Argentina Legalizes Personal Marijuana Use

Supreme Court Decision is Part of a Wave of Decriminalization in Latin America

On August 25, Argentina's Supreme Court struck down a dirty war-era law criminalizing possession of even the smallest quantities of marijuana.  In the decision, the Supreme Court ruled that possession of small quantities of marijuana for personal use is protected by Article 19 of Argentina's Constitution, which states: "private actions that in no way offend public order or morality, nor are detrimental to a third party, are reserved for God and are beyond the authority of legislators."

The BBC reports that Argentine Supreme Court President Ricardo Lorenzetti said, "The state cannot establish morality," and that private behavior is legal "as long as it doesn't constitute clear danger." 

The ruling came as no surprise; it was preceded by public forums in which Argentine judges and legislators called for decriminalization at the international level and lower court decisions that moved the country closer and closer to decriminalization.  In 2007, Congress passed a law legalizing medical marijuana.

The Supreme Court decision means that Argentina's Congress, which reportedly supports the ruling, is likely to amend existing drug laws in the near future so that they comply with the Court's decision.  The Supreme Court has made it clear that its decision only applies to marijuana, and even then only for adults' personal use.  However, it remains to be seen if Congress will choose to clarify "personal use"--it could do as Uruguay has done and leave that determination for judges to make on a case-by-case basis.

Until the Argentine Congress passes legislation that lays out exactly what constitutes personal use, "judges will make decisions on a case-by-case basis according to the criteria laid out by the Court," said Alejandro Corda from the Argentinian organization Intercambios.  Corda told Argentina's Clarin that his organization is concerned that some judges will resist applying the Supreme Court's decision until the government lays out specific criteria for what constitutes "personal use."

In decriminalizing small amounts of marijuana and other drugs for medical or other purposes, governments have defined "personal use" differently across the American continent.  In the United States, for example, Michigan residents with a doctor's prescription can grow up to twelve marijuana plants at a time for personal use. This gives Michigan residents a legal way to obtain and consume their medical marijuana.

Mexico's recent decriminalization of simple possession of marijuana, heroine, LSD, and cocaine took a decidedly different route.  Mexico's Congress decriminalized the possession of very small quantities of those drugs and now treats simple possession as a public health issue rather than a criminal one.  However, sharing, selling, buying, giving away, or in any way exchanging those drugs is still illegal, meaning that there is still no legal way for users to obtain the legally allowable amounts of their drug of choice.  Mexico's new 5-gram limit on legal marijuana possession is far too small to allow Mexicans to grow marijuana for personal consumption.  Mexico's new drug policy might alleviate some pressure on Mexico's judicial and prison systems by keeping minor offenders out of them, but it's far from a radically new or innovative drug policy.

Breaking with US Drug Policy

The Argentine Supreme Court made it very clear in its decision that it does not support the full decriminalization of marijuana, only small quantities for personal use.  In its decision, the Supreme Court encourages the government to go after "the real enemies": big-time drug traffickers. 

The Argentine Court's decision comes at a time when many Latin American governments are changing their drug policies in light of overwhelming evidence that the current model of prohibitionism simply does not work.  Earlier this year, former presidents César Gaviria of Colombia, Ernesto Zedillo of Mexico and Fernando Enrique Cardoso of Brazil issued an international call to do away with prohibitionist strategies in favor of public health-based strategies.

Unfortunately, Mexico and Colombia have not heeded their former presidents' call to "rectify the 'war on drugs' strategy pursued in the region over the past 30 years." Both countries treat drug use as a health issue, not a criminal one. However, both countries simultaneously wage bloody wars on drug trafficking organizations.  Instead of truly re-thinking the failed war on drugs strategy, their decision to decriminalize simple possession serves to mask the increasing militarization of those countries.  Mexico, for example, in decriminalizing simple possession, simultaneously approved new anti-drug laws that provide federal mandatory minimum sentencing for small-time street dealers (completely ignoring the glaring difference between street dealers and drug barons).  The new laws also gave police vastly expanded powers such as warrant-less house searches and the ability to carry out undercover intelligence operations.  The Mexican military has been performing policing duties since the beginning of the Calderon administration, resulting in skyrocketing human rights abuses and executions.  Rather than moving away from the failed war on drugs strategy, Mexico and Colombia have chosen militarization at the expense of public safety.

Even though Mexico and Colombia have chosen to further entrench their US-supported wars on drugs, many other Latin American governments are breaking with US drug policy.  While no Latin American nation has completely legalized or decriminalized drugs, many countries are experimenting with innovative drug policies that are crafted specifically for that country and its context, rather than the blanket US-style prohibition policy that has dominated the continent in the past.  Many of these countries now distinguish between drug users, small-time dealers, and major drug trafficking organizations.  Latin American governments' new drug policies offer Argentina a variety of possibilities for its own new drug policy as it moves toward decriminalization.

In Venezuela, for example, simple possession of marijuana and cocaine is legal.  If the user is caught with more than the allowable amount, or with a drug other than marijuana or cocaine, a judge must consider the suspect's circumstances in sentencing, and can choose a suspended sentence.  Venezuelan President Hugo Chavez cancelled his country's cooperative agreement with the US Drug Enforcement Agency (DEA), charging that it supported drug trafficking and was used to "conduct intelligence operations against the [Venezuelan] government."  Chavez used his break with the DEA as an opportunity to craft a new drug control strategy that has actually increased cocaine interdiction in Venezuela.

When Bolivians elected indigenous coca grower Evo Morales as their president, they opened the door for a new coca policy: "Coca yes, cocaine no."  Following in Chavez's footsteps, President Morales kicked the US Drug Enforcement Agency (DEA) out of the country.  He has drawn a distinction between cooperative growers who cultivate coca for traditional uses, and drug trafficking organizations that convert coca into cocaine for the international market.  Marijuana possession remains illegal in Bolivia.

Ecuador's President Rafael Correa has called on his government to review its drug policy, which he calls "barbaric."  "According to the law, the head of the Cali cartel is the same as a poor, single, unemployed mother who made the mistake of transporting 300 grams of drugs," says Correa.  Ecuador's drug laws "are from the 90's [and] were imposed by the United States on all Latin American countries." 

Martin Jelsma, director of the Transnational Institute's Drugs and Democracy Program, told BBC that the Ecuadorian legislature is expected to introduce a new law this month that "would not only decriminalize use, but also lower the penalties for the 'micro-commerce' of illicit substances."  President Correa wants to reduce punishments for poor people who have found themselves forced by their economic situation to work as drug "mules," transporting relatively small quantities of drugs on their bodies for drug cartels.  Correa asks, "Can you believe that an unemployed person who is not a criminal but decides to travel with drugs goes to prison for 12 or 16 years?  That is absurd."

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