A Critical Analysis of Drug Courts in Chile1

Análisis crítico de los Tribunales de Drogas en Chile

Silvio Cuneo2 silvio.cuneo@ucentral.cl; pmedinag@ucentral.cl

Universidad Central de Chile, Chile

Paula Medina González3 silvio.cuneo@ucentral.cl; pmedinag@ucentral.cl

Universidad Central de Chile, Chile

The goal of this study is to critically analyse the Drug Courts (Tribunales de Drogas – TTD), especially in Chile. Drug courts, far from being an institution with a long national tradition, have emerged as one more element in the imposition of hegemonic regimes that, within the framework of criminal drug control legislation, reproduce US criminal policies. These exact same policies, and specifically the War on Drugs, are the main cause of mass imprisonment of people on low-income and the increase in female incarceration.4

Without undermining the critical analysis arising from a well-founded distrust of US intervention in Latin American criminal policies, after having spoken with various participants in the TTD (judges, prosecutors, public defenders, psychosocial teams and, especially, users), this paper intends supporting the idea of treatment itself and analysing its potential to soften the penal response. However, the extremely slim chance of defendants being able to access these treatments in Chile, as they have to comply with the requirements of the conditional suspension of proceedings (SCP),5 means that preference is given to those candidates that generally do not present a high-risk level of criminal involvement, which more often than not goes hand in hand with less problematic drug use. To a certain extent, the filters of the TTD may be extremely useful in order to see the varying results compared to the ones of those who failed to meet the requirements. The issue in this approach, as usual, is that mixing public health with criminal justice leads to a kind of treatment not based on a medical perspective, which everyone is entitled to, but rather founded on neo-positivist considerations on the grounds of criteria of dangerousness.

It should be made now clear that TTDs in Chile do not exists neither legally nor constitutionally. TTDs, as we will see further down, were created in 2004 as a “pilot project” in the city of Valparaiso, and currently are working as a “programme” within the ordinary justice. They do not constitute a criminal sanction as such and, being limited to the SCP, are intended as an alternative to criminal proceedings.6 Without any judgment to this, in this article we refer generally to the “TTD” in Chile with the understanding that this functions rather as a “programme”.

Despite the criticisms highlighted throughout this paper, in the conclusions, we recommend the maintenance, and even the budgetary and case-specific increase, of drug treatment (with or without a form of TTD). Nevertheless, far from retaining the current restrictions on admission, we suggest extending treatment to those in need due to their addiction, even to convicted offenders. regardless of a possible high level of criminal involvement. We also recommend the separation of criminal law assessments or charges from public health criteria. Thus, although problematic drug use may be considered, when exercising criminal justice, as an element that has an impact on lower reprehensibility, we believe that combining public health with criminal justice criteria to be inappropriate.

On the other hand, it seems pertinent to inquire into the real functions that TTDs and, in general, the creation of new legal institutions may conceal. In this context, as well as TTDs, will we also have criminal courts for feminicides? other criminal courts for the environment? others for economic crimes? Were each of these courts not to have enough work, like any bureaucracy, they would invent it, because no bureaucracy commits suicide. On the other hand, these courts that require a “special status”, according to those who thrive on inventing such “special statuses”, can only function in big and not in small cities. Furthermore, as we go higher up the courts, there is less specialisation, that is to say, “specialisation” is required in the lower courts and not in the higher that review what has been decided. And so on, all the way up to the Supreme Court, where the very few are supposed to know everything.

The idea of punishment-treatment is linked to special prevention, a theory that represents an anthropological shift in punitive law. This theory has its roots in Lombrosian penal positivism and underlies the notion of clinical treatment, whereby the convicted person is seen as a human being with a deficiency, a subject to be treated, both of deficiencies as well behaviour.

Treatment requires per se individualisation of the offender, thereby necessarily creating a link to actor based criminal law, which is related to a totalitarian conception of society. This individualisation will be used with the aim of modifying the behaviour and values of the convicted individual, allowing people to be punished for who they are and not what they do, allowing judgements to be made on the basis of personal prejudices and stereotypes of a racial, socio-economic, lifestyle, ideological and/or political nature.

Criminal law focuses, for special prevention, on the idea of dangerousness of which crime is none other than a manifestation or symptom and its penalty the means, or better, a remedy, of social defence. Punishment-treatment is applied to the individual, which will aim at transforming the defiant subject in someone who no longer poses a danger for society. Therefore, dangerousness will be the criterion for determining the nature and length of the sentence. In other words, special prevention implies indeterminacy of punishment.

Within these doctrines, terms such as re-education, re-socialisation, re-adaptation, reincorporation, or social integration, are often used, “perhaps the most fashionable in contemporary penitentiary practice [which] with its sophisticated appearance of altruism and philanthropy, constitutes the most fearsome and refined danger to human freedom and dignity in the penal sphere of our times”.7

These goals most of the time constitute mere declarations which have nothing to do with reality, since believing that prison can be rehabilitative only shows ignorance of what goes on inside its walls. Furthermore, seemingly inappropriate is the use of the prefix “re” (rehabilitation, re-education, reintegration, etc.), since, on the one hand, there are people with a sound education who commit crimes (in politics and the business world for example) and, on the other hand, the majority of those sentenced to prison are individuals who grew up on the edge of society lacking real alternatives to education or social facilitation; therefore it is paradoxical that they can be “re” educated or “re” habilitated. Rather, these concepts refer to a type of intervention that aims to adapt these people to a certain “way of being”, respectful of the prevailing social/legal order. This is even more contradictory, given that to this end people are subject to a “prison order” that is far from such an ideal social/legal order, as it is characterised by “widespread disregard for the law”.8 Another issue that is hardly considered by supporters of these theories is the cost and means required to actually implement rehabilitative penalties. In practice, prison, despite its extremely high costs, not only fails to provide the necessary tools to achieve this supposed rehabilitation, but also increases the criminal factors of those incarcerated. Therefore, it would be appropriate to ask the same society that expects to rehabilitate its convicts, whether each society has the criminals it deserves, that is to say, those it is capable of producing, and whether it is not that society that should be resocialised and with what qualifications and aptitude it can then expect to resocialise individuals.9

Without any judgment to the criticism previously raised, it is not less true that the resocialising thought has the merit of denouncing the stigmatising and criminal effects of certain punishments – such as life imprisonment -, the uselessness of short-term deprivation of liberty and, above all, of having provided a legal-philosophical basis for a criminal policy that should be oriented towards the individual and his or her fundamental rights. Equally, any attempt of resocialisation – if the aim is for this to be successful – must have all the necessary agreement of the offended, which mitigates the possible dehumanising effects that the idea of punishment-treatment may have.10

With the emergence of field work from the 1940s onwards,11 special positive prevention, being no longer able to be totally disconnected with reality, changed its original perspective and abandoned a vision purely focused on the need for clinically treating the offender, to place more emphasis on the social deficiencies motivating or explaining criminal behaviour.

These new rehabilitative concepts were at the forefront of the American penal system until the 1970s12, as they could offer many advantages in contrast with retribution, which was not intended to serve any social end. However, the weakening of the social state meant a transformation of the penal system, leaving behind the rehabilitative ideal. This change was accompanied by the adoption of neo liberal systems, where social deregulation, the increase of wage precarity and job instability went hand in hand with the rise of the punitive or authoritarian state, which is far removed from rehabilitative goals.13

Beckett y Western argue that the social expenditure and expenditure in the penal system are inversely related, as they are ways of managing the excluded sectors of the labour market, and that this relationship is empirically demonstrated from 1995 onwards in the USA.14 The neoliberal system which professes economic deregulation, generates penal over-regulation. The consequences produced by the dismantling of the social state, chiefly material insecurity among the lower classes, lead to an over-investment in prisons as an instrument of oppression and social control.

According to Garland15, the penal system characteristic of the welfare state (penal welfare complex), does not see crime as an amorality of the perpetrator, but as a manifestation of a social problem resulting from an industrial, class-based and unequal society.16 This system of welfarist punishments seeks, rather than reproaching the individual behaviour of the perpetrator of a crime, to correct the offender, providing him with tools to reintegrate him socially. The very idea of resocialisation encompasses that of treatment, which, as the 20th century progressed, became more and more scientific and contributed to the development of a penal language. “This is the case of reformatories, correctional institutes and associations, therapies, therapists and prison guards”.17 The rehabilitative ideal as well as its necessary consequence of indeterminate sentences, were widespread and strong in the United States, but not in continental Europe.18

Welfarism was characterised by an enormous trust in the operators of the penal system who were considered to be specialists in policies aimed at the rehabilitation of convicts. Thus, such operators had extensive powers to determine the type of sentence, classify the convicts, evaluate the possibility of an early release, assess the need for more or less intense supervision, and so on. The opinion of expert operators in the penal system became more of a deciding factor than that of the judicial authority. The type of sentencing and benefits of the convicts lay in the hands of probation officers19, social workers, psychologists, psychiatrists, educators and social reformers, etc. 20

With the welfarism context, the liberal view that punishment was of less use than treatment, that imprisonment was counterproductive and that the death penalty was irrational prevailed over the conservative view of the deterrent power of harsh sentences and the need for longer custodial sentences and the death penalty.21 This welfare state and claims to rehabilitate offenders were based on a discourse that was aware of social inequalities and understood that the real causes of crime were to be found within the social context, especially in the deprivation suffered by the most vulnerable sectors.

With the crumbling of the welfare state and the loss of job security, a new poverty emerges as a consequence of mass unemployment and of broad sectors oscillating between labour instability and illegal work (often constituting a criminal offence). With the loss of stability, insecurity rises, and “risk” takes centre stage. This will no longer be eradicable and, therefore, mechanisms will have to be sought to minimise or distribute its effects.22 Within the criminal field, the idea of social co-responsibility in the origin of crime is left aside in order to focus primarily on the culpability of the individual. From this moment prevention (whether real or ideal) will no longer seek the transformation of the offender but will focus on making the offence less “profitable” for the perpetrator, who is assumed to be capable of making a rational choice.

Obviously, this dismantling of the ideal of rehabilitation did not come out of the blue. Penal policies aiming at rehabilitation or resocialisation have always had their detractors. The most conservative and reactionary sectors have constantly argued that prison should have a punitive and not a rehabilitative function, since, if in our society honest and innocent people exist on the one side and bad and dishonest on the other, prison should serve to protect the former from the latter, locking the criminal inside four walls for as long as possible.23 With the arrival in power of Margaret Thatcher24 in Great Britan (1979) and Ronald Reagan (1981) in the United States a decisive shift took place, away from interventionist state and welfarist policies towards tougher criminal legislation far removed from correctionalist ideas. These conservative groups (right wing realism), critical of the ideal of rehabilitation, identify themselves with the idea of “law and order” and with the “criminology of the other”.25

From the 1960s onwards, criticism also emerged from more progressive sectors. These are based on the ineffectiveness of the treatments that were intended to reintegrate convicts and that ended up giving legitimacy to prison, which, as a total institution - they argue - produces harmful effects on those who experience it. Furthermore, they understood that indeterminate sentences mask a system of total injustice that inflicts harshest punishments on the most vulnerable sectors of society, especially the poor and blacks. This criticism was aiming at limiting arbitrariness and denouncing the hypocrisy that was surrounding the “correctional” paradigm. Thus, reprobation of the “rehabilitation ideal” quickly began to spread in American academic circles, essentially because the very rationale of rehabilitation evidenced an insurmountable contradiction, since rehabilitative responses would inevitably fail to get to the root causes, because they intervene after the damage has been done. In other words, they respond to the consequences rather than the cause.26

This does not mean, as we will see below, that we are against the existence of treatment in general and drug treatment in particular. Quite the opposite, in fact. We believe that such treatments are extremely necessary and that the advantages that they can bring are priceless. However, we believe that the mixing of the criminal justice and health system has complex consequences. Among these, the efficiency of these treatments is usually appraised more in terms of non-recidivism and lower costs compared to imprisonment, rather than in relation to the improvement of physical and mental health indicators of the people who access them.27 To summarise, it appears to be extremely hazardous to unite or confuse criminal-legal criteria, which should not disregard culpability as reproachability, with those of a clinical nature, which must be based on the individual need for treatment. In the same light, lucid are the words of Morris, for whom: “[i]njustice and inefficiency invariably flow from any mixture of the criminal law and the mental health powers of the state. Each is sufficient by itself to strike a fair balance between liberty and authority; each has its own interest in potential constituents; when mixed together, they only add up to the possibility of injustice”.28

We previously examined how rehabilitative theories and the treatments they advocate, regardless of the intentions of those who support them, seek to modify lifestyles, habits and customs. However altruistic they may appear to be, this change in behaviour is not freely chosen by the defendant, as it is not possible to speak of freedom when the alternative to treatment consists of a penal response.

Treatments against drug addiction are often not entirely voluntary, as those in treatment have often been heavily pressured into entering treatment. However, it is extremely different when the acceptance of treatment is the result of pressure from parents, partners, other family members or friends,29 than when such pressure is exerted by the state, where acceptance of treatment is out of fear of criminal prosecution and, eventually, imprisonment.

We are aware that prison is a highly risky as far as personal safety is concerned. Studies on intra-prison violence confirm Elías Neumann’s opinion that in Latin American prisons “one does not go To serve a punishment, but to be punished daily and continuously”.30 Under criminal threat, it is at least questionable to speak of voluntariness in the acceptance of treatment.31

On the other hand, the lack of access to treatment for problematic drug use is particularly acute in the US. According to a study conducted in 2016, there are almost seven and a half million people affected by illegal drug dependency and only 28% of those receive treatment,32 which generates a perverse result, since the simplest and cheapest way to access treatment is precisely via the drug court,33 which would encourage accepting criminal responsibility, that is, giving up basic rights - such as the presumption of innocence - in order to treat an addiction.34

Although consent to take part in drug treatment is not always an alternative to prison (in Chilean drug treatment courts-TTD, for example), this belief or ignorance means that it is precisely the fear of imprisonment that motivates a high number of subjects to accept participation in drug treatment courts. Therefore, the voluntary nature of the participation is the TTD is not just that.35 A study undertaken in Chile in 2011 demonstrated that many of TTD participants enrolled without having clearly understood that they did not risk prison for their crimes and that the acceptance of treatment was often based on the misconception that they were avoiding incarceration.36

Likewise, the disciplining spirit of the TTD reveals a state that intrudes into the lives of offenders, exerting pressure to normalise behaviour through the imposition of moral codes.37 Referring to this paternalistic conception, Isaiah Berlin argues that what the state contemptuously does is to refer to an offender as follows: “If you will not discipline yourself, I must do it for you; and you cannot complain of lack of food, because the fact that you are in court is evidence that, as a child, a savage, an idiot, you are not ready for self-direction.”38

The situation of TTDs is different depending on the context. Thus, in several US states, the only way to enter TTD is as a convicted offender, which, as we have seen, can press an offender to accept responsibility. In Chile, the situation is different, as the TTD operates only with respect to defendants who accept a conditional suspension of proceedings, which does not imply a criminal conviction. Although it appears to be positive that a conviction is not required for accessing drug treatment, as this does not encourage the acceptance of a conviction, it is also a limitation, as the criterion for admission to treatment should be the medical necessity of the treatment and not legal considerations such as the presence or absence of a criminal record. Therefore, the possibility to enter TTDs should be available to defendants, convicts and even recidivists.

In the United States, the association Physicians for Human Rights claim that the failure of TTDs is due to the fact that they provide treatment for those who do not necessarily need it, which in turn leaves patients requiring treatment without an opening. Therefore, Physicians for Human Rights critically refer to the TTDs with the slogan “neither justice nor treatment” since this system does not achieve either of these ends.39

According to Miller, the combination of criminal justice and medical criteria of treatment, essentially incompatible, prevents the fulfilment of goals in both directions. The therapy, in other words, ignores the hostile and political quagmire that characterises the offender’s situation in favour of a personalised, exhortative model of individualised persuasion.40 In a similar vein, Nolan warns that the medical nature of drug treatment may recommend, regardless of the offence, a lengthy, invasive and potentially arduous treatment procedure.41

The implementation of the War on Drugs, first in the United States and then in Latin America, has been socially and racially selective. In the US, “nothing has contributed more to the systematic and massive internment of people of colour in the United States than the War on Drugs”.42 The origin of this criminal policy has little to do with the scientific evidence that could support its effectiveness, but rather with populist decisions that gave great electoral gain to its promoters. As a war strategy focused on poor neighbourhoods, it makes it easy to convict those involved, but it is highly inefficient in its fight against drug trafficking, since by locking up small-time dealers (or users) they are quickly replaced by others due to the huge demand for illegal drugs.43

In 1971 President Nixon declared War on Drugs, announcing the need to restore the law and order policy,44 declaring that drugs were a “modern curse of American youth”45. Soon, the War on Drugs was imposed in Latin America, first in cocaine-producing countries such as Bolivia, Peru and Colombia, then in the rest of the continent with disproportionately punitive norms, contrary to the liberal principles of criminal law.46

The effects obtained have not seen, as we have already mentioned, the reduction of trafficking activities, but the incarceration of the last links in the chain of trafficking and drug addicts.47 It is paradoxical that a policy that aims at justifying itself by promoting the defence of public health has opposite effects. Often small-scale trafficking forms part of the activities of addicted users, especially those who have problems financing their addiction. However, the law itself themselves presume anyone possessing or transporting drugs is trafficking, overturning the burden of proof and violating the presumption of innocence.

Usually in politics, and legislating criminal policy models, it is more important to appear to be concerned than to adequately deal with the problems. Hence, legislation is passed without thinking about the real impact of the legislation itself. Surely no one would deliberately acknowledge, when voting for a drug control law, that they expect it will lead to an increase in the incarceration of the poor and instead maintain widespread impunity for those who enrich themselves from trafficking activity. Nor do the promoters of criminal policy seem to address the harmful effects of imprisonment, including the level of drug use, prison violence and recidivism rates.48

A particularly sensitive matter regarding the effects of this war is the imprisonment of women.49 Selectivity in women prisoners operates by locking up a very vulnerable group that for the main part shares three characteristics: they are women without power nor influence, usually imprisoned for drug trafficking offences; they have lived in poverty; and a high proportion belongs to ethnic minority groups.50

According to Antony, the constraints of motherhood prevent women from finding or keeping their jobs, which explains why they sometimes choose to engage in drug trafficking activities.51 Due to the disadvantaged status of women, it is normal that their activity in the traffic corresponds to subordinate and highly visible tasks,52 which makes them easily replaceable and apprehended.

Within this context of punitiveness without respect for basic principles such as proportionality, the presumption of innocence and respect for fundamental freedoms, in the legislation on illicit drug trafficking, it is curious that the legislator, again imposing US criminal policies, proposes a supposedly alternative path such as the existence of drug courts for an insignificant number of cases in relation to the high number of people prosecuted and imprisoned by the War on Drugs.53 Its implementation and operation will be discussed below.

Before analysing the genesis of the TTDs in Chile, we would like to raise several points with the sole purpose of questioning the declared intentions of the promoters of the TTDs and suggesting possible unstated justifications for their implementation.

It appears difficult to understand what is intended by the introduction of the TTDs in Chile. As we have already pointed out, these are, yet again, impositions of systems born in the United States. TTDs may primarily fulfil the symbolic role of showing that it is not only about punishing but also about welcoming and protecting offenders with drug dependence problems. Even if, mainly due to an eligibility filter, this is a very slim possibility and its implementation is excessively onerous, the intention is to show a friendly side to anti-drug legislation.54

According to Jonathan Simon, TTDs, rather than an alternative to incarceration, have succeeded in expanding judicial control by adapting to a new metric of “rule by crime” and the strategy of accountability.55 For David Garland, this is a feature associated with the new penology in which courts are involved in public-private partnerships with providers of various treatments and funding sources.56

All the previously discussed issues seek to question the reality of the intentions expressed by TTDs promoters in Chile. Just as no one should trust the good intentions of US participation in the development of drug control laws in Latin America, neither should we be naïve at the national level when we see that the intervention of the Fundación Paz Ciudadana (FPC) plays such an crucial role in the creation of public policies on crime and drug control in particular. Indeed, TTDs in Chile were first created in 2004, in a pilot project in Valparaiso with the participation of the US Embassy and the FPC.57 It appears impossible not to link the participation in this agreement between FPC and the US government to the role that El Mercurio and the CIA played in the Chilean coop in 1973.58

To conclude this section, and without wishing to question the TTDs merely because of their promoters, we have doubts as to why public bodies, whose participation seems justified, are signing the Convention that creates the TTDs in Chile together with two entities (the US Embassy and the FPC) both of which have serious murky pasts.

First and foremost, we appreciate that TTDs in Chile, unlike in numerous states of the US, do not require the acceptance of responsibility or a prior conviction, which prevents a defendant from being pressured to accept responsibility in order to benefit from treatment. However, and for above-mentioned reasons, it is possible that convicts and defendants who have not been able to access DST (TTDs) may be those most in need of treatment.

On the other hand, a problem at the root of TTDs is the difficulty of establishing a link between the commission of crime and drug use. While there is evidence of an association between the two variables,60 questions remain as to how to interpret this association. Some models suggests that drugs cause criminal behaviour or vice versa. Others suggest that both drug use and crime are the result of other underlying factors such as poverty and social exclusion. And it has also been argued that it is actually a spurious relationship, i.e. they simply coexist, but there is no causal relationship. It is also clear that there are many people who use drugs and do not break the law, and there are others who do without ever having used drugs.61

Apart from what studies in general can demonstrate about the relationship between the two variables, it is altogether a different matter demonstrating how this relationship has worked at the moment of committing a crime in one particular individual. This is of great forensic complexity and has implications regarding how such conduct is judged, given that, “while most addicts are criminally responsible for criminal conduct committed in connection with their addiction, addiction can in some cases undermine a person’s freedom to control his or her conduct”.62 Such considerations are part of those involved in deciding whether a referral to a TTD is appropriate, and this is precisely why specialised professionals are required.

As already mentioned, in Chile there are no “specialised” drug courts, but they operate as a programme within the ordinary justice system in the Guarantee Courts63 through a special form of alternative exit, meaning the conditional suspension of proceedings, which can only be applied to offenders without a criminal record or pending conditional suspensions, for crimes carrying a sentence of no more than three years imprisonment. That is to say, eligibility criteria are such that only a limited number of defendants are eligible for TTDs.

TTDs in Chile include a judge, who has the primary role, a prosecutor from the Public Prosecutor’s Office, a defence lawyer, a psycho-social team, and a coordinator in charge of the programme.64 It is the prosecutor or the defence lawyer who identifies the potential candidate. Then, where appropriate, a psychiatrist conducts an assessment of problematic drug use and its link to the crime under investigation. Afterwards, the prosecutor together with the psycho-social team and the defence lawyer, discuss a plan where both the possible treatment and the patient’s eligibility requirements are analysed. The issues discussed at this meeting will prove key to determining the conditions for the hearing during which the conditional suspension of proceedings will be declared. After the conditional suspension hearing, the participant receives a treatment plan to be provided by a public or private body. This body provides information to the psycho-social team and monthly hearings are held, presided over by a judge, to analyse the treatment and determine new goals. At the end of the programme, a final hearing is held.65

Eligibility of candidates is reserved exclusively for first-time perpetrators of low-level offences, meaning those most in need of drug treatment are possibly excluded. This occurs specifically because the eligibility of candidates for treatment does not only respond to clinical criteria, but also, as an initial filter, to requirements linked to dangerousness. Therefore, on the one hand, the profile of people participating in TTDs is inconsistent with those who really need to follow such treatments, and, on the other hand, the profile of the participants is not the most suitable in relation to the objectives of TTDs.66 It is at this point that one of the main problems of combining criminal justice and health criteria becomes apparent.

Ultimately, it is a costly system that, at best, achieves modest results and does not necessarily target those most in need of treatment from a health perspective. Therefore, “it is valid to ask how much it effectively contributes to the reduction of recidivism and how real the drug-crime link is when the cases dealt with correspond to minor offences committed by people who are not habitual offenders”.67

While it is possible that TTD users do require such treatment, from a clinical point of view, the problem is created by setting up filters that leave out others who also need it. From a public health policy perspective, all that require (or want) such treatment should have access it,68 and if prioritisation is required (given the limited resources), such prioritisation should also be based on health criteria (severity of use, vital risk, other concomitant health problems, history of adherence, etc.) and not on the basis of dangerousness. On the other hand, it is absurd to think that it would be possible to identify (regardless of the seriousness of the offence and/or penalty) those where a positive relationship between drug use and the commission of the offence is demonstrated, not only because this relationship is highly disputed, but also because criminal causality is too complex a matter to be determined solely on the basis of the drug use variable.

Another problem with treatment is that it does not assist participants in finding employment or training. Many of the participants are in a socially vulnerable situation and lack a support network.69 To think that drug treatment alone can reduce recidivism is to fail to understand the psychosocial complexity that surrounds most drug users.

While it is true that the objectives of the TTDs in Chile to reduce drug use and recidivism are rather modest, they are nonetheless important. Even when treatment serves to rehabilitate only one person, we can argue that it will have been worthwhile.70 However, from a public health point of view, access to treatment for problematic drug use should be a universal right and guaranteed by the state, and not determined by criteria of prioritisation or targeting based on cost.

Following the above, we can summarise and compare the advantages and disadvantages of the current model of TTD in Chile.This will be done on two levels. The first level is related to a macro-structural perspective, linked to the insertion of drug trafficking in the framework of the criminal justice system, public security, criminal policy and public policies as a whole. The second level -microstructural-, that observes the possible benefits and risks both in the operating systems of the implementing institution, as well as in relation to the individual impact, i.e with regards to the subjects that are users of this model.

As per the macrostructural level, it is possible to note that TTDs in Chile effectively pose a valid effort towards opening alternative responses on behalf of a juridical penal system and criminal policy. From this point of view, they constitute a valid attempt since – at least on the basis of their manifested intentions – they go against a legislative and state policy that in the last decades has been strongly marked by an increase in the punitive nature of the penal system. Thus, TTDs not only focus in the administration of punishment as a reactive policy, but also aim to understand and intervene in some or part of the root causes of crime. One advantage of this aspect is that the model has led to the involvement of other areas of public policy – such as the health sector – in the response towards the problem. This manner of understanding and approaching the problems appears to be more promising, insofar as it can effectively deal with the social complexity that underlies the various forms of criminality.

However, his broadening of the horizon of possibilities that TTDs seem to offer is obscured by the way in which the model is implemented. We are not dealing with areas of public policy that complement each other - at the same level - to tackle a problem, where each one contributes its competences and expertise. Rather TTDs promote a model where one area of public policy – such as health – remains subordinated to another area, such as criminal justice. Therefore, as we already mentioned, health criteria end up not counting as much as penal criteria and the contribution of health professionals remains restricted to the narrow margin (user selection criteria, time limits, etc.) imposed by legal operators.

This demonstrates in practice that the political criminal orientation does not renounce to its fundamentally repressive conception, and within this line, TTDs can even up serving to “whiten” the system, showing its best appearance while making invisible corruption, the impunity of big drug traffickers, the neighbourhood and prison violence generated by illegal drug markets and the incarceration of the poor, especially women. All of this is a consequence - to a large extent - of the political and criminal orientation of Law 20.000.

On the other hand, also at a macrostructural level, the option that TTDs offers, has not resulted in Chile in a reduction of imprisonment rates. Demonstrating that this model operates more as an expansion mechanism of the penal network, at best with a marginal impact in terms of an alternative criminal policy proposal. Therefore, drug addiction in Chile, especially within the younger population, continues to be a primary issue of public health, that requires solid policies, appropriate budgets, relevant targeting criteria and effective intervention models.71 In this regard, we believe that access to treatment for problematic drug use, should be a universally granted right.

Finally, we observe that the budgetary investment that TTDs in Chile represent, does not commensurate with its results and benefits,72 which rightfully generates doubts as per the way this model has been conceived and designed.

Regarding the microstructural level, we can point out as advantages of the Chilean model, the fact that a conviction is not necessary to access TTDs, as this avoids promoting the acceptance of sentences that could end up being more onerous.

The incorporation of health professional in the model is also a success, despite the limits above analysed. Within the same context, we do not oppose a priori against the contribution of the private sector towards the design and evaluation of those programmes, as long as it is not them who impose political and crime orientation to be followed.

With regard to the disadvantages, although the fact that this programme takes place within the framework of the SCP is beneficial for the reasons already mentioned, it also implies limitations with regard to those who can access its eventual benefits. In practice, a very limited number of users are targeted, and not necessarily those that – according to health criteria – are in most need. On the other hand, the existence itself of alternatives to the “criminal treatment”, can discourage the justice system from considering drug consumption as a ground for lesser criminal liability and, as a consequence, from diversifying the response towards genuine alternatives outside the criminal justice system.

Other disadvantages of the model, although not exclusive of the Chilean experience, but rather of TTDs’ functioning system itself, are the difficulties caused by the “voluntary-obligation” tension in relation to the user’s participation. The logic of intervention under a coercive premises represents obstacles both for its therapeutic and penal supervision goals. It places its subjects in a complex position, adding confusion in a psychological scenario already surely chaotic enough, and whose timing is not adapted to their needs, but to those of the justice system.

Finally, evidence demonstrates that the intervention in population with a problematic drug consumption should not only focus on the “drug”, but should open paths towards the resolution of more complex issues that are played in the emotial, family, educational, work and community area. However, TTDs appear to focus on a model that is still too clinic – individualistic. Here it can be noticed, for example, an interesting contribution that the private sector could make, collaborating with the possibility of access to effective educational and employment alternatives.

In summary, the comparison of the benefits and disadvantages of Chileans TTDs, both at a macro as well as microstructural level, shows poor results in favour of the current model. Further to the improvements that could be done, these ideas could lead to a rethinking of the criminal policy orientations that underlie them.

Although TTDs have been promoted as an alternative to incarceration and a public policy that would reduce prison overcrowding and, at the same time, treat drug users more like patients than offenders, the truth is that rather than being a real alternative to incarceration, they have been shown to be complementary to it.

It also does not seem appropriate, given the received training, that those in charge of such treatment should be judges and that broad powers should be given to prosecutors from the Public Prosecutor’s Office. For neither judges nor prosecutors have the necessary tools to fulfil this task. While there is no doubt that they often participate with great motivation and sincere concern for patients, the relevant decisions and direction of such treatment should be made by health professionals with specific expertise in drug addiction issues. Furthermore, limiting treatments to legal deadlines may lead to having to stop treatments earlier than recommended or having them extended longer than necessary.

The US version of TTDs is not an alternative to incarceration, as defendants remain involved in criminal proceedings for the duration of their treatment and may, in numerous cases, remain incarcerated for longer than they would have been if they had opted for the regular criminal process. On the other hand, TTDs may expand the punitive network by requiring a guilty plea as a condition for access to TTDs.73

In the Chilean version, TTDs cannot be an effective instrument reducing imprisonment. Their contribution is minimal without having a real impact on criminal policy and their existence is more useful and functional to those who implement public policies, wanting to show a human face within a cruel system that encourages mass incarceration, particularly increasing the imprisonment of women. Furthermore, the high costs of TTDs, make it an inefficient system in relation to its outcomes74 and, given the low number of admissions to TTDs, do not justify them as a public policy.75

Any attempt at an alternative to mass incarceration is to be found neither in the creation of “alternative” penalties nor in the creation of therapeutic justice, but rather in the decriminalisation of behaviour. For example, decriminalising the consumption and possession of some drugs, or the relaxation of penalties for behaviour and the understanding that the sale of drugs is often an activity linked to the consumption itself, which is necessary to finance it. Several studies conclude that the problem of consumption should not be considered a crime.76 However, in Chile, by virtue of the presumption of criminal liability under Law No. 20,000 on drug control, consumption is also considered a trafficking activity, since drug possession is presumed to be for the purpose of trafficking, and the accused must prove personal consumption in the near future, which, in any case, is also punishable under criminal law as a misdemeanor.77

Furthermore, we insist that when the drug users’ financial situation does allow them to support their addiction, the sale of drugs, in many cases, should be considered as an addiction-related action and not as a trafficking activity. Otherwise, rather than protecting the legal good of “public health”, we end up punishing the very victims of drugs. And, given the selective essence of criminal law, legislation will be harsher for those who are more vulnerable and permissive for those who are financially better off.

As a proposal, we would like to suggest, first of all, that it is not opportune to confuse justice criteria with public health criteria. This does not mean that both purposes (ensuring justice and protecting public health) should not be pursued, but it should be undertaken by following the paths best suited to the attainment of each objective. Our proposal, broadly speaking, recommends less punishment and more treatment, but both objectives should be pursued along separate lines. Drug treatment should be increased, but not be made dependent on, or offered as an alternative to, criminal prosecution.78 To conclude, we would like to summarise our proposal in three main key points:

1. 1. Decriminalise behaviours:

   Consumption and trafficking behaviour should be decriminalised, especially when it may be an ancillary activity to consumption itself.

   This first point belongs to a more global theory that seeks the decriminalisation of various offences and the search for non-criminal responses to situations of lesser harm. It is also expected that for criminal offences, imprisonment will be limited only to those behaviours that are extremely harmful to the protected legal interests, prioritising other types of sanctions where possible. Mass imprisonment and overcrowding are not a natural fatality. They are the result of misguided policies that, with social and often racial biases, massively imprison human beings in undignified conditions without obtaining, with this, a decrease in crime levels, but rather, generating criminogenic behaviours among convicts. Therefore, there are multiple alternatives that could be implemented to reduce mass imprisonment and, with this, build a more human society.79

   The problems linked to drug use, including that of sale by users, should be treated as a public health problem, adopting public health criteria, taking into account specific needs related to patients’ gender, age, culture, ethnicity, needs, etc.80

   In the case of offences perpetrated by minors with problematic drug use, penal sanctions should be avoided due to the stigmatising effects they generate81 and referral to drug treatment outside the criminal justice system should be made.

2. 2. Reduce penalties:

   We propose radical changes to establish a less harsh system of penalties, especially for those behaviours linked to drug use and drug dealing. The myth of the War on Drugs as a solution to the drug trafficking problem must be dispelled. In this light, we can observe how in the US, the effects of the war on drugs have not been to reduce trafficking or consumption, but rather to increase incarceration, which has not proven to be an effective tool for reducing crime or violence.

3. 3. Increasing drug treatment provision:

   Drug treatment should be made more available to those in need without being used as a supposed alternative to the penal system. Notwithstanding this, the criminal justice system can be an ideal place to detect drug use problems, both in the case of defendants, convicted offenders and even victims. In no case should problematic drug use be used as a criterion to impose harsher sentences or impede obtaining prison benefits. Surreptitiously, problematic drug use often results in a poor qualification for parole or other prison benefits. Drug treatment should be a right for those who need it, be considered an essential health benefit and a social right, and the criterion for admission should be no other than the need for treatment, based on a public health approach, and not the fulfilment of eligibility requirements that relate to solely low dangerousness.