Punitive Drug Policy Is Fuelling The Prison Crisis In Colombia

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What does the coronavirus crisis show us about drug policy in Colombia? In this article, we reflect on how Colombia's highly punitive drug policies have fuelled the prison crisis, which has escalated with the spread of COVID-19.

The coronavirus pandemic has brought attention to the shortcomings our society has been facing, including weaknesses in our healthcare system, gender-based violence that increased during quarantine, high levels of informal labor, and the challenges of online education in rural settings. There is a demonstrable need for better policies to shore up these issues. However, little has been said about the drug policies that govern us—policies that have high cost and a limited effect—and the current need for a transition to evidence-based policies with a focus on human rights and public health.

This pandemic is also shining a light on a subject usually resigned to the outer limits of public debate: how our punitive drug policy fuels the country's prison crisis—a crisis that has escalated with the spread of COVID-19. Addressing this issue is also particularly relevant in the wake of Decree 546 of 2020, which provides measures to alleviate overcrowding in prisons during the pandemic, with the exclusion of drug offenders.

As of April 14th, according to figures from the National Penitentiary and Prison Institute (Inpec), in Colombia there are 120,885 persons deprived of liberty in 132 prison facilities. Collectively, these facilities have a theoretical capacity of 80,928. Comparing these two figures shows an overcrowding of 49.37%. Yet, this is not a new crisis, quite the contrary. Since 1998, the Constitutional Court has declared the country's prisons to be in an Unconstitutional State of Affairs due to their overcrowding and the deplorable conditions inside the penitentiaries.

Zooming in, down through the national, regional, and departmental levels, drug trafficking, transportation, or manufacturing form one of the top 10 charges that result in incarceration. According to Inpec figures, 24,917 people have been charged and convicted of these crimes, representing 20.6% of the total prison population. Together, they constitute the fourth most penalized crime after theft, homicide and conspiracy to commit a crime. Why are so many people in jail for drug related charges? There are three main reasons, according to Luis Felipe Cruz, a drug policy researcher for Dejusticia.

The first is due to what has been called an “addiction to punishment,” the gradual increase in drug laws and penalization in Colombia over the course of many years. To be more precise, “by 1970, there were 3 articles that criminalized drug trafficking with 10 sanctioned activities," Cruz stated. "Currently we have 12 articles in the Penal Code with 50 sanctioned activities (or defining verbs)”. Some of these guiding verbs include: introducing, extracting, transporting, possessing, stockpiling, storing, developing, selling, offering, acquiring, financing, supplying—in essence, any activity.

Once again, in 2013, the Constitutional Court declared an Unconstitutional State of Affairs in the jail and prison system. Based on observations by the Criminal Policy Advisory Commission, the Court underscored that the crisis in prisons is due to a poorly thought-out criminal policy design, one that affects the most vulnerable and escalates punishments in response to public opinion. In other words, it seems that we have a certain preference to punish and sanction, targeting drug related activities in particular.

The second reason has to do with the fact that specific classification makes it much easier to arrest and prosecute a person for drug crimes. Such a wide range of activities can cover nearly any activity that involves illicit substances, which makes arresting a perpetrator much easier for authorities to process because doing so does not require a very sophisticated judicial or police investigation. According to a 2019 report from the Ideas for Peace Foundation (FIP), drug-related crimes represented a third of all arrests from 2014 to 2018, only surpassed by thefts. There were an estimated 194 drug arrests daily during that period.

A third reason to consider is the inability to apply different penalties for drug offenses. In Colombia, “people who are convicted of drug crimes end up spending 3/5 of their sentence in prison because penal regulations don't allow them to be assigned an alternative to incarceration,” said Cruz. Thus, any person who is convicted, even for a non-violent misdemeanor, will be punished with imprisonment. Alternatives, like house arrest, are categorically denied. This same logic is repeated in Article 6 of the current decree, excluding all drug offences from release procedures during the pandemic. Apparently, the government believes that these offenders pose an extraordinary threat and therefore should not be released even for a health emergency, even if this goes against the facts.

A 2017 Dejusticia publication, by Cruz and his colleagues, contains other key data to better understand the situation in Colombia. By comparing results collected from 10 Latin American countries, it states that, "while the general population has grown 19% in the last 15 years, the prison population has grown by 141.8% and the population deprived of liberty for drug offenses by 289.2%." Until 2013, this growth rate was higher than in Argentina, Brazil, Bolivia, Costa Rica, Ecuador, Mexico, Peru, Uruguay and the United States. In addition, investigation and punishment has been focused on the least powerful actors in the chain of drug production and consumption. From 2005 to 2014, money laundering and criminal conspiracy, crimes whose prosecution could have a greater effect on destabilizing the drug market, only represented 0.5% and 0.7% of total arrests, respectively.

All of the above shows us that, for several decades now, different governments have decided to invest resources, time and effort in maintaining these punitive policies. This includes the presidency of Juan Manuel Santos, who followed the same logic of punishment, despite defending drug policy reforms. These policies have apparently become a way to show the public some "results" in the war on drugs. As such, it may seem pertinent to ask ourselves about these results: to what extent do these arrests and convictions affect illegal drug markets?

For Cruz, these measures are not effective, as he states, "The policy of imprisoning many people form the lower levels of the drug trafficking chain is counteracted by the continuous availability of more people who are in the same socioeconomic conditions and are willing to occupy those positions within the criminal chain." Additionally, the aforementioned FIP report concludes that, according to the evidence (see Pollack and Reuter), the increase in arrests and the imposition of heavier penalties is unrelated to an increase in drug prices. In other words, they have little effect on the demand for illicit drugs.

According to Alberto Sánchez, a researcher in citizen security, the efficiency of these policies is also unclear. "Obviously, operation in public space is affected by this type of action (arrests)," Sánchez said, "but in reality, when one looks at the whole dynamic, it is clear that it is not." For Sánchez, finding replacements and criminal networks at that level are so dynamic that investigations, arrests and court proceedings are very slow compared to what criminal organizations can do to restructure themselves. In other words, the ability to control distribution and supply, as well as the ability to extract illegal revenue (whether destined for money laundering, purchasing weapons, etc.), are hardly affected by these arrests.

Sánchez also provides a crucial point: “those who really end up waging territorial wars are the youth. Arrests and death are the high price that young people pay.” He added that, throughout most of Colombia, the world of young victims is practically the same as that of young potential victimizers. For this reason, Sánchez continued, the real challenge is to design and implement policies that protect this population not only from homicide “but from paying a high price under regulations that, apart from being inefficient, are extremely narrow in their vision because they do not affect the important operations along the chain.”

Given that these ineffective arrests have already occurred, it is worth asking, who is in Colombia's prisons for drug crimes today? Taking the Inpec figures as a base, out of the total number of men in prison today, 22% are there for the crimes of trafficking, manufacturing or transporting narcotics, and in the case of women, this is 46%. Almost half of the women in prison today are there for drug-related crimes. As mentioned, these policies are aimed at powerless actors along the chain.

Although there are still many information gaps in the characterization of persons deprived of liberty for drug offenses, the most complete characterization that exists to date is a 2019 study of women held in correctional facilities, carried out by the Ministry of Justice and Law together with the United Nations Office on Drugs and Crime (Undoc). Across the country, 2,058 surveys were applied in 18 correctional facilities and the results are quite clear: women were arrested mainly between 18 and 35 years of age; 22.5% did not have any education and 49.7% only completed primary education; 83% had been living in economic strata 0, 1 and 2; 48% reported having been the victim of some type of gender-based violence; 58% were female heads of household and 60% of women were mothers before the age of 18.

It is also important to consider the differential impact on society when imprisoning a woman. According to Luz Piedad Caicedo, Deputy Director of the Humanas Colombia Corporation, when a man is incarcerated, the women who surround him generally continue to take care of him and go on to bear the economic burdens of maintaining the home that this man may have had. "In one way or another, women become a buffer to the social impact of jailing a man," Caicedo said. They try to maintain the family network that is affected by the imprisonment of a man. On the contrary, when a woman enters prison, the resulting situation is not often cushioned by anyone because, in general, a man was either not present to begin with or, when the woman enters prison, the man withdraws and leaves this woman adrift with all the people who have been financially dependent on her or on him. When a woman enters prison, a whole system of care that depended on her collapses.

When asked about the impact these arrests have on the illicit drug market, Caicedo responds that they undoubtedly have no effect. The women who end up going to prison for this crime are absolutely fungible, and this is very clear to criminal organizations. Caicedo emphasizes that, as long as there are fewer job opportunities and training, there are more impoverished women, and drug trafficking will offer an alternative source of income.

The COVID-19 crisis has arrived in the middle of this predicament. In the name of eliminating drugs, the country has spent decades investing all sorts of resources in punitive policies that do not have much of an effect on these markets. Alongside their ineffectiveness, they are policies with serious collateral damage: family ruptures, re-victimization, and perpetual cycles of poverty. We continue to declare wars (against drugs, against drug dens, against dealers) without wanting to pay much attention to the root of these phenomena, or the evidence. The country's prisons are pleading for measures to alleviate overcrowding precisely now, when this population is excluded from release, victimized once again in the midst of the pandemic.

Could we do something different? Yes: it is our duty and it is a debt we owe to those who have fallen victim to the war on drugs. For Cruz, one of the main reforms that should be carried out is to reform Article 68 of the Penal Code which denies alternative corrective measures other than incarceration for persons already convicted of drug offenses. This would greatly help to reduce overcrowding in prisons.

Some recommendations from the Vice Ministry of Criminal Policy in the Ministry of Justice include ensuring a more efficient use of police and judicial resources to combat violent crime, high-level drug trafficking, and other serious safety threats. Also, there should be alternatives to incarceration for minor drug-related offenders, those who are easily replaceable in the drug trafficking chain and whose incarceration does not have any significant effect on dismantling criminal organizations. In other words, even the very institution in charge of the country's drug policy has been clear about the issue. So why have we taken so long to reform these policies?

The government measures enacted on April 15 do little to solve the crisis and once again exclude illicit drug-related crimes from alternatives to prison. If, as we have argued throughout the text, a significant portion of the overcrowding in prisons the country is due to the irrational incarceration of this population, keeping them in detention centers implies not only continuing to ignoring the recommendations of the advisory commissions, but inevitably exposing the prison population to massive contagion, as is already happening in Villavicencio, Bogotá and Florencia.

Punishing every crime that occurs in the country with incarceration has not only been ineffective in dismantling the drug market, but it has also fueled much of the overcrowding that is experienced today in Colombian prisons. This opportunity should be taken to promote sensible, evidence-based actions that simultaneously protect public health and human rights and are proportional to the crime committed. It is important to continue pushing for a debate on the kinds of punishments that we impose as a society, on the enormous economic and social expense that it represents, and on the need to reform this failed criminal policy.


This article was originally published (in Spanish) in La Silla Vacía: https://lasillavacia.com/silla-llena/red-de-la-innovacion/politica-de-drogas-punitiva-alimenta-la-crisis-carcelaria-72360

* Catalina Gil Pinzón (Twitter: @catalinagilp) & Isabel Pereira Arana (Twitter: @marshtita)