By Austin Mackell
Earlier this month, Ecuador’s National Assembly, having decriminalised personal drug use in 2013, passed modifications to the drug laws, slamming “micro-traffickers” with harsher sentences. Critics fear this could cause possible confusion between consumers and traffickers, and in doing so undermine the general thrust of the government’s recent drug policy which has been away from punishing drug users, and out of the orbit of the U.S. led regional Drug War.
Ecuador’s 2008 constitution declared that drug use must be regarded as a public health issue, and that consumption would not be criminalized. In 2013 Ecuador’s new penal code moved in the direction of conforming to this ideal without full legalization. It stated possession of certain amounts could be regarded as for personal use and in that case no prison sentence would be considered. This applied to up 10 grams of marijuana, 2 grams of cocaine paste, 1 gram of fully processed cocaine, 0.1 grams of heroin, and 0.015 grams of MDA /MDMA — aka “ecstasy”. Possession of even these small amounts could also lead to charges of trafficking however, where other evidence of an illicit transaction was present.
The recent modifications to the law changes none of the above, but rather lowers the threshold between, the “minimum”, “medium”, “large” and “great” categories or “scales” for drug trafficking offences.
Previously a person caught with up to 50 grams of cocaine faced a maximum of six months in jail. Now anyone with more than a single gram faces a sentence of between one and three years. The same applies for cocaine paste, except that the new threshold is 2 grams. The threshold for “medium scale” marijuana possession, punishable by up to three years in prison, has been dropped to 20 grams from 300. 300 is now the threshold for “high scale” trafficking, punishable by five to seven years in prison, and so on.
The policies have faced criticism. The public defender has been quoted as saying that with the new table there are no clear boundaries between the acceptable quantities for consumption and the established quantities for traffic.
However, a representative of the National Council of Control on Stupefying and Psychotropic Substances (CONSEP) told CuencaHighLife in an email that such concerns were ”very valid”, but that the “stiffening” of the penalties did not take Ecuador “back into the times of… strict laws”, adding that “all the legal evidences and toxicological studies” would be factored in and “a prior investigation will have to be conducted… the judicial system will have to prove… micro trafficking.”
However, it is our understanding that the “personal use” defence against trafficking charges, only applies to those who carry less than the prescribed amounts mentioned above; for example, 1 gram of cocaine, making it unclear whether such further evidence of trafficking will be, in practice, necessary to secure a conviction.
One former user and now drug counselor told CHL that these thresholds seemed arbitrary and unrealistic. Bryant, now aged 57, who asked that his last name be withheld, told us he was a drug user from the age of 13 till the age of 33, when he went into rehab. Soon after that, he began participating in and organizing groups for recovering addicts. Some of these groups operated in Ecuador’s prisons, which he described as overflowing with people often given long sentences for carrying “ridiculously small” amounts. He ascribed this severity in sentencing to compliance with U.S. wishes.
All that changed after Correa came to power in 2007. “He basically emptied the Ecuadorian jail system of people who were only suspected of being a consumer,” Bryant explained. Correa — whose own father was convicted of trafficking drugs and served time in both U.S. and Ecuadorian prison during Correa’s childhood — would go beyond users and free many so called “drug mules”, whom he characterised as poor desperate people exploited by the powerful drug cartels. Bryant, having welcomed Correa’s moves away from a punitive approach, feels the changes are a step backward.
“I don’t believe making it harsher is going to help society, I don’t believe it’s going to help the people involved in this.” He added that the motivation of many small time dealers was to subsidise their own drug use. He added that any ambiguity in the law would likely work in the favour of those already most privileged, saying that if he was arrested “on the corner” he would likely fare far better than “someone who is poorer and darker” caught in the same act.
Austin G. Mackell is an Australian cross-platform journalist who began his career in Beirut during the 2006 Israeli invasion of Lebanon. He worked in the region for a total of four years, for outlets such as The Diplomat, CBC, CBS, ABC (America), ABC (Australia), as well as independent and community outlets. He covered events durings the turbulent 2009 Iranian presidential elections and the unrest in Egypt during 2011 and 2012. Mackell broke news of the arrest of Egyptian Alber Saber, an atheist arrested on blasphemy charges. His work in Egypt also included investigations into army deserters and worker-led dissent leading to his arrest and charges of incitement, filed against him in 2012. He was one of the earliest and most vociferous of the voices warning against a military coup of 2013, by which stage he had moved to Ecuador and begun work on his website ImportantCool.com. His Twitter address is @austingmackell.