Report Highlights Mexico's Failed Drug Decriminalization Law

Mexico's move to decriminalize drug possession in 2009 has achieved little in practice, a recent report shows, with drug-related arrests still routinely carried out throughout the country.

The Research Consortium on Drugs and the Law (Colectivo de Estudios Drogas y Derecho - CEDD) in July released a study which analyzes government responses to illicit drug use across eight Latin American countries: Argentina, Brazil, Bolivia, Colombia, Ecuador, Mexico, Peru and Uruguay. The study, titled "In Search of Rights: Drug Users and Government Responses in Latin America," found that Latin American governments overwhelmingly favor criminal justice approaches to drug use over health-oriented policies, even in countries that have -- in theory -- decriminalized use and possession.

The sustained use of punitive measures has resulted in drug users across Latin America becoming increasingly vulnerable before the authorities, “exposing them to corruption, extortion, physical abuse, sexual abuse, arbitrary detention and other violations of their human rights," according to the report. One such country where there are discrepancies between the law and practice is Mexico where the Small-Scale Trafficking Law was introduced in August 2009, decriminalizing drug possession under certain thresholds.

The establishment of amounts that could be possessed without punishment initially seemed like a progressive step. However, when studying the thresholds and how low they were set -- cocaine at 0.5 grams, heroin at 50 milligrams, methamphetamines at 40 milligrams -- it is apparent that this is little more than quasi-decriminalization. The amount of marijuana allowed is slightly more at five grams, yet suspects can still be detained with this quantity one which is incredibly low when contrasted with places such as Washington and Colorado where personal possession of up to 28 grams is allowed. Drug users in Mexico, therefore, continue to be criminalized, and extremely harshly as anything above the legal threshold but under 1,000 times that amount deems them to be small-time traffickers in the eyes of the law. Any possession that exceeds 1,000 times the limit is then considered large-scale trafficking, and the person will be subjected to the severest drug sentencing possible.

Strong doubts were immediately cast on just how effective this law would be in distinguishing drug users from traffickers. A 2009 report by the Transnational Institute (TNI) and Washington Office on Latin America (WOLA), for example, argued that the law criminalizes consumers "for crimes which are inherent to act of consumption," and does not provide a legal way for people to access the drugs that they are allowed to possess. In addition, TNI and WOLA outlined that the law fails to recognize that the reason many enter the illicit drug market is due to a lack of economic opportunity, thus harsh sentences typically fall upon the most vulnerable within society -- namely the poor, women and young people.

Evidence of the law's failure is abundant, as the CEDD notes, with 140,860 arrests for drug use between 2009 and May 2013, leading to 53,769 criminal investigations federally. A 2012 Center for Research and Teaching in Economics (CIDE) study revealed massive disproportionality in sentencing between small-time drug dealers and violent criminals; the former could potentially receive a maximum of 25 years in jail, compared with 15 years for armed robbery and just 14 years for rape. This, according to InSight Crime, has had an adverse effect on Mexico’s prison system which has been suffering from serious overcrowding in recent years. The most recent figures from this year show that there are 254,108 people in the prison system, despite the capacity of penitentiaries nationwide only being 199,924. A separate 2012 CIDE study which sampled 726 men and 95 women in federal prisons found that 60 percent were incarcerated for drug-related crimes (a figure that rose even higher for women alone, at 80 percent).

There is seemingly scope, however, to reform this failed approach, albeit modestly. In February a bill was introduced to the Legislative Assembly which proposes firmly decriminalizing possession of five grams of marijuana in Mexico City with no threat of being detained as there is under the current law, as well introducing points of sale for the drug which would be regulated by the city. Furthermore, in June Mexico's president, Enrique Peña Nieto, suggested he may be open to legalizing marijuana nationally, not necessarily because it was a policy he believed in, but because reform measures elsewhere in the region and the failures of prohibition were making Mexico's position untenable. 

Quite where Mexico takes its drug policy in the future remains to be seen, but it is clear that the current approach toward low-level drug possession and use has failed, in spite of its attempts to decriminalize these acts.