Overview of drug laws and legislative trends in Chile.
Several of the political parties that form part of the Concertación (the center-left political coalition) have been pushing for some time a discussion on regulating cannabis. The recent proposal for decriminalization of cannabis cultivation for personal use and the fact that one of the proponents, Senator Fulvio Rossi, publicly admitted to occasionally smoking the substance, have sparked debate on drugs in Chile, particularly regarding cannabis. There are also lawmakers on the political right who have shown a willingness to discuss the possibility of legalizing medicinal and/or recreational use of cannabis. This is the case of Congresswoman Marcela Sabat (RN).
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 February 19, 2008 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.
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Drug laws and legislative trends in Chile
There are different trends in favor and against changes that would decriminalize certain behaviors related to controlled substances. 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.
The presentation of a bill in 2003 to decriminalize cannabis was the first significant step in recent legislative history regarding this substance. The goal of the proposal was to reinforce individual responsibilities before adopting repressive measures.
The presentation of this bill went largely unnoticed and it was considered ridiculous by some. Today, in 2012, a similar bill to decriminalize cannabis cultivation for personal use and consumption has been presented by Senators Rossi and Lagos Weber. While the bill has generated debate in the media, it has not been ridiculed like the legislation presented nine years earlier. It is a sign that there has been a change in public opinion toward marijuana. This substance has gained space in Chilean society.
Even if the legislation proposed by Rossi and Lagos Weber does not pass, it will have helped spark broader debate in the country and show that today there is greater awareness of the positive aspects of decriminalization.
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 2008, 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.
The classification of cannabis as a hard drug has contributed to an increase in penalties and blocked application of alternative measures to the criminal procedural process or prison sentences.
Impacts of the legislation on the prison situation
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 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)].
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.”
Legislation and Reform
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.
Different sectors of civil society, including the Chilean Harm Reduction Network and Cultivate your Rights (Cultiva tus Derechos), have expressed support for the proposal and have actively participated in the debate, highlighting the innocuous effects of moderate and responsible cannabis use. They state that the principal problems caused by drugs are not consumption or conduct associated with consumption, but the criminal policy applied to control supply and consumption. The proposals for personal cultivation or distribution through authorized dispensaries would help reduce health, social and moral risks that the current drug law is causing among the user population and sectors related to it.
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.
Civil society and the cannabis debate
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 18, 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."
Other relevant documents
Consumo de droga en los jóvenes (Report by Mónica Chacón, 2004)
Asuntos del Sur - documents on drug policy in Chile and the region.