The proposed decriminalization of personal drug use in Argentina, which will soon be debated in Congress, is poised to ignite a fresh debate over the country’s security strategy and challenge statistics pointing to its success.
On August 21, a commission charged with proposing wide-ranging modifications to Argentina’s penal code will hand over a draft proposal to President Mauricio Macri, who will review it and send it to Congress for debate, Clarín reported.
Among the proposed changes is the decriminalization of drug possession for personal use in “small quantities” (the text does not specify how much would qualify as “small”) and in the “private sphere,” according to a leaked version of the draft proposal, which was reported by a number of media outlets.
The proposal will also reportedly establish harsher penalties for drug trafficking offenses in cases where minors are affected and life imprisonment for members of international organizations involved in drug trafficking.
The idea is to align Argentina’s penal code with a 2009 Supreme Court ruling that said criminalizing drug possession for personal use, as stated under the current Narcotics Law, is unconstitutional since it goes against a number of rights, including the right to privacy.
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Mariano Borinsky, the head of the commission charged with drafting the new penal code, told Clarín that the reasoning behind the changes is that currently most cases involving drug possession, regardless of their size, in Argentina are dismissed in the courts because of the 2009 Supreme Court ruling.
“The idea is for the Attorney General’s Office to be able to focus on organized crime and not on the users,” Borinsky said.
Mariano Fusero, a lawyer and an expert on drug policies, told InSight Crime that the change is very important for Argentina, but that by failing to clearly define what is meant by “private sphere,” the law still leaves too many areas open to interpretation.
“Under the current law, we have seen cases where a person was sent to prison for eight months for having five marijuana plants and another who had 120 plants but was released almost immediately because the Supreme Court ruling was applied since they found that the plants were not for sale,” Fusero said. “Most of the arrests [under the current law] take place on the streets. Those people are not under the ‘private sphere.’ How would the new proposed law apply? Establishing a norm that is still so open to interpretation by police officers, prosecutors and judges is nonsense. We need norms that are clear and conclusive.”
The issue demands attention. Marijuana consumption increased by 150 percent while cocaine consumption doubled in Argentina in 2017, according to data from the latest official survey. And criminal groups have sophisticated operations to satisfy both local and international demand.
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The proposed changes to Argentina’s penal code are meant to shed light on the question of whether or not personal drug use is punishable by law, an issue that has been in a grey zone since the 2009 Supreme Court ruling.
The ruling -- which states that drug possession, as long as it’s in small quantities and does not affect third parties, cannot be penalized – currently stands alongside the law prohibiting this same act. Police in Argentina have therefore continued to detain drug users, leaving it up to judges to make a final decision on each individual case.
The change in the law might also, perhaps inadvertently, raise deeper questions about the purported success of the current administration’s anti-narcotics strategy and may help focus efforts towards more significant targets.
Since taking office, President Macri has made it a priority to fight drug trafficking and organized crime with a strategy that has been heavily reliant on increasing drug seizures and arrests.
However, experts have pointed out that seizures and arrests have increased because authorities have targeted big organizations and small consumers alike, with the latter padding their statistical bottom line.
Drug violations are currently the second most common crime for people held in prison, according to official data, and they have increased at a higher rate than any other crime since Macri took office.
Several analysts consulted by InSight Crime added that decriminalizing personal drug use will undoubtedly affect official figures, and might even force authorities to at least rethink parts of their security strategy.
Mariana Souto Zabaleta, who studies drug trafficking at the Latin American Institute of Security and Democracy (Instituto Latinoamericano de Seguridad y Democracia - ILSED), said that decriminalizing drug use is also key because it would free up state resources to fight larger criminal organizations.
“Between 2011 and 2016, 36 percent of drug-related cases opened at the federal level were related to personal use. Most of those cases never go anywhere in the end, but they drain a lot of resources from the system. Decriminalizing personal drug use would change that,” Souto Zabaleta told InSight Crime.
“Separating cases that have to do with the security strategy from those that don’t, including personal drug use, and focusing on the activities of the most powerful actors makes the fight against drug trafficking a lot more efficient.”
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