Sunday, May 10, 2009

Mexico Decriminalizes Simple Possession, Cracks Down on Everything Else

New Laws Strike a Symbolic Blow to Prohibition, But Net Result is Increased Law Enforcement Powers

On April 23, Mexican Congress' last day in normal session and the same day President Felipe Calderon announced the swine flu pandemic, federal legislators voted to decriminalize simple drug possession in Mexico. They passed the new drug law, along with about sixty other bills, with very little debate despite their controversial nature.

President Felipe Calderon has not yet signed the bill, but he is expected to. Former President Vicente Fox proposed similar legislation in 2006, and the Mexican Congress approved it. However, when it came time to sign the bill into law, Fox vetoed it, allegedly due to pressure from Washington. The Obama administration as thus far not commented on the Mexican decriminalization initiative.

The new drug law contains a table of drugs and corresponding maximum quantities. Simple possession under those quantities will not result in prosecution. However, if someone is caught with an amount of drugs that falls within the boundaries of simple possession, the authorities will record the person's name and personal information and pass it on to health authorities, who will contact the person and inform them of drug rehabilitation options in their area. The person may be required to present himself or herself before relevant Health Department officials in order to receive information on treatment options.

If the district attorney determines that the person in question is "drug dependent," (that is, if the person "presents some sign or symptom of being dependent on drugs"), then drug rehabilitation is mandatory in order to avoid prison. Rehabilitation is also mandatory the third time a person is caught with an allowable amount of drugs.

The law also allows for ceremonial and traditional use of peyote and hallucinogenic mushrooms in indigenous communities, as long as the use is recognized by indigenous authorities. However, the law in this respect is very vague, and does not set up an authorization system such as the one that exists in the United States, meaning that the law runs the risk of being arbitrarily applied.

Federal Mandatory Minimum Sentences--Sound Familiar?

Erich Moncada, writing for El Sendero del Peje, argues that the decriminalized quantities of drugs are arbitrary. The allowable quantities of marijuana (5 grams) and heroin (50 mg) constitute multiple doses. The allowable quantity of cocaine is a half a gram, or about three lines--not nearly the quantity an established user would consume in a single session. Regarding the .5 gram cocaine limit, the Mexican Collective for Integrated Drug Policy stated, "These amounts are not realistic in terms of the drug market (for example, the initiative allows a consumer to have .5 grams of coke, when coke is sold on the streets by the gram)." In the case of marijuana, even though 5 grams is a multi-dose quantity, it is still less than most Mexican consumers purchase at once, because marijuana is significantly cheaper in Mexico than in the United States, and purchasing in larger quantities means a significant reduction in price.

If a user is caught with more than the allowable quantity in his or her possession, strict penalties have been introduced. Prior to the reform, the General Health Law (the federal law that includes drug crimes) did not contain set prison sentences for drug infractions. It merely instructed judges to base sentencing on the following criteria: damage to society as a result of the crime, the severity of the crime, the defendant's socio-economic conditions, the likeliness of recidivism, and how much the defendant benefited from committing the crime.

Under the new law, however, the penalties are in many cases on par with or more severe than the strictest penalties in the United States. When considering penalties for possession of quantities that exceed the allowable amounts, the new Mexican law does not differentiate between drugs. The penalty for possessing marijuana is the same as that for possession of heroin. The law states that people who are in possession of up to 1,000 times the allowable amounts should be sentenced to 10 months-3 years in prison and a fine if the government can not prove they intended to sell said drugs.

In the case of crack or cocaine, the new law does not differentiate between the two, thus avoiding the racial and class discrimination that has plagued the US judicial system due to its different treatment of crack cocaine and powdered cocaine. As previously stated, the maximum allowable amount for cocaine is a half a gram. Possession of between a half a gram and 500 grams results in a 10 month - 3 year prison sentence and a fine. In the United States, a suspect must possess at least 500 grams of powder cocaine in order to trigger a 5-year mandatory minimum sentence.

In the case of marijuana, Mexico will now punish possession of 5 grams - 5,000 grams (or about 11 pounds) of marijuana with ten months to three years in prison and a fine. In the United States, federal law states that possession of any amount is punishable by one year in prison and a $1,000 fine. However, at the state level in the US, punishments vary by state. The punishment for the higher end of Mexico's 5g-11lb. range is on par with or less than the strictest state drug laws in the US. However, the Mexican penalty for the lower end of the range is far more severe than many state laws in the US. Many states don't give prison time to people caught with 1 oz. (28.5 grams) or less of marijuana. Even those that do (Arkansas, Connecticut, Delaware, and Washington DC amongst others) don't punish possession of 6 grams with up to three years in prison (the penalty in those states that do mandate jail time for simple possession is generally no more than one year).

Under Mexico's new law, decriminalization only applies to personal use in the strictest sense. The law provides stiff penalties for those who "supply (even for free)" other people with drugs, even if the "supplied" amount falls within the allowable amounts. Someone who "supplies (even for free)" someone with up to one thousand times the allowable amount of drugs is subject to 4-8 years in prison and a fine. As El Sendero del Peje's Moncada points out, a person who is in possession of a single joint (under 5 grams) of marijuana can't be thrown in jail thanks to the new law. But if that person passes that joint to another person to take a hit, that can be considered supplying the second person with drugs, and the person who passed the marijuana cigarette will be subject to 4-8 years in prison and a fine. That loophole means this aspect of Mexico's new drug sentencing rules are far more severe than any found in the United States: in Mexico the federal minimum for smoking a joint and passing it to another person is four years in prison. If the person on the receiving end of the joint (or any other drug, for that matter) is a juvenile, the sentence is raised to 7-15 years in prison.

Crackdown on Street Dealers

The Collective for Integrated Drug Policy, while recognizing that decriminalization of small quantities of drugs and drug use in traditional ceremonies is a significant step forward, strongly criticizes the new reform for focusing on street-level dealers:
The law will criminalize a vast group of people who make a living off the small time dealing of drugs, but who in reality do not consciously form part of organized crime, but rather whose principal reason for dealing is that it is way out of unemployment. Imprisoning them will not diminish the supply of drugs on the street, nor will it improve public security; yet it will justify the war on drugs, since the government will be able to boast the number of people incarcerated with this policy.
The law cracks down on street-level dealers by imposing 4-8 year sentences on them. It also allows for the first time undercover police operations where police can purchase drugs from dealers. This law is obviously designed for street-level dealers and not for the drug barons who are responsible for Mexico's record homicide rate. Ethan Nadelmann of the Drug Policy Alliance told the Drug War Chronicle, "The risk here is that the new law will give police all the more opportunity to go after low-level distributors and addicts who sell drugs to support their habits, while diverting attention from serious violent criminals."

Dr. Humberto Brocca, a member of the Collective for Integrated Drug Policy, told the Drug War Chronicle, "They will sweep up mostly small-timers so the party in power can look good, but it will probably have no impact whatsoever on the prohibition-related violence."

Ana Paula Hernandez, a Mexico City-based consultant on drug policy and human rights, agreed. She told the Drug War Chronicle, "I don't think this is going to have any impact on the government's war against the cartels."

The "Gestaopo Law" is Back

On April 23, the same day Mexican Congress passed the drug reform, Congress also passed a sweeping federal police reform. The draconian police reform sends a clear message that Mexcio's decriminalization of simple drug possession does not signal an end to the deadly war on drugs.

Mexico currently has several different federal police departments, amongst them the Federal Investigation Agency (AFI, which is under the command of the Federal Attorney General's Office) and the Federal Preventive Police (PFP, which is currently under the Public Security Ministry's command). The new law would replace one or both of these police forces with a new Federal Police force under the command of the federal Ministerio Publico (MP - public prosecutor or district attorney's office). This police force will be allowed to carry out undercover operations.

In the case of organized crime, Federal Police will be able to monitor internet communications, written correspondence, and tap telephones for up to six months. Mexico's lower house, the Chamber of Deputies, approved a version of the bill that allowed the head of the Federal Police to approve warrantless wiretapping and warrantless spying on other forms of communication. The Senate argued that the move was unconstitutional, and changed the bill to allow the head of the federal public prosecutor's office to approve warrantless spying. Mexico's Congress will have to reconcile different versions of the bill before it goes to President Calderon for approval.

Narco News has documented widespread and systematic abuse of organized crime laws to persecute social organizations and organizers in Michoacan, Nuevo Leon, and Chiapas. The Americas Program has documented similar abuse in Chihuahua.

The new Federal Police law also sets up a system for law enforcement to secretly request and receive access to confidential information from telephone providers in order to locate suspects.

A Baby Step

Mexico's decriminalization of simple possession is a symbolic step towards a thoughtful solution to the ever-increasing problem of drug trafficking violence. The decriminalization aspect of the law sets an important example for the United States, though it does little else. Mexico is not primarily a drug consuming country; the United States remains the largest drug market in the country. As such, Mexico's decriminalization of simple possession will do nothing to stem the violence that is tearing the country apart as long as US prohibition continues. However, if the Obama administration allows Calderon to sign the drug reform into law without interference, it will signal a significant departure from the Bush administration, which quashed this bill the last time it passed Mexican Congress. The US government, for its part, should take note of its neighbor's example. Mexico, as a country that is far more directly affected by the consequences of illegal drug trafficking than the US, has signaled that it is ready to try a new path in tackling the problem of drug trafficking-related violence.

As for the sections of the drug reform that move towards further criminalization, as well as the Federal Police law and other laws passed on April 23 that further militarize Mexican society and bring it ever closer to becoming a police state, El Sendero del Peje's Erich Moncada put it best:
Instead of emulating the failed policies of the United States, a country that has the largest prison population on the planet due to drug-related crimes, Mexico should turn to other, less repressive experiences in order to solve the drug trafficking problem. There is the case of Portugal, which five years after decriminalizing drug possession has experienced a considerable reduction in infections due to intravenous drug use, in new AIDS cases, and in lethal overdoses, amongst other undesirable effects caused by prohibitionist policies.

Article originally posted in Narco News:

April 12, 2010 Update: The Senate and Chamber of Deputies versions of the bill have been reconciled. Wiretapping will have to be approved by "control judges."  The relatively new control judge system is designed to make the court system's response to organized crime faster and more agile.  Control judges work around the clock and can electronically receive evidence and requests for warrants for wiretapping and home raids.  Control judges are only used in organized crime cases, meaning they are part of Mexico's two-track justice system.


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