Above capacity: relieving overcrowded prison systems in Latin America with international drug control reform.

• Author: Farias, Katrina

1. INTRODUCTION

   Prisoners held at La Esperanza who lack the money to purchase bunk space from their fellow inmates sleep on dirty cell floors and underneath other beds, enduring the oppressive heat as they serve out their sentences. (1) La Esperanza, a severely overcrowded penitentiary in San Salvador, El Salvador, means "hope" in Spanish, but its name must seem cruel to a prisoner in El Salvador--the country's nineteen prisons, built to hold 8,000, currently house around 24,000 prisoners. (2) Not only are the majority of prison systems in Latin America confronted with similar concerns, but prisons worldwide are currently facing an overcrowding crisis that is creating unprecedented challenges to criminal justice systems across the globe. (3)

   The choice to deprive an individual of his liberty in response to criminal action involves a precarious balance of concern for public safety and respect for a human being's inherent rights of personal dignity. (4) Latin American governments have struggled with this delicate balance in attempting to curb the illicit drug trade because of two significant international issues. (5) The first, as exemplified by the situation in La Esperanza, concerns the current overcrowding crisis. (6) The second concern, however, relates to a long history of international unease regarding drug production, trafficking, and related violence that originates from Latin American countries, transnationally influencing international drug policy. (7) Latin American governments consider these issues while drafting domestic drug laws, and hitherto, those laws have overwhelmingly reflected international public safety concerns. (8) Many Latin American governments have, as a result, implemented harsh drug laws that have failed to meaningfully curb narcotics trafficking, as prisons throughout the region fill with low-level drug offenders, significantly contributing to the current overcrowding crisis. (9)

   This Note will consider the context from which the prison crisis arose in Latin America, focusing on the deficiencies in current reform efforts. (10) Part II of this Note will discuss the overcrowded prison crisis in Latin America and its relation to the incarceration of drug offenders. (11) The changing role of drug laws and drug control standards set internationally and examples of their implementation in three Latin America countries will be examined in Part III. (12) Part IV will analyze the failure of prison reform attempts to adequately place the problem in the proper international context. (13) Finally, this Note will conclude in Part V that in order to appropriately address the prison crisis in Latin America, international cooperation is needed to deter current domestic practices throughout the region and endorse modifications to international drug control policy. (14)

2. FACTS: A WORLDWIDE CRISIS ARISES IN LATIN AMERICA

   As prison populations steadily increase worldwide, criminal justice systems struggle to utilize resources available and conform to international standards for the treatment of prisoners. (15) Although expectations of privacy and the nature of individual rights are clearly restricted while in prison, a person's rights are not completely lost while incarcerated. (16) Overcrowding makes compliance with those international and regional human rights standards difficult, particularly in countries where resources are limited. (17) Overcrowding jeopardizes these basic rights and the safety of prisoners, leads to increased violence and long-term health issues, limits access to justice, and undermines the rehabilitative aims of imprisonment. (18) Significantly, those affected by such inadequate prison conditions are often the most marginalized populations of a society. (19) Although the causes of overcrowding may vary from country to country, there are common factors that contribute to overcrowding worldwide, as well as contributing causes distinctive to similarly developed geographic regions, such as Latin America and the Caribbean. (20)

   1. The Prison Crisis in Latin America

      In Latin America, the problem has escalated to an unsettling level, as an overwhelming majority of countries face severe overcrowding. (21) Most countries in the region are unequipped and lack the resources necessary to handle the amount of people currently incarcerated. (22) In spite of drastic political changes throughout the region in the last two decades, stark levels of enduring inequality continue, and governments have notably responded to social turmoil with harsh penal measures that generally affect the poorest sectors of the population. (23) This overcrowding has given rise to well-documented human rights violations in prisons throughout Latin America and is an issue of continued international debate regarding measures for reform. (24)

      Although each state developed in its own way, illustrations of the issue in specific Latin American countries are helpful to establish the extent of overcrowding. (25) In 2010, prisons in Brazil, Ecuador, and Mexico were on average operating far overcapacity as conditions varied from "poor" to "life threatening." (26) In Mexico, according to the Comision Nacional de los Derechos Humanos [National Human Rights Commission] (CNDH), overcrowding is a widespread problem endangering the safety and health of many prisoners as, on average, prisons are operating at twenty-three percent overcapacity. (27) Likewise, an inefficient justice system has overwhelmed Brazilian prisons, the population of which has tripled during the last fifteen years, and reports of increased violence and riots protesting prison conditions have made international news in recent years. (28) In 2008, Ecuador had the highest rate of prison overcrowding in Latin America, and prison conditions remained overwhelmingly poor in recent years, as facilities were overcrowded by ninety-three percent in 2010, healthcare and water supplies were scarce, and the spread of disease continued as a prevalent concern for prisoners. (29) In all three countries, one significant factor contributing to overcrowding and inefficient criminal justice is pre-trial detention. (30) Remedies to combat overcrowding, however, are vastly more complicated than simply building more prisons. (31)

   2. Imprisonment and Drug-Related Offenses in Latin America

      Evidence of overcrowding in prisons is coupled with indications that the percentage of prisoners incarcerated for drug related offenses has markedly increased over the years. (32) Prisons in Brazil, Ecuador, and Mexico have all seen a disproportionate rise in incarcerated drug offenders over the past decades. (33) It is often argued, however, that although drug laws throughout the region remain highly punitive and the rate of incarcerated drug offenders increases, the current drug laws only minimally affect the drug trade. (34) This is because those imprisoned are generally low-level offenders, not major traffickers--their roles in the drug trade minuscule and their ranks replaceable. (35) Further, judicial systems in the region are often criticized for their inefficiency, lack of credibility, and overall impotence in prosecuting certain crimes because of corruption, particularly related to drug and trafficking crimes. (36) These realities have allowed major traffickers to escape punishment and ensure that it is the marginalized sections of society, those that enter the drug trade from poverty, who endure penalties for low-level drug offenses. (37)

   3. Current Prison Reform Efforts

      International debate regarding human rights violations in Latin American prisons has prompted initiatives for prison reform. (38) To counter overcrowding and poor prison conditions, the United Nations Office on Drugs and Crime (UNODC), the primary international organization promoting reform, has emphasized "alternatives to imprisonment, modernization of prison administration, the social rehabilitation of inmates and the development of legislation in line with international standards and norms." (39) Notably, reform efforts have also focused on demand reduction through drug use prevention and treatment of drug users. (40) Currently three Centres of Excellence on Prison Reform and Drug Demand Reduction exist in Latin America and the Caribbean, and there are plans for regional expansion. (41) These initiatives acknowledge the overuse of imprisonment and suggest that options such as decriminalization and sentencing reform may be preferable depending on country considerations. (42)

3. HISTORY: INTERNATIONAL DRUG LAW AND EXAMPLES OF ITS IMPLEMENTATION IN LATIN AMERICA

   1. The Evolution of International Drug Control Standards

      Prior to 1909, drug control and policy were unregulated internationally. (43) Early drug control efforts were regulatory in nature and established

      trade controls without criminalizing production or use. (44) The year 1909 marked the first international conference on drug control and provided the foundation for the first international drug control treaty completed in 1912, the Hague International Opium Convention. (45) From that point forward, narcotics control was placed in an internationally policed context, and national drug control agencies developed to domestically administer and enforce those policies. (46)

      Following World War II, the prohibitive anti-drug ideals advocated by the United States began to manifest in various drug conventions and agreements, and in 1961, the United Nations Single Convention on Narcotic Drugs (1961 Convention) codified these previous agreements, adding more prohibitive controls in the name of the "health and welfare of mankind." (47) Countries adopting those policies were then obligated to implement domestic laws criminalizing a wide range of drug related actions. (48) The 1961 Convention was later modified and amended by several other agreements. (49) Of significance in defining modern international standards and establishing the current legal framework for the...