Summary overview of drug laws and legislative trends in Mexico

Trend

In Mexico, the Law against Small-Scale Drug Dealing (‘Ley de narcomenudeo’) was adopted by Congress in April of 2009 and entered into force in August of the same year. It eliminated deprivation of liberty sanctions in the case of quantities for personal use: 5 grams of cannabis, 2 grams of opium, 0.5 grams of cocaine, 50 milligrams of heroin or 40 milligrams of methamphetamine. Those considered addicts were to be subject to mandatory treatment only after their third arrest.

The law defines the personal dose and establishes rather low quantity thresholds. Moreover, it establishes longer incarceration periods for persons caught with larger quantities than permitted by law, as it is assumed that they are small scale dealers, even if there are no other indications that the amount in their possession is destined for sale. Penalties for various offenses, such as sales to minors or in areas around schools have become stricter after the entering into force of this law. Also, the decree defines small scale trafficking as possessing of up to one thousand times the personal-use dose. Trafficking with the use of ‘mules’ (someone who is in possession of more than 500 grams of cocaine or over 50 grams of heroin) is therefore treated as large scale trafficking, with a correspondent higher penalty.

The new law represents some small progress, even if only conceptually, in such key matters as the differentiation between user, addict and trafficker which could potentially lead to a positive development regarding consumer rights. In spite of this, it is a doubtful bet in terms of proportionality, criminalization and medicinal application of recreational use and the real market for this demand. 

Domestic Law

In August 2009 the decree known as the ‘Ley de narcomenudeo’ or Law against Small-Scale Drug Dealing entered into force. It reforms the General Health Law, the Federal Criminal Code, and the Federal Code of Criminal Procedure. This decree reforms article 478 of the General Health Law:

“The Public Prosecutor shall not exercise criminal prosecution for the crime under the preceding article against a person who is addicted or a consumer and is found in possession of some of the narcotics listed above, in equal or inferior quantities to those listed in the preceding table, for their strict personal use and outside of areas established in Fraction II of Article 475 of this Act. The ministerial authority shall inform the consumer about the location of the institutions or centers for medical treatment or counseling for the prevention of drug addiction”.

Drug laws and trends in Mexico

Mexico is currently immerse in one of the worst violence and security crises in its history, which is associated to the strengthening of drug related organized crime.

Mexico, like other Latin American countries, has pushed for reforms aiming at reducing sanctions for consumers in possession of minimal doses. At the same time, it has toughened the penalties for almost every other drug related offense and the latest legislative reforms indicate that this trend will continue. Recent reforms have led to an increase in the number of people imprisoned on drug related offenses, even though most of them play no significant role in drug trafficking or organized crime networks. Moreover, these reforms have fueled a limitation of procedural rights for those accused of drug-related crimes. 

Current legislation

Since 1990 Mexico is part of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Most of the current legislation pertaining drugs can be found in the Federal Criminal Code and the 1994 reforms which typify diverse crimes related to narcotics. This code also increases the penalties for production, transport, trafficking, distribution and supply, while decreasing those for planting, cultivating and harvesting. The Federal Law against Organized Crime of 1996 significantly increased the penalties for offenses related to criminal conspiracy and established the figure of ‘arraigo’ (a restraining order prohibiting a suspect or defendant from leaving the jurisdiction of the court while a criminal investigation is in process), which allows for the detention and imprisonment of a subject under suspicion of having committed a crime related to organized crime for up to 80 days.

In August 2009 the decree known as the ‘Ley de narcomenudeo’ or Law against Small-Scale Drug Dealing entered into force. It reforms the General Health Law, the Federal Criminal Code, and the Federal Code of Criminal Procedure. The purpose of this decree is to combat small drug sales. Mexican law establishes that a person detained for possession of drugs in an amount less than that established in the General Health Law and that are to be for “strict and immediate personal use” shall not receive penalties that amount to deprivation of liberty, but they would be recommended to undergo treatment. The treatment would be made mandatory after the third time they are detained for drug possession (478 General Health Law). Moreover, it allows for the use of peyote and hallucinogenic mushrooms when it can be presumed that they will be used in traditional ceremonies and customs of indigenous peoples and communities so recognized by the relevant authorities, The new law also distinguishes between possession, supply and trade, as well as between consumer and addict (Articles 192 bis and 473 of the General Health Law).

Impacts of the legislation on the prison situation

Current drug legislation in Mexico has given rise to two main tendencies. The first one is the increase in the prison population and the second the criminalization of consumers and small-scale drug suppliers. This comes about in part because the maximum quantities considered a  personal consumption dose by law are lower than the amount that the average consumer would carry. The hardening of penalties for drug-related offenses has caused a significant increase in the population behind bars in general and in the number of persons detained without sentencing. Most inmates imprisoned on drug related charges come from poor and marginalized sectors of society, with little to no education. Also, 50 percent of the inmates charged with drug dealing were found in possession of goods with a low market value, under 100 USD. See the chapter on Mexico on the study by WOLA and TNI on drugs and prisons.

In the past decade, there has been an increase in the female prison population, and the main reason for incarceration is drug related offenses. Of the indigenous women in prison, 43 percent are there on drug charges.

Attempts to reform legislation (Proposed legislative changes)

A reform to the National Security Act is currently being debated among political parties and in the Chamber of Deputies, after having been introduced by the Executive and approved by the Senate. This law aims at regulating the actions of the federal armed forces which combat organized crime. The reform would empower the Armed Forces to arrest, establish checkpoints and conduct checks in other public spaces, searches, wiretapping and other intelligence measures without judicial overview or control.  Moreover, the reform envisages the possibility that the President command the Armed Forces without Senate oversight and without notifying relevant international bodies. The reform also seeks to give unlimited faculties to the Executive for declaring a state of emergency.

Some civil society and human rights organizations claim that those reforms would strengthen the current, highly militarized strategy for combating drug-trafficking.

Trends

The so-called ‘war’ on organized crime which begun in 2006 has already left behind approximately 50 thousand dead and a similar number of orphans. Although some sectors of civil society, public opinion and even former presidents have advocated for drug legalization in the country, the current administration is firmly opposed to any legalization scheme under the premise that the conditions are not ripe for legalizing drugs in the current international regime, which tends toward prohibition.  However, in a speech after the explosion of a casino in the city of Monterrey, which left 52 dead, president Felipe Calderón suggested that the US government should look for ‘market alternatives’ to reduce the huge profits drawn by cartels. This term has been interpreted by some observers as a reference to legalization. In Mexico a large part of public opinion defends the market regulation of illegal drugs.

As for the positive aspects of the Law against Small-Scale Drug Dealing, the perception that this law allows for the legal possession of drugs under established circumstances could contribute to the users exerting pressure on the judicial system in Mexico, demanding respect for their fundamental and civil rights.