Ecuador was never a significant center of production or traffic of illicit drugs; nor has it ever experienced the social convulsions that can result from the existence of a dynamic domestic drug market. While Ecuador has become an important transit country for illicit drugs and precursor chemicals and for money laundering, the illicit drug trade has not been perceived as a major threat to the country’s national security. However, for nearly two decades, Ecuador has had one of the most draconian drug laws in Latin America.
Ecuador has one of the most severe and unfair drug laws of all the countries included in Systems Overload: Drug Laws and Prisons in Latin America, a comparative research study published today by the Transnational Institute (TNI) and the Washington Office on Latin America (WOLA). The current drug law, The Law on Narcotic Drugs and Psychotropic Substances, better known as Law 108 , was not developed based on the reality on the ground, but rather was the result of international pressures and domestic politics. It is an extremely punitive law, resulting in sentences disproportionate to the offense, contradicting due process guarantees and violating the constitutional rights of the accused.
From when it came into force in 1991, drug Law 108 has created an ongoing situation that violate both human and civil rights. Its focus on enforcement and the presence of U.S. pressure meant that the success of Ecuador’s drug policies was measured by how many individuals were in prison on drug charges. This resulted in major prison over-crowding and a worsening of prison conditions.
This paper analyzes the direct connections between Law 108 and Ecuador’s worsening prison conditions up until the time of the present government. Although the law is still in force, the Correa administration is the first to analyze the law’s ramifications, define the problems within the country’s prisons and develop proposals for legal and institutional reforms related to both drugs and prisons.
Although the Ministry of Justice and Human Rights is in the process of developing a proposal to reform the drug law – after recognising the injustices it causes – the reform process advances at a slow pace and it is not yet known whether the process will continue. Therefore Law 108 is still in force.
Law 108 does not distinguish between small-scale offenders (first time offenders or small-scale dealers) and large-scale traffickers. Someone carrying a few grams of marijuana could potentially end up serving a 12-year sentence, equal to that of someone accused of smuggling a much larger amount of cocaine. The law includes several categories under which someone may be accused (such as possession, smuggling or trafficking). Often an accused person is sentenced under more than one category, which is unconstitutional. For this reason an accused person can potentially receive a 25-year sentence, longer than for any other crime under Ecuadorian law (the maximum sentence for homicide is 16 years).
“In Ecuador an illiterate single mother with no previous criminal record who smuggles a few grams of drugs to provide for her children can end up condemned to more years in prison than a murderer, says Sandra Edwards, researcher for the Ecuador chapter of the TNI and WOLA study. “This is not only unfair but it is also ineffective, as one day a small-scale trafficker is imprisoned and the next day the leaders replace him/her and business is not affected. Meanwhile, the prisoner is left with less job possibilities on release from prison, and their children with no support or resources”.
In 2008, Ecuador’s prisons were the most overcrowded in Latin America, with the number of inmates far exceeding prison capacities. The way in which the courts enforce Law 108, excessive use of preventive detention, and the perception of the security forces that the number of people detained for drug-related crime is an indicator of success in the effort to curtail drug trafficking (a mistaken opinion, but in part fomented by U.S. financial incentives), have all combined to bring about a critical situation in the prison system.
In July 2008, in response to the prison crisis, the government implemented a pardon which resulted in the release from prison of approximately 2,000 small-scale dealers and drug “mules” who had completed at least 10 percent of their sentence and who were first time offenders. Up until March 2010, the rate of recidivism among those freed through the pardon was less than 1 percent. (i)
According to the study by TNI and WOLA, overcrowding in Ecuador’s prisons is once again on the rise, despite a temporary easing due to the pardon. At present 80 percent of all women detained in El Inca, the largest women’s prison in the country, are there for drug related offenses. “The pardon had positive affects but it was not a permanent solution”, says researcher Edwards. “As long as Law 108 remains in force, the prisons will be full of non-violent offenders who in reality deserve either more proportionate sentences or alternative sanctions. The police are currently focusing on easily arrested targets and the country’s illegal drug trafficking is not being reduced.”
“I have visited several of the country’s prisons. It is obvious that many of these people transport drugs due to poverty and lack of work, and are not those who really make money from the illegal drug trade”, says Edwards. “As they make up the lowest link in the drug trafficking chain their small earnings do not stop them from being poor. Many of them have said to me ‘If I’m a major drug trafficker, where are my thousands of dollars?’” says Edwards. To see a video of a woman talking about the reasons she became involved in drug dealing in Ecuador and her subsequent prison experience consult this page. The press has permission to use this video.
The Ministry of Justice and Human Rights is developing proposed legislation to reform the country’s drug law. “We hope that the Ministry continues with the reform process. There are many political obstacles that could stop it. Moreover, if the Ministry does present the reform, it will still need to be approved by the national legislators,” says Edwards. “If the reform passes as it was conceived, it could serve as a model for the rest of Latin America,” concludes Edwards, while pointing out that various Latin American countries are in reform processes similar to Ecuador, including Argentina, Brazil and Bolivia. To see a summary of drug laws and pending reforms in the region, see the Overview of Drug Law Reform Trends.
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i Social Rehabilitation Centers, Planning Department, Criminal division of the Public Defender’s Office Statistics of People Imprisoned for Drugs Pardoned, Cases of Re-entry Recorded.
Systems Overload: An unprecedented one-year comparative study of the drug laws and prison systems in eight Latin American countries – Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Peru and Uruguay.