The Drug War has failed. After more than 20 years of tirelessly pushing for the same policy, the efforts have not been able to bring the expanding illicit drug markets under control and instead have led to an unmanageable crisis in the judicial and penitentiary systems, human rights violations, the consolidation of criminal networks and the marginalization of drug users who are pushed out of reach of health care services. For these reasons, some Latin American countries are starting to explore a more effective and honest drug policy.

Newsweek Argentina, August 19, 2009

In Argentina, soon a legislative proposal to decriminalize the possession of small quantities of drugs for personal consumption will be discussed, and next week the Supreme Court could determine that the imposition of criminal sanctions for the possession for personal consumption is unconstitutional.

The prospect of decriminalization in Argentina has encountered strong support as well as condemnation. The discussion about drug policy is often hampered by polarized positions of prohibition versus legalization, too often erroneously translated into having to make the choice between either 'zero-tolerance to protect our youth' or a 'free-for-all with rising drug use'. This dichotomy obscures the fact that much experience already exists with less repressive approaches in the fields of decriminalization, harm reduction, and more tolerant policies towards cannabis.

The lessons learned in practice can help to overcome the fear that stepping away from punitive approaches is a leap into the dark. In fact, countries that have decriminalized drugs have not suffered explosions in drugs use. And less punitive approaches may well be more effective in protecting our youth and reducing levels of drug-related crime. Not to mention that punishing users for the mere fact of consumption or mandating heavy prison sentences against small traders are clear examples of punishments that are disproportionate to the offense.

Across Europe nowadays, it is unlikely to be imprisoned for possession of small quantities almost anywhere, even though legal definitions vary from place to place. Spain, Italy or Portugal, for example, do not consider possession of drugs for personal use a punishable offence, while in The Netherlands or Germany, possession for personal use remains de jure unlawful, but guidelines are established for police and prosecution to avoid imposing any punishment.  Other countries impose administrative sanctions only, and very few countries (Sweden, Cyprus) still maintain the option to impose prison sentences for possession of small amounts.

Three recent impact evaluations of the impact of decriminalization in Portugal concluded that no significant rise in drug use occurred since passing the law in 2001 and that heroin use even had gone down substantially. The one by the US-based Cato Institute, concluded that "the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world."

In the case of cannabis, quite a few countries and US states have introduced more tolerant approaches. In none of these cases, there appears to have been any large increase in cannabis use. Even in the case of The Netherlands, despite the open sales through the 'coffeeshops', the levels of cannabis consumption are similar to those of the neighboring countries like Germany and Belgium, and much lower than in the UK, France or Spain.

In Latin America, a more rational drug policy to address the main concerns in the region, while avoiding the negative consequences of the US model, has taken more time to develop. There are good signs, however, that the tide is turning and that a wave of legislative reforms is starting to humanize drug policy in the region. Brazil decriminalized possession for personal use in 2004 and Mexico earlier this year. Both models, however, have clearly flaws in their legal reach and implementation, not least because both new laws introduced harsher sentences for small trafficking.

In contrast, last year Ecuador issued a pardon for drug mules, singling out a specific group of prisoners as victims of indiscriminate and disproportionate legislation. More than two thousand offenders arrested with a maximum quantity of two kilograms of any drug, who had no prior conviction under the drug law, and who had completed ten percent of their sentence or a minimum of one year, were released from prison. Soon, the Ecuadorian government will present a fully reworked drugs law, including the decriminalization of possession.

The debate on more far-reaching reforms in cannabis policy, including the option of a regulated market to take this source of income away from criminal groups is starting to open up in Brazil, Mexico and Paraguay. And Bolivia this year initiated formal procedures at the UN level to correct the historical error of prohibiting coca leaf consumption.

Let's hope that the decriminalization proposal in Argentina can add another positive example, strengthening the turning tide in Latin America. It is not a leap into the dark, but a first significant step away from the darkness of the past.

Martin Jelsma is a political scientist and an expert on drugs, also a research fellow at the Transnational Institute (TNI), in Amsterdam.

See also:

Drug policy reform in practice: Experiences with alternatives in Europe and the US, Tom Blickman & Martin Jelsma, July 2009.