Overview of drug laws and legislative trends in El Salvador

Trend

As a result of a truce between the country’s main gangs (Maras), the number of murders in El Salvador so far in 2013 is down by about 45 per cent in comparison to the year before. Since El Salvador is one of the countries with the highest murder rates in the world (71 per 100,000 people in 2011), the truce represents a step forward in the eradication of street violence and, some believe, in the fight against the retail drug trade and trafficking. The country is one of the locations for the transport and storage of drugs, mainly cocaine. These shipments come from the producer countries on their way to Mexico and the United States. El Salvador has not come out in support of the initiative proposed by the President of Guatemala, Otto Pérez Molina, to discuss the possibility of regulating the drugs market. The law recognises possession for personal use, but it is punishable by a prison sentence.

Law

The law regulating drug-related activities is one of the most recent in this region of Latin America. It was reformed in December 2003 by Decree N° 215. This modified Article 34 and established the quantity of 2 grams to differentiate between possession for use and drug trafficking – a stipulation applicable to all types of drugs. It also reduced the relevant sentences, but without lifting the classification as a crime. Three additional paragraphs dealing with the subject of possession were added to the same Article 34 in 2004. Finally, in 2006 alterations were made to Article 63.3 with regard to the destruction of drugs confiscated by the courts and Article 68.3 on the victims and witnesses programme.

Drug Law and legislative trends in El Salvador

Following the dictates of Article 65 of El Salvador’s constitution, the health of citizens is considered a public good and must be preserved by the state and by individuals. Thus, a special law has been enacted apart from the Criminal Code to regulate drug-related activities, because the trafficking and use of drugs has increased in recent years.

The previous law (dated 4 March 1991) on drug-related activities regulated all acts connected with the cultivation, production, manufacture, use, possession and trafficking of narcotic substances. The rise in drug trafficking and the proliferation of gangs of traffickers led to considerable political pressure to change this law, and in October 2003 it was repealed. A new, more specific law was enacted at the same time to replace it. This laid emphasis on prevention, although it also increased the length of prison sentences. For example, the crime of planting and cultivation used to carry a sentence of 5-10 years, but this has been increased to 10-15 years; the sentence for the crime of manufacturing has increased from 5-15 years to 10-15. In the case of the crimes of trafficking or promotion, the prison sentences remain the same: 10-15 years and 6-10 years respectively.

The article on the possession of drugs (34) has also been altered, particularly after the law was enacted. Previously, the punishment for the possession of controlled substances was a prison sentence of 3-6 years, and no mention whatsoever was made of the quantity that would indicate the dividing line between possession and the crime of trafficking or transport. Instead, the judge would analyse the circumstances of the actions in each specific case. In December 2003 it was established that the dividing line would be 2 grams. This means that when the quantity in someone’s possession is less than that amount, the sentence ranges from 1 to 3 years; if the quantity is equal to or more than 2 grams, the sentence is 3-6 years. If the purpose of the possession (of whatever quantity) was to carry out any of the activities included in the crime of drug trafficking, the prison sentence would be 6-10 years, providing that the behaviour described could not be considered to fall under another, more serious type of criminal offence. Despite all the reforms, however, the article in question still fails to mention a small quantity destined for personal use, and thus it is understood that possession for personal use is prohibited.

The law’s impact on the prison situation

The situation in El Salvador’s prisons is the most alarming in Latin America, with some 30,000 inmates being held in prisons that have a capacity for 9,060 people. The rate of overcrowding is 253.5%, the highest in Latin America. The country’s incarceration rate is the second highest in the region: 391 prisoners for every 100,000 people (UNODC, 2012).

In general, the abuse of preventive detention, the hardline policies against the Maras, and the government’s weak response to the growth of the prison population are the causes of this overcrowding. It should be highlighted that about 27% of those held in prison are awaiting sentence – a relatively high percentage, though not the highest in the region. In 2012 alone, about 3,000 people were detained for alleged drug-related crimes.

Legislation and Reform

March 2012 - The gangs call a truce. El Salvador’s government has been trying since 2001 to tackle the high levels of violence caused by the gangs, passing laws and decrees under the slogan and the practice of “the heavy hand.” In 2010, the Maras were banned under Decree 458. Merely being a member of these groups became a crime. The attempts to bring the violence under control had little success, and it continued to increase. 2009, 2010 and 2011 were the most violent years, with a murder rate higher than 4,000 per year: 4,367 murders in 2009; 4,004 in 2010; and 4,362 in 2011; the equivalent rates per 100,000 people are 71, 66, and 71 respectively.

In March 2012, the Maras MS-13 and Barrio 18 issued a joint communiqué announcing a ceasefire between the two gangs. To start with, people thought that the government had urged them to declare this truce, because some of the gangs’ incarcerated leaders were moved a few hours later to a lower-security prison where they would be allowed to see their families. Aside from the issue of government mediation – which it initially denied but later acknowledged the role it had played in the initiative – the gang members made a commitment not to attack public transport workers, police officers, soldiers, prison warders, and women in general. This was all set out in a declaration asking the government and institutions to offer the members of these gangs’ jobs and productive occupations that would allow them to rejoin society and return to a normal life, in return for this halt to the violence.

This development, which was positively welcomed by several Latin American countries as well as the UN, not only achieved results in terms of the reduction in violence (32 fewer deaths per day), but also led to a fall in local retail sales of drugs. The OAS is formally accompanying the peace process. The gangs do not have the same organisational structures as the drug traffickers, but they are involved in the market on a smaller scale. Currently under discussion is the design of a management plan to make it easier for those already in the gangs to leave and prevent children and young people from joining them. This would require a commitment from institutions.

July 2012 – Archbishop of San Salvador calls for further debate about decriminalisation – The Archbishop of San Salvador, José Luis Escobar, stated in a press conference that it would be very positive for the region if the proposal to legalise drugs were to be discussed, since the massacres caused by drug trafficking are unacceptable. The archbishop also remarked that he is neither for nor against the proposal. His opinion is simply that the current debate is very weak and that the government should undertake an in-depth study of the issue with the aim of coming up with better solutions and producing positive results.

May 2013 – A small group of parliamentarians, from both government and opposition parties announced the intention to break the taboo on the convenience to discuss drugs legalization. As a personal initiative they want to open the debate in El Salvador and look into alternatives for the failed strategy, since “any possibility to discuss the issue is a contribution to its solution”.

El Salvador in the international debate on drug policies

The President of El Salvador, Mauricio Funes, has declared on several occasions that the Northern Triangle countries must adopt joint measures to tackle the problem of drug trafficking and those involved in transporting drugs, which protect the shipments and move them along the Pan-American highway. This concern has also been expressed at the UN, where the president asked the consumer countries to act to combat drug trafficking, and asked for the support of the United States in particular: “Together with Mexico and Colombia, we in Central America have united to agree on joint policies to wage this battle. Now we need the government and the people of the United States to join us in this fight.”

As far as the debate on the legalisation of drugs is concerned, El Salvador is among the group of countries that does not support Guatemalan president Pérez Molina’s initiative. President Funes has stated on several occasions that he agrees that the Central American countries should adopt a joint position with regard to drug trafficking, as well as new measures or a different approach in the way it is tackled. Although he recognises that legalisation would be a blow to the drug cartels, he feels that it would be morally wrong as it would turn Central America into a paradise for drug users and make it easy for children and young people to obtain drugs.