Within the international drugs market, Argentina is a “trans-shipment” country for cocaine. Recent decades have seen an increase in the consumption of narcotic and psychotropic substances in the country, and in recent years laboratories for the production of cocaine hydrochloride, though not on the scale of those in Colombia, Peru, or Bolivia, have begun to appear. The laws designed to prosecute drug crimes have failed to reduce the scale of trafficking and have resulted instead in the imprisonment of people in vulnerable situations.

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Argentina’s criminal laws in relation to these substances have been evolving since 1924, but since the 1970s their repressive aspects have been accentuated. The growing persecution that has resulted from this legislation has come down especially hard on users and small-scale players in the trafficking business, in particular women and foreigners, groups that are overrepresented in the population of persons imprisoned for such offenses.

Argentina’s prison population has steadily grown since democracy was restored at the end of 1983, although there has been a slight decrease in the last few years. As shown in the Argentina chapter of the study Systems Overload: Drug Laws and Prisons in Latin America by the Transnational Institute (TNI) and the Washington Office on Latin America (WOLA), the number of incarcerated people in Argentina climbed by 75 percent between 1997 (29,690 prisoners) and 2007 (52,457 prisoners). The number of people behind bars for drug crimes began to rise in the 1990s following passage of Law 23737, which increased prison sentences for drug offenses. Currently, inmates serving sentences for drug offenses account for approximately one third of the total federal prison population.

The study reveals that over the past two decades, increased persecution of drug crimes has mainly hit consumers and small-scale players linked to drug trafficking activities. “The authorities have imprisoned low-level drug offenders rather than focusing on large-scale traffickers,” according to Alejandro Corda, researcher for the Argentina chapter and a member of Intercambios Asociación Civil.

Pien Metaal and Alejandro Corda at the presentation of the study in Buenos Aires in December 2010

In addition, this study reveals that in terms of percentages, drug offenses are over-represented in two specific prisoner populations: women and foreigners. Among these two groups the percentages of those imprisoned for drug distribution offenses in state prisons hovers at around two thirds, which is twice as high as in the general prison population. These percentages are even higher when these two groups are considered together, meaning the majority of foreign women in prison have been sentenced for drug offenses. (More statistics are available in the report.) Currently, the most common type of crime for which women are imprisoned within the Federal Penitentiary Service is drug offenses, and the prisons of the Province of Buenos Aires are starting to show a similar trend.

“It seems that many of these women entered the drug trade because of the financial problems they face as single mothers,” says researcher Corda. “In the majority of cases, these women played a minimal role in the trafficking chain, either by dealing small amounts of drugs in their neighborhoods or by attempting to smuggle drugs across the border.”

“These laws, and the way they are applied, have not only failed to curb drug trafficking, they’ve worsened the situation of groups that are already in a vulnerable state by incarcerating them,” explains Corda. “Many of these people should receive alternative sanctions because having a criminal record often prevents them from finding a job later, further reducing their means of survival.”

In some cases, people venture into the drug trade as a way to support their addiction. “With cases of problematic drug users, it is obvious that the individual needs social and health-oriented responses, not jail,” states Corda. In 2009, a Supreme Court decision known as the “Arriola Ruling” found it to be unconstitutional to sentence people to prison for the possession of drugs for personal use. Nonetheless, the current drug law, still on the books and in force, continues to criminalize the possession of drugs for personal consumption. Law enforcement continues to apply this law in a repressive way, while the courts interpret it inconsistently. “The country’s laws need to be updated so that drug consumption is no longer considered a criminal offense and instead is understood as a public health and social phenomenon,” says Corda. “Until we do so, consumers will continue to be entangled in the criminal justice system, which hinders the development of more appropriate responses by the government and society.”

The report also finds that in many cases the criminal justice system has been overzealous in its “war on drugs” role, subjecting innocent people to trial or inventing proceedings. The report summarizes various cases where the state appears to act in an exaggerated or mistaken way. WOLA and TNI have produced a series of five-minute videos showing the human face of the war on drugs. In the Argentina video, a woman talks about how she was tricked into trafficking cocaine into Brazil and her experience in jail afterward. The press has permission to use these videos.

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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.