Mapping Colombians’ positions on sentencing for substance offenses

The objective of this study was to characterize precisely the diverse positions of Colombian citizens regarding the type of punishment that should be imposed on a person who has been arrested by the police while in possession of illicit substances. In Colombia, in 2019, it is estimated that about 8% of people aged 12 to 65 have used cannabis at least once, about 2% have used cocaine, and 0.1% have used heroin. The percentages of regular users of these substances (monthly use) are approximately 2, 0.3 and 0.01%, respectively [1]. For cannabis, the average age of initiation is about 18 years. About 55% of people feel that if they wanted it, it would be easy to get it and only 7% of people have never been openly offered it in their lives. In 2014, about 85,000 people were arrested for the crime of trafficking, manufacture or carrying of narcotics, 16,000 were convicted, and 200 were extradited [2].

In Colombia, as in other countries, governments have been concerned about the presence of illicit substances in their territory. This concern ranges from the planting of so-called illicit crops to drug trafficking. Multiple strategies have been put in place to control drug crops (e.g., aerial spraying of glyphosate, manual eradication, prosecution of growers) as well as to control drug trafficking. However, perspectives and legislation have oscillated between two poles: prohibitionist/repressive and progressive, i.e., focusing on social and cultural measures. In 1994, the Colombian Constitutional Court had already ruled (Ruling C-221) that the control of substances should be carried out with respect to the rights of people to autonomous development and, therefore, the consumption of personal doses should be decriminalized [3]. On the contrary, in 1999, under the Pastrana government, a strategy called Plan Colombia was implemented with the objective of totally prohibiting the use of drugs, even in small quantities [4]. In 2002, under the repressive-minded Uribe government, the Constitutional Court (Ruling C-689) nevertheless insisted on the importance of differentiating between trafficking, possession and consumption in court decisions [5]. In 2009, the Constitutional Court went a step further and ruled that the criminalization of drug use should be done in the spirit of public health and not in the spirit of criminalization [5]. Finally, from 2011 onwards, the policy of repression in the control of drug use gave way to a true public health perspective, which resulted in the decriminalization of the possession and consumption of personal doses and the concern for health care for users of illicit substances, instead of incarceration [3].

Currently, in Colombia, there are therefore no judicial sanctions against use of illicit substances, but the law has provided mechanisms that aim to control the internal trafficking of drugs in the country and to reduce the harm associated with drug use. Specifically, a person caught in possession of an illicit substance such as marijuana, hashish, cocaine (or its derivatives) or methaqualone is not judicially sanctioned as long as the quantity does not exceed the maximum allowable amounts, which are 20 g of marijuana, 5 g of hashish, 1 g of cocaine and 2 g of methaqualone. Otherwise, individuals can face prison sentences of 4 years to 30 years as well as economic sanctions [6‐8].

In reality, it is difficult for police and judges to discern whether people who are caught with illicit substances are carrying them only for consumption or are engaged in micro-trafficking (distribution of drugs in small quantities to evade police prosecution). In 2017, 31% of the convictions with deprivation of liberty were for people who had only the maximum allowable amount on their person and for whom no evidence of trafficking could be established [9].

As very widely varying positions were expected, a cluster analysis, using the K-means procedure [26], was performed in order to detect qualitatively different judgment patterns. As four positions were expected, a four-cluster solution was first applied. Subsequently, three-, five-, six-, and seven-cluster solutions were examined. Figure 1 shows the decrease in the average distance from the centroid as a function of the number of clusters considered. The six-cluster solution was the one that seemed optimal.

An overall ANOVA was performed on the observed ratings for each profile with a Cluster x Age x Quantity x Substance Type x Charge, 6 × 2 × 2 × 2 × 3 × 4 design. Due to the large number of comparisons, the significance threshold was set at 0.001. The main results are shown in Table 1. Since the Cluster effect and the two-way interaction involving Cluster were significant, six separate analyses were performed at the group level. Figure 2 shows the mean severity scores of five of these six clusters as well as the judge’s ones. The results of the ANOVAs at the group level are shown in Table 2.

The first cluster (N = 19, 6% of the sample) was labelled Never Severe. This designation was given because, as can be seen in Fig. 2 (left-hand panel), all mean ratings were low (M = 1.95, SD = 1.23). When the offender was selling drugs at school gates, the severity of the sentence (M = 2.88, SD = 1.27) was somewhat higher than when the offender was simply in possession (M = 1.15, SD = 0.69), η²_p = .56. As can be seen in Table 1, younger participants or participants with low levels of religiosity expressed this position more frequently than older participants (36+ years) and participants with high levels of religiosity.

The second cluster (N = 112, 37%) was labeled Depends on the charge. This designation was given because, as can be seen in Fig. 2 (second panel), severity ratings were considerably higher when the offender was selling drugs at the school gates (M = 7.72, SD = .58) than when he was simply in possession (M = 3.17, SD = 0.46), η²_p = .69. In addition, severity ratings were slightly higher (a) when the offender was an adult (M = 5.94, SD = 0.62) than when the offender was a minor (M = 5.18, SD = 0.58), η²_p = .25, (b) when the amount of substance was high (M = 5. 96, SD = 0.56) than when it was small (M = 5.16, SD = .55), η²_p = .45, and (c) when the substance was heroin (M = 5.89, SD = 0.45) than when it was cannabis (M = 5.16, SD = 0.47), η²_p = .32. Older participants or participants with lower socioeconomic status, or participants with children, or participants with a very high level of religiosity expressed this position less frequently than younger participants (49 years or less), participants with higher socioeconomic status, participants without children, and participants with lower levels of religiosity.

The third cluster (N = 16, 5%) was labeled Always severe except in the case of simple possession. This designation was given because, as can be seen in Fig. 2 (third panel), severity ratings were, irrespective of the context, always considerably lower when the offender was simply in possession (M = 1.85, SD = 1.04) than when the offender was selling drugs (M = 9.56, SD = 0.48), η²_p = .96. Older participants expressed this position more frequently than participants aged 36-49. The pattern of ratings given by the members of this cluster was very similar to that observed in the judge (right panel).

The fourth cluster (N = 50, 17%) was labeled Always severe except in the case of simple possession of small amounts. As can be seen in Fig. 2 (fourth panel), severity ratings were considerably lower when the offender was simply in possession of small amounts (M = 3.51, SD = 0.77) than in all other cases (M = 9.15, SD = 0.28), η²_p = .58. In addition, severity ratings were slightly higher when the substance was heroin (M = 8.65, SD = 0.36) than when it was cannabis (M = 8.14, SD = 0.36), η²_p = .28. Younger participants expressed this position less frequently than participants aged 29-35.

The fifth cluster (N = 66, 22%) was labeled Always severe for adult dealers. As can be seen in Fig. 2 (fifth panel), severity ratings were somewhat lower when the offender was a minor who was simply in possession of small amounts (M = 4.93, SD = 0.37) than in all other cases (M = 8.70, SD = 0.29), η²_p = .20. In addition, severity ratings were slightly higher when the substance was heroin (M = 8.58, SD = 0.44) than when it was cannabis (M = 8.31, SD = 0.52), η²_p = .18. Participants aged 36-49 and participants with high socio-economic levels expressed this position more frequently than participants aged 18-28 and participants with low socio-economic level.

Finally, the sixth cluster (N = 39, 13%, not shown) was labelled Always severe. This designation was given because all mean ratings were very high (M = 9.84, SD = 0.24). When the offender was selling drugs at school gates, the severity of the sentence (M = 9.88, SD = 1.12) was slightly higher than when the offender was simply in possession (M = 9.71, SD = 0.25), η²_p = .16. As can be seen in Table 1, older participants, female participants, participants with children, participants with very low socio-economic status and participants with a very high level of religiosity expressed this position more frequently than younger participants (49 or less), male participants, participants without children, participants with high socio-economic status, and participants with lower levels of religiosity.

Figure 3 shows the Euclidian distances between the seven profiles of mean ratings. The main opposition was between the Never severe position and all the other positions. There was also a minor opposition between the Charge and No sale positions on the one hand, and the three Always severe positions on the other hand. Unsurprisingly the judge’s personal position was close to the No sale position.

As expected, two radical positions were found. For 6 % of the participants, mostly the youngest and least religious, even the sale of illicit substances, by an adult, at the school gates should not result in a very severe sentence. This finding is reminiscent of the one reported by López López and collaborators [21] that 8 % of respondents to a survey on substance control policies expressed the idea that the only acceptable policy is a free market policy. There is, of course, a substantial difference between a free-market policy and a policy of decriminalization of drugs. The common idea, however, is that the possession, use and trade of drugs should not be prosecuted, except perhaps in certain extreme cases.

In contrast, 13% of the participants, mostly older and very religious ones, did not take into account the circumstances in which the protagonist was arrested. From their point of view, even a teenager caught with a personal dose of cannabis should be extremely severely sentenced. This result can be compared with the result reported in the same survey, according to which, for 10% of the participants, only a complete prohibition policy combined with information campaigns about the dangerousness of drugs is acceptable.

Among most participants, however, the positions expressed are seemingly more nuanced. Seventeen percent of the participants expressed a position that is reminiscent of the position defended in 2012 by the Constitutional Court, according to which the mere possession of a personal dose of drugs is not punishable. Twenty-two percent of the participants expressed a position similar to this one, although harsher. In their view, an exception to the maximum severity can only be tolerated in the case of a youth. These results are consistent with those reported by Gritsenko and collaborators [15]. On the other hand, 5% (including one judge) expressed a similar but more flexible position. In their opinion, in all cases where no attempt to sell is proven – cases of simple possession, there is no reason to punish in an extremely severe manner.

Finally, 37% of the participants, mostly younger males without children, and less religious people, expressed a position that punishment should be strictly proportional to the charge against the offender. According to them, an extremely severe punishment is necessary in cases considered serious (e.g., selling at the school gate), mainly if it involves the sale of heroin by an adult, whereas it is not appropriate in cases considered less serious (e.g., simple possession), mainly if it involves the possession of cannabis by a teenager. This position is similar to the one advocated by the International Drug Policy Consortium according to which “proportionate sentencing frameworks should distinguish between the type of drugs and the scale of the illicit activity, as well as the role and motivation of the offender” ([27], p. 1).

The results of the present study are broadly consistent with those of Kirby and Jacobson [14]. The three situational factors – type of substance, amount of substance, and type of charge against the offender – do, taken together, have an effect on the degree of sentence severity deemed appropriate. What the present study shows, moreover, is that (a) these effects are manifested in only some of the participants and not in all of them, and (b) the effect of the factors corresponding to the behavior and age of the protagonist is significantly greater than the effect of the factors corresponding to the substance itself.

The results are also consistent with those of Jorgensen [16]. Of all the demographic characteristics, religiosity has the strongest impact on the positions expressed: 42% of the very religious participants expressed the most drastic position and only 12% the position corresponding to the proportionality rule, whereas, among the not very religious participants, the two percentages are 2 and 58%, respectively.

The positions expressed by the participants correspond to three distinct, classical philosophies (a) a libertarian, free-market philosophy – punishment should never be extremely severe because the trade in psychotropic substances is a trade like any other (6%), (b) a moralistic, conservative philosophy – punishment should always be extremely severe except perhaps in certain cases (52%), and (c) a progressive, human rights-inspired philosophy – punishment should always be proportional to the seriousness of the facts (42%).

The fact that the majority of participants expressed a moralistic stance may be related to the realization that successive Colombian governments have never succeeded in establishing a control policy that is not moralistic, i.e., a policy according to which the use of psychotropic substances is considered profoundly immoral, so offenders must be punished in the most dissuasive way possible (regardless of the actual personal and public health consequences of such behavior). It is also related to (a) the judicial polarization that Colombia has experienced, especially in the last 20 years, which has not allowed for the consolidation of strategies against drug possession, and (b) the speeches of different political leaders who have often expressed personal ideologies disconnected from social reality and scientific evidence.

Furthermore, participants expressing non-moralist views are divided. While the majority express views similar to those of international organizations such as the International Drug Policy Consortium, a minority express views that go much further. This fact probably weakens the local relevance of their arguments. There is therefore a concern that any change in legislation in either direction is likely to generate discontent among large segments of society. It is therefore desirable that legislators rely heavily on progressive international legislation [28] to support domestic policies that are not strictly moralistic and conservative.