Chile has been progressively reforming its drug legislation since 2005, but this process that has been accelerated by the new administration of Michelle Bachelet, who was inaugurated in March 2014. Her government’s proposals are in line with the international tendency to model drug policy in accordance with public health concerns and empirical research. Recent proposals include reassessing the categorisation of cannabis as a Class A drug and regulating the quantities allowed for personal use.
For the latest news on drug law reform in Chile click here.
Politicians from across the political spectrum are advocating at least some form of drug decriminalisation, partly in response to shifts in public opinion. The new administration led by Michelle Bachelet appears set on taking cannabis off the list of hard drugs.
As elsewhere in the region, the debate in Chile in recent years has primarily revolved around the issue of cannabis, especially the liberalisation of laws on cultivation for personal use. According to the National Service for Drug and Alcohol Prevention and Rehabilitation (SENDA), the use and supply of cannabis constitutes over 90 per cent of all activity relating to controlled recreational substances.
In 2012, senators Fulvio Rossi and Lagos Weber presented a bill decriminalising the home-growing and personal consumption of cannabis. Although it sparked some controversy in the media, it did not meet the ridicule a similar bill did when presented nine years earlier, so it marked a significant shift in Chilean public opinion on marijuana. The senators’ proposal also triggered a wider debate in the country that raised awareness of the positive aspects of decriminalisation. Cannabis has become more accepted in Chilean society, and even right-wing parliamentarians have expressed a willingness to discuss legalising the medicinal and/or recreational use of cannabis.
The drug policy proposals presented during Michelle Bachelet’s presidential campaign represent a “new approach to drug policies, based on health rather than public safety alone”, according to Asuntos del Sur, and include a prevention and rehabilitation strategy. Bachelet’s proposal also contemplates making “legal and administrative changes to reduce the drug law’s tendency to encourage crime”, according to Ibán de Rementería, an expert with the Chilean Harm Reduction Network. This seems to be the direction that the new administration will take. In this video (Spanish spoken, six minutes) Bachelet discusses current marijuana laws in the country and current drug policies are criticized.
Health minister Helia Molina has stated publicly that marijuana will “most likely” be taken off the list of hard drugs during this administration; cannabis is currently classified under Law 20.000 at the same level as cocaine and heroin.
According to a 2013 study by Asuntos del Sur’s Latin American Drug Policy Observatory, the idea of decriminalising drug use and treating it as a public health issue, as proposed by the OAS, has the support of 70 per cent of survey respondents in Chile. And according to a report by SENDA (2012), 68.4 per cent of people say they are in favour of marijuana being used for therapeutic purposes. Other studies reveal that 40 percent of Chileans want marijuana use to be legalised. As these figures indicate, public opinion also is trending towards loosening restrictions on the use of marijuana.
Law 20.000 decriminalised private and personal cannabis use in certain cases, but leaves the distinction between possession and the more serious of trafficking to the discretion of the case judge.
The current drug legislation is contained in Law 20.000, which came into force in February 2005 and was reformed in 2007. It replaced 1995’s Law 19.366, which punished the illicit trafficking of narcotics and psychotropic substances.
Law 20.000 allows for the personal consumption of any recreational drug, while penalising consumption that occurs in groups. It does not, however, establish a threshold for the permitted quantities, so the distinction between trafficking and consumption is left to the discretion of the judge. Its implementing law Decree 867 published in 2007 by the Interior Ministry specifies which drugs, plants and substances are illicit. This decree places and its derivatives in the category of “hard drugs that produce high levels of toxicity or dependence”, thus mandating maximum penalties for cannabis–related crimes. Decree 143, published on 18 August 1997 by the Justice Ministry, requires the Civil Registrar to keep a record of all those sentenced for crimes involving drugs.
Law 20.000 introduced the legal notion of “micro-trafficking” for possession of small quantities of drugs. The jail terms for trafficking range from 5 to 15 years for large quantities and from 541 days to 5 years for small quantities – unless the accused can prove that the substance was intended for personal consumption.
Article 4 does not prohibit personal, private consumption of any drug: “Individuals who, without due authorisation, possess, transport, hold or carry on their person small quantities of drugs that produce physical or psychological dependency, or the raw materials used to obtain these drugs, will be punished with no less than 541 days and up to five years in prison, unless they can justify that it is for medical treatment or exclusively for personal use or consumption in the short term.”
While the law does not specify what substances can be consumed recreationally, it does state that no consumption will be subject to any legal penalties.
Article 50 outlines penalties for consuming substances in public places: “Individuals who consume drugs or narcotic or psychotropic substances referred to in Article 1 in public places or spaces open to the public, such as streets, paths, plazas, theatres, cinemas, hotels, cafes, restaurants, bars, stadiums, dance or music halls, or in educational or training centres, will be punished with the following penalties.”
In such circumstances it also specifies “obligatory participation in prevention programmes for up to sixty days, or treatment or rehabilitation lasting … 180 days in institutions authorised by the competent Health Service,” and/or fines, participation in determined community service, and suspension of driver’s license.
Law 20.000 formally decriminalised drug possession for immediate personal use in a private setting. Drug use or possession in public places is defined as a crime punishable by fines, mandatory treatment, community service and/or suspension of the individual’s driver’s license. Cannabis use is not penalised, but growing the plant is, “unless one can justify that it is for exclusive personal consumption and use in the short term” (Article 8). Possession for personal use can be punished with minor fines, community service or mandatory participation in rehabilitation programmes. While the majority of cases conclude with these fines being suspended or only with administrative sanctions put in place, some people who are detained with small quantities still do end up in prison.
The law makes no reference to specific permitted quantities for each substance, but the implementing regulation passed in 2007, Decree 867, does describe and penalise the possession of proscribed drugs that are trafficked with the intention of transferring these substances to a third party. In all cases coming to court, the judges have the power to decide whether a person is a consumer or trafficker.
A range of legislative proposals regarding the reclassification of marijuana and the reform of marijuana policy have been prescribed within the last decade.
In June 2012, Senators Fulvio Rossi (PS) and Ricardo Lagos Weber (PPD) presented a bill that would regulate marijuana consumption. It includes only one article, which states: “Modify Article 50 of Law 20.000 concerning Illicit Narcotics Trafficking, adding the following final clause: Without detriment to what is stated in this article, the individual who cultivates in his/her home species from the genus cannabis sativa, as long as it is for personal consumption and/or therapeutic use, will be exempt from criminal responsibility.” Also exempt from criminal prosecution will be those who possess or transport on their person a limited quantity of cannabis sativa. An upcoming implementing regulation will determine the specific quantity.
The principal objective of this proposal and its two components, one related to cultivation for personal use and the other for therapeutic use, is to establish a precise determination between carrying and possessing cannabis for personal consumption.
Senators Rossi and Lagos Weber also have asked that the National Service for Drug and Alcohol Prevention and Rehabilitation (SENDA) be moved from under the Interior and Public Security Ministry to the Health Ministry so that it can concentrate on public policies for rehabilitation and prevention campaigns.
In August 2012 President Piñera signed the Prevention of Drug and Alcohol Consumption bill. According to the initiative, the country’s schools are required to have a drug and alcohol prevention strategy and a person in charge of applying it.
A bill amending art. 4 of Law 20,000, which establishes criteria for the quality and purity of drugs, was presented on January 2013. The project aims to set new standards of quantity (weight) and quality (purity) of marijuana and also to facilitate differentiation between drug dealers and consumers. Some sectors fear that the bill, which has not been without controversy, could contribute to increased arrests of marijuana users. The bill is now being debated in the House of Representatives.
In June 2013 a group of lawmakers asked the Department of Law Assessment (a branch of the House of Representatives in charge of evaluating the performance of different laws) for an assessment of Law 20.000.
A few days after her inauguration, President Michelle Bachelet spoke in favour of a spoke in favour of a revision of Law 20.000.
June 2014, the government formed a working group to review the Law 20,000. Among its objectives is to define thresholds for distinguishing possession for consumption and possession for microtrafficking. The group will also examine the possibility of taking the cannabis sativa of the same schedule of hard drugs, like cocaine.
October 2014, Chile became the first country in Latin America to cultivate marijuana for strictly medical purposes. In november, every deputy in the Health Committee of Congress in Chile agreed to move forward in the discussion for allowing cannabis use and self-cultivation.
Chilean law makes a distinction between drug use, possession and trafficking. Those incarcerated for possession account for a huge proportion of the total prison population for drugs offences.
Chile, like almost every country in the region, suffers from overcrowded prisons. Although the trend towards decriminalisation is set, the sharp increase in the domestic prison population in recent years can still be partly attributed to harsh drug control measures, including jail sentences for minor drug-related crimes.
In December 2010 a devastating fire at the San Miguel prison killed 81 inmates. Built for a maximum of 700 inmates, there were 1,900 prisoners held there at the time. Press articles on the fire reported that Chile had a prison population of 53,000, in a system with a capacity of only 32,000.
In the aftermath of the fire, President Sebastián Piñera spoke about alternative proposals for prison sentencing, but not in relation to drug-related crimes – even though they make up the vast majority of criminal prosecution cases in Chile. According to data from the Citizenship and Justice Corporation (Corporación Ciudadanía y Justicia), a civil society organisation, only 12 per cent of inmates are in prison for drug trafficking of larger quantities, while 77 per cent are incarcerated on micro-trafficking charges. Young people and women make up the majority of people involved in these latter cases.
The organisation states that “the issue of drugs is essentially an issue for young people, with 65 per cent of users under the age of 25 and 68 per cent of those detained for violating the drug law also under this age.” In addition, more than 60 per cent of women in prison are incarcerated for drug law violations.
“There were 18,160 people detained for violating the drug law in 2003; the number of people detained for the same violation rose to 38,274 in 2008, an increase of 110.8 per cent. Of these, 8.5 per cent involved consumption, 60.4 per cent possession of drugs and only 28.2 per cent were detained for drug trafficking.”
According to data presented by the Justice Corporation, the general population does not condone the harsh approach taken by the justice system.
This disparity primarily affecting young people stems from Article 4 of Law 20.000, which makes a distinction between consumption and possession, and only prohibits the latter. This legal categorisation is the source of 67 per cent of drug-related arrests. In 2008, a modification of the Criminal Code and Procedural Code in 2008 (Law 20.253, the anti-crime “short agenda” law) also contributed to the increase in detentions for drugs by extending temporary detention to 12 hours and increased identification control procedures from 6 to 8 hours. This created a legal loophole that allowed the detention of an individual merely on the grounds of suspicion.
Another factor that contributed to the prison population increase was the removal of marijuana and its derivatives from the list of drugs “that do not produce high toxicity or dependency”, thereby reclassifying it as a “hard” drug. The classification of cannabis as a hard drug has led to harsher sentences while preventing the implementation of measures that could offer an alternative to criminal trials and prison sentences.
In just five years, these legislative changes have caused detentions for violation of Chilean drug laws to multiply fourfold, from 20,000 in 2006 to 80,000 in 2011. In the same period, the most reported crime was assault at 200,000 annually, yet only 15,000 arrests for this crime were made each year. For additional data, consult the Chilean Harm Reduction Network (Red Chilena de Reducción de Daños).
Drug policy analyst Iban de Rementería from the Chilean Harm Reduction Network writes that, “[Law 20.000] has had a huge impact in terms of criminal offences … [in 2012] 85,023 people were arrested for offences under this law, 54.5 per cent of the 156,070 people arrested for all crimes nationwide.”
Recent data in Chilean media reveal that within the past five years, the number of women arrested for drug law violations has tripled. “There were 2,933 women inmates in 2011, vastly outpacing the 874 inmates in 2007.” The police arrested 755 women implicated in narcotics trafficking in the first quarter of 2012. “Of the people arrested last year by the PDI [the Chilean investigative police force] for drug-related crimes, 23 per cent were women. It is the highest percentage in 10 years.”
Personal and private drug use is not a crime in Chile, but people caught using drugs in public and/or in a group can expect a significant jail term.
Although Article 4 of Law 20.000 does not prohibit private personal use, all other drug-related activities – including possession – are defined as crimes punishable by lengthy prison sentences of 541 days to 5 years, unless demonstrated to have a medical purpose.
However, the law does criminalise drug use when it is within a group of individuals.
Possession for personal use, however, carries potential sanctions ranging from small fines to obligatory community service or rehabilitation programmes. Although the majority of cases end in a suspended sentence or administrative sanctions only, some people arrested in possession of small quantities do get sent to prison. The drug law does not define the upper limits for quantities, and deciding whether someone is a trafficker or a user is left to the judge’s discretion.
Law 20.000 stipulates that the use or possession of drugs in public places is an offence punishable by a fine, compulsory treatment, community service and/or suspension of the driver’s licence.
The Chilean government is expanding its use of drug treatment courts (DTCs) that can mandate rehabilitation for first-time defendants, rather than hand down jail terms.
Since 2010 the Inter-American Drug Abuse Control Commission (CICAD) is promoting Drug Treatment Courts (DTCs) in Latin America as a solution to drug-related problems. Chile is one of the members of the Organisation of American States (OAS) to have implemented DTC programmes as official policy to address problem drug use, and there are now programmes of this nature in several regions of the country: Tarapacá, Antofagasta, Valparaíso, O’Higgins, Maule and the Metropolitan Region.
A press article from January 2014 reports that the authorities have signed a protocol agreement to strengthen the Drug Treatment Courts project in La Araucanía. It heralded the treatment and supervised rehabilitation of problem drug users found guilty of a drug-related crime for the first time. According to press reports, “the government has made a commitment to ensure that Drug Treatment Courts are operating throughout the country by 2015.” The United States Embassy in Chile has also provided significant support to the DTCs since they were first set up.
The aim of these courts is to provide an alternative to jail for problem drug users who are sentenced to less than three years in prison. Treatment is voluntary and rehabilitation must be directly supervised by a judge. See more about the DTCs in Chile here (in Spanish).
The DTCs have not been entirely uncontroversial. One of the most serious criticisms aimed at them relates to abstinence being a condition for participating in the programme. This condition means that the programme adversely affects a significant number of people who wish to curtail their drug use or consume substances in a safe, hygienic setting.
Follow the links for more about DTCs and a 2012 analysis of DTCs.
After cannabis, the most popular drug in Chile is cocaine and its derivatives.
Based on a 2012 analysis of psychoactive substance use in Chile published by the National Drug and Alcohol Use Prevention and Rehabilitation Service (SENDA) one analyst concluded that: “It can certainly be said that we have good news about drugs in this country: 96 per cent of the population has not used drugs in the last month and 74 per cent of those who have used drugs at some time in their lives no longer do so.” According to the SENDA report, the relatively small percentage of people who comprise the drug consumer market can be differentiated as follows (all the graphs below are drawn from this report):
The report concludes that: “User statements reveal an upward trend in the 1990s, which then stabilised in subsequent years around the prevalence rate reached in the year 2000. However, the figures obtained in the last three studies show prevalence rates of 6.4 per cent in 2008, 4.6 per cent in 2010 and 7.1 per cent in 2012. This shows that the downward trend observed in the 2008 and 2010 studies has reversed, with levels of use in 2012 returning to those observed in 2006.”
The report concludes that: “statements reveal that cocaine use in the last year remains stable and similar to previous measurements (0.7 per cent in 2010 and 0.9 per cent in 2012).”
Cocaine paste use
The report concludes that "in the case of cocaine paste, the prevalence rate has remained stable at 0.4%, similar to the 2010 measurement, the lowest in the whole series of studies."
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Chile advocates increased civil participation and a focus on public health when it comes to drug-related issues.
At the 54th session of the Commission on Narcotic Drugs (CND) in March 2011, Chile signed a resolution in favour of increasing the participation of civil society in the fight against the world drug problem.
In a speech at the High Level Segment of the 57th session of the CND in March 2014, Chile highlighted the public health perspective of drug policy while emphasising the social integration of policy development. It condemned the use of capital punishment for drug offences while emphasising respect for human rights.
Campaign groups, demonstrations and a high-profile court case have helped raise public and political awareness of alternatives to current legislation.
Recent regional and international developments have led to marijuana legalisation becoming a prominent issue across the media, within academia and among civil society organisations in general. In May 2013 the Minister of Health came out in favour of decriminalising certain substances – marijuana in particular.
In May 2013 tens of thousands of young people participated in demonstrations in Chile’s capital Santiago and other cities across the country in favour of decriminalising self-cultivation of marijuana. The protesters also wanted to add to the “presidential debate an amendment to Article 50 of Law 20.000 on illicit drug trafficking, which punishes drug use in public places.”
Many voices from civil society – including the Chilean Harm Reduction Network and Cultiva tus Derechos (Grow Your Rights) – are participating actively in the debate, arguing that the moderate and responsible use of marijuana is harmless. They contend that the main problem caused by drugs is not their use or the behaviours associated with it, but the crime-and-punishment-oriented policy used to control the supply and use of drugs. They believe that decriminalising home growing or introducing government-licensed sales outlets would help reduce damage to health and the social and moral harm caused by the current drug law among the user population.
In mid-2013 the psychiatrist Milton Flores was arrested and charged for growing 120 marijuana plants on his own land. This led to a wave of protest across the country, and backing from politicians, health officials and academics. Many sectors of society expressed their support for the psychiatrist, and at one point this led to the Supreme Court overturning Flores' conviction. The Tribunal Oral de San Bernardo later sentenced him for growing cannabis to a prison term of 541 days – the minimum sentence for trafficking drugs. For an analysis of the sentence Flores received, see this article by researcher Sergio Sánchez Bustos.
In April 2014 the Inter-American Court of Human Rights (IDH Court) filed a complaint against the State of Chile because Law 20.000 prohibits self-cultivation and consumption of marijuana for spiritual and medicinal purposes. The complaint is related to the case of Milton Flores. It is the first time in its history that the IDH Court has considered a case involving a conviction related to marijuana cultivation.
Legislative and Government Documents
Studies, surveys and other documents