Chile is another Latin American country that is progressively reforming its drug laws, especially under Michelle Bachelet’s new administration. These proposals recognise that there is a growing international tendency to view drug policy in a new lens, one that is based upon health considerations and empirical research. Recent proposals include reassessing the categorisation of cannabis as a Class A drug and implementing regulations regarding the quantities that would be allowed for personal use.
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 primarily revolved around the issue of cannabis, especially liberalisation of laws regarding its cultivation for personal use. 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), the use and supply of cannabis constitute over 90 percent of all controlled recreational substance activity.
In 2012, senators Fulvio Rossi and Lagos Weber presented a bill to decriminalise the home-growing and personal consumption of cannabis. Although the bill caused some controversy in the media, it was not met with the same ridicule as a similar bill that was presented nine years before. This signals a shift in public opinion regarding marijuana amongst the Chilean population. 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 presidential campaign represent 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. In this video (6:10) Bachelet discusses current marijuana laws in the country.
Health Minister, Helia Molina, has said publicly that marijuana will "most likely" be out of the list of hard drugs during this administration. Currently, cannabis is classified in Law 20.000 at the same level as cocaine and heroin.
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, 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 percent of Chileans want marijuana use to be legalised. As these figures indicate, public opinion also is trending towards loosening restrictions on the use of marijuana.
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 notion of "micro-trafficking" (that is, the possession of small quantities of drugs) and subsequently established penalties for its occurrence.
The law does not prohibit the personal consumption of any recreational drug, although it does penalise consumption that occurs in groups. It does not establish a threshold for the permitted quantities, and the distinction between trafficking and consumption is left to the discretion of the judge. Its implementing law, Decree 867, published in 2007 by the Interior Ministry, specifies which drugs, plants and substances are illicit. This decree places cannabis and its derivatives in the category of “hard drugs that produce high levels of toxicity or dependence,” thus mandating 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 categorised as possession of small quantities of drugs. The law sets penalties for trafficking (5 - 15 years in prison) along with penalties for trafficking small quantities (541 days - five years) unless the accused can prove that the substance was intended 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, private consumption of any drug: “Individuals who, without due authorisation, 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 specify which recreational substances can be used, it does state that the consumption of any drug will be neither penalised nor fined.
Article 50 outlines 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 authorised 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 decriminalised 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 penalised, 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 conclude with these fines being suspended or only with administrative sanctions put in place, a large number of people who are detained with small quantities do end up in prison.
The law makes no reference to specific permitted quantities for each substance, but the implementing regulation passed in 2007, Decree 867, does characterise and penalise the possession of prohibited drugs that are trafficked with the intention of transferring these substances to a third party. Judges in each case have the power to decide whether a person is a consumer or trafficker.Back to top
A range of legislative proposals regarding the reclassification of marijuana and the reform of marijuana policy have been prescribed within the last decade. In June 2003, Senator Nelson Ávila presented a bill to modify Clause 1 of Article 2 in Law 19.366. This bill would have decriminalised the planting, cultivating or harvesting of the cannabis plant and its derivatives, given that they are intended for personal use/consumption.
Senator Ávila argued that instead of combatting the sale and trafficking of narcotics, the existing system served to promote it. “Legalising 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 penalises 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 was met with strong opposition in Congress, particularly from Senator Jaime Orpis (UDI), who has become known for his fierce opposition to liberalising of cannabis.
Senator Ávila presented another bill in March 2005 to authorise “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 loweredthe age limit for criminal responsibility of minors from 16 to 14. This law established maximum sentences of 5 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 (February 2008) cannabis is categorized as part of a list of narcotic or psychotropic drugs that include heroin, methamphetamines, opium, and cocaine. This classification has significant legal consequences, as it deprives judges of the power to reduce penalties for charges related to the sale of cannabis. The sale of small quantities of marijuana now carries a sentence of 18 months - 5 years in prison.
In September 2009, several members of Congress presented a bill that would authorise 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 authorisation for growing cannabis species will be awarded by this agency. Decree 867, which regulates the norm, also establishes mechanisms for this authorisation. 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 national policy. The objective of these tribunals is to provide mechanisms for defendants with drug problems to avoid prison (given that the sentence is less than three years.) Treatment is voluntary and rehabilitation is done under the direct supervision of a judge. The use of these Tribunals has been advocated in Latin America by the Inter-American Drug Abuse Control Commission (CICAD, a branch of the Organisation of American States), 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 significant 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 favour of decriminalising 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 prosecution will be those who possess or transport on their person a limited quantity of cannabis sativa. An upcoming implementing regulation will determine the specific quantity.
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 and also to facilitate differentiation between drug dealers and consumers. Some sectors fear that the bill, which has not been without controversy, could contribute to increased arrests of marijuana users. The bill is now being debated in the House of Representatives.
In June 2013 a group of lawmakers asked the Department of Law Assessment (a branch of the House of Representatives in charge of evaluating the performance of different laws) for an assessment of Law 20.000.
A few days after her inauguration, President Michelle Bachelet spoke in favour of a spoke in favour of a revision of Law 20.000.
June 2014, the government formed a working group to review the Law 20,000. Among its objectives is to define thresholds for distinguishing possession for consumption and possession for microtrafficking. The group will also examine the possibility of taking the cannabis sativa of the same schedule of hard drugs, like cocaine.
Chile, like nearly all the other countries in the region, suffers from overcrowded prisons. The sharp prison population increase in recent years is a direct consequence of harsh anti-drug initiaves, including sending people to jail for minor drug-related crimes.
In December 2010, a devastating fire 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. According to press reports, there were 53,000 inmates nationwide when the fire occurred. The entire Chilean prison system only has capacity 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 drug-related crimes (even though they make up the vast majority of criminal prosecution cases within the country). According to data from the Citizenship and Justice Corporation (Corporación Ciudadanía y Justicia), a civil society organisation, 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 latter cases.
The organisation 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 drug law violations.
“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 Justice Corportion, the harsh approach of the justice system is not condoned by the general population.
The principal cause of this over-reaction, which affects primarily young people in the country, stems from Article 4 of Law 20.000 which distinguishes drug consumption and possession while only prohibiting the latter. This legal categorisation is the source of 67 percent of arrests. In addition, a modification of the Criminal Code and Procedural Code in 2008 also 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. This modification expanded temporary detention to 12 hours and increased identification control procedures from 6 to 8 hours. Fundamentally, this created a legal loophole that allowed the dentention of an individual merely on the grounds of suspicion.
Another factor that led to the increased prison population was the removal of marijuana and its derivatives from the list of drugs “that do not produce high toxicity or dependency”, thereby reclassifying it as a “hard” drug. The classification of cannabis as a hard drug has led to harsher sentences while preventing potential measures that offer an alternative to criminal trials and prison sentences.
The number of people detained for violation of Chilean drug laws has multiplied fourfold as a result of these legislative changes, 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 – yet 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 Iban 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 within the past five years, the number of women arrested for drug law violations 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.” However, the law does criminalise drug use when it is within a group of individuals.
But even though the law does not prohibit the private personal use of any drug, possession for personal use may nevertheless carry punishments ranging from small fines to obligatory community service or rehabilitation programmes. 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 Organisation of American States (OAS) member states that have implemented DTC programmes as official policy to address problem drug use, and it now has programmes of this nature 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. This would herald 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 who are 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 adversely affects a significant number of people who wish to curtail their drug use or consume subtances in a safe, hygienic setting. 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 54th Period of the CND (March 2011) Chile signed a resolution in favour of increasing the participation of civil society in the fight against the world drug problem.
In a speech at the High Level Segment of the 57th session of the CND in March 2014 the government highlighted the public health perspective of this matter while emphasising social integration policy development. It condemned the use of capital punishment for drug offences while emphasising respect for human rights.
In the context of recent regional and international developments, the issue of marijuana legalisation has become a prominent issue across the media and academia along with civil society organisations in general. The Minister of Health has recently declared in favour of decriminalising certain substances -- marijuana in particular.
In May 2013, tens of thousands of young people participated in demonstrations in the capital Santiago and other cities across the country in favour 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-and-punishment-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 all over the country, inciting politicians, health officials, and academics alike. Many different sectors of society expressed their support for the psychiatrist, and at one point this led to the Supreme Court overturning Flores' conviction. The 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. In April 2014, the Inter-American Court of Human Rights filed a complaint against the State of Chile because Law No. 20,000 prohibits self-cultivation and consumption of marijuana for spiritual and medicinal purposes. The complaint is related to the case of Milton Flores. It is the first time in its history that the Commission decides on a case involving a conviction related to marijuana cultivation.
Legislative and Government Documents
Studies, surveys and other documents