Research

Report on the Justice Objective of Recreational Cannabis Regulation in Uruguay. Baseline.

Author/s:
Baudean, Marcos

Year: 2017

Type of Publication: Research report

Editor: Monitor Cannabis Uruguay

Keywords: regulation, monitoring, evaluation, justice, criminal law, Uruguay

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Baseline for the Evaluation and Monitoring of Recreational Cannabis Regulation in Uruguay

 

Justice Objective

 

Hypothesis and rationale

 

 

One of the conclusions reached during the seminars held in 2014 to define the evaluation strategy [1], is that Law 19.172 involves the passage from a prohibitionist model to a regulatory one with regard to cannabis. This implies a distinction between the risks and harms of marijuana and those of other drugs, as well as the recognition of the rights of consumers. As indicated in the document of the National Drug Board, in the explanatory memorandum of the law, the regulation seeks: “The normalization and full social inclusion of the use of marijuana, so that users are not stigmatized or treated based on the application of criminal law” (Latorre & Brito, 2014). Article 3 of the Law 19172 reflects this intention [2].

During the 2014 seminars, it was discussed how to define the objective of justice application. It was concluded that the concept of “Application of justice with equity” was ideal. This expression implies prioritizing individual rights over drug control policies, and addressing drug use as a problem of public health and social inclusion.

Two major changes arise with Law 19172 regarding the application of justice:

There are objective modifications at the penal level, replacing the criterion of “moral conviction” with that of “sound criticism” to assess possession. Up to 40 grams is possession for cannabis use.
There is a paradigm shift in drug policy and a subjective change is expected in police and judges’ approach to cases that involve the use of cannabis, in principle. In the mid term, this could also include the cases that involve the consumption of other drugs.

The new regulatory framework seeks to have a positive impact on the application of justice by promoting the application of the principle of proportionality in the justice system. Recognized in international regulations, this principle appeals to the balance between the damage caused and the punishment imposed. It is based on the conception that freedoms and fundamental rights must be preserved and only limited when it is a necessary measure to achieve a legitimate objective. In drug policy, and in particular for Law19172, this objective is public health (Latorre & Brito, 2014).

In the field of drug policy, compliance with this principle must be observed at two levels:

  1. in the laws as a product of parliamentary action, and
  2. in their application by judges.

The new regulatory framework generates changes at both levels. These modifications are presented below. The assumptions on which they are based and the causal mechanisms expected contribute to the objective of application of justice with equity.

At the legislative level, the application of the principle of proportionality requires a critical review of the laws to discern the need for punishment. The imposition of penalties on the possession, cultivation or acquisition of illicit drugs is disproportionate in so far as it is generating damage, and it is possible to adopt other more effective measures such as education and improvement in access to care and treatment (Latorre & Brito, 2014).

Law No. 19172 seeks to promote the proportionality of punishment in the application of justice through two types of modifications:

The first modification operates at the objective level and refers to the substitution of the criterion according to which the judge must assess the evidence. Article 7 replaces the criterion of “moral conviction” with that of “sound criticism”. This assessment now based on sound criticism has the pretension of introducing elements of rationality that distance it from the morality to which the Law previously appealed (Latorre & Brito, 2014).
The second modification would operate at a subjective level, to the extent that a change in the approach with which police and judges address the issue is processed (Latorre & Brito, 2014). The proposal is based on the idea that the regulatory framework involves a paradigm shift in drug policy. This paradigm shift has a human rights component, which is an indication for police, prosecutors and judges. This indication refers to the need to change the selection criteria of persons to be persecuted, detained, prosecuted and tried.
Below, the hypotheses regarding the expected changes in parliamentary activity and in the application of justice by the Judicial Branch are presented.

Main hypotheses about the expected consequences of cannabis regulation on ​​justice

  1. Hypothesis 1 (mid term): The regulation of cannabis will discourage the use of the mechanism of increasing penalties in future drug-related laws.
  2. Hypothesis 2 (short term): The new legal framework accurately establishes which cases cannot be typified as possession for non-consumption, this will cause a reduction in the number of persons prosecuted for the possession of small amounts of cannabis.
  3. Hypothesis 3 (long term): The legal cannabis market will provoke a reconfiguration of criminal networks and a reduction of the number of people linked to trafficking.
  4. Hypothesis 4 (long term): This will lead to a reduction of proceedings initiated and convictions for offenses under drug laws.
  5. Hypothesis 5 (long term): The assessment of evidence according to the rules of sound criticism will lead to a reduction in the number of convictions for offenses under drug law.
  6. Hypothesis 6 (long term): The new legal framework will provoke a change of focus in police and magistrates that will diminish the biases of selection in police procedures and the inequities in the application of justice.
  7. Hypothesis 7 (long term): a decrease in arrests and prosecutions will generate a decrease in the population deprived of liberty for drug offenses.

 

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[1] Seminar “Towards a strategy for the Evaluation and Monitoring of Cannabis Regulation in Uruguay” held in September 2014.

[2] Law No 19172, Article 3. All people have the right to enjoy the highest possible level of health, the enjoy public spaces in safe conditions and the best conditions of coexistence, as well as to the prevention, treatment and rehabilitation of diseases, in accordance with the provisions of various Conventions, covenants, declarations, protocols and international conventions ratified by law, guaranteeing the full exercise of their rights and freedoms enshrined in the Constitution of the Republic, subject to the limitations arising from Article 10 of the same. (emphasis added by Marcos Baudean).