UNGASS Women 2016: Latin America

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Latin American prison populations have swelled over the last thirty years, largely due to punitive drug laws punishing low-level offences with long sentences of incarceration. The impact on women has been devastating: the Latin American female prison population nearly doubled between 2006 and 2011, from 40,000 to over 74,000.[1] In Bolivia, Colombia and Mexico, female prison populations increased by around 200% between 1994 and 2004[2]; in Argentina, after a new drug law was introduced in 1989, the female prison population grew by almost 300% in ten years.[3] The rise in the percentage of women incarcerated for drug-related offences has risen steeply. In 2003/4, 26% of women in prison in Guatemala were incarcerated for drug-related offences; 46% in El Salvador; 59% in Honduras; 72% in Panama; and 89% in Nicaragua.[4] In Argentina, the population of women incarcerated for drug-related offenses increased by 271% between 1989 and 2008, and in Brazil by 290% between 2005 and 2013.[5] Currently, in Argentina, Brazil, Colombia, Costa Rica and Peru, over 60 percent of women in prison are incarcerated for drug-related offences.[6] This dramatic increase in the incarceration of women for (usually low-level) drug-related offences reflects a worldwide trend.

Women have multiple and varied reasons for becoming involved in drug-related activities, although research has identified key commonalities. Aside from women who willingly engage in drug-related activities (including drug use, and uncoerced drug dealing and transportation), most women’s motivation for committing drug-related offences is financial. The majority of Latin American women involved in drug-related crime are battling to survive conditions of poverty, inequality and violence against women, and are forced to find illegal means of generating income to support themselves and their families.[7] Indeed, in Mexico, most women in prison for drug-related offences are are young, poor, uneducated, and almost all are single mothers who are solely responsible for taking care of their children.[8] In Costa Rica in 2012, over 95% of women incarcerated for bringing drugs into prisons were single mothers, and their children’s sole caregivers.[9] Some women resort to drug-relate crime in order to finance their own dependence on drugs. And many women are recruited or coerced into drug-related activities by male partners and family members.[10]

Indigenous women, who face multiple and intersecting racial, gendered and socio-economic disadvantages (including lack of access to education, healthcare and property rights), are particularly vulnerable to involvement in drug-related crime and to arrest and prosecution for such offences, especially for cultivating drug crops (such as marijuana, opium poppies for heroin, and coca for cocaine). In Mexico, indigenous women make up only 5% of the female prison population, but 43% of the female prison population serving sentences for drug-related crimes.[11]

Many foreign women in Latin American prisons are incarcerated for drug-related offences, as they are frequently used as drug couriers (often referred to as ‘mules’) to transport drugs across national borders. For example, in federal Argentinian prisons, 90% of foreign women in prison for drug-related offences had served as couriers. Because women without criminal records are the most valuable – i.e., least suspicious – couriers, 96% of these women were first-time offenders.[12]

Because poor women are extremely vulnerable and often desperate for income, they tend to engage in low-level, high-risk drug-related activities, such as growing, dealing and transportation,[13] as well as consumption[14] (i.e. – largely non-violent offences). For the most part, women operate in the bottom rungs of drug organizations, so are entirely disposable and replaceable to their bosses, and have little bargaining power when arrested – i.e., they cannot offer information about organizational structures or more high-ranking members – and are thus not in a position to trade information for reduced sentences. Harsh drug laws have thus had a devastating impact on Latin American women.

A snapshot of Latin American drug policies

Instead of addressing the socio-economic problems contributing to and stemming from the drug trade in Latin America, or effectively targeting the individuals running and profiting from the drug trade (many of whom are in North America), states’ drug policies are extremely punitive, aimed at punishing low-ranking individuals. Most Latin American countries’ drug laws mandate pre-trial detention for drug-related offences, impose disproportionately long prison sentences, and do not provide for pre-release programs.[15]

In 2009, Mexico introduced the “Decree to reform, add and repeal various provisions of the General Health Law, the Federal Criminal Code and the Federal Criminal Procedures Code”, which decriminalized possession of small quantities of drugs intended for personal use. However, the threshold for quantities considered to be intended for sale is very low, meaning that many people in possession of drugs that they intend to use themselves get caught up in the criminal justice system, and get arrested and prosecuted for dealing or trafficking.[16]

In Bolivia, the “Law for the Regulation of Coca and other Controlled Substances” (Law 1008) restricts the amount of coca that may be legally cultivated, characterizes drug trafficking as a crime against humanity, removes the possibility of pre-trial release for anyone charged with a drug-related offence, no matter how small,[17] and mandates a minimum sentence of 10 years for drug trafficking. This is a harsh minimum sentence, and effectively bars people convicted under this law of being eligible for early-release programs aimed at reducing prison overcrowding, which many women would otherwise be eligible for.[18] The restrictions on the farming of drug crops impacts rural women’s ability to work legally, as agricultural labour is often their only option. However, some provisions of the law have been deemed unconstitutional, and reform efforts are underway.

In several countries, including Brazil, Argentina, Columbia, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela, pre-trial detention is limited and alternative sentences (such as house arrest) are utilized in cases where women charged with or convicted of crimes are pregnant, are nursing babies, have young children or children with disabilities, or are their children’s sole caregiver. However, most of the laws governing these alternatives to pre- and post-trial incarceration do not apply to women charged with or convicted of drug-related offences. And often even when they are applicable, judges choose not to apply them to drug-related offences, arguing, for instance, that house arrest is inappropriate for women convicted of small-scale dealing, because it will require the woman to return the place where she had been selling drugs.[19]

In Costa Rica, Ecuador and Uruguay, recidivism (reoffending) is considered grounds for receiving an enhanced sentence, and can be grounds for denying parole or excluding a person from diversion programs.[20] This is in violation of international law, and does not take into account the cycle of poverty, crime, social exclusion and recidivism that many women become trapped in. Such laws are extremely harmful to those convicted of drug-related offences, and given the socio-economic and family circumstances that most women involved in drug-related crime come from, they are the people most in need of opportunities for parole and diversion away from the criminal justice system.

Impact

Incarcerating non-violent, low-level offenders does nothing to hamper the drug trade or to improve public safety, and in fact is deeply destructive to individual lives and communities. Aside from the psychological impact of incarceration, having a criminal record impacts women’s ability to find meaningful legal employment upon release, creating a cycle of poverty, crime, imprisonment, social exclusion and unemployment, compounding rather than alleviating the conditions that led women to drug-related crime in the first place.[21]

As women are often primary or sole caregivers within families – of children, the elderly, and people with disabilities – their imprisonment breaks down family structures and relations. It is estimated that there are currently between 1.5 and 1.9 million children throughout Latin America with a parent in prison.[22] While the impact of incarceration on men should not be minimized, men tend to retain their family’s support while they are incarcerated; women, on the other hand, tend to be shunned by their family members for supposedly having violated the ‘rules’ of their gender. Men’s female partners and family members take care of their children while they are in prison, and facilitate them seeing their children regularly; women, especially when they are the sole caregiver of their children, often are entirely isolated from their children and other family members while incarcerated.[23] For example, a São Paulo prison census found that 86.9% of children of incarcerated men remained in the care of their wives or partners, whereas only 19.5% of children of incarcerated women remained in the care of their male spouses or partners.[24] Because so much drug-related crime in Latin America involves the transportation of drugs across national borders, mostly by women, many women are incarcerated for drug-related offences in foreign countries, far from their families and communities. The upheaval imprisonment of women creates within families and communities compounds and perpetuates social problems, including economic inequality, violence, crime and drug abuse.

Potential for reform

The Working Group on Women, Drug Policies, and Incarceration recently released a set of guidelines for policymakers, titled “Women, Drug Policies, and Incarceration: A Guide to Policy Reform in Latin America and the Caribbean”.[25] The guidelines are aimed at both government officials and reform advocates, and they suggest various reforms that would reduce the burden of current drug policies on women. Suggested reforms include decriminalizing drug use, abolishing incarceration as a punishment for non-violent crimes, utilizing alternatives to incarceration, transferring foreign women to prisons in their home countries, and implementing education and training programs for incarcerated women to assist them in finding legal and fulfilling employment upon release. Introducing these reforms would lead to more humane treatment of women involved in drug-related crime, and would also result in more effective – and cheaper – reduction of drug dependence and related offenses.

There have been some recent positive developments in drug policy in Latin America. In 2008, the Ecuadorian government pardoned about 1,500 drug- trafficking couriers incarcerated under the disproportionately harsh Narcotic or Psychotropic Substances Law (Law 108), which imposed sentences of 12-16 years regardless of whether the offender was a courier, a small-scale dealer or a large-scale trafficker.[26] These releases accounted for 40% of the total prison population and 75% of the female prison population.[27]

In 2014, Ecuador’s Organic Comprehensive Criminal Code was introduced, repealing the criminal provisions of Law 108. The new Criminal Code distinguishes between low- and high-level drug-related offences. Within three months of its implementation, because it was applied retroactively, over 2,000 people were released from prison.[28] The percentage of women incarcerated for drug-related offenses fell from 80% to 43%.[29] Unfortunately, in October 2015, the National Assembly introduced harsher sentences for drug-related offences, without providing any justification for this decision. It is thus likely that the rate of women incarcerated for drug-related offenses will soon rise again.

In 2013, the Costa Rican government introduced Law 9161, modifying article 77 of Law 8204. This reduced the sentences for women who transport drugs into prisons from a minimum of eight years and a maximum of twenty, to a minimum of three years and a maximum of eight. When defendants a) live in poverty, b) are the heads of households considered vulnerable, c) are the caregivers for minor children, senior citizens or people with disabilities, or d) are vulnerable senior citizens, a judge may order the sentence to be served under house arrest or in an alternative detention center, or for the sentence to be served under non-custodial conditions, such as on probation.[30] When applied retroactively, 150 women sentenced under the old law were released from prison.[31]

In Costa Rica, the Public Defender’s Office, in collaboration with the National Institute of Women, established a network of public institutions working with women involved in the criminal justice system (including women in prison and women serving non-custodial sentences) in order to address their needs and the needs of their families, both during their incarceration and upon release.[32]

In Argentina, once non-resident foreign women have served half of their sentence, they may be expelled from Argentina and returned to their home country. Although this is in no way a solution to the problem of international drug trafficking, and is not an ideal remedy for the incarceration of women couriers, it goes some way to partially alleviating the burden of incarceration on women and their families.[33]

Several Latin American countries have adopted, or are considering adopting the U.S. drug courts model, where individuals convicted of some drug-related offences are sent to treatment programs. This model has not been unproblematic, and should be explored with caution.[34] The Costa Rican Drug Treatment under Judicial Supervision Program is reported to take the problems with drug courts into consideration in its programming.[35]

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[1] Youngers, CA. 2014. ‘Behind the staggering rise in women’s imprisonment in Latin America’. Washington Office on Latin America (WOLA). At: http://www.wola.org/commentary/behind_the_staggering_rise_in_womens_imprisonment_in_latin_america

[2] UNODC. 2008. Handbook for prison managers and policymakers on Women and imprisonment. UNODC Criminal Justice Handbook Series. At: https://www.unodc.org/documents/justice-and-prison-reform/women-and-imprisonment.pdf

[3] Center for Justice and International Law (CEJIL). 2007. Women in prison – regional report: Argentina, Bolivia, Chile, Paraguay, Uruguay. At: https://cejil.org/en/women-prison-regional-report-argentina-bolivia-chile-paraguay-uruguay-0

[4] Giacomello, C. 2013. Women, drug offences and penitentiary systems in Latin America. IDPC Briefing Paper. At: http://idpc.net/publications/2013/11/idpc-briefing-paper-women-drug-offenses-and-penitentiary-systems-in-latin-america

[5] Washington Office on Latin America (WOLA), et al. 2016. Women, Drug Policies and Incarceration: A Guide for Policy Reform in Latin America and the Caribbean. WOLA, the International Drug Policy Consortium (IDPC), Dejusticia, and the Inter-American Commission of Women (CIM) of the Organization of American States (OAS). At: http://www.wola.org/sites/default/files/WOLA%20WOMEN%20FINAL%20ver%2025%2002%201016.pdf

[6] Youngers, CA. 2014.; Pieris, NJ. 2014. Women and drugs in the Americas: a policy working paper. Inter-American Commission of Women and the Organization of American States. At: https://www.oas.org/en/cim/docs/WomenDrugsAmericas-EN.pdf

[7] Giacomello, C. 2013.

[8] Metaal, P. and Youngers, C. (eds.). 2011. Systems Overload. Drug Laws and Prisons in Latin America. Transnational Institute, Washington Office on Latin America. At: http:// www.tni.org/report/systems-overload-drug-laws-and- prisons-latin-america

[9] WOLA, et al. 2016.

[10] Giacomello, C. 2013.

[11] Giacomello, C. 2013.

[12] WOLA, et al. 2016.

[13] Washington Office on Latin America (WOLA). 2016. ‘Women, drug policies and incarceration in the Americas’. At: http://www.wola.org/commentary/women_drug_policies_and_incarceration_in_the_americas

[14] Giacomello, C. 2013.

[15] Metaal, P and Youngers, C. 2011.

[16] Giacomello, C. 2013.

[17] Pieris, NJ. 2014.

[18] Giacomello, C. 2013.

[19] Giacomello, C. 2013.

[20] WOLA, et al. 2016.

[21] WOLA. 2016.

[22] Washington Office on Latin America (WOLA). 2015. ‘The invisible victims of Latin America’s incarceration crisis’. At: http://www.wola.org/commentary/the_invisible_victims_of_latin_americas_incarceration_crisis

[23] WOLA, et al. 2016.

[24] Cited in WOLA, et al. 2016.

[25] Washington Office on Latin America (WOLA), et al. 2016. Women, Drug Policies and Incarceration: A Guide for Policy Reform in Latin America and the Caribbean. WOLA, the International Drug Policy Consortium (IDPC), Dejusticia, and the Inter-American Commission of Women (CIM) of the Organization of American States (OAS). At: http://www.wola.org/sites/default/files/WOLA%20WOMEN%20FINAL%20ver%2025%2002%201016.pdf

[26] Giacomello, C. 2013.

[27] WOLA, et al. 2016.

[28] Paladines, J.V. 2015. ‘The seven steps of drug policy reform in Ecuador’. Washington Office on Latin America (WOLA). At: http://www.wola.org/commentary/los_siete_pasos_de_la_evolucion_de_la_reforma_de_drogas_en_ecuador

[29] WOLA, et al. 2016

[30] Giacomello, C. 2013.

[31] WOLA, et al. 2016.

[32] WOLA, et al. 2016.

[33] WOLA, et al. 2016.

[34] For more information, see Guzmán, D.E. 2012. Drug courts: Scope and challenges of an alternative to incarceration. IDPC Briefing Paper. At: http://www.drogasyderecho.org/publicaciones/pub-col/drug-courts.pdf

[35] WOLA, et al. 2016.