WOLA: Advocacy for Human Rights in the Americas
12 Jan 2018 | Commentary

Landmark Report by the OAS Inter-American Commission on Human Rights Underscores How Punitive Drug Laws Fuel the Region’s Prison Crisis

In December 2017, the Organization of American States’ (OAS) Inter-American Commission of Human Rights (IACHR) formally launched its landmark report, Measures to Reduce Pre-Trial Detention in the Americas, which highlights the role of harsh drug laws in fueling prison overcrowding, with particularly dire consequences for women. The IACHR report calls for drug use to be treated as a public health issue, rather than a criminal one, and recommends decriminalizing drug possession for personal use. The study also raises serious concerns regarding drug treatment programs under judicial supervision, commonly known as drug courts. The report provides a plethora of recommendations for bringing drug policies in line with regional and international human rights norms.

The IACHR study, which considers developments since the release of its 2013 report on pre-trial detention, states that harsh drug laws have “likely resulted in an increase in the number of persons deprived of liberty for drug-related criminal acts, mainly women,” noting specifically the “high levels of incarceration for drug use.” The Commission laments that criminalizing the possession of drugs for personal use has contributed to “the excessive use of the criminal justice system,” and highlights that research demonstrates that harsh drug laws do not lead to lower levels of drug use.

Of particular note, the IACHR calls into question Latin American drug laws that consider all drug crimes, including low-level ones, as “grave” offenses and therefore subject to automatic pretrial detention, pointing out that such laws contravene the American Convention on Human Rights. The report’s conclusion highlights:

In particular, the Commission states its concern over the adoption of state measures that seek to punish drug-related conduct—specifically such conduct tied to use and possession, or to minor offenses committed due to problematic or dependent use—and that appear to have resulted in a considerable increase in the number of persons deprived of liberty for drug-related criminal acts. In this context, offenses related to the use of these substances are frequently characterized as “grave” or “serious” offenses, and consequently pretrial detention is applied automatically, without the accused being able to benefit from non-custodial measures.

The IACHR report also raises concerns about the use of abbreviated trials for offenses committed in flagrante delicto (a common practice in the prosecution of low-level drug offenses), which “include a presumption of flagrancy that is broad and indefinite in time.”

The impact of harsh drug laws on women is also highlighted, noting that the number of incarcerated women in the region has grown by 51.6 percent over the last 15 years and that “the use of pretrial detention with respect to that population is mainly the result of tougher criminal policies in relation to drugs and the lack of a gender perspective in addressing the issue.” The Commission also points out that this absence of a gender perspective in drug policies makes it more difficult to address the disproportionate impact of those policies on women and their families.

Finally, the IACHR report critiques drug treatment programs under judicial supervision. These drug courts operate within the criminal justice system, diverting to treatment programs those who are arrested for drug offenses (including possession for personal use) or who have committed crimes due to a drug dependency. The Commission notes the arguments put forward by proponents of drug courts—primarily that they are a more humane and cost efficient approach than the regular justice system—but expresses “profound concern” about their use as a response to drugs, given that drug courts still constitute a criminal justice approach, rather than a public health approach. The report also highlights that these courts often fail to distinguish between those people who need treatment and those who do not and often further stigmatize drug users.

Concerns are also raised about the human rights violations that occur at some treatment centers that are not regulated or subject to oversight and operate without any scientific basis, citing a report by the UN Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment, which lays out a litany of abuses documented at compulsory drug treatment centers, including forced labor and sexual abuse. The IACHR underscores the obligations of states to regulate and oversee health care provided to its citizens, in both the public and private sector and calls on states to increase the resources dedicated to evidence-based treatment programs.

For more than a decade, another OAS body, the Inter-American Drug Abuse Control Commission (CICAD) has provided financial and technical assistance for the implementation of drug courts across Latin America and the Caribbean. The concerns raised and recommendations provided by the IACHR certainly call into question this approach and should be taken into account by CICAD and by OAS member states. Other diversion programs that avoid criminalizing drug users or those who commit low-level crimes to support their drug dependency offer a more promising alternative.

Unlike CICAD, the IACHR is an autonomous organ of the OAS, with its mandate rooted in the Charter of the Organization of American States and the American Convention on Human Rights. Along with the Inter-American Court of Human Rights, it is tasked with the promotion and protection of human rights in the Americas. The IACHR has become widely recognized as a “model of international human rights and humanitarian law” and the most effective such regional body in the world.

In recent years, the Commission has increasingly focused on drug policy and human rights, building on the work being done in the UN human rights system. The Office of the United Nations High Commissioner on Human Rights (UNHCR) produced a study on the impact of the world drug problem on the enjoyment of human rights, in anticipation of the April 2016 UN General Assembly Special Session (UNGASS) on the World Drug Problem. The UNHCR, along with the Working Group on Arbitrary Detention; the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on Torture, the Special Rapporteur on the Right to Health; and the Committee on the Rights of the Child have all called for the decriminalization of the drug use and possession for personal use, as pointed out in the IACHR report.

Despite the cross cutting nature of the drug issue, the UN agencies that work on issues such as health, human rights, and development have historically been marginalized or excluded from drug policy debates and decision making. Indeed, one of outcomes of the 2016 UNGASS was a call for UN system-wide coherence, recognizing the multiple and overlapping dimensions of the issue. The IACHR report underscores the importance of system-wide coherence within the Inter-American System as well. OAS member states should adopt the drug policy-related recommendations laid out in the IACHR report, Measures to Reduce Pre-Trial Detention in the Americas, in order to ensure that regional and national drug policies are in compliance with international and regional human rights norms and standards. Those recommendations can be found below.

Drug policy-related recommendations from Measures to Reduce Pre-Trial Detention in the Americas:

Drug Treatment Programs under Judicial Supervision:
Establish a drug policy with a comprehensive approach and one based on social reinsertion that ensures that treatment for persons arrested for drug use or possession, or who have committed minor offenses due to their problematic or dependent drug use, not be based on a repressive and criminalizing approach, but instead on a public health approach. In the case of drug use or possession for personal use the States should forestall having persons who have engaged in such conduct from being deprived of liberty and entering the criminal justice system; accordingly, the IACHR calls on the States to study less restrictive approaches by decriminalizing drug consumption and possession for personal use (point 1).

With respect to persons who committed a minor offense due to problematic or dependent use of drugs, the States should promote alternatives to the deprivation of liberty including outpatient treatment that avoid institutionalizing persons and which make it possible to address this issue from a health and human rights perspective. To ensure that these programs are effective the States should allocate sufficient resources to guarantee that the treatment provided is evidence-based, and developed within the public health sphere. It is essential for health specialists to make clinical evaluations to identify those persons with problematic or dependent drug use; this is to avoid diversion to treatment as an alternative to pretrial detention for those persons who are occasional users. To make these programs sustainable and help avoid the recidivism of those who participate in them, the states should have a social and community support network that includes education, employment, housing, and health programs. Accordingly, these models should have the support of various institutions and a multidisciplinary team with a comprehensive outlook on the psychosocial health of the program’s beneficiaries (point 2).

With respect to centers of detention that offer treatment in the context of drug treatment programs under judicial supervision, the IACHR reiterates to the States their obligation to regulate and oversee all health care provided to those persons under their jurisdiction as part of their special duty to protect life and integrity independent of whether the agency that provides those services is public or private (point 3).

Women and Other Persons Belonging to Groups at Special Risk:
In the context of criminal justice policies with respect to drugs, the IACHR calls on the States to adopt comprehensive measures that include a gender perspective and that take into account at least the following aspects: (a) lower level of participation in the chain of the commercial activity and trafficking of these substances; (b) lack of violence in this conduct; (c) the impairment of bonds of caring and protection as a consequence of incarceration; (d) inclusion of a focus on social reinsertion; and (e) situation of violence and social and labor exclusion this population faces in the region. In addition, in applying non-custodial measures stemming from charges related to problematic drug use, women should have access to community services that gender issues and provide psychological support (point 7).