Bolivia in urgent need of a drug law reform

Thursday, September 30, 2010

SanPedroAlmost 75 percent of the prison population in Bolivia remains in jails without a sentence. One third of the inmates are incarcerated due to the draconian character of Bolivian drug law, Law 1008 (Ley 1008). Although Evo Morales’ government announced that it would modify the law, the modifications have been centered around the regulation of coca cultivations, not on the tremendous repercussions of the law on the prison situation and the criminal justice system.

Since taking on the responsibility of governing the country, Evo Morales mentioned that within his most urgent projects of reform would be the current drug law, most commonly known as Law 1008. Recently, due to the United States’ decertification of Bolivia, the political opposition announced that it would work on a proposal for a reform that “…stiffens penalties, sentences and especially established new parameters on the handling of the cato of coca, possession and illicit sale of coca leaf.” The governing party, the MAS, also announced a proposal of modification, its nature still unknown. Moreover, the new State Constitution includes a reference to the coca leaf which contradicts the current law.

However, what should really be the fundamental reason for its abrogation, or its critical revision, is the deplorable situation in the country’s prisons as a consequence of Law 1008, the Regimen of Coca and Controlled Substances Law, which since 1988 governs judicial law in the country.

Previously the law suffered modifications which stripped it of the fully unconstitutional characteristics – which in their time where depicted as aberrant and shameful – like the revision to the innocence presumption, adapting it to the criminal code and reforming its procedures. Nevertheless, the law still has a series of problems of form and substance. Law 1008 is responsible for the reclusion of great part of the prison population in Bolivia in which the kingpins, as everyone knows, are not included.

In general, the prison situation in Bolivia worries the institutions that watch human rights in the country: the National Ombudsman indicates that, according to December 2009 data, of the 8,073 of prisoners, 74 percent lacked a sentence. This year the number is almost 9,000, of which almost 75 percent, more than 6,000, do not have a sentence.

In the last years, the number of prisoners has decreased because of the Law 1008, from 47 percent in 2005 to 30 percent in 2009. Nevertheless, the application of the law is still the second cause of imprisonment in the country. One plausible explanation of the decrease has more to do with the practices of the cocaine production process – which currently need much less labor – than with changes to judicial practices or their interpretation in criminal courts. The decrease is also not indicative that cocaine production has decreased in the country.

Table: Total prison population and due to drug-trafficking in Bolivia

The 1008 is a hybrid law because on the one hand, it contains dispositions of socioeconomic order in relation to the coca leaf, and on the other, criminal law matters. Until now, all the attention in regards to the reform has been focused on the first part, where the so-called “Coca Regime” has been subject to proposals of critical reform that are entirely justifiable. However, it is worrisome to see that until now no one has cared for the second part of the law, its exaggerated typification of the crime of trafficking, imprecision and violations of rights, which includes a high level of sentencing that is out of proportion.

How to explain, for example, that a murder case can put someone in prison for ten years, while with transportation, possession, delivery, deposit, offering and supply of cocaine, the sentence can reach twenty-five years? In addition, who actually are the people incarcerated? In a visit to a women’s prison in Cochabamba two years ago, we had the opportunity to listen to the stories of various women – all of them young and of humble origins – that impressed upon us profound amazement and great sadness. Many of them had their hope set on the announced reform and the changes being favorable to their situation.

TNI and WOLA will publish a report in December about drug laws and prisons that will provide more data about the drug-related prisoners’ situation in Bolivia and of seven other countries in Latin America.