Comparative study on the impact of drug poicies on the prison systems of eight Latin American countries - Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Peru, and Uruguay - reveals that drug laws have contributed to the prison crises these countries are experiencing. The drug laws impose penalties disproportionate to many of the drug offenses committed, do not give sufficient consideration to the use of alternative sanctions, and promote the excessive use of preventive detention.

The study, Systems Overload: Drug Laws and Prisons in Latin America, published by the Transnational Institute (TNI) and the Washington Office on Latin America (WOLA), found that the persons who are incarcerated for drug offenses tend to be individuals caught with small amounts of drugs, often users, as well as street-level dealers.

Specifically, the study finds that most of the persons imprisoned for drugs are not high- or medium-level drug traffickers, but rather occupy the lowest links in the chain. According to the report, these laws have overcrowded the prisons - with a high human cost - but have not curbed the production, trafficking, or use of drugs.

"Imprisoning minor offenders to restrict drug trafficking is useless, for the next day the bosses at the top replace them. But for the persons locked up, prison can destroy their lives," according to Pien Metaal, coordinator of TNI's drug law reform project. "The criminal law approach to these persons also swamps the systems of administration of justice, thereby negatively impacting society as a whole," adds Metaal. One example is Colombia, where the study concluded that 98 percent of the persons imprisoned for drug offenses from 2007 to 2009 were low-level offenders, or at least that it was not possible to prove otherwise.

What causes these low-level mules to and traffickers to get into the business? Economic despair.

For example, the persons imprisoned for drugs generally come from the most vulnerable sectors of society, those with little formal education, low incomes, and limited opportunities. "Poverty is evident in the prisons in all these countries," says Coletta Youngers, a Senior Fellow with WOLA. "Many of the persons enter the drug ‘business' out of economic desperation, but the reality is that transporting, selling, and producing at that low level doesn't get anyone out of poverty; but it becomes an option despite the risks because it represents a steady income," adds Youngers.

What they encountered in their study was the "feminization of drug offenses"

, Most of those imprisoned for drug offenses are men, yet the percentage of women prisoners who are behind bars for drug offenses is greater than the percentage of male prisoners locked up for the same reason. This is particularly visible in Argentina and Ecuador. "Many of these women are single and poor mothers. The fear they may have of ending up in prison or getting involved in the drug business is trumped by their need to provide for their families," says Coletta Youngers of WOLA. "These single mothers and other similar offenders should be considered for sanctions other than prison, especially because while they are in prison their children are unprotected."

What conclusion is drawn for this?

The study concludes, the persons charged with and convicted of drug offenses are often denied access to penalties that constitute alternatives to imprisonment. Indeed, in most of the countries studied, the severity of the penalties may be grossly disproportionate to the crimes committed. For example in Ecuador a "mule," or low level transporter of drugs, may receive a longer prison sentence than a murderer.

The problem is then compounded:

The study concludes that this disproportionality in sentencing is due in part to these countries' laws not distinguishing clearly among users, small-scale dealers, small-scale transporters, and medium- and large-scale traffickers. "Many drug users end up in jail - even when their country's law does not provide for imprisonment of users - as they are taken for dealers," says Metaal of TNI. "To reestablish proportionality in sentencing, it is important that the authorities introduce clearer guidelines to identify the different levels of trafficking and the different types of drugs, and to keep users from ending up in prison," concludes Metaal.

The report makes some recommendations for more effective and humane policies, including:

• Establish and expand alternatives to incarceration for those charged with low-level drug offenses, including removing criminal sanctions for possession for personal use.
• Abolish mandatory minimum sentences.
• Avoid preventive detention in the case of low-level, non-violent offenders.
• Stimulate an open debate about the advantages and disadvantages of moving towards a legal, regulated market for cannabis.

The statistics for Mexico are here.

The executive summary of the report is here.

Many of the inmates are imprisoned for small amounts of drugs like marijuana for personal use:

[A] high percentage of persons incarcerated are in prison for simple possession of drugs,consumers detained with relatively small amounts of drugs, including marijuana – even in countries where such possession is not illegal. In most of the countries studied the distinction between drug user and drug trafficker is hardly developed in the laws, and is poorly interpreted by the police and by the courts. Throughout the region, cannabis smokers in particular are stigmatized and harassed by the police, and many people are in prison for growing or simple possession of cannabis.

In Mexico,

[A]ccording to the CIDE research center, in the Federal District and in the state of Mexico, 75 percent of the prisoners held on drug charges were detained for possession of small amounts. In addition, one undesired consequence of the incarceration of the small-time offenders is that prisons are in effect schools for crime; many low-level offenders emerge from prison into the world having joined some criminal organization.

On the increase in women imprisoned:

...the study also reveals three relatively new and interrelated phenomena: increases in the numbers of women, couriers and foreigners behind bars for drug offenses. Although they still number far fewer than their male counterparts, the number of women in prison for drug offenses increased considerably in some cases.

The Study's Recommendations:

• Establish and expand alternatives to incarceration for those charged with low-level drug offenses, including removing criminal sanctions for possession for personal use.

• Ensure proportionality in sentencing, distinguishing between:
• drug trafficking and other types of crime;
• low, medium and high-level drug offenses;
• rank or position of the accused in drug-trafficking networks;
• violent and non-violent offenses; and
• types of drugs.
• Abolish mandatory minimum sentences.
• Avoid preventive detention in the case of low-level, non-violent offenders following arrest
  and during the investigative phase to determine whether or not formal charges will be filed.
• Promote justice sector reforms to eliminate corruption and increase the efficiency of local judiciaries, and increase government funding to improve prison infrastructure and conditions.
• Establish equal access for drug suspects to procedural benefits and opportunities for alternative sentencing – such as treatment, educational opportunities or community service – that are offered to those involved in other types of offenses.
• Reorient law enforcement efforts to target high-level drug-trafficking criminal networks, rather than those at the bottom rung of the drug-trafficking ladder, such as consumers, small-scale farmers, low-level dealers and mules.
• Stimulate an open debate about the advantages and disadvantages of moving towards a legal, regulated market for cannabis.
• Allow natural coca leaf products to be sold on the market.
• Consider applying special amnesties, such as pardons, to people already convicted of drug offenses and who received disproportionately severe sentences.

The conclusion:

This study leaves no doubt as to who are the primary victims of the so-called “war on drugs.” The objective of the information, conclusions and recommendations provided in this report is to encourage an urgent debate to achieve a more balanced and humane approach to reduce the harms associated with the illicit production of controlled substances, their distribution and consumption. We hope that Systems Overload helps to sound the alarm for reforms.

WOLA states as its mission: "The TNI/WOLA Drug Law Reform Project promotes more effective and humane drug policies through dialogue and analysis."