Costa Rica: Could drug-law reform for women open door to wider change?

The reform known as 77-bis is narrow, applying only to women arrested for smuggling drugs into jail. But its emphasis on taking an offender's background into account during sentencing is revolutionary in a region that prioritizes hard-line punishments for drug crimes.

When Sandra was arrested for smuggling drugs into a men’s prison in 2015, she accepted it as part of the familiar cycle of her life. She’d been in and out of detention since she was 14, when she moved on to the streets, fleeing abuse at home.

But a lot has changed in the penal system since Sandra, whose last name has been omitted for privacy, first arrived at Costa Rica’s only women’s prison in the 1990s. The institution changed names, the soccer field crumbled into a river during a rough rainy season, and the prison population exploded, growing by upwards of 50 percent nationwide between 2006 and 2012.

Following Sandra’s most recent arrest, she learned of an even more profound change: her life experiences would be studied and taken into consideration during sentencing, and there were alternatives to going to jail.

The narcotics-law reform that resulted in Sandra going to rehab, getting job training, and serving three years of probation instead of years behind bars is known as 77-bis. The law is narrow – it only applies to women arrested for smuggling drugs into jails – but it’s revolutionary in a region that prioritizes hard-line punishments for drug crimes. As organized crime carves out deeper and more far-reaching paths across the Americas, most citizens and politicians are arguing for solutions that result in more people, and more time, behind bars.

In Costa Rica, drug-smuggling into prison is almost entirely carried out by women. By focusing on women like Sandra – non-violent offenders, coming from situations of poverty – 77-bis released roughly one-fifth of Costa Rica’s female prison population, essentially waving a magic wand at chronic overcrowding. But the conversation about how to reform drug laws with that cohort in mind has created broader opportunities by allowing policy-makers, public defenders, judges, and civil society to look at drug policies and punishments in a new light. That can help both men and women, and society at large, proponents hope.

“My life has always been a disaster,” says Sandra, who was introduced to crack in prison. When she was offered the opportunity of an alternate sentence under 77-bis, it required that she get sober. “I never wanted to stop using drugs before, but prison was so awful, I decided it was worth trying.” Today she’s reconnected with her siblings and grown children, is looking for work as a cook, and is 9-months sober.

“I’m alive because of this opportunity,” she says.

“Some people see this as a ‘benefit’ for people who have committed crimes,” says Cecilia Sánchez, a former minister of justice who is now the director of the Latin American Institute of the United Nations for the Prevention of Crime and Treatment of Offenders. “But, the idea that putting everyone in prison will suddenly create a safe society? We know that’s not true. It takes a lot more work than just putting people behind bars. There are questions of equality, poverty, and education.”

Outsized impact

As the population of female prisoners across Latin America blew up over the past two decades, growing on average 52 percent between 2000 and 2015, nations from Mexico to Argentina have struggled with overcrowding. Experts point to growth in the multinational drug trade, combined with few social safety nets and drug laws that barely differentiate between low-level involvement and powerful kingpins when handing down sentences. With the exception of 77-bis, drug-related offenses in Costa Rica are considered federal crimes, punishable by eight to 20 years in jail.

The region’s male prison population, by comparison, has grown roughly 20 percent. In absolute terms, they make up a far greater percentage of prisoners in Latin America. But “punitive drug policies are falling more heavily on women” across Latin America, says Coletta Youngers, a senior fellow at the Washington Office on Latin America (WOLA) who researches drug policy and has written extensively on female incarceration rates. “Jails are overflowing with women who aren’t violent and aren’t serious threats to public safety.”

Women tend to take on the high-risk, low-reward tasks of moving drugs, motivated by economic desperation, bullying or coercion by a partner or family member, or a simple lack of opportunity, studies show. In nations like Argentina, Brazil, and Costa Rica, more than 60 percent of women behind bars face drug charges. One woman who benefited from 77-bis told The Christian Science Monitor that she could make $150 each time she successfully brought drugs into a prison, trying to support her family. She’d go to multiple jails in one day delivering drugs. If she failed, she was easily replaced.

'This wasn't a quick decision'

A three-minute walk down an undulating sidewalk flanked by chain-link fence and swirls of razor wire, sits a series of concrete-block structures at the Vilma Curling Rivera women’s prison here. Inside one building, women linger in the paved courtyard, writing in journals or hanging laundry in dense rows.

Cheryl Myers fidgets on a cement bench waiting for one of the bright blue payphones. She’s served about a quarter of her 8-year sentence for selling drugs, and says she’s struggling. Her five children live an expensive four-hour trip away and they’ve only come twice so far. Many prisoners depend on family to provide food and clothes while they’re behind bars.

“Where I live, it’s really poor. It’s banana territory,” Ms. Myers says. After an injury working with bananas near her home in eastern Costa Rica, she had to look for another option. She tried cleaning homes, but only scraped together $8.50 a week.

“My kids were going hungry,” she says. “There were lots of opportunities to sell drugs. Everyone knows someone doing it. And it pays,” she adds. “I thought about it a lot, a lot…. This wasn’t a quick decision.”

When women go to jail, dependents – whether children or the elderly – are at greater risk of poverty or getting involved in criminal activity themselves. And once released, women’s criminal records tend to carry a heavier social stigma than men’s, making it tougher to break out of the cycle of poverty that often directed them toward the drug trade in the first place, Ms. Youngers, of WOLA, says.

“The traditional role for women here is taking care of the family,” says Kenly Garza, the assistant director of the Vilma Curling Rivera prison, who previously worked in men’s prisons for over a decade. “That doesn’t change once they’re behind bars,” she says.

“For women, the impact of prison is all about what’s going on outside: they call on social workers and psychologists because they’re losing sleep over their kids skipping school, worrying their children don’t have enough to eat, wondering if they’re safe and taken care of.”

One punishment, one crime

In 2010, the United Nations passed the “Bangkok Rules” for treatment of female prisoners. It called for “gender-specific options” for pretrial and sentencing alternatives that take into account “the history of victimization of many women offenders and their caretaking responsibilities.”

Costa Rica prides itself on prioritizing human rights. But that can sometimes clash with deeply conservative values. While many politicians were pushing for popular tough-on-crime responses to growing trafficking and cartel presence here, the Bangkok Rules laid the groundwork for imprisoned women’s advocates to put forth their case.

“It’s not the same to be poor and alone vs. poor with five kids,” says Roy Murillo, a judge for more than two decades. “If the reason behind the crime is distinct, why can’t the punishment be distinct?”

In 2009, a public prosecutor in the country’s north found that nearly 90 percent of all people bringing drugs into prisons here are women. Further research found that 95 percent of women in jail for trafficking drugs into prisons were single mothers, and the majority were between 18 and 35 – making the crime a more palatable place to start drug reform, observers say.

Costa Rica’s ministry of justice and public prosecutors office led an effort to encourage politicians and judges step back and look at the bigger picture.

“Things pile up, and when there are no opportunities or when someone is not educated or prepared for opportunities, that’s where social policies fail to reach, but organized crime shows up,” says Zhuyem Molina, who worked as a public prosecutor for nearly 20 years and recently began researching potential penal-code reform for the Ministry of Justice.

77-bis “was a small window [of opportunity] that’s opened many doors since,” Ms. Molina says.

For example, employment remained a central obstacle for many of the first women who benefitted from 77-bis. No matter what sentence or what type of crime, anyone who had been to jail carried a public record for at least a decade.

“When your opportunity to work [after serving a sentence] is blocked, it’s like having two punishments for one crime,” says Judge Murillo.

Controversial approach

Ms. Sánchez, as minister of justice, agreed. And not just for women. In 2017, a registry reform went into effect that eliminates criminal records for men and women who meet criteria like having non-violent crimes, and were in a “vulnerable” situation at the time. Currently, a broader sentencing-reform bill is in the national assembly.

77-bis also helped create a formal support network for women in the criminal justice system. It’s managed by the public defenders office – and by all accounts is in serious need of funding. It focuses on the factors that most often drive women toward crime in the first place. NGOs and government institutions help connect women with job training, rehabilitation services, and financial support.

But some wonder if addressing problems in terms of gender is perpetuating problematic stereotypes. 77-bis “is positive,” says Ernesto Cortés, executive director of the Costa Rican Association for the Study and Intervention of Drugs. But in some ways it plays on stereotypes, “reproducing an image of women as victims who are forced to do things.”

Claudia Palma Campos, an anthropologist at the University of Costa Rica who has conducted oral histories with female prisoners since 2008, says the reform’s narrow focus made it easier to pass, but it doesn’t go far enough.

“It’s an important law with concrete benefits, but it’s politically correct,” she says. “What [lawmakers] say is that women, due to their vulnerability, are obliged to bring drugs into prisons. What I say is that when it comes to being marginalized and affected by violence, every drug crime” is fair game, and social circumstances need to be considered for any non-violent drug crime, regardless of gender.

Making a 'miracle'?

When a woman is offered an alternate sentence under 77-bis, she, her lawyer, and a judge agree on a “life plan”: steps like enrolling in a rehabilitation program or job-skills course, as well as regular check-ins and often community service hours. Less than 2 percent of women given alternative sentences via 77-bis have violated their parole or committed a new crime that put them behind bars, Molina says, citing 2016 data from the public prosecutor’s office.

But the lives of women given alternate sentences don’t automatically transform into fairy tales. Mariana, who asked not to use her given name for her family’s privacy, is a young sex worker who isn’t behind bars thanks to 77-bis. She joins Molina for a hot chocolate near the Supreme Court on a recent afternoon. Her story has captured the hearts of a number of lawyers and social workers, but her path has been far from perfect.

Mariana was sentenced to six years of parole and 600 hours of community service. She had a rocky start, but no longer uses drugs and always asks for help when she needs it. “She hasn’t committed a crime since we started working with her,” Molina says. Prostitution is legal in Costa Rica. “It’s been hard, but she’s learned to survive in the jungle where she moves without breaking the law.”

Molina refers to Mariana numerous times as a “miracle.” Mariana visibly bristles or shakes her head and quietly whispers, “No.”

“A miracle is something that comes from nowhere, an act of God,” she says.

“A lot of people have put in a lot of work to get me here.”