Although the case of Jacob Ostreicher, an American accused of money laundering and awaiting trial in Bolivia for over a year, has received recurring attention in the US press and has been taken on by several US members of Congress, it has not been a defining factor in US-Bolivia relations.  First, strong statements about Ostreicher’s case from legislators demanding the Bolivian government provide him with bail immediately demonstrates that they grossly underestimate US influence in Bolivia, which has declined consistently even before the 2005 election of Evo Morales.  In previous decades, the US embassy could “call the shots” in the drug war and other areas of Bolivian politics as a result of successive Bolivian administrations’ heavy reliance on US funding. After the expulsion of the US ambassador and the US Drug Enforcement Administration in 2008, as well as the Bolivian decision to define its own drug policy and foot a substantial part of the bill, US funding and influence have shrunk considerably. Furthermore, congressional assumptions that the State Department has the means to put pressure on members of the Bolivian executive branch or influence the judicial branch are inaccurate.  As a result, denunciations by family members that the US Embassy in La Paz has acted negligently in this case appear unfounded.

Ostreicher faces the same systemic delays as Bolivian prisoners

One member of the US Congress cited his concerns about the case:

“For well over a year, even though he was not charged with any crime, the original document that led to his arrest and jailing specifically stated that he was guilty until proven innocent…That’s a violation of Bolivian law and is unconscionable. Jacob Ostreicher’s case is an egregious example of a violation of both the Bolivian constitution and the criminal code.”[1]

Clearly, the extended pre-trial detention and prison conditions Mr. Ostreicher faces are extreme, but they are no different or worse for Bolivian detainees. A representative from the UN High Commission on Human Rights concluded, “Mr. Ostreicher is not being persecuted or targeted by the government but rather he is yet another victim of a brutally slow, inefficient, underfunded and corrupt judicial system.”[2]

U.S-backed legislation and policy provided framework for drug war cases

Unfortunately, the harsh drug policy originated in Bolivia comes as a result of strong US pressure and imposed hardline drug war legislation in 1988 in the form of Law 1008, long before the election of Morales.  Law 1008 violated the Bolivian constitution by placing the burden of proof on the accused and did not allow those acquitted to be released from prison until the Bolivian Supreme Court ruled in their favor.  (See charts below for further analysis of the US pressure to pass Law 1008 and problems with the law.)

Furthermore, the US continues to enforce the its policy objectives through the annual drug “certification” process, which ties most U.S. funding to US approval of a country’s performance.[3]  Since the process’s inception, high levels of arrests, not convictions, have been used by the US to subjectively measure drug producing and trafficking countries’ success or failure in the drug war.  As a result, the Bolivian drug prosecution has traditionally focused on high detention rates, which congest the over-burdened system and slow trials to a snail’s pace. In 1995, Human Rights Watch wrote about the law’s impact: “Innocent or guilty, a person charged with drug trafficking offenses faces years of imprisonment.”[4]

US Pressure to Pass Law 1008[5]

Problems with Law 1008[8]

USAID helps draft current Criminal Procedures Code

In an effort to address these and other legal problems, between 1999 and 2010, a regional initiative of the USAID Administration of Justice Program facilitated and contributed to the formulation and implementation of a new Criminal Procedures Code,[17] which eliminated part, but not all, of the unconstitutional and due process problems with Law 1008.  For example, the new code granted the right to bail or conditional release for drug crime detainees that meet certain conditions, such as having an established address and the ability to prove they are not a flight risk and that detainees can be held up to 18 months before trial.[18] A Bolivian judge ruled that Jacob Ostreicher could not meet these conditions.

US policy and legislative impositions created the framework for drug trafficking and money laundering legal procedures, making it difficult to secure pre-trial release or obtain acquittals. For the first time, this has affected a US citizen in Bolivia. Although much of existing system and its injustices in drug prosecutions have their roots in US, not Bolivian, policy and pressure, the US has lost its ability to influence Bolivian legislation or legal processes.   In other words, it is a problem the US helped create, but no longer has the power to change.  Obviously, Bolivian legislators must pass further legal reforms to address judicial delay, extended pre-trial detention, and disastrous prison conditions and over-crowding; however, continued international pressure to take a tough stance against traffickers and maintain Law 1008 has been an obstacle in this process.