Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions

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]

US pressure and leverage of political and economic power

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Weak Bolivian government institutions

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Implementation of drug policy without oversight or public scrutiny
Pressure from US officials in La Paz: “US officials in La Paz pushed especially hard for [Law 1008’s] passage”Withholding of economic assistance: “In 1986 US embassy spokespersons affirmed that the adoption of the antidrug law was essential to win the release of economic assistance that had been temporarily withheld.”[6]

Involvement of US officials and expert in creation of drug policy and legislation: “US legal experts reportedly helped draft” Law 1008[7]

“Lack of effective oversight mechanisms in the Bolivian political system”Weak Bolivian congress and political parties

Failure to consult congress “on a number of occasions even when such was constitutionally mandated”

US officials circumvented Bolivian authorities, negotiating instead “with a handful of high-level officials,” thereby “minimizing both public debate and independent legislative action on drug control policies”

These practices, which the US justified “as necessary to avoid corruption,” “gave US policymakers disproportionate influence over both the development and implementation of policy.”

“[The Bolivian] executive branch, under pressure from Washington,” was able “to dictate policy with little public scrutiny or input into the policymaking process.”

Problems with Law 1008[8]

Law 1008 violates existing Bolivian laws and the constitution

  • The Bolivian constitution stipulates that the accused is innocent until proven guilty; however, “From 1998 until 1991,” Law 1008 “effectively plac[ed] the burden of proof on the accused.”[9] *(New criminal code modified this in 1999)
  • Bolivian law stipulates that Law 1008 violates “that an investigation judge supervise all investigations.”  However, “Under Law 1008, antidrug prosecutors determined whether or not to press charges, and judges were forced to try the accused on the basis of this determination.”[10] *(New criminal code modified this in 1999)
Law 1008 is not consistent with Bolivian legal norms for sentencing
  • Law 1008 offenses carry harsher sentences than other offenses.[11]
    • Sentences for drug production range from five to fifteen years; sentences for drug trafficking range from ten to twenty-five years.
    • People convicted under Law 1008 are not eligible for parole. *(New criminal code modified this in 1999)
    • The maximum legal sentence in Bolivia (for premeditated murder) is 30 years.  There are no death penalty or life sentences.
The weak Bolivian judiciary exacerbates abuses under Law 1008
  •  “Bolivia’s notoriously weak, corrupt, and slow judiciary also contributed to abuses under the law.”[12]
    • “Trials often lasted five years or more before a sentence was declared.”
    • “Those accused under Law 1008 were not eligible for bail, and even if acquitted by a district court, they had also to be acquitted in two higher courts in order to obtain their release.” *(New criminal code modified this in 1999)
    • “A police report, often poorly prepared and containing scant evidence, was considered sufficient evidence for conviction.”[13] *(New criminal code modified this in 1999)
    •  “Law 1008’s implementation drastically increased the number of men, women, and children in Bolivia’s already overcrowded prisons.”
      • “In one Cochabamba prison that receives prisoners from the Chapare, twenty times more prisoners entered the prison in 1994 than in 1987, the year before Law 1008 was passed.”[14]
      • “[I]n mid-2003, approximately 78 percent of the Cochabamba prison population was serving time under Law 1008 charges.”[15]
Law 1008 disproportionately punishes the poor
  • “Poor Bolivians accused of minor trafficking offenses and without the means to hire capable legal counsel still represent the great majority of Law 1008 detainees and convicts.”[16]  The procedures for 1008 greatly exacerbate pre-existing judicial backlog and delay in an under-funded, overloaded system.


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.

 


[1] http://foreignaffairs.house.gov/news/story/?2479

[2] “Report on Meeting with UNHCHR” Email Communication from Felicia D. Lynch. 12 July 2012 included in http://foreignaffairs.house.gov/112/HHRG-112-FA16-WState-MooreS-20120801.pdf

[3] The impact of this process has deteriorated over the years. For example, the U.S. has “de-certified” Bolivia since 2008, but has kept dwindling funds flowing through subsequent “national interests waivers.”

[4] Source: Human Rights Watch, “Human Rights Violations,” July 1995. p.20

[5] All quotes from Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of U.S. Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

[6] Source: Presencia, 10 February 1986, quoted in Jelsma and Roncken, 1998.

[7] Source: Human Rights Watch, “Human Rights Violations and the War on Drugs,” Human Rights Watch 7, no. 8 (July 1995): 14-15.

[8] All quotes from Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of U.S. Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

[9] Source: Constitución Política del Estado, Ley 1615, Artículo 16, 2002.

[10] Source: Human Rights Watch, “Human Rights Violations,” July 1995. p.20

[11] Source: República de Bolivia, “La Ley del Régimen de la Coca y Sustancias Controladas: Ley 1008,” Title III, artciles 47, 48, 19 July 1988.

[12] Source: Linda Farthing, “Social Impacts Associated with Antidrug Law 1008,” in Coca, Cocaine, and the Bolivian reality, Madeline Barbara Leones and Harry Sanabria, eds. (New York: SUNY Press, 1997), p.256.

[13] Source: Human Rights Watch, “Human Rights Violations,” July 1995. p.20

[14] Juzgado de vigilancia, Informe Annual 1995, Cochabamba, Bolivia.

[15] Author interview with judicial emplyees, 23 August 2002.

[16] Roberto Laserna, Gonzalo Vargas, and Juan Torrico, “La Estructura Industrial del Narcotráfico en Cochabamba” (Cochabamba: UNDCP/PNUD, unpublished manuscript, 1995).

[17]The USAID consultant was “actively engaged in the revision process, assembling a team of lawyers and legal experts to review and revise the Code, training justice sector officials to interpret the new Code.” From the website of Management Sciences for Development, Inc.: msdglobal.com/law_bol.html. http://www.checchiconsulting.com/index.php?option=com_projects&country_id=1&Itemid=8

[18] See Ley 1970 Código de Procedimiento Penal Bolivia. Artículo 233°.- (Requisitos para la detención preventiva). Realizada la imputación formal, el juez podrá ordenar la detención preventiva del imputado, a pedido fundamentado del fiscal o del querellante, cuando concurran los siguientes requisitos: 1. La existencia de elementos de convicción suficientes para sostener que el imputado es, con probabilidad, autor o partícipe de un hecho unible; y, 2. La existencia de elementos de convicción suficientes de que el imputado no se someterá al proceso u obstaculicen de la verdad. Artículo 234°.- (Peligro de fuga). Para decidir acerca del peligro de fuga se tendrá en cuenta las siguientes circunstancias: 1. Que el imputado no tenga domicilio o residencia habitual, ni familia, negocios o trabajos asentados en el país; 2. Las facilidades para abandonar el país o permanecer oculto; 3. La evidencia de que el imputado está realizando actos preparatorios de fuga; y; 4. El comportamiento del imputado durante el proceso o en otro anterior, en la medida que indique su voluntad de no someterse al mismo. Artículo 235°.- (Peligro de obstaculización). Para decidir acerca del peligro de obstaculización para la averiguación de la verdad se tendrá en cuenta, especialmente, la concurrencia de indicios de que el imputado:

1. Destruirá, modificará, ocultará, suprimirá o falsificará elementos de prueba; y

2. Influirá negativamente sobre los participes, testigos o peritos para beneficiarse….