Overview of drug laws and legislative trends in Ecuador.

Trend

In 2008, the Constitutional Assembly of Ecuador approved an amnesty for ‘drug mules’ who had been caught transporting under 2 kilograms and spent more than one year in prison.

A new Constitution, approved by referendum in September of 2008, says the following about drug users: “under no circumstance shall their criminalization be permitted nor their constitutional rights infringed upon”. This has opened the door to a reform on current drug laws as part of a broader reform to the Code of Criminal Procedures, which suffered substantial alterations during the political negotiations for its establishment.
Even though it has not yet been approved, the reform seeks to decriminalize possession for personal use and reclassifies the levels of trafficking, lowering the penalties for small-scale operations.

Domestic Law

The Law on Narcotic Drugs and Psychotropic Substances, better known as Law 108 has been in force since 1990.

Article 364 of the New Constitution establishes that:

“Addictions are a public health problem. It is the role of the state to develop coordinated programs for information, prevention and control of the consumption of alcohol, tobacco and narcotics and psychotropic substances, as well as to offer treatment and rehabilitation to occasional, habitual and problematic users. Under no circumstance shall their  criminalization be allowed nor their constitutional rights infringed upon”.

Like in other countries in the region, drug control measures by the government of Ecuador have been modeled after the pressure and interests of the United States. Even though the country is an important hub for the transit of illicit drugs and chemical supplies, as well as for money laundering, trafficking is not perceived as a significant threat. This is also the case because the cultivation of coca is minimal compared to other countries in the region such as Colombia, Peru and Bolivia. Paradoxically, Ecuador has one of the most severe drug legislations in Latin America; their criminal drug legislation has led to a situation where over 34 percent of those incarcerated have been involved in drug offenses, a number even higher than those in prison for offenses such as theft and murder, according to a 2011 report of the Public Defender’s office. This is compounded with the harshness in the penalties and the violation of due process guarantees to which persons accused of these crimes are subject.

Current legislation

The Law on Narcotic Drugs and Psychotropic Substances, or Law 108, in force since 1990, has a particularly punitive focus. Over 40 percent of its articles are dedicated to repression, shifting away from aspects such as prevention, education or rehabilitation. Law 108 does not distinguish between small scale offenders and large traffickers, therefore the penalties for minor possession could be equal to those imposed for significant quantities of narcotics. It deals with several categories of offenses of which a person can be accused, a situation made worse with the broadening of governing verbs which expand criminal control over common activities in public spaces.

According to Law 108, the penalty for illicit trafficking, possession or transportation of drugs varies from 12 to 16 years with a possible accumulation of up to 25 years of imprisonment. In contrast, penalties for offenses such as murder have a range between 8 and 12 years. This degree of disproportionate penalty has sparked some attempts to amend and even-out the penalties for minor drug-related offenses. In July 2008, the Constitutional Assembly approved a resolution for the pardon of ‘drug mules’ or persons who transport small quantities of psychotropic and narcotic substances. This measure benefited 2, 221 persons who had been caught transporting up to 2 kilograms of drugs.

A new Constitution, approved by referendum in September of 2008 establishes about drug users that “under no circumstance shall their criminalization be permitted nor their constitutional rights infringed upon”. This has opened the door for a reform to drug legislation.

Impacts of the legislation on the prison situation

The coming into force of Law 108 led to an increase in the prison population, which doubled in less than 20 years. In 2008, Ecuador reached the highest percentage of overpopulation in prisons of all Latin America. Human rights violations and the lack of access to basic needs such as food, hygiene and medical care are a constant in social rehabilitation centers throughout Ecuador.

According to the National Direction for Social Rehabilitation (Dirección Nacional de Rehabilitación Social), at several points between 1993 and 2007 almost 50 percent of all inmates in Ecuador were in prison on drug related charges. Most of those incarcerated for this type of offense come from poor and marginalized sectors, are unemployed and lower educated.

One of the most notable consequences of the Ecuadorean legislation is the significant feminization of drug related offenses; the number of women imprisoned on  drug-related charges, unlike in other Latin American countries, is higher than the number of men. In the last 15 years, between 65 and 79 percent of the female prison population in Ecuador was jailed for drug-related offenses. Women, due to their vulnerable social position, are exceptionally prone to falling into the micro-business of drugs and to act as ‘mules’, the lowest possible level in drug trafficking.

Attempts to reform legislation (Proposed legislative changes)

On 14 October 2011 the government of president Rafael Correa unveiled the project of Integral Organic Penal Code (COIP: Código Orgánico Integral Penal) in which a comprehensive reform to all criminal legislation, including the drug laws and their sentences is proposed. In articles 398 and 412 of the project, sanctions of between 19 and 25 years are proposed for the production and trafficking of large quantities of drugs, while the penalties for ownership and possession of smaller quantities would be set between 1 and 3 years. In this way, it seeks to distinguish the users or consumers—non punishable—from persons subject to the law.

The reform also proposes penalties between 19 to 20 years in prison for the crimes of murder or hired killings, with a maximum of 35 years for accumulated penalties. Also, it includes a detailed description of the penalties for unjustified private enrichment, illegal collection of money, organized crime, human trafficking, among others.

Trends

The measures taken by the government of Ecuador maintain a tendency to amend the disproportionate character of the current penalties while emphasizing the effectiveness of less repressive policies. The most emblematic initiatives, such as the official pardon to ‘mules’ have had positive results since less than 1 percent of those pardoned has become a repeat offender. However, prisons are again filled with drug mules since no legislative change has followed up the initiative.

It could be said that through the reforms contemplated in the project of Integral Organic Penal Code, the current government is implementing important institutional changes so the problem of illicit drugs is seen from a public health perspective rather than from the optics of punitive power alone.

Much effort will be needed to reverse the consequences of previous laws. Nevertheless, it is also clear that the Ecuadorean government will keep on trying to achieve a more ‘humane’ focus in the treatment of offenses related to illegal substances.