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 [6,7,8].

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].

Citizens’ views regarding sentencing for substance offenses

It may seem strange to examine citizens’ positions on a subject as complex as criminalization legislation related to substance offenses [10]. This legislation must take into account a multiplicity of extremely diverse factors such as considerations of public order (e.g., repression of violent criminality), considerations of public health (e.g., treatment of the sick), budgetary costs (e.g., prison management), or international relations (e.g., the need for harmonization of legislation at the regional or global level).

As previous studies in the United Kingdom have shown [11, 12], ordinary citizens, in their assessment of the level of punishment required for trafficking or substance use, (a) are likely to be overwhelmed by their emotions and call for disproportionate sentences, or (b) may be guided by their interests and, if they themselves feel implicated (e.g., regular users), propose sentences that are too lenient. It is likely that this finding also applies to many other publics, including the Colombian public.

However, a sentencing system that is completely at variance with citizens’ opinions may not be easily enforceable [13]. It is important to know the extent to which the current sentencing system differs from the views of citizens. Moreover, citizens’ positions on this issue are very likely to be diverse. They are not usually reduced to a point along a scale from unfavorable to favorable. They have a structure. Knowing these structures implies conducting a detailed characterization of them.

Kirby and Jacobson [14] conducted a study in England and Wales that examined citizens’ views (a) on the relative severity of different drug offenses, particularly possession, supply, and importation, (b) on the relevance of the type of drugs to the severity of drug offenses; and (c) on the aims of sentencing itself. They used a vignette technique and the six offenses used to create each story were possession of cannabis, small-scale supply of cannabis, large-scale supply of heroin, medium-scale importation of cocaine, medium-scale supply of crack, and large-scale importation of heroin. In other words, they manipulated three factors – the type of substance (cannabis, cocaine and heroin), the amount of substance (small or large), and the nature of the charge against the offender (possession, supply and importation) – and assessed their participants’ reactions to this manipulation.

Participants were sensitive to all three factors. Firstly, participants made a clear differentiation between possession charges and other types of drug charges. Their main argument was that possession and personal use only cause harm to oneself, while supply and importation result in harm to others. Secondly, cannabis-related offenses were largely considered to deserve less rigorous sentences than those related to any of the other drugs. Thirdly, the majority penalty for the supplier of mild quantities of crack and cocaine was 2 to 15 years in prison, while for the large-scale supplier of heroin it was 10 to 20 years. Kirby and Jacobson [14] also reported that the “phrase that was perhaps repeated more than any other in the focus group discussion was ‘he knows what he’s doing’.” This sentence suggests that the severity of sentences may also be related to the degree of personal maturity of transgressors.

Gritsenko and collaborators [15] explored Russian university students’ attitudes toward drug trafficking. They found that (a) 56% advocated “strict and very severe punishment (including death)”, regardless of the circumstances, (b) 27% felt that punishment should “take into account mitigating factors such as unemployment, the need to support a family”, and (c) 17% felt that punishment should “take into account objective measures of the crime committed (volume of sales, duration of trade, and others).”

Jorgensen [16] examined the opinions of US police officers regarding appropriate sentences for various drug offenses. More than 80% considered a minimum of 1 year in prison to be an appropriate sentence for people arrested for selling cocaine or heroin for profit. In the case of persons arrested for selling cannabis or using cocaine or heroin, only about 30% considered such a sentence to be appropriate. In the case of a person arrested for cannabis use, only 5% thought that such a sentence was appropriate. The very religious officers were harsher in their opinions than the non-religious ones.

The present study

As noted above, this study sought to characterize in detail the diverse positions of Colombian citizens — a population for which little empirical data on the subject is available — regarding the type of punishment to be meted out to a person who has been arrested by the police while in possession of illegal substances. As also suggested above, these positions are likely to be extremely varied and each is likely to be complex and to have structure. They cannot be reduced to simple placements along a scale of sentencing severity. It is therefore necessary, if we are to understand these positions, to adopt a methodological approach that is sufficiently flexible to be able to capture this diversity and complexity.

This is why the present study was conducted according to an approach already used in other fields, whenever a fine characterization of public positions is desired [17,18,19,20]. A number of vignettes were created by orthogonal variation of the three factors considered by Kirby and Jacobson [14]: type of substance (cannabis, cocaine, or heroin), amount of substance, and type of charge against the offender (simple possession, sale to adults, sale to teens, canvassing at the school door). A fourth factor, also suggested by these authors, was considered: the age of the offender, minor or major. A situation of everyday life easily recognizable by all in Colombia was chosen; that of a male person who is apprehended in the street by the police because he is suspected of illicit trafficking.

Colombians’ positions on the severity of punishment in the various situations described in the vignettes are likely to be extremely varied. In a recent survey conducted in Bogotá on adults’ perspectives on possible drug control policies, no less than seven qualitatively different positions were identified [21]. The most common position (50% of participants) was that no control policy was adequate. These participants tend to believe that neither legalization nor prohibition of substances can address the psychological and social underlying causes of their use. Many Colombians tend to believe that the origins of the drug problem lie abroad, in wealthy economies where a significant portion of the population is willing to spend large amounts of money in exchange for small amounts of powder. For about half of the participants expressing this radical position, the only thing the government can do is to inform the public of the dangers of drug use. The second most common position (19%) was that a policy of complete prohibition was the only one that would be adequate (although half of the members of this group were willing to allow cannabis to be sold freely). The third one (14%) was similar except that participants were also considering as acceptable a policy of complete regulation by the government. For 8%, the only valid option was that the drug market should be free.

We therefore expected several qualitatively different positions to be expressed by the participants. The first expected position is that of the participants for whom as soon as a person is convicted of drug offence, this person should be sentenced in the most severe way possible, regardless of the circumstances. This position is based on the philosophy of the war on drugs. Gritsenko and collaborators [15] showed that this position is very common in Russia, even among students. A symmetrical position, probably in the minority, should also be found. Since for a certain percentage of Colombians the drug market should be free, no conviction should be incurred by anyone (except perhaps those canvassing at school gates).

Intermediate positions must also be found. For a significant number of people, the severity of the penalty should be proportionate to the danger they pose to others. Canvassing at school gates should be punished much more severely than being in possession of a single dose, especially if the substance in question is heroin and the seller is a mature adult rather than an underage youth. Kirby and Jacobson [14] showed that their participants clearly distinguished between possession charges and sales charges, between cannabis-related offenses and cocaine-related offenses, between supplying light amounts and supplying large amounts, and that they were sensitive to the degree of personal maturity of the offender.

Finally, for a certain percentage of participants, Colombia’s current law should apply in all cases. The Colombian Constitutional Court has made it clear that possession of a personal dose of any drug is decriminalized [8]. Therefore, possession of a small amount of cannabis (or cocaine, or heroin) should not result in a sanction, but the sale of illicit substances should be severely punished, regardless of the circumstances.

We also expected that the frequency of expression of these different positions would differ according to participants’ age, whether they had children, and their degree of religiosity. For example, if a position of the harshest possible punishment in all cases is evidenced, this position should be more frequently expressed among those who are older and have children [22, 23], or report a very high degree of religiosity [24].

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