Measures to reduce pretrial detention

9. The Commission expresses its concerns over the adoption of state measures that seek to punish drug-related conduct – specifically minor drug-related offenses, such as consumption and possession for personal use – and finds worrisome what appears to have been a notable increase in the number of persons deprived of liberty for drug-related criminal acts. In this context, the offenses related to drug use are characterized as “grave offenses” (“delitos graves”), and therefore, pretrial detention is applied automatically, and without the persons accused being able to benefit from alternatives to incarceration. The IACHR also reiterates its concern over the fact that drug users in the region are treated based on a logic of repression and criminalization instead of according them treatment from a public health approach. The IACHR also values the efforts made by several States to address the problem related to the excessive use of pretrial detention imposed after guilty pleas or abbreviated trials. At the same time, the IACHR has information on the various due process violations that such procedures entail; these procedures are aimed at arbitrarily convicting the accused, in summary proceedings, without sufficient guarantees, in violation of the right to an adequate defense.

28. (…)  The IACHR notes with concern, for example, that all drug-related conduct is treated as “serious crimes” with no distinction whatsoever, thereby ignoring the principles on which the use of pretrial detention is based, especially proportionality.

90. In particular, the Commission expresses its special concern over the adoption of state policies that seek to punish drug-related conduct – specifically such conduct as related to minor offenses, such as consumption and possession of drugs for personal use141 – and that this has likely resulted in an increase in the number of persons deprived of liberty for drug-related criminal acts, mainly women.142 In this context, offenses related to drug use are characterized as “grave offenses” (“delitos graves”) and, therefore, pretrial detention is applied automatically, without the accused being able to benefit from alternatives to incarceration.143 In this respect, the IACHR reiterates that pretrial detention should be justified in the specific case, and that legislation that considers applying precautionary measures based on the type of offense – in this case, any drug-related criminal act – ignores the principle of proportionality enshrined in the American Convention.144 The Commission recalls that the principle of proportionality implies “a rational relationship between the precautionary measure and the purpose sought, so that the sacrifice inherent in the restriction of the right to liberty is not exaggerated or excessive compared to the advantages obtained from this restriction and the achievement of the purpose sought.”145

150. Despite the advantages indicated, the IACHR expresses its profound concern over the existence of severe criticisms concerning the use of drug courts, among which special mention can be made of the following: (a) these models answer mainly to a judicial approach, not a public health approach, and (b) human rights violations are common at treatment centers.

151. First, with respect to the idea that the application of these programs answers to a judicial and not a public health approach, the IACHR has been informed that the drug court model entrusts primary supervision of treatment to the criminal justice system rather than directly to health personnel; in addition, these programs fail to distinguish among the different types of use or among substances and users, and therefore fail to distinguish between those persons who need treatment and those who do not.309 The IACHR has information that indicates that in general a large number of people enter these programs who have been arrested only for drug possession and consumption that is not problematic or addictive, which indicates that the approach and workings of such programs are determined by policies that criminalize the use of certain substances and that stigmatize users.310 In this respect, the Commission has stated previously its concern about the fact that drug users are treated with a repressive and criminalizing approach, rather than from a public health perspective.311

153. In view of the foregoing considerations, the IACHR urges the States to establish a drug policy with an approach that is comprehensive and focused on social reinsertion, that ensures that treatment for persons who have been arrested for drug use or possession or who have committed minor offenses because of their problematic or dependent use not be repressive and criminalizing, but rather from a public health approach.  Accordingly, in case of drug use or possession for personal use, the States should keep the persons who have engaged in such conduct from being subjected to custodial measures and entering the criminal justice system. For this reason, the IACHR calls on the States of the region to study less restrictive approaches by decriminalizing drug use and possession for personal use. The Office of the United Nations High Commissioner for Human Rights, 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; the Committee on the Rights of the Child316; and the Joint United Nations Program on HIV/AIDS (UNAIDS) have all made similar pronouncements.317

Several United Nations agencies, in a joint statement in the context of the 2016 United Nations Special Session on Drugs, have indicated that criminalization of consumption and drug possession for personal use has increased rates of incarceration, thereby contributing to the overpopulation of the prisons and excessive use of the criminal justice system; in addition to placing the persons at a high risk of arbitrary detention and of being subjected to torture and other abusive treatment during detention.318 The Commission, based on the information available to it, notes that there is no clear relationship between a harsher criminal justice policy and lower levels of drug use; nor is there evidence that indicates that greater efforts to decriminalize drug use are accompanied by greater drug use.319 In addition, as was indicated in this report, the IACHR reiterates its concern about the fact that the adoption of state measures that seek to punish drug-related conduct as a way of solving the problem of citizen insecurity has led all drug-related offenses to be considered “serious” or “grave” and so pretrial detention is automatically applied; plus these state policies have resulted in a considerable increase in the number of persons deprived of liberty in the region.320

With respect to those persons who have committed a minor offense due to their problematic or dependent drug use, the states should promote alternatives to the deprivation of liberty that include outpatient treatment, avoiding the institutionalization of persons and making it possible to address this issue from a public health and human rights perspective. For these programs to be effective, the States must allocate scientific resources to ensure that the treatment provided is based on scientific evidence, and is developed within the realm of public health. In particular, it is essential for health specialists to make clinical evaluations to identify those persons with problematic or dependent drug use, all for the purpose of avoiding diversion to treatment as an alternative to pretrial detention for those persons who are occasional users. To ensure that these programs are sustainable and can contribute to avoiding the recidivism of those who enter them, the states should have a social and community support network that includes education, employment, housing, and health programs. Therefore, these models should have the assistance of various institutions and a multidisciplinary team with an integral view of the beneficiaries’ psychosocial health.

200. The IACHR observes that, in spite of the fact that incarcerated women continue to represent a small proportion of the total number of people deprived of liberty (approximately 4.95 percent),434 incarceration rates for this population have risen in recent years.435 According to the Institute for Criminal Policy Research, since 2000, the increase in female incarceration in the Americas has outpaced, together with Asia, all the other world’s regions;436 indeed, over the last 15 years, the region’s female prison population has grown by 51.6 percent.437 The rise in the number of women deprived of liberty in the region and, therefore, in 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 by failing to consider such factors as (a) the low level of participation in the business chain and trafficking in such substances; (b) the absence of violence in the commission of such offenses; (c) the disproportionate impact of their incarceration on the persons under their care; (d) the absence of a focus on social reintegration in corrections policies; and (e) the violence and social and labor exclusion faced by this population in the region.438 The IACHR has indicated that a high percentage of these women in the Americas have been imprisoned for non-violent drug-related offenses and a large number of them are in pre-trial detention.439 The absence of a gender perspective in drug policies has made it harder to tackle the differential impacts and disproportionate consequences that deprivation of liberty has on women and the persons under their care.

204. In the context of criminal policies on drugs, the IACHR calls on States to adopt comprehensive measures that include a gender perspective and take into account the harm to the ties of care and protection resulting from their incarceration. In particular, in the application of alternative measures to pretrial detention arising from charges that involve substance abuse, women should have access to community-based gender-sensitive services that include psychological counseling.449

226. 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.

1. 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.

2. 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.

7. 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.