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Up in Smoke

The Crime of Marijuana Smoking in Mexico

by CAROLE SIMONNET

Translator’s Note

This text is an unauthorized translation of an article that first appeared in Spanish on 13 September 2013 in a Mexican investigative news magazine Enfoque. The now defunct magazine used to accompany the newspaper Reforma. Carlos’s story stands out because Simmonnet’s investigation offers a rare, first-hand glimpse into the human consequences of Mexico’s contradictory drugs policies. -PT

***

Carlos faces a criminal sentence for smoking marijuana. He’s the embodiment of the consequences of Mexico’s contradictory public drug policies.

Carlos bought the marijuana for 25 pesos, about four grams, so he could smoke two joints with a couple of friends. After smoking the joints he was arrested and sent to the public prosecutor. He spent 55 hours locked up. To avoid being fingerprinted, the authorities extorted the family. Even though the family paid 4,000 pesos, Carlos was arraigned on charges of endangering public health by trafficking in drugs.

Carlos is living proof of the consequences of Mexico’s contradictory public drug policies. It’s legal to carry and use small doses of the drug (up to five grams of cannabis), but its cultivation and distribution constitute a criminal offense.

The young man tells his story of what happened on 18 June 2013 under the pseudonym of Carlos. He won’t give his real name because he’s going to appear before a judge to clarify his legal situation. He fears reprisals.

He’s already filed a complaint describing this story with Mexico City’s human rights commission (CDHDF). If the judge finds him guilty he’ll face a prison sentence between ten to thirty-six months, and a fine of up to eighty days of minimum salary. If things don’t go so badly, the judge could commute the sentence to rehabilitation through treatment.

Carlos is eighteen years old. While he talks, his skinny body moves with agility in his light blue jeans, a white shirt, a black sweater, and some tennis shoes made by a U.S. brand. He’s wearing silver hoops in his ears, and he has a piercing in his lower lip. He finished secondary school, but he stopped studying because he was rejected twice from schools to prepare for college. He works in a car supply store.

Around three thirty in the afternoon on the Tuesday of his arrest, two judicial police officers drove up on motorbikes, stopping Carlos and two friends as they stepped out of a park in Coyoacán. They were a couple of blocks from the store where they illegally bought the drug. The three youths had finished sharing the joint. Their stash of the drug was in an open bag hidden in their clothing.

“Hey, come here! You look like you’re doing something suspicions. Tell me what you are carrying before we search you,” one of the police officers said to them.

“I told them that I had a small bag enough for two joints of marijuana that cost us 25 pesos. I also told them that we’d used before, so they might give us a break. The officers told us, ‘Let’s see, How much cash are you carrying?’ So I told them that we only had 50 pesos.” Carlos told me this in an attempt to recreate the dialogue with the two police officers that he calls Judases.

“No, that’s not enough for me. I’ll need at least 100 pesos from each of you. I don’t know how you’ll find it, but that’s not going to put me off,” the same officer said to them.

Over the last five months, they had been stopped by police officers on two other occasions, but each time they made a “contribution for soft drinks” and the officers let them go. This time the extortion took on an added dimension. The police officers rejected the 50 pesos, taking them to the local magistrate, and leaving them waiting for hours in a police truck. Finally they let Carlos’s friends go and they took him to the local prosecutor.

In 2009, at the height of the drug war, Felipe Calderón’s government passed legislation reforming the Federal Health Code. Part of the reform stipulated that consumers caught with less than five grams of marijuana would not face criminal charges. But the changes brought in with the new law also instructed police to send users to prosecutors for addiction treatment. Treatment is compulsory after three detentions.

The health code reform also made Mexico’s states and Federal District (Mexico City) responsible for seizing marijuana if the trafficked quantity is less than five kilograms. Identifying these crimes is the job of local authorities, who then send the detained on to prosecutors and local judges.

“I knew on Tuesday night that they had planted something on me because one of the police officers told me so. But it wasn’t until Thursday night that they released me under caution after they had asked me to sign a sheet petitioning for my rehabilitation,” Carlos remembered. He stressed that the authorities never took his statement, only asking him three questions: was he carrying the marijuana, where did he buy it, and how long had he been using.

An officer advised him to lie about where Carlos obtained the product, telling him that in Coyoacán the sellers would come for his family. Instead the officer suggested Carlos identify Tepito (– translator’s note: an infamous downtown neighborhood in Mexico City well-known for selling contraband). The officer said Carlos should also say he’d been using for about two years, instead of the accurate figure of five months. The higher figure would indicate Carlos was as drug-dependent.

Carlos’s mother was present at our interview. She continued with the story. The officers called her and her husband to frighten them. When they arrived at the police station, they showed them a Ziploc bag with about twenty to thirty grams of cannabis a quantity much greater than the amount Carlos had been carrying at the time of his arrest. The officers told Carlos’s parents that his criminal background included violent robberies. She answered that wasn’t true, only that Carlos and her other son had filed a complaint against an assault they’d experienced months before. Fearful that Carlos would spend a night in the cells, the couple agreed to the officer’s suggestion that they pay 4,000 pesos so that they could take the cannabis out of the bag to bring it under the legal limit of five grams.

The police officers looked the other way and let Carlos’s parents take some of the marijuana out of the bag, giving them a scrunch of paper to hide it. Carlos’s mother threw the paper and its contents in a bin when she left the police station. However, the next day she learned that Carlos would be detained for possessing 9.2 grams of cannabis.

Carlos’s mother asked for help from a friend in the local government offices, who put her in charge with officials at the police station. Her attempt to arrange things had been counterproductive. The officials demanded she post bond of about 11,000 pesos. One of the officials asked her to bring 2,000 pesos that very day, otherwise they would send Carlos straight to prison.

Eventually Carlos left jail on Thursday night after posting bond. Now free, the officers called Carlos’s mother on her cellphone to make a new offer. They would “kill the case” for 30,000 pesos, a sum she has never had. In despair, Carlos’s mother sought legal advice and filed a complaint with Mexico City’s Human Rights Commission (CDHDF).

Criminalization

Carlos is one of the 4.7 million cannabis users in Mexico (according to 2011’s National Survey of Addictions) who have to turn to the black market. Underground dealers are linked to drug traffickers who are always pushing to sell addictive drugs like cocaine and heroin. Police officers lie in wait for easily preyed upon users.

Last year, Mexico City’s human rights ombudsman, Luis González Placencia suggested that marijuana users are still criminalized and stigmatized in Mexico.

“It’s true that consumption isn’t penalized, but the way consumption has been treated has always involved the violation of consumers’ human rights. One reason is that authorities maintain there is a thin, blurred line between consumption and sale thinking that users are also dealers.” Placencia, who left the Ombudsman’s office in late 2013, stressed “the other reason is that possession of more than 5 grams is penalized, sending a mixed signal.”

According to the 2012 Mexico City Survey of Illegal Drug Users conducted by CuPIHD — the Colectivo Unido por Una Política Integral Hacía las Drogas – a non-profit drug policy organization that promotes regulation with a focus on preventing risk and harm – two of every three illicit drug users have been arrested or extorted by the police or other authorities.

CuPIHD’s president, Jorge Hernández Tinajero, observes that the 5 grams limit for possession doesn’t reflect the realities of the market. A frequent user would have to buy every week. The purchase of a greater amount would expose them to prosecution as a dealer.

Between January 2009 and May 2012, according to CuPIHD’s investigations, the Ministry of Public Health for the Federal District referred 26,233 cases and sent 28,463 people to the district attorney for prosecution for violating the health code. The number of people prosecuted per case averaged 1.1, suggesting to CuPIHD that police arrest users for an obvious violation rather than as a result of a crime that by definition would involve at least two people: the buyer and the seller.

The majority of people in Mexico’s federal prison system (60.2 percent) were sentenced for crimes contravening the health code. Of that number 58.7 percent were sentenced for a marijuana-related offenses, according to the results of a 2012 study – the First Survey of Federal Penitentiary Centers – conducted by Catalina Pérez Correa and Elena Azaola, two researchers at CIDE, a social sciences university in Mexico City.

The study shows that 79.2 percent of those sentenced for crimes against the health code were prosecuted for transporting or carrying drugs. Only 29.2 percent were convicted for trafficking and dealing.

Regulation Under Debate

The six years of Calderón’s presidency witnessed an explosion in violence and an increased consumption of illicit substances among youth. In a number of national meetings over the past few months, there’s been a discussion of the possibility of regulating the use, production, marketing, and sale of marijuana for medical use and recreational purposes. At the urging of the Federal District’s government and its Legislative Assembly, the last of these meetings took place from 2 – 4 September 2013. At the end of September 2013 this discussion will move to the Federal Congress – shepherded by the Organizing Committee of the Drug Policy Forum – and led by the Revolutionary Democratic Party’s (PRD) Fernando Belaunzarán.

Such meetings have occurred within the global framework of finding alternatives to the prohibitionist and repressive public policies in place since the signing of the 1961 Single Convention on Narcotics Drugs (CND). Along with the 1971 and 1988 drugs and psychotropic substances conventions, the CND is considered one of the three pillars of the international system’s controlled substances’ regime.

Since 2011 the Global Commission on Drug Policy has supported the new approach. The Global Commissions is made up of four past Latin American presidents (Ernesto Zedillo of Mexico, César Gaviria of Colombia, Henrique Cardoso of Brazil, and Ricardo Lagos of Chile), and three former high-level U.S. officials.

Colorado and Washington’s recent approval for regulating marijuana for recreational use, the Uruguayan government’s decision to regulate the production, marketing, and sale of marijuana for recreational purposes, as well as an Organization of American States (OAS) study of May 2013 has made the region more receptive to a paradigm shift.

Meanwhile in Mexico the Federal Government has not participated in the debate. Until now, only ex-president Vicente Fox and a group of intellectuals and academics have promoted a new politics of drug policy based on their own perspectives and interests – notably their ranks include former foreign minister Jorge G. Castañeda, the writer Hector Aguilar Camín, and more recently they have been joined by the Mayor of Mexico City, Miguel Ángel Mancera, and the Governor of Morelos, Graco Ramírez.

A handful of PRD lawmakers – Belaunzarán in the lower house, Mario Delgado in the Senate, and the Mexico City assembly members Manuel Granados, Esthela Damián, Efraín Morales, Vidal Llerenas, and Daniel Ordóñez – have argued that regulation must orient itself towards protecting users’ rights. They want to increase the current weight limits for possession, reduce the violence unleashed by the drug war, free up jail space, and offer therapeutic treatments for the sick.

Cultivation for one’s own needs, medical dispensaries, Coffee shops or cannabis clubs under control of the authorities are all up for public debate thanks to this group of lawmakers. At the same time the elected representatives also want a significant change in the politics of risk and harm prevention so as to keep minors and young people away from the consumption of marijuana.

Assembly member Esthela Damián confirmed that the current legislation is “imperfect” because it continues to criminalize consumers and does not guarantee users’ access to marijuana.

In response, Belaunzarán has been promoting an initiative to regulate the production, processing, distribution, sale, and consumption of marijuana. He presented it last November, emphasizing that the measure would take an important market out of the hands of criminals, helping to repair the social harms done by this illegal activity through taxes applied to its legal regulation.

Although other politicians in favor of regulation don’t speak for their parties, some prominent legislators also support regulation, such as the Panista Roberto Gil and the former head of the lower house in the Federal Congress, the Priista Francisco Arroyo.

This approach has been put in question both by international organizations in Mexico – including the UN and the World Health Organization – and state and federal health officials. The National Commission Against Addictions (CONADIC), the Centers of Youth Integration (CIJ) and the Institute for the Attention and Prevention of Addictions in the Federal District (IAPA) have all warned of marijuana’s noxious health effects. Among other negative symptoms, these institutions stress problems of memory loss, increased risk of psychosis if use begins at an early age, and damage to the respiratory system.

The Official Position

In an interview, the General Director of Mexico’s juvenile rehabilitation centers (CIJ), Carmen Fernández Cáceres warned of the possible rise in youth consumption because she considers that regulation will bring greater supplies of the drug.

“Consumption rises, that’s what we have seen. From 2009 until the present, the consumption among school-age children in junior high and high schools has gone from eight to twelve percentage points. There’s evidence from every Latin American country where they have discussed this issue: where youth perceive a lowered risk, consumption rises.” She added, “We have seen this before with alcohol and tobacco.”

In 2009, Fernández Cáceres opposed decriminalizing small quantities for personal use. She remembers that the National Survey of Addictions reported that more than half of the people who admitted smoking marijuana did so before they had reached eighteen years of age.

She holds a similar position to that of the head of the National Commission Against Addictions (CONADIC), Fernando Cano Valle. At a presentation in Morelos on 5 August 2013 Cano Valle expressly rejected regulation as the basis of a new drug policy declaring it catastrophic: “If you legalize today, in eight or ten days you will already have a group of people with brain damage. Not in ten years but in ten days, eh!”

While the debate rages, Carlos’s life has changed. He no longer smokes. He appears nervous and worried. He admits that he won’t leave the house unless somebody comes with him. He fears that if he does something “that people don’t like” he’ll end up in prison.

Carole Simonnet, a Mexico-based journalist works at magazine RevistaR, distributed with Mexican daily newspaper Reforma. The original text of this story appeared on Monday 9 September 2013 in Enfoque, published by Reforma. It has been translated without the permission of Reforma or that of the author.

Patrick Timmons is a writer, human rights journalist, and language teacher with a PhD (2004) in Latin American History from the University of Texas at Austin. From 2011 to 2012 he was the Human Rights, Migration, and Security Policy Officer at the British Embassy in Mexico City where he reported for the UK’s Foreign and Commonwealth Office on a wave of killings of journalists in the Mexican Gulf state of Veracruz. He is finishing his first book Plucking the Plumed Serpent: A Memoir of Madness and Sensibility in North America. He divides his time between Mexico City and Colchester, England.