cultivation for personal use or consumption would allow users access to supply without having to depend on drug trafficking networks” and “our legislation allows for individual and private use, but at the same time penalizes cultivation and (users) have no option but to turn to drug traffickers. In other words, what we are doing is ridiculous,” said Senator Ávila at the time. His initiative met strong opposition in Congress, particularly from Senator Jaime Orpis (UDI), who has become known for his fierce opposition to liberalizing of cannabis.
Senator Ávila presented another bill in March 2005 to authorize “personal cultivation of plant species from the cannabis family with therapeutic ends.” The bill was shelved.
In June 2007, Chile enacted Law 20.084, the Adolescent Criminal Responsibility Law (Responsabilidad Penal Adolescente—LRPA) that lowered to 14 from 16 the age limit for criminal responsibility of minors. This law established maximum sentences of five years for minors between the ages of 14 and 16. Sentences could be as long as 10 years in prison for minors over the age of 16.
Several years later, in May 2008, Senator Ávila, now a member of the Radical Party (Partido Radical—PRSD), questioned the government’s decision to include marijuana on the list of dangerous drugs. In Article 1 of Decree 867, published in February 2008, cannabis is placed on the list of narcotic or psychotropic drugs, along with heroin, methamphetamines, opium, and cocaine, among others. This classification has legal consequences, given that judges no longer have the possibility of reducing penalties for charges related to the sale of cannabis. The sale of small quantities of marijuana now carries sentences between 18 months and five years in prison.
In September 2009, several members of Congress presented a bill that would authorize therapeutic use of cannabis, “allowing patients to possess a plant for these effects and increasing the penalties for micro-trafficking.”
In March 2011, a private company, Agrofuturo, obtained a license from the SAG (Agriculture and Livestock Service, Servicio Agrícola Ganadero) to grow cannabis for medicinal and research purposes. The SAG resolution was based on the drug law (Law 20.000), which states in Article 9 that authorization for growing cannabis species will be awarded by this agency. Decree 867, which regulates the norm, also establishes mechanisms for this authorization. The Public Health Institute (Instituto de Salud Pública—ISP) forced the agency to revoke its ruling, because the law prohibits the development of any pharmaceutical product using cannabis. The National Council for Narcotics Control (Consejo Nacional para el Control de Estupefacientes—CONACE), now known as SENDA, also reacted against this measure, calling for a review of the drug law “with the goal of finding a formula to block these kinds of permits.”
In November 2011, the government adopted Drug Treatment Tribunals (Tribunales de Tratamiento de Drogas—TTD) as a national public policy. The objective of these tribunals is to provide mechanisms for defendants with drug problems to avoid prison if the sentence is less than three years. Treatment is voluntary and rehabilitation is done under the direct supervision of a judge. Use of the TTDs has been promoted in Latin America by the Inter-American Drug Abuse Control Commission (CICAD), part of the Organization of American States (OAS), as a solution to problems related to drugs. Chile is one of the OAS members with TTD programs in several cities. The U.S. Embassy in Chile has also played an important role in the TTDs since their inception. One of the most serious criticisms of the program is that it requires abstinence as a condition for participation. This requirement excludes a large number of people who would be interested in reducing consumption or consume in conditions that pose fewer risks for their health and social context.
In May 2012, former President Ricardo Lagos publicly expressed his position in favor of decriminalizing drug consumption “given that the war against drugs is being lost and it is necessary to find new alternatives.” Lagos has reiterated this position several times since then.
In June 2012, Senators Fulvio Rossi (PS) and Ricardo Lagos Weber (PPD) presented a bill that would regulate marijuana consumption. It includes only one article, which states: “Modify Article 50 of Law 20.000 concerning Illicit Narcotics Trafficking, adding the following final clause: Without detriment to what is stated in this article, the individual who cultivates in his/her home species from the genus cannabis sativa, as long as it is for personal consumption and/or therapeutic use, will be exempt from criminal responsibility.” Also exempt from criminal responsibility will be those who possess or transport on their person a specific quantity of cannabis sativa. An implementing regulation will determine the quantity.
Text of the Rossi Law bill
The principal objective of this proposal and its two components, one related to cultivation for personal use and the other for therapeutic use, is to establish a precise determination between carrying and possessing cannabis for personal consumption.
Senators Rossi and Lagos Weber also have asked that the National Service for Drug and Alcohol Prevention and Rehabilitation (SENDA) be moved from under the Interior and Public Security Ministry to the Health Ministry so that it can concentrate on public policies for rehabilitation and prevention campaigns.
In August 2012 President Piñera signed the Prevention of Drug and Alcohol Consumption bill. According to the initiative, the country’s schools are required to have a drug and alcohol prevention strategy and a person in charge of applying it.
A bill amending art. 4 of Law 20,000 which establishes criteria for the quality and purity of drugs was presented on January 2013. The project aims to set new standards of quantity (weight) and quality (purity) of marijuana, to facilitate differentiation between drug dealers and consumers. The project, which has not been without controversy, some sectors fear could contribute to increase arrests of marijuana users, is now being debated in the House of Representatives.
In June 2013 a group of lawmakers asked the Department of Law Assessment (a unit of the House of Representatives in charge of evaluating the performance of different laws) an assessment of Law 20.000.
A few days after her inauguration, President Michelle Bachelet spoke in favour of a revision of the law 20.000
Chile, like nearly all the other countries in the region, suffers from prison overcrowding. The increase in the prison population in recent years is directly related to the number of arrests of people violating the anti-drug law as a consequence of tougher legislation that includes jail time for minor drug-related crimes.
A devastating fire in December 2010 at the San Miguel prison killed 81 inmates. The prison, which was built to hold a maximum of 700 inmates, housed 1,900 prisoners at the time of the fire. According to press reports, there were 53,000 inmates in Chilean prisons when the fire occurred. The prison system has space for around 32,000 inmates.
In the aftermath of the fire, President Sebastián Piñera spoke about alternative proposals for prison sentences, but not in relation to cases involving drugs even though criminal prosecution involves primarily cases of small-scale drug possession or micro-trafficking. According to data from the Citizenship and Justice Corporation (Corporación Ciudadanía y Justicia), a civil society organization, only 12 percent of inmates are in prison for drug trafficking while 77 percent are incarcerated on micro-trafficking charges. Young people and women make up the majority of people involved in these cases.
The organization states that “the issue of drugs is essentially an issue for young people, with 65 percent of users under the age of 25 and 68 percent of those detained for violating the drug law also under this age.” In addition, more than 60 percent of women in prison are incarcerated for violation of drug laws.
“There were 18,160 people detained for violating the drug law in 2003; the number of people detained for the same violation rose to 38,274 in 2008, an increase of 110.8 percent. Of these, 8.5 percent involved consumption, 60.4 percent possession of drugs and only 28.2 percent were detained for drug trafficking ….” According to data presented by the corporation, over-reaction to drug-related crimes in the criminal system does not match the opinion of the population, which does not denounce or feel victimized by small infractions involving drugs.
The principal cause of this over-reaction, which affects primarily young people in the country, is Article 4 of Law 20.000 that made drug possession a crime distinct from that of consumption, which is not penalized as a crime. This new criminal category is the reason for 67 percent of arrests. In addition, a modification of the Criminal Code and Procedural Code in 2008 to improve the fight against this crime contributed to the increase in the number of people detained for drugs. The modification is included in legislation from 2008, Law 20.253, known as the anti-crime “short agenda” law, which expanded temporary detention to 12 hours for crimes in flagrante, increased the procedures for identification control from six to eight hours, basically creating a backhanded way to detaining someone on suspicion.
Finally, another cause for the increase in the prison population has been the removal of marijuana and its derivatives from the list of drugs “that do not produce high toxicity or dependency” and reclassification as “hard” drugs. The classification of cannabis as a hard drug has led to harsher sentences and prevents the use of measures that offer an alternative to criminal trials and prison sentences.
The different changes have increased fourfold the number of people detained for violation of the drug law, increasing from 20,000 in 2006 to 80,000 in 2011. At the same time, the crime most reported by Chileans is assault – 200,000 annually – but only 15,000 arrests are made each year. [For additional data, consult the Chilean Harm Reduction Network (Red Chilena de Reducción de Daños)]. "The drug law (Law 20.000) has had a huge impact in terms of criminal offences," writes the expert de Rementería in this article. In 2012, "85,023 people were arrested for offences under this law, 54.5 per cent of the 156,070 people arrested for all crimes nationwide."
Recent data in the Chilean media reveals that in the past five years the number of women arrested for violation of the drug law has tripled. “There were 2,933 women inmates in 2011, vastly outpacing the 874 inmates in 2007.” The police arrested 755 women implicated in narcotics trafficking in the first quarter of 2012. “Of the people arrested last year by the PDI (Chilean Investigative Police) for drug-related crimes, 23 percent were women. It is the highest percentage in 10 years.”
Article 4 of Law 20.000 does not prohibit the private personal use of any drug in particular: “Anyone who, without the relevant authorisation, possesses, transports, keeps or carries on their person small quantities of drugs that produce physical or psychological dependency, or the raw materials used in the manufacture of such drugs, shall be punished by a sentence of no less than 541 days and up to five years, unless they can demonstrate that the drugs were to be used for medical treatment or destined exclusively for their own personal use within a short period of time.” The law does make drug use in groups a crime.
But even though the law does not prohibit the private personal use of any drug, possession for personal use may nevertheless carry a punishment ranging from a small fine to the obligation to perform community service or undergo a rehabilitation programme. Although the majority of cases end in a suspended sentence or administrative sanctions only, many people arrested in possession of small quantities do get sent to prison. The drug law does not define the upper limits for quantities, and deciding whether someone is a trafficker or a user is left to the judge’s discretion.
According to Law 20.000, the use or possession of drugs in public places is an offence punishable by a fine, compulsory treatment, community service and/or suspension of the person’s driving licence.
For several years, the Inter-American Drug Abuse Control Commission (CICAD) has been promoting Drug Treatment Courts (DTCs) in Latin America as a solution to drug-related problems. Chile is one of the Organization of American States (OAS) member countries that have implemented DTC programmes as a public policy to address problem drug use, and it now has programmes of this sort in several regions of the country (Tarapacá, Antofagasta, Valparaíso, O’Higgins, Maule and the Metropolitan Region). A press report from January 2014 says that the authorities have signed a protocol agreement to strengthen the Drug Treatment Courts project in La Araucanía for the treatment and supervised rehabilitation of problem drug users who have committed a crime for the first time. According to press reports, "the government has made a commitment to ensure that Drug Treatment Courts are operating throughout the country by 2015." The United States embassy in Chile has also provided significant support to the DTCs since they were first set up.
The aim of these courts is to provide an alternative to jail for problem drug users sentenced to less than three years in prison. Treatment is voluntary and rehabilitation must be directly supervised by a judge. See more about the DTCs in Chile here.
The DTCs have not been entirely uncontroversial. One of the most serious criticisms levied at them is that they demand abstinence as a condition for participating in the programme. This condition means that the programme excludes a significant number of people who would like to cut back on their drug use or reduce the risk that their drug use poses to their health and social environment. For an analysis of the DTCs, see Las Cortes de Drogas. Los alcances y retos de una alternativa a la prisión (2012, in Spanish).
In his analysis of the use of psychoactive substances in Chile, based on the conclusions reached in the “Tenth National Study of Drug Use by the General Public in Chile 2012” published by the National Drug and Alcohol Use Prevention and Rehabilitation Service (SENDA), the Chilean researcher Ibán de Rementería affirms: “It can certainly be said that we have good news about drugs in this country: 96 per cent of the population has not used drugs in the last month and 74 per cent of those who have used drugs at some time in their lives no longer do so.” The relatively small percentage of people who comprise the drug consumer market can be differentiated as follows, according to the SENDA report (all the graphs below are drawn from this report):
Marijuana use: The report concludes that "user statements reveal an upward trend in the 1990s, which then stabilised in subsequent years around the prevalence rate reached in the year 2000. However, the figures obtained in the last three studies show prevalence rates of 6.4 per cent in 2008, 4.6 per cent in 2010 and 7.1 per cent in 2012. This shows that the downward trend observed in the 2008 and 2010 studies has reversed, with levels of use in 2012 returning to those observed in 2006."
Cocaine use: The report concludes that "statements reveal that cocaine use in the last year remains stable and similar to previous measurements (0.7 per cent in 2010 and 0.9 per cent in 2012)."
Cocaine paste use: The report concludes that "in the case of cocaine paste, the prevalence rate has remained stable at 0.4%, similar to the 2010 measurement, the lowest in the whole series of studies.".
Another interesting graph in the SENDA report shows changes in the prevalence of marijuana use in the last year, by socio-economic level. As the graph makes clear, marijuana use in Chile tends to be quite similar across all socio-economic levels:
In the context of recent regional and hemispheric developments, also in Chile the issue of legalizing marijuana has become prominent at the level of the media, academia and civil society organizations in general. The Minister oh Health has recently declared in favor of the decriminalization of certain drugs, especially marijuana.
In May 2013, tens of thousands of young people participated in demonstrations in the capital Santiago and other cities across the country in favor of self-cultivation of marijuana. The protesters want to put on the "presidential debate an amendment to Article 50 of Law 20.000 on illicit drug trafficking, which punishes drug use in public places."
Many different civil society voices – including the Chilean Harm Reduction Network and Cultiva tus Derechos (Grow Your Rights) – are participating actively in the debate, arguing that the moderate and responsible use of marijuana is harmless. They contend that the main problem caused by drugs is not their use or the behaviours associated with it, but the crime-oriented policy used to control the supply and use of drugs. They believe that the proposals on home growing (or government-licensed sales outlets) would help to reduce the damage to health and the social and moral harm that the current drug law is causing in the user population.
In mid-2013, the psychiatrist Milton Flores was arrested and charged for growing 120 marijuana plants on his own land. This led to a wave of protest in the country, including among politicians and academics. Many different sectors of society expressed their support for the psychiatrist, and this led at one point to the Supreme Court overturning his conviction. A court (Tribunal Oral de San Bernardo) later sentenced him to 541 days in prison for growing cannabis. In this article, researcher Sergio Sánchez Bustos analyses this sentence.
Legislative and Government Documents
Décimo Estudio de drogas en población general - SENDA Ministerio del Interior y Seguridad Pública, 2012
Other SENDA studies this link
Studies, surveys and other documents
Estudio 2013-2014: Políticas de drogas, reformas y nuevos lenguajes - Asuntos del Sur. By Eduardo Vergara Bolbarán. January 2014
Políticas de drogas, narcotráfico, consumo, y la mujer Segundo informe - Asuntos del Sur, March 2013
Encuesta política de drogas y opinión pública - Asuntos del Sur, November 2012
Aportes para una nueva política de drogas - Book - Pedro Musalem, Sergio Sánchez Bustos January 2012Consumo de drogas en los jóvenes - Biblioteca del Congreso Nacional de Chile, Departamento de Estudios, Extensión y Publicaciones. Report by Mónica Chacón, 2004.
Other documents on drug policy in Chile and the regio by Asuntos del Sur.