The Global Initiative For Drug Policy Reform

Ecuador

Ecuador is taking the lead in reforming Latin America’s notoriously harsh drug laws.

Ecuador stands in stark contrast to its Andean neighbours. Whilst Colombia and Peru have been blighted by the drugs trade, both as centres of production for the coca leaf and by so-called ‘narco-guerillas’ (insurgents that receive vast profits from the drug trade), Ecuador has never been a major producer or trafficker of illegal drugs. As one scholar has stated While Ecuador has become an important transit country for illicit drugs, precursor chemicals, and for money laundering, the illicit drug trade has not been perceived as a major threat to the country’s national security [1]. In spite of this, the country has had one of the most prohibitionist and draconian drug policies throughout the whole of Latin America.

Ecuador had traditionally perceived drug policy as one prioritising a public health approach as opposed to law enforcement. For example the 1970 Law of Control and Intervention in the Trafficking of Narcotics emphasised the public health aspects of drug use, declaring that anyone found under the influence of drugs was to be taken directly to a hospital where it was to be determined if they were drug dependent [1]. If indeed they were classified as dependent, they underwent a rehabilitation programme under the supervision of medical personnel. Furthermore, the Plan Nacional de Prevención del Uso Indebido de Drogas (National Plan for the Prevention of Improper Drug Use) even stated the negative effects of placing too much emphasis on criminalising drug users instead of treating them as a health issue [2].

However, as the UN Drug Conventions adopted more of a prohibitionist tone, Ecuador was forced to follow suit by international pressure and lobbying. Beginning at the end of the 1980s, Ecuadorean drug policy began to give law enforcement a greater role in drug policy; for example the 1987 ‘Law of Control and Intervention in the Trafficking of Narcotics and Psychotropic Substances’ implemented harsh penalties for those convicted of drug offences, including imprisonment of between 12 and 16 years for producing or trafficking certain substances [1].

Under great pressure from the US, Ley 108, the country’s ‘Law on Narcotic Drugs and Psychotropic Substances’, was approved in 1991. This law was not developed with any regard for domestic realities, but instead to gain significant US aid; the Ecuadorian government was forced to implement this law, which according to one scholar is an extremely punitive law, entailing sentences disproportionate to the offense, contradicting due process guarantees, and violating the constitutional rights of the accused [1]. Focusing on enforcement, drug policy efficacy was measured according to how many citizens were imprisoned on drug charges.

The primary result of this has been the mass overcrowding and worsening conditions of prisons. For example, in 2007, 34% of those incarcerated were for drug offences (45% if one just examines the statistics for urban prisons) [1]. Furthermore, the weight of these laws falls disproportionately on the poor, who often engage in small-scale drug dealing for lack of employment opportunities and tend to be the target of police actions, rather than the criminal networks that run the drug trade[1]. The legislation stated that anyone convicted of a drug-related crime would face a 12-year mandatory minimum and a 25-year maximum sentence [1]. Considering that those convicted of murder face a maximum sentence of 16 years [3], the ‘disproportionality’ of drug offences to prison terms is significant in the country’s judicial system.

However, since coming to power in 2007 President Rafael Correa has attempted to completely overhaul the country’s judicial systems. A major factor in this

 has been the overcrowding of prisons in Ecuador, especially in terms of drug offences (at times up to 79% of Ecuador’s female prison population have been detained for drug offences [1]). Forced to examine the dire state of the prison system and social rehabilitation system in the country by media pressure and pressure from prisoners, President Correa began to examine the case of drug mules (who were a major cause of prison overcrowding). Consequently, the Asamblea Constitutyente (Constitutional Assembly) approved liberalising legislation that would provide an amnesty for drug mules imprisoned for carrying less than two kilos and had been already imprisoned for over a year.

According to one scholar, in addition to being a sound and pragmatic example worthy of being applied in other countries, this Pardon showed the human face to a large group of persons who have been totally abandoned by authorities… [and] recognizes the draconian character of the legislation on controlled substances imposed on countries in the region since the 1980s.[4]

The Pardon was claimed by one of the lawyers who worked on the new penal code to be the first step of pardoning victims suffering under a draconian law based on U.S. priorities was also a fitting first step marking Ecuador’s independence from such external influences and the beginning of the development of public policies based on the country’s own political, social and economic dynamics.[5]

Further to this, a constitutional reform in the same year declared that drug users should no longer be criminalised nor have their constitutional rights violated. Article 364 of the Constitution was rewritten to state: 

“Las adicciones son un problema de salud pública. Al Estado le corresponderá desarrollar programas coordinados de información, prevención y control del consumo de alcohol, tabaco y sustancias estupefacientes y psicotrópicas; así como ofrecer tratamiento y rehabilitación a los consumidores ocasionales, habituales y problemáticos. En ningún caso se permitirá su criminalización ni se vulnerarán sus derechos constitucionales.” [6]

(“Addictions are a public-health problem. It is the State’s responsibility to develop co-ordinated information, prevention and control programmes for alcohol, tobacco, and psychotropic and narcotic substances; in addition to offering treatment and rehabilitation for occasional, habitual, and problematic users. Under no circumstance shall they be criminalised nor their constitutional rights violated.”)

This reform decriminalised the possession of drugs for personal consumption and lowered sentences for small-scale traffickers.

Many of the legislative reforms have stalled in the National Assembly. Therefore whilst these two reforms are major theoretical steps forward, there still remains much to be done in practice.



REFERENCES

[1] Edwards S., ‘A short history of Ecuador’s drug legislation and the impact on its prison population’ in Systems Overload – Drug laws and prisons in Latin America

[2] Plan Nacional de Prevención del Uso Indebido de Drogas, Ministerios de Gobierno, Finanzas, Educación, Salud y Bienestar Social, Procuraduría General del Estado, División Nacional Contra el Tráfico Ilícito de Estupefacientes, 1981-1985.

[3] Calderón, G. ‘Ecuador: Una ley de drogas draconiana’, América Economía, 2 February 2011

[4] Pien, M., ‘Drugs and Prisons: Pardon for Mulesin Ecuador, a Sound Proposal’, TNI Series on Legislative Reform of Drug Policies, Nr. 1 February 2009, P.7

[5] Edwards, S. & Youngers, C., ‘Drug Law Reform in Ecuador: Building Momentum for a More Effective, Balanced and Realistic Approach’,TNI/WOLA Memo May 2010 , P.13

[6] Constituciones de 2008, República del Ecuador