The Human-Rights Case for Drug Legalization

“The objectives of drug control have not been reached,” says one Mexican activist. “Not even close.”

The Mexican military burns marijuana and other drugs in Tijuana. (Jorge Duenes / Reuters)

The first shot in Mexico’s drug war was fired in December 2006, when Mexican President Felipe Calderon sent 6,500 security forces to reclaim Michoacan state from feuding cartels. “The battle against organized crime has just begun,” Calderon’s interior minister declared, “and the fight will take time.” He wasn’t kidding. That fight has now taken nearly 10 years, and tens of thousands of lives. And Mexico has little to show for it, besides death and destruction. In fact, the battle is as brutal as ever. Just this week, the Open Society Justice Initiative, which advocates for criminal-justice reform, accused both the Mexican government and drug gangs of committing crimes against humanity.

Humanity is what Lisa Sanchez hopes to inject into the drug debate. The drug war, she argues, is really a war on people. Through her work at the Transform Drug Policy Foundation and Mexico Unido Contra La Delincuencia, the Mexico City-based activist campaigns for drug policies that prioritize public health and human rights. Sanchez is part of a budding reformist movement in the Americas—borne in part of a backlash against the militarized, U.S.-led “war on drugs” in the region—that has notched victories in countries like Uruguay and U.S. states like Colorado and Washington, all of which recently legalized marijuana. But for every movement, there’s a countermovement. Countries such as China, Iran, and Russia are simultaneously doubling down on punitive, law-and-order approaches to drugs. Divides between reformists and prohibitionists have opened up within many countries as well.

These divides were evident in April at a United Nations session on drug policy, convened three years ahead of schedule at the request of Colombia, Guatemala, and Mexico. The assembly ended without major changes to existing international drug-control conventions, though Sanchez noted that a resulting General Assembly resolution did mention, for the first time, several key elements of the reform agenda, including the need to respect human-rights treaties and address violence when combatting drugs. Still, she was disappointed by the results. Hardline countries will seize on the document’s utopian language, including its call for “a society free of drug abuse,” to justify their policies, she told me recently.

In May, on the sidelines of the Human Rights Foundation’s Oslo Freedom Forum in Norway, I spoke with Sanchez about the latest global trends in drug legalization and decriminalization (a middle ground of sorts between prohibition and legalization); why she feels the Mexican constitution protects the right to grow and consume cannabis; and the merits of thinking about drugs within a human-rights framework. An edited and condensed transcript of our conversation follows.

Uri Friedman: In 2015, Mexico’s Supreme Court ruled that producing marijuana for personal use was a human right. The organization that brought the case, SMART, [which was created by Sanchez’s Mexico Unido Contra La Delincuencia], argued that prohibiting marijuana use violated people’s right to the “free development of personality,” although the court ruling only applied to the plaintiffs. Can you explain how you think drug decriminalization and legalization fits within the framework of human rights?

Lisa Sanchez: We had been working for a number of years with legislators and the executive, and trying to convince them to embrace awareness of the harms of the war on drugs, and they wouldn’t listen. Since we had a legislative blockage and a president who didn’t want to talk about it, we went for the judiciary. We started a strategic litigation that at the very beginning was about creating a cannabis club, [similar to] Spanish cannabis social clubs.

We created this organization that was called SMART, and the people who were members of SMART, what they did was to ask for an authorization from the health authorities to grow cannabis so they wouldn’t have to go to the black market to get it. When the health ministry refused to grant that authorization, what [SMART members] did was to sue the state. Cannabis use is not a crime in Mexico, but all of the activities that you need to do to actually consume—like getting it, carrying it, having it—they’re all crimes. So what they said was that particular prohibition that wouldn’t allow a person to actually consume without committing a crime was a violation of the right to freely develop one’s personality, because they wanted to [practice] a specific behavior in the privacy of their own homes without leaking it to the market, without [getting] any type of profit out of it, and they were disposing of their own health, so they were not harming a third party. Why does the state need to get into that private sphere of a human being’s life?

In Mexico, in order to create jurisprudence, you need five rulings with the same number of votes in the same sense consecutively to actually change the laws. So what we’re doing is we’re defending seven more cases and we’re trying to create that jurisprudence. We didn’t do so because we wanted to exercise the right to grow cannabis and use it, but because we wanted a legal opinion from a court that would support the idea that the legislation in Mexico was wrong and was forcing citizens to commit crimes they didn’t want to commit; and once [those crimes were] committed, [those citizens were disproportionately] sanctioned. We never pretended that this strategic litigation was about the right to health, or that it was about an injustice already made against someone incarcerated for the wrong reasons. It was literally saying, “Those who want to use cannabis for recreational purposes, not medical—not because they need to, but because they want to—should have the right to do so without having to commit a crime.”

And this is a constitutional court, right? So the rulings of the Supreme Court in Mexico are based on what the constitution says, and the constitution doesn’t have a right to use cannabis. What the constitution says, in Article 1, is that everybody has the right to live a life with dignity. And we had previous cases [involving] transgender people, gay marriage, and gay adoption that used that particular article to develop the concept of developing one’s personality freely in the private arena [where] it’s entirely my decision, it’s not harming anybody else. That doesn’t mean that the state loses its prerogative of fighting organized crime and protecting public health, but there are other ways to do so.

We thought originally that this was going to be enough to take the ball back to the legislative court but as it turns out, all politicians in the world and in Mexico as well are just led by polls, and public opinion is still against us. [But opinion is] changing, and it’s changing quite rapidly.

Now I wouldn’t say this is the way that I want to frame the human-rights discussion in terms of drug policy, because I think there’s a lot more in drug policy that has to do with human rights than just the right of a person to use [drugs]. If you apply the same criteria of living a life with dignity to a person who’s growing an illicit crop in the Andean region, for example, well, you will need to provide alternative livelihood.

So the human-rights discussion also touches on decent living, on alternative livelihoods, on the economic possibilities of developing an economy and not having to depend on the black market. It also touches on due process, on proportionality of sentencing, on stigma and discrimination against people using, carrying, transporting, being somehow involved in the drug chain. It also touches on gender issues for generations; for example, women are criminalized for being drug users and bearing children. And [the authorities are] normally taking their children away or [women are] incarcerated and they’re not allowed to see their children. The three [international drug-control] conventions ban all uses but scientific and medical, and when you go and see the definition of medical and scientific purposes, it’s everything that is not recreational. It’s everything that [doesn’t have] to do with enjoying the substance for the sake of the substance. So indigenous communities, why do they have to be constrained by these conventions if there are other instruments in international law that could protect their own traditions?

Friedman: You wouldn’t be able to make the argument in the SMART case about harder drugs, right? Because one of the things you’re arguing is that marijuana use is a harm only to the person consuming it and not to society. So is there a limit to that argument in terms of what substances it can apply to?

Sanchez: There is a limit, but not because you’re only harming yourself. The strongest argument is the level of [danger] of cannabis versus other drugs. And so since alcohol and tobacco had been proven to be more harmful than cannabis itself, it makes no sense for cannabis to have stricter laws than tobacco and alcohol. That cannot be applied to heroin or methamphetamines, because the harms of heroin or methamphetamines can be worse than alcohol, although they’re not necessarily worse than alcohol—they’re worse than tobacco, but not necessarily worse than alcohol. So there is a limit, and the argument will need to be complemented by other reasoning and more evidence. But to a certain extent you could apply this [argument] to LSD, for example.

Friedman: Is the most interesting experimentation on drug decriminalization and legalization right now happening in the Americas?

Sanchez: I wouldn’t say that the most interesting case is Colorado or Washington state or Uruguay, but I think that what’s most exciting about what’s happening in the Americas is that you can actually see a very wide range of policy alternatives, and that you’re seeing that legal regulation doesn’t necessarily mean the commercial model that Colorado has, or doesn’t necessarily mean the heavy tax model as in Washington state, or doesn’t necessarily mean a state monopoly as in Uruguay. What it’s demonstrating is that states and jurisdictions will have to adapt the model depending on their priorities, what resonates [with] public opinion, and what’s possible with their institutions.

Friedman: I know summarizing the arguments for drug decriminalization and legalization is hard. It’s a very complex subject. But I’m wondering if you could go over, especially in the case of Mexico, why you feel that a change of policy could change public health and decrease violence.

Sanchez: I accept that the main argument is a cost-benefit analysis. When you’re seeing that the efforts you’re making in trying to control or suppress a phenomenon are outgrowing the benefits that you’re getting from it, and your problems are growing and not decreasing, then it’s time to abandon such policies. It could be drug policy or economic policy or whatever you like. Richard Branson says, quite sharply, “If [drug] prohibition was a business, and after year two I [wasn’t] making any profits out of it, why should I continue running this business?” If it’s just costing a lot and it’s generating more problems than the ones [it was] originally intended to solve. It’s very expensive in terms of human lives, but also in terms of public budgets, and at least the stated objectives of drug control in modern times have not been reached. Not even close. We haven’t eliminated supply. We haven’t eliminated demand.

In the Mexico case, this was not necessarily a policy that we thought of on our own. This plant in particular, in terms of cannabis, has been growing in this territory for the past 500 years. We used to have a not-so-problematic relationship with the plant—we used it for medical, traditional purposes. Why do we have to fight a war that’s so bloody over prohibiting a plant?

That is not to say that we want to abandon any efforts to fight organized crime, but it’s just [telling the Mexican government]: “You’re not focusing on the strong links of organized-crime chains because you’re way too distracted incarcerating people that use drugs and people with low incomes growing illicit crops. So rethink [the relationship] you want to have with both the substance that you want to control and the organized crime that you’re promoting, enabling, or controlling on the other hand.”

We have increased our public budgets for security and law enforcement, and drug enforcement in particular, with absolutely no results other than having this very violent war—not just between the state and the criminal organizations dedicated to drug trafficking, but also among these organizations that are being dismantled. Why keep on distracting all your efforts [by focusing on battling] drugs if violence is now your biggest issue? I mean, when the life expectancy of your [male] population decreases, you know that you’re doing something wrong.

Friedman: Do you apply this logic to all drugs?

Sanchez: We apply it to drug policy in general. So if your main problem is not cannabis, then you should focus on other stuff. We’re not saying that you should legalize all things on a commercial basis, but you should have smart enforcement laws, better-vetted regulations for controlled substances, and in some cases even some legal access to those particular substances. For example: controlling the heroin epidemic. We rather like the model of Switzerland, which at some point provided [heroin] for free in medical facilities. They didn’t necessarily take all of those who were already using heroin out of [the pool of users], but what they prevented was more people [starting to use] it. And I think that’s a better strategy than just prohibiting heroin and then prohibiting all of the substances that could somehow be a substitute for it. But that of course needs to be evaluated case by case, and you also have to be very aware of the institutions you have, the society you have, the resources you have.

Friedman: Is there a country you’d cite as the best example for proving that drug decriminalization or legalization can work?

Sanchez: [In terms of] decriminalization, I would say that the best example is Portugal. We like it a lot, because Portugal is the only country that has had some monitoring and evaluation for the past 10 years, so we know that at least all of these warnings of people saying [if you decriminalize, drug] use will rise, children will use more, prices will fall, availability will increase—that doesn’t happen. At least it hasn’t happened in the case of Portugal, which has been monitoring this for the past 10 years. To the contrary, use has reduced, availability has also reduced, you have [fewer] drugs in the streets.

In terms of legal regulation or legalization, we will have to wait a little bit because I think it’s too soon to evaluate Colorado or Washington, and it’s definitely too soon to evaluate Uruguay. Uruguay hasn’t started to sell cannabis retail in their pharmacies; they will start in July. So you just don’t necessarily know.

This reporting was made possible in part with the support of the Human Rights Foundation.