Hard with the weakest: Criminalization of the “micro-trafficking” of cannabis in Costa Rica

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By Ernesto Cortés – Anthropologist and Director of ACEID

Just for selling one gram of cannabis or a crack stone a person can go to jail for 8 years, while for breaking the door of a house to steal a flat screen are 5 years in prison, and only 3 for sexually abusing a underage person.

This is a reality that we live in Costa Rica thanks to Law 8204 (Psychotropic Law), which has imprisoned about 3000 people for committing a crime related to illicit drugs, in most cases by “micro-trafficking”.

An investigation conducted by ACEID / CEDD shows that about 20% of the inmates were convicted for drug-related crimes, although among women this percentage reaches 60%. Most of them live in vulnerability conditions, they likely have a low educational level, have experienced different types of physical and psychological violence or have a problematic use of psychoactive substances.

In the other hand,  most men are young, among women there is a greater diversity of ages, many of them have children or older adults under their care.

None of them are big drug dealers, “capos” or “mafia assassins”, but small retailers and transporters (like “mules”, taxi drivers, trailers or fishermen), who are in the lowest part of the illicit drug market and are easily replaceable.

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In fact, the vast majority do not belong to a criminal organization, but the Costa Rican state punishes them as well as a middle or high command of a criminal group.

This has contributed to our penitentiary system being in a critical and alarming situation. We have one of the highest incarceration rates in the region (No.3 in Latin America) and the percentage of overcrowding reached 30% in 2018, although in several centers it exceeds 110%.

This is aggravated by the indiscriminate use of pretrial detention, ordered by the courts in 80% of the cases related to drugs, since as it is a crime with a minimum penalty as high (8 years), it is always argued that there is a high “danger of flight”.

In the conditions of overcrowding and abandonment that are our prisons it is impossible to “rehabilitate” anyone, but rather becomes a stimulus to recidivism and increased crime.

As stated by the UN torture prevention committee that was recently in the country observing several prisons, overcrowding is a situation that can violate the human rights of people deprived of their liberty, as it worsens their physical and mental health of the persons deprived of liberty, as well as their possibilities of receiving a dignified and quality care, and later successfully join the society.

Policies to control illicit drug trafficking should focus on the investigation and prosecution of those who generate more damage and violence to society, not the lower links of the market.

The system should have options other than confinement and opportunities for economic, social and health development (which are the real roots of the problem), instead of remaining imprisoned for many years and worsen their personal and family situation, especially if they have daughters or children.

It should be noted that there is no talk of impunity to the “micro-trafficking”, but rather that the penalties are proportional to the crime and that they comply with its “rehabilitation goal”.

From this perspective, in 2017 the draft Law 20322 was presented in the Legislative Assembly: “Comprehensive care of people with problematic use of psychoactive substances and establishment of proportional penalties in non-violent micro-trafficking crimes”, which is found in the Security and Drug Trafficking Commission.

We must recognize that this project is the beginning of a long but urgent process of social and political dialogue on how to introduce the human rights approach in drug policies and really protect the protected legal good: public health (which is its main objective) ); instead of harming it with the mass and inhuman imprisonment that we currently have.

It is necessary to reflect on the impact of the application of the Psychotropic Law at the criminal level, especially in the most vulnerable populations. It is time to open spaces for participation and discussion to think about ways to approach “micro-trafficking” from an integral approach to criminal law, recognizing that what we have done to date has been ineffective and even counterproductive.

As the famous phrase of Albert Einstein says: “Madness is doing the same thing over and over again hoping to obtain different results“.

Graphic: Comparison of the minimum prison sentence for different crimes, highlighting the disproportion of punishment for drug-related offenses


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