"I once dealt a small packet of drugs," admits Analia Silva. Unable to read or write, lacking employment and needing to provide for her two children, she sold drugs whose names she did not know. When the police raided her house, they found 335 grams (less than 12 ounces) of drugs and arrested her.
"I had no clue about the judicial process," she recalled, "because the reality is that when you are poor and you're someone who hasn't had the chance to study, you can't talk because you're ignorant about such things." Silva was sentenced to eight years in prison.
If Analia Silva were in the US, she might be eligible for President Obama's recently announced clemency program. In April 2014, the Obama administration said it would consider cases of people incarcerated in federal prisons for drug felonies for possible commutation or sentence reduction. The requirements for consideration are stringent. Each person must have served at least 10 years of that sentence, be considered a non-violent, low-level offender and have demonstrated "good conduct" in prison.
Analia Silva might fit that profile except for one thing: She was arrested and incarcerated in Ecuador. To gain US aid, in 1991, Ecuador passed Law 108 (the Narcotic Psychotropic Substances Law) that established undifferentiated sentences for mules (people who are paid small amounts to transport drugs across borders inside their bodies), small-scale dealers like Analia and large-scale traffickers.
In the decades that followed its declaration of the War on Drugs, the United States has influenced, if not directly pressured, Latin American countries to adopt similar drug policies. With promises of trade benefits and economic assistance, the US government pushed Latin American countries, including Ecuador, to adopt US drug strategies, including targeting minor dealers and enforcing mandatory minimum prison sentences. And, as in the United States, these drug laws have caused prison populations to skyrocket.
These repressive policies have particularly impacted women. In four years, the women's prison population in Latin America has nearly doubled, from 40,000 in 2006 to 74,000 in 2010. While that number still lags behind the 108,772 women in state and federal prisons in the United States (keeping in mind that the US figure excludes women in jail or ICE detention as well as trans women in men's prisons), the implementation of harsh drug laws has caused Latin America's women's prison population to balloon.
Who Goes to Prison? A Comparison of Women on Both Sides of the Border
In Latin America, as in the United States, a high percentage of women behind bars are incarcerated for drug-related offenses:
- 75 to 80 percent in Ecuador
- 68 percent in Argentina
- 64 percent in Costa Rica
- 60 percent in Brazil
- 30 to 60 percent in Mexico's state prisons (and 80 percent in its federal prisons)
"An important thing to remember is that most of them are not imprisoned as protagonists and leaders of cartels and gangs," noted Nischa Pieris, a researcher and analyst at the Inter-American Commission of Women and author of the recent policy paper "Women and Drugs in the Americas." "They weren't necessarily carrying great quantities of drugs. They didn't manage information. They were participating on lower levels."
Approximately 70 percent of women incarcerated in the Americas are in prison for non-violent micro-trafficking offenses. Micro-trafficking refers to the possession and small-scale distribution of low quantities of drugs. Like New York State's draconian Rockefeller drug laws, which mandated a sentence of 15 years to life for possession of four ounces of narcotics, micro-trafficking in Latin America is punished with disproportionately long sentences.
According to Pieris, women imprisoned in Latin America have little formal education (with many not having completed primary school), little income and few opportunities in the formal economy. Like their US counterparts, many have experienced violence prior to their arrest and incarceration.
"As low level participants in drug trafficking and supplying, this makes women expendable," Pieris noted. Women's lack of education and income frequently leads to a lack of knowledge about their rights and access to an adequate legal defense.
While in jail, Rosa was beaten and sexually assaulted by guards until she put her thumb print on a written confession.
She gives the example of Rosa, who was arrested in Guerrero, Mexico, on low-level drug charges. Rosa had never learned to read or write and was unable to keep up with the legal terms that the judge and lawyers were using. She was not provided with a legal defense. While in jail, Rosa was beaten and sexually assaulted by guards until she put her thumb print on a written confession. That written confession was used to convict and sentence her to 22 years in prison.
Corina Giacomello is a researcher and author of the International Drug Policy Consortium report, "Women, Drug Offenses and Penitentiary Systems in Latin America." She points out that Latin America has the world's highest rate of economic inequality and that a large percentage of those living in poverty are female, making them more vulnerable to being recruited as drug carriers.
As in the United States, many women behind bars are mothers. Giacomello points out that participating in the drug trade enables mothers, particularly those living in poverty, to balance their caregiving responsibilities with financially supporting their families. She notes a recurring theme in her interviews with women incarcerated for low-level drug trafficking and dealing: "They needed to combine their traditional gender roles of stay-at-home mother and taking care of their children (or else they're bad mothers) and, at the same time, maintain their kids." Nearly all of the women interviewed were approached by someone who offered them more money to carry drugs than they could otherwise earn. Again and again, the women told Giacomello that they were told, "Don't worry. Just carry this. Everything will be okay."
In the United States, the children of incarcerated parents are sent to live with family members or placed in foster care. In many Latin American countries, however, parents have the option of bringing their children to live with them in the prison. The International Drug Policy Consortium has found that more than 2,000 children live in prison with their mother or father. In Bolivia, for example, children under age six are allowed to stay in their parents' cell. Once they reach age six, legislation dictates that they may no longer live with their imprisoned parent. However, Tomas Molina, head of Bolivia's prison system, told the BBC that children frequently have no one outside to care for them and so remain inside prison until they are much older. In addition, Bolivian authorities have stated that the number of children living in prisons has increased since the 1980s when the government began taking a harsher stance on drug charges. However, prisons often fail to provide pediatric health care, nutritious diets or other necessities for the children imprisoned alongside their parents.
In the US, people are frequently held in jail awaiting trial because they cannot afford bail. Several Latin American countries, such as Mexico, Ecuador, Brazil, Bolivia and Peru, hold people facing drug charges, even low-level charges, in pretrial detention as a matter of course.
In 1988, under pressure from the US government, Bolivia passed Law 1008. Under the law, Bolivians charged with drug offenses, no matter how minor, are held with no possibility of pretrial release. Even after an acquittal, the person remains behind bars until the Supreme Court reviews the trial court's decision, a process that frequently takes years. Four years later, in 1992, 8,500 people were incarcerated in Bolivia. Ninety-two percent were in pretrial detention.
Those facing drug charges are not eligible for the house arrest alternative.
After both national and international outcry, the Bolivian legislature passed the Law of Judicial Bond in 1996. The law allowed for provisional liberty in many cases, eliminated the requirement for mandatory appeals and increased judicial discretion. Although the law helped reduce the number of Bolivians in prison, a 2004 prison census found that Law 1008 was still responsible for 40 percent of Bolivia's prison population. As late as 2006, 80 percent of women behind bars were awaiting sentencing.
In Argentina, 60 percent of women in federal prison were pretrial detainees in 2010. Although Argentina's Law No. 24.390 limits pretrial detention to two years, many had been detained for substantial periods of time - one survey found that nearly 25 percent had been in pretrial detention for one to two years while nearly 12 percent had been detained for more than two years.
Some countries limit pretrial detention, especially for people who are pregnant, nursing or parenting young children. Venezuela, for instance, does not allow pretrial detention for those in their last trimester of pregnancy or while breastfeeding for the first six months of their baby's life. Paraguay, too, limits pretrial detention during late pregnancy or while a mother is breastfeeding.
In Colombia, house arrest rather than pretrial detention can be utilized for people who are in the last two months of pregnancy, have given birth recently and/or are heads of household with minor or disabled children. (Interestingly, Colombia offers single fathers the option, but only if the mother is not present in the child's life.) However, those facing drug charges are not eligible for the house arrest alternative. Forty-two percent of women behind bars are incarcerated on drug charges.
Alternatives to Incarceration . . . Unless You Have a Drug Charge
In Argentina, 68 percent of the country's women's prison population is imprisoned for drug-related offenses. Argentine law allows a mother to keep her child with her until the child reaches the age of four. However, prison conditions are often grossly inadequate for adults, let alone growing children, with cockroach and rat infestations, lack of nutritious food and lack of space.
In the early 2000s, incarcerated women held a series of protests demanding improved conditions for raising their children within the prison. The protests included a 300-woman takeover of the prison visiting room in Los Hornos, Buenos Aires, for nine hours to demand that the prison have a pediatrician on premises 24 hours a day. They not only won that demand, but also won the right of a mother to accompany her child to outside hospitals for treatment, better nutrition, access to an outdoor patio and agreement that the protesters would not be penalized. In 2006, after Buenos Aires passed a provincial law allowing judges to consider house arrest for mothers, nearly all incarcerated mothers across Buenos Aires participated in a hunger strike demanding that this law be passed nationally.
"The police are currently focusing on easily arrested targets and the country's illegal drug trafficking is not being reduced."
In 2009, Argentina passed nationwide legislation allowing house arrests instead of prison sentences for pregnant people, those with children under age five and those caring for people with disabilities. However, those accused of small-scale drug dealing are often denied the option of serving their sentences under house arrest and continue to serve prison sentences, often with their young children.
In addition, economically disadvantaged women are frequently denied the house arrest option. A survey by Cornell Law School of women in Argentina's federal prisons found that 76 percent of the women they surveyed indicated that they were denied house arrest. "It is particularly difficult for poor women to take advantage of the house arrest laws because they may not have the means to maintain a house and provide for their children without being able to work outside of the home," the study noted.
Beginning to Question Harsh Drug Laws: The Global War on Drugs Has Failed
In 2006, the government of Ecuador began examining the consequences of its harsh drug law sentencing. Two years later, in 2008, the government pardoned nearly 2,000 people who had been imprisoned for drug-related crimes. Analia Silva was one of those pardoned. She was released three years and two months before the end of her sentence. However, Law 108 remains in effect and continues to send excessive numbers of women to prison. In 2010, 80 percent of all women in El Inca, Ecuador's largest women's prison, were held for drug related offenses. "As long as Law 108 remains in force, the prisons will be full of non-violent offenders who in reality deserve either more proportionate sentences or alternative sanctions," stated Sandra Edwards, a researcher for the Ecuador chapter of the TransNational Institute. "The police are currently focusing on easily arrested targets and the country's illegal drug trafficking is not being reduced."
In June 2013, Ecuador officially decriminalized small amounts of drug possession. Those carrying up to 10 grams of marijuana, 0.1 grams of heroin or two grams of cocaine would be consideredconsumersrather than dealers and therefore not subject to arrest. That same month, the country's tough-on-crime Minister of the Interior Jose Serrano told media, "The global war on drugs has failed."
Decriminalizing small amounts of drugs may be a good start, but it doesn't address the economic circumstances that push women like Analia Silva into the drug trade. Standing in her kitchen two years after her release from prison, Silva says the pardon hasn’t actually changed her life. "I am still poor," she says. "They kicked me out of a small prison into a big prison like the city."