Peru is a major world producer of coca leaf and its derivatives. Since the year 2000, successive Peruvian administrations have followed a drug policy focused on supply reduction through interdiction and eradication strategies. The law on drugs does not punish drug use or drug possession for personal use by imprisonment. Nonetheless, the Peruvian authorities treat drug use as if it were criminal conduct. As a result, the police are overwhelmed, trials are delayed, and the prisons are filled.

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This chapter examines aspects related to drug offenses in Peru and their impacts on the prison system, as well as the conduct of the agencies in charge of law enforcement and prosecution. The study covers the period of democratic transition, 2000-2008, during which the country implemented drug control policies based on international norms. Drug-related offenses have become the third leading cause of imprisonment in Peru -- after the two crimes against property (larceny and robbery) -- constituting one of the drivers of overcrowding in the prisons. The expansion of illegal commercial activity related to drugs has considerably worsened the situation of the Peruvian criminal justice system.

Peru has a precarious institutional framework and, in addition, lacks criteria for the proportionality that should be maintained among institutions, statutes, and procedures. The problem of determining criminal conduct in drug-related offenses has generated a system of prosecution/detention that expands in a way that discriminates against certain sectors of the Peruvian population: the poor, the peasants, youths, poor mestizos, and indigenous persons. The nearly 12,000 inmates in Peru for drug offenses are often incarcerated without having been convicted, with no degree of classification based on type of offense, and with a prohibition on any benefit that would make it possible to reduce the sentence.

“Under Peruvian law, drug use is not punishable by imprisonment, which is appropriate, because problematic drug users deserve treatment, not imprisonment,” according to Ricardo Soberón, author of the chapter on Peru.

Diana Esther Guzmán, Giorgina Garibotto and Ricardo Soberón at the presentation of the report in Buenos Aires in December 2010.

Nonetheless, according to statistics obtained from the Peruvian National Police, the study finds that since 1997, it appears that nearly 60 percent of arrests related to drug offenses are of users. “In practice, users are detained until the authorities determine whether the person was carrying drugs for his or her own consumption or for sale. In other words, the users are treated as guilty until they prove their innocence.”

In addition, in the case of crimes related to drug trafficking, the authorities can hold someone in preventive detention for up to 15 days, when the normal period is 24 hours. “Holding a suspected large-scale drug trafficker in preventive detention for 15 days may make sense, but it is unjustifiable in the case of users,” says Soberón, who is also director of the Centro de Investigación Drogas y Derechos Humanos (CIDDH, or Drugs and Human Rights Research Center). “Two weeks in prison is an interruption in anyone’s life, but it is a serious violation when one considers that the alleged crime doesn’t even exist in the law.”

In December 2009, Peru had a prison population of 44,735 persons, according to data from the National Penitentiary Institute (INPE). At present, 23 percent of the prisoners in Peru are behind bars for drug-related offenses. At the same time, data from the Office of the Public Prosecutor specialized in drug offenses show that micro-trafficking offenses predominate over macro-trafficking offenses by 72 to 28 percent, respectively, from 2000 to 2008. “I’ve been in many Peruvian prisons, and it appears that most of these micro-traffickers are peasant farmers, youths, poor mestizos, and indigenous persons,” says Soberón.

In addition, those incarcerated for drug offenses, whether micro-traffickers or macro-traffickers, are denied common prison benefits: permission to leave, reduction of the sentence for work and study, semi-liberty, probation, conjugal visits, etc. “This lack of benefits prevents those who are in prison for drugs from having an adequate process of social re-adaptation. Without wanting to, we are fostering recidivism,” says Soberón.

Focusing government efforts on micro-offenders is not only ineffective in reducing drug trafficking, for the micro-trafficking positions are extremely easy to replace, it is also counterproductive in many ways, the study concludes. “The police are overwhelmed and the courts are saturated, which results in innocent persons being caught up in legal proceedings for much longer than is admissible,” says Soberón. At present, 61 percent of the Peruvian prison population is charged and facing trial, and 39 percent have been convicted, which reflects a delay in justice that on many occasions is drawn out for months or years.

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Systems Overload: An unprecedented one-year comparative study of the drug laws and prison systems in eight Latin American countries – Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Peru and Uruguay.