Debating Decriminalization in Argentina: Past, Present, Future

We here at Points happy to present the second installment of guest blogger Shana Harris’ new two-part series on drug decriminalization in Latin America this morning. You can read the first part of Shana’s series and learn more about her work here.

Allow Anibal Fernandez be perfectly clear…

In March 2008, Aníbal Fernández, the Argentinian Minister of Justice, Security, and Human Rights, made a speech at the 51st Special Meeting of the United Nation’s Economic and Social Council in Vienna. President Cristina Fernández de Kirchner had sent him there, he explained, with a direct message regarding her administration’s new position on drug policy: “We are going to revise the norms.  In our country, as opposed to Brazil, Uruguay, Switzerland, or Spain, the Convention [1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances] was copied very closely, which persecutes someone with a health problem the same as a drug trafficker.  This cannot continue and it will not continue.”  He went on to describe how Argentina’s current drug law, Law 23.737, places insufficient emphasis on the growing problem of drug trafficking in the country and focuses instead on the persecution of drug users.  Developments were already under way, Fernández also revealed, to reform this law and introduce new drug legislation and policies.  Of the proposed reforms, the most significant and controversial is the decriminalization of drug possession for personal use. 

Decriminalization is a key part of President Fernández de Kirchner’s long-term plan to move away from the laws and policies that currently guide Argentina’s anti-drug efforts, particularly Law 23.737. Existing laws neatly align with the influential prohibitionist and zero tolerance strategies being pushed across Latin America by the United States government as part of the War on Drugs.  As Fernández and others point out, however, this approach to the “drug problem” in Argentina has failed on multiple levels.  Rather than pursuing and punishing drug traffickers, Law 23.737 has actually resulted in an increase in drug trafficking, as users, rather than traffickers, have been the most common focus of police and legal persecution.  The harmful consequences of this situation are a central motivation behind Fernández de Kirchner’s proposed reforms.

Even Time Magazine recognizes the problem lies with drug traffickers, not drug users.

This is not the first time that the Argentine government has attempted to reform Law 23.737.  During the previous administration of President Nestór Kirchner, a proposal to modify this law met with little success.  As then Minister of the Interior, Fernández promoted the proposal because, in his words, the drug law “persecutes unnecessarily, grabs users in the act (by chance) and with minimal quantities.  Only addicted holders and small-time businessman go to jail…If Law 23.737 is a failure, I have to find alternatives that provide new approaches.  And among these new approaches is the policy of decriminalizing the addict.”  The recently proposed reforms follow a similar logic.  Proponents believe that these reforms, particularly decriminalization, will help differentiate between “drug users” and “drug traffickers,” a distinction that is often blurred or even unacknowledged in anti-drug campaigns.  Decriminalization is viewed as a means of redirecting the fight away from drug users and, in the process, bringing drug users out from under the purview of the penal and criminal justice systems. 

Read more