Text: Sergio Ortiz and Josefina Salomón Illustration: Sergio Ortiz Borbolla
Erenia Cerdas, 38, was living on the streets, asking for money to sustain her drug use when, at the end of 2021, a man she knew offered her US$100 to take some pieces of wood to the Cocorí prison in central Costa Rica. He told her that they would be used for handicraft workshops there. Erenia, who had already been through 16 rehabilitation centres and lost custody of her children a decade before, had little to lose. She found a way to get to the prison, but when she passed through the checkpoint, the guards discovered that among the wood were packages containing five kilos of marihuana. She said she didn’t know where it had come from, but she was immediately arrested.
Prisons in Latin America are overcrowded with women convicted of small-time drug trafficking. In fact, they are the fastest growing population in the region’s prisons. Globally, the increase has been 60 percent since 2000, an abysmal difference compared to the 22 percent increase for men, according to the World Female Imprisonment List.
The United States, China and Brazil top the list, with Mexico in tenth place and El Salvador and Guatemala close behind.
One of the reasons for this, according to Coletta Youngers, a drug policy and incarceration expert, is that judges tend to punish women more severely. “I think this is largely due to discrimination and stigma. Women who engage in illicit activities are seen as having defied society’s expectations of them as caregivers,” she says.
But over the last decade, some Latin American countries have been experimenting with potential alternatives to imprisonment. Costa Rica is one of them.
In 2013, after a study by the country’s Public Prosecutor’s Office confirmed that the vast majority of women in prison had been convicted after attempting to smuggle drugs into prisons, the country reformed its Penal Code. The new article 77bis introduced a gender perspective and reduced sentences for women living in poverty, who have dependents or are elderly.
Under the new law, the judge in charge of the case can consider options other than imprisonment as alternatives to repairing the harm done. These range from home detention, assisted liberty, liberty restricted with electronic devices, community work and even more holistic approaches such as restorative justice for women with no prior criminal record.
“When we started reviewing cases of drug-related crimes in 2012, we found that 98 per cent of the people charged were women heads of households in highly vulnerable situations,” says Zhuyem Molina, a professor, judge, and former public defender in Costa Rica, who was involved in drafting the law.
“When we started interviewing them, they all spoke of hunger, of coercion as a result of their conditions of vulnerability. When we were able to give them scientific and technical criteria and back up the Bill with studies, we were able to put these factors on the table and give humanity to a drug trafficking profile that for a long time had no face.”
In Costa Rica, as in many countries, women tend to play two types of roles in the criminal world. On the one hand, there are those who lead organizations, who tend to be in charge of logistics and finance. On the other hand, there are those who play more passive, invisible roles, in retail and transport, for example. The latter are, according to experts, the ones who tend to be criminalized the most.
“When I asked the women ‘Why didn’t you say that this guy had threatened you’, they would say ‘How am I going to talk if this was the person I slept with, who, with one phone call, would give an order and then I would turn up dead? If I took that risk, who was going to take care of my children,” the lawyer explains.
Two months after the law’s enactment, more than 120 women were released from prison and reunited with their children. More than a decade later, many continue to benefit from it.
Erenia is one of them. When she was convicted of drug trafficking in 2022, the lawyer the State assigned her requested that an alternative justice process be applied because of her particular situation of vulnerability.
The judge in charge of the case ordered Erenia to receive treatment to help with her addictions and then provide community service for two years. Today she lives with her youngest child and says she has a support network to lean on.
“I always wanted to change my life and get off drugs, but I had no one to help me,” she explains. “Restorative justice benefits many people. Sometimes they think we don’t deserve a second chance, and this system allows us to show that we are capable of repairing our harm in an alternative way, to become a good person.”
Erenia’s story is far from unique, although it doesn’t always have the same ending.
The first time Berta Robles, (not her real name), originally from Nicaragua, was offered to bring drugs into prison, she didn’t think twice. After living in Costa Rica without papers for 20 years, surviving on sex work to support her five children, the offer of more money was too tempting to refuse. The man who convinced her told her that getting the drugs in would be easy.
“I wasn’t cut out for it, the guards realized straight away,” she now recalls.
Because of her vulnerable status, the law was applied to her, and she was sent home. But the debt she accumulated with the person who had given her the drugs left her in a more vulnerable situation than she had been in before. She tried again. In 2019 she was sentenced to six years in prison. Today she shares a cell with 25 other women, far from her children.
“I just want to get out of here, prison is not the best place to change,” he says.
Alternatives vs Bukelism
Ten years after the approval of the law on alternatives in Costa Rica, the big question is its possible future in a context of increasing criminality and violence.
The answer is complex.
The Central American country has recorded one of its highest homicide rates in its history and criminal organizations continue to increase their power and influence, in part due to the country’s strategic location as a transit zone for illicit drugs.
This context, experts say, is fuelling punitive security proposals, such as those in neighbouring El Salvador, where the government says it has managed to lower the homicide and extortion rate by imprisoning tens of thousands of people.
Ernesto Cortés, a specialist in prisons and drug policy in Costa Rica, says this punitive model does not work.
“The way in which the success of drug policies is measured, solely through the amount of drugs seized and people arrested, is completely wrong. One way to improve health is to reduce the violence generated by the illegality of the market. Increasing the number of people in prison does not work, nor does it decrease violence. The United States is a perfect example of that,” he explained to In.Visibles.
Meanwhile, activists continue to promote restorative justice as a sustainable alternative.
“It is not a soft approach or impunity. It is reparation of a harm to a person that can have a profound impact on their community, it is about processes with a lot of control and responsibility through models that can generate many changes,” says Jovanna Calderón Altamirano, head of the Office of Restorative Justice of the Costa Rican Judiciary.
The key, they all agree, is implementation. Colombia, for example, where about half of all women in prison are incarcerated for drug-related offences, passed a law in 2022 that allows some female heads of households to serve their sentences by working outside prison. Since the law began to be implemented in October 2023, however, only about six women have benefited.
“It is very positive that many women have the possibility to leave prison, but a key issue is what happens after they are releases. Under the law, when women leave prison they do their social service, but how are they going to support their families? There is still a lot of room for improvement,” says Claudia Cardona, human rights activist, director and co-founder of Mujeres Libres, who participated in the drafting of the law.
