 Good afternoon, everyone. My name is Joanna Eridman, and I'm the McBain Chair of Health Law and Policy here at Schulich School of Law. It's my pleasure to welcome you all to our Health Law and Policy Seminar Series. So this series brings guest speakers to Schulich Law to chat about contemporary issues in health law and policy. And you can find a full list of our speakers and dates on our website. So this afternoon is my pleasure to welcome Alejandro Madraso to come and present at the seminar. Alejandro is a professor of law at C-Day, the highly respected center for research and teaching in economics, but more broadly, the social sciences. And Alejandro, they're founded and now directs the interdisciplinary drug policy program, which is a really unique institution. And if you are interested in global drug policy, I encourage you to visit their website. But I say that he's founded this center at the university, which is not to say that he is your usual academic per se. He's the kind of academic who not only studies law but makes law. Alejandro has been involved with several high-profile litigations before Mexico's Supreme Court, notably on abortion law, sex marriage, tobacco control, telecommunications law. And he's also been active in legislative drafting for marijuana regulation. Most recently, he was a member of the John Hopkins Lancet Commission on Public Health and International Drug Policy, which examined some of the emerging scientific evidence on public health from the impact of global drug policy. And when Alejandro does study law, it's a deep and profound study. In 2016, he published, it's in Spanish, Revelation and Creation, the Theological Foundations of Legal Doctrine. I must admit, this book is on my nightstand, but it's a little bit of a tall order for somebody with level one elementary Spanish to take on. All right, so today Alejandro will present on the constitutional costs of the war on drugs with lessons, and I like to add love from Mexico. And so please join me in welcoming Alejandro. Good afternoon. Thank you very much. I'm very grateful to the Health Law and Policy Center for this invitation to the institution, to Joanna for her kind words and hosting. So here's my plan for today. First, I want to shock you. So I'm going to throw at you some data which I hope will provoke strong reactions on your part. Then I'm going to try to bring that into a conversation about how drug policy in Mexico has changed law. So this is not a talk about health law so much as how a health policy, because drug prohibition is at least framed as a health policy in Mexico, affects law, and specifically how it affects the constitutional order, the very foundations of the constitutional order. To a great degree, what I'm going to tell you is a story of how a, I don't know the word exists in English, conjunctural decision, like a decision that depends on context and policy, and it's supposed to be a temporary policy to solve a specific problem, is actually transforming the structural decisions that Mexico has made as a political community, even its identity as a political community. And finally, I'm going to close by saying that this is not something that is privative to Mexico. Of course, I've only really studied the case of Mexico, but I've been trying to convince colleagues and friends to work on this issue outside of Mexico, and I've gotten a Colombian to sign up. So we've now done two case studies, Mexico and Colombia, and we're working on a colleague in Georgetown to do the United States. Hopefully some of you may be inspired and think about Canada in this way, although I really hope that Canada is not a good case study for the constitutional cost of the war on drugs, or the notion of constitutional cost, for your sake. So let me begin, one last piece of warning. My work is based mostly on the theoretical and analytic apparatus for trying to make these phenomena visible. The data you're going to see is not my research. I'm piggybacking on colleagues' research from my university mostly, and this is part of what the interdisciplinary program in drug policy is trying to do, you know, to try to get a much more intense dialogue between different disciplines. So we're going to be looking a lot of data drawn from sociology, but the reflection comes from constitutional theory. So here we go. So the first thing I want to present to you are red lights. Now, some of you might have heard, I'm pretty sure, about Ayotzinapa. Ayotzinapa is the poster basket case, boy, for Mexicans, for war on drugs. It was about, it happened two years ago. 43 students who were studying to become teachers were kidnapped by the local police in a mountain city in Iwala, and they disappeared. They haven't been found since. The research, the investigations that the Attorney General's office made have all been discredited by international investigators, including the human rights system. Now, that case was very scandalous because it was very directly police kidnapping students and then having them disappear. This became quite a scandal, but I think it doesn't portray the problems that we have with the war on drugs as neatly as a case that became scandalous a couple of days before does, and that case is Tlatlaya. Tlatlaya is a small mountain village in near Mexico City, about an hour, 40 minutes near Mexico City, and in June 30th of 2014, the media reported a clash between the army and supposed organized criminals. 22 civilians were killed and there were no detainees. Now, that of the bad sounded suspicious to many of us who have been studying the war on drugs, but it basically went by unnoticed by national media. In September, on September 19th, there was the publication of a report in which a witness came forth claiming that 21 of the 22 civilians that had died had been executed after surrendering. They hadn't died in the course of the gunfight, but had been executed by the military. Now, this is why I think this is a better illustration of the problems with the war on drugs. The chain of command in this case is very clear. It was the military directly under the chain of command of the federal government and the drug war is a federal enterprise, so to say, so to speak. Whereas Ayotzinapa, it was local police and it's a far more complex story of historical basis of the guerrilla in the 70s and their links to students. So, Platlaya is a better illustration of this. I'm not saying it's more of a warrant, but anyway. A year later, after these reports came up, of course, the Human Rights Commission began an investigation. The media started covering this and a trial began. And in that trial, in disclosure, military documents were released. And these military documents, which were a few days signed a few days prior to the execution of the 22 people, literally said, troops shall operate massively at night and reduce activities during the day in order to crush criminals during the hours of dark. Now, the operative word here is crush. The word in Spanish is equivocal and can mean humiliate, but it can also mean kill. Now, throughout the war on drugs, that has been the word used by specifically the president, the previous president, the previous administration, but by basically all authorities as a euphemism to speak of civilians killed in combat. So, the word that was used in the document has a very steady record of being used as killings. So, this is basically a standing order to kill people. Extradition. The report of the event used the same word to say that 22 people had been killed. They used the word crush, not killed. So, it's pretty well documented that these were, there was a standing order for extradition executions. There were witnesses of extradition killings in 21 cases. The Human Rights Commission said that at least 15 were actually extraditionally executed. Now, by May 2006, the three soldiers on trial, the only three soldiers out of the eight who participated, who were on trial, were exonerated, and a few days later, the file was reserved. So, we're not gonna be able to look at the file for another 20 years. Now, is this the exception or the rule? I mean, we're gonna think of the exception as the event itself or also as the standing order for that region. So, here's some data of how federal forces have behaved in the war on drugs in Mexico. This is a lethality index. The lethality index is a very simple exercise that is widely used, among others, by the Red Cross to try to evaluate how lethal is the use of force by authorities or by anybody. So, the question that it is asking is, when force is used, how lethal is it? And the way to try to answer that question is, how many people did you kill over how many people did you injure? Now, normally, that index gives you a number that is below one. It is hard to kill people. People do not like to be shot at and they do not like to be killed. They moved and if they're armed, they shoot back. So, just to give you an idea, how hard it is to kill people, even when unarmed and even when not prepared, who can remember, who can tell me the number of people killed and injured in the Orlando massacre a few months back? Does anybody remember the exact numbers? 60 were, that was the sum of both. Do you remember how many were killed and how many of those were injured? No, actually, sorry, so let me give you the numbers. I'll give you the spoiler. 50 people were killed. 53 people were injured. That means that the lethality index of that event is below one. It's near one, but it's below one. And this is a scenario in which you had people unarmed people in an enclosed space, some of which we could presume were not precisely alert at the time. I mean, they were at a nightclub, they were distracted, they may have been drinking, et cetera. And the shooting went on for 20 minutes with a semi-automatic weapon. In that enclosed space with unarmed people with a semi-automatic weapon, the perpetrator was not able to kill more people than he injured. That's how difficult it is to kill people. Now, look at the lethality indexes here. The yellow column is the Ministry of Defense. That is the military, the army. The orange column is the federal police and the pink column is Ornady. Now, Ornady is deployed inland as part of the war on drugs. That's one thing you must know. So it's not confined to the coasts. So there you have the years from 2008 to 2014. And in the first column, you have how many civilians were killed. In the second column, you have how many civilians were injured. And then you have the lethality index. As you can see, all of our lethality indexes of all our corporations or authorities for every single year are way above one. The highest reaches 74 in the lethality index. You can see the Navy in 2014. 74 people were killed, only one was injured. So these numbers are appalling. Just to give you an idea of how appalling they are, I mean, I think Orlando illustrates it pretty well. But these numbers, the lethality index was sort of very popularized in Latin America when a Brazilian academic used it to try to identify racism in the use of force by the Sao Paulo police. And the exercise he did was to try to see the lethality indexes of the use of force in white neighborhoods versus the lethality indexes in black neighborhoods in Sao Paulo. And this study is basically the study that really labeled the military police of Sao Paulo as the counter example of what a police force should be. The lethality index of the Sao Paulo military police in black neighborhoods reached two in lethality indexes, whereas it was slightly above one in white neighborhoods. Now that was enough to provoke a major institutional intervention in Sao Paulo a few years ago and a labeling of the Sao Paulo police as a racist and lethal police. These are our numbers. Look at the military. We go from 3.4 to four to eight by 2010 to 19.5 people killed for every person injured by 2011. That's the peak of the drug war and the lethality for the military. Now let me give you a different way of presenting this. These are the military versus the police. So as you can see in 2012, the military dips in its lethality index, but the federal police increases its lethality index and reaches a 20 people killed for every person injured, 20.2 people killed for every person injured. When you look at the hotspots of the war on drugs, the numbers are even more worrisome. At the very bottom, you see the Estelao in Mexico. That's the state where La Playa took place, the case I was telling you about at the very beginning. And the lethality index for the state of Mexico is 30. So these are pretty bad. Now let me give you an idea, another comparison. This is the lethality indexes of some major wars. As you can see, all of them are below one. And these are wars. This is when you have a battle in which you're trying to eliminate an enemy which poses an existential threat and immediate threat to your soldiers. None are above one. A bit more comparable, but not quite, are massive shootings of unarmed civilians. Now you have some outliers that are pretty abhorrent, like the Caitlyn Forest Massacre. But basically, I mean, just the St. Valentine's Day Massacre to use a historical comparison to an organized crime scenario, that's the famous massacre during alcohol prohibition in the United States, was had a lethality index of six. Or army's averages 5.89. Now that's pretty bad. Or authorities are lethal. But even when not lethal, there are some other numbers that really indicate that something is going very, very badly in how our authorities behave. And this is clearly influenced by the start of the war on drugs. Here you have a table that documents three types of mistreatments. And mistreatments is a euphemism, three types of torture in the case of electric shocks, perpetrated by authorities and reported by sentenced prison population. So this is data from a survey of a federal prison population and only of people who had been sentenced in Mexico. Now, the author of this study, of the analysis of this and Laura Magaloni, she chose out of the 16 different mistreatments that were documented, she chose three as a proxies. Kicking as fixia and electric shocks. And her reasoning was, you take those three as a proxy of how much institutional complicity there is. So kicking, you can imagine a police officer being very angry while arresting and detaining somebody and kicking them, right? As fixia, you probably need at least somebody to hold them down or some form of notice by a partner or somebody else around. But electric shocks, you really need infrastructure to do that. I mean, literally you can't do it from a car battery, you need a building, and that building is likely to be either very far away, in which case you have to take people there, or else with noise-canceling mechanisms. Now, the two columns that you have, so there you have again, the Army, the Federal Police, and the State, and this is State Police, not the Navy. And the numbers you have there represents the percentage of sentenced Federal prisoners who reported the specific type of mistreatment upon detention. This happens upon detention. And in the orange column you have before the Calderón administration and then during the Calderón administration. The survey was published in 2012, so it's only the Calderón administration. The Calderón administration was the administration which we launched or wore on drugs. It literally began on the first day of that administration, the military mobilization and the first military mobilization in the region of Michoacán. Now look at those numbers. Look at the shift. Kicking goes from 2% in the case of the Army to 23%. But electric shocks moves from 2% to 30%. Now, let me give you those numbers but broken down instead of by institution by type of crime for which they were detained. So as you can see, kidnapping and homicide actually go down during the Calderón administration. Kicking goes down for kidnapping from 5.5% to 2.7%. Homicide from 7% to 1%, that is good. However, look at drug crimes. You have a huge increase on these types of mistreatments and please just look at electric shocks in drug crimes. They go from nearly 8% of people detained reporting being subjected to electric shocks to 44.85%. That's 45% nearly of people detained by federal authorities. Now these are red lights on what's happening with the war on drugs. Now how important are drug crimes for the overall criminal justice system because here and now we're starting to move from the specific drug prohibition to its impact in the criminal justice system. So how important is when we have an increase from 7% to 44% of people getting electric shocks when detained for drug crimes, what does that represent for the criminal justice system as a whole or for the federal criminal justice system as a whole. So here's some data about the drug crimes in general. So for example, in 2006, you have the numbers broken down. You have the total number of federal crimes. Then you have the total number of drug crimes. Then you have the total number in which the drug crime was possession. As you can see, it's the majority of drug crimes are just for possession. This is not trafficking. This is not production. This is just basically carrying a joint. And it is a joint. In most cases, I have some tables that show you that it's marijuana is the big case. There's even people who are detained for use. And here I have to specify something because when I show these data in English, and particularly when I do that in the United States because in the US, use is a crime in many states. But in Mexico, use is not a crime. It's never been a crime. But it's very telling that the federal authorities have a record of how many people are detained for use, even though it's not a crime. Now, there you have the percentage of drug crimes over other crimes. So as you can see, and here I'm going to give an explanation, in 2006 when the drug war was launched, it was 53% of the federal criminal justice system was basically dedicated to drug crimes. And the percentage of possession to other drug crimes was 85%. Now, those numbers go down very strongly after 2009. And that has an explanation. Because in 2009, we had a legal reform which basically transferred the jurisdiction of possession and petty dealing to state systems. So the federal criminal justice system is no longer supposed to persecute possession or petty dealing. It does, however, as you can see in the thousands. And it still does. But most of those numbers are transferred over to state authorities. That's why those numbers go down. But the point here is that drug crimes are a huge portion of the criminal justice system. And most of those drug crimes are possession. So they should give us some idea of the exposure to the torture that we were talking about. Those are the absolute numbers of people who were detained for drug use, again, for something that is not a crime. Now, as I mentioned, the torture, the electric shocks that we looked at in the other table, happened upon detention. So even if you cannot be prosecuted for use, if you're detained for use, there's a good possibility that you're going to be subjected to some form of mistreatment, even very grave mistreatment which qualifies as torture, such as electric shocks. Now, again, part of this, we need to understand in who makes the detentions. As you can see, and this is part of this already leading up to the idea of constitutional costs, the army detains one in every four people in the federal justice system. Now, why the army? That's part of the problem. That's one of the questions I want to address. It shouldn't be the army who's detaining people for many reasons. The army is not trained to do police work. They're not armed to do police work. They're trained and armed to carry out wars. When you do police work, you have to detain civilians in order to subject them to trial. When you go and fight a war, you have to kill enemies. That's the basic logic of the two different functions. Now, again, let me just wrap this up. And this is so that we get an idea of the importance of drug crimes in the federal, in the justice system. 60% of people sentenced in federal prisons in Mexico are there for drug crimes. It's followed closely by weapons. In Mexico, it's illegal to carry weapons above a .22 caliber gun. And so that's 24%. So between those two, you're looking at the bulk of the war on drugs efforts. People usually detain either for possessing drugs or for possessing weapons. Now, what type of drug crimes is also interesting to look at? Because if you put together possession and transport, you hit the 60% mark. Now, the difference between possession and transport is very arbitrary and it's determined basically by the detaining officer. Transport is not trafficking. Trafficking is the bulk movement of the drug. Transport is micro-moving of the drug. So if you're carrying a joint in your pocket and you're walking down the street, the officer can detain you either for possession or for transport, transportation. Transport, sorry, my English, transportation is better? Yeah. Anyway, that's 60% of drug crimes are one of those two. So even if it's not users who are transporting, even if it's what we call mules, that is micro-transporters, this is the lower ends of the chain. Or federal resources or criminal system resources are not aimed at the murderers and killers and big names in the chain of command. They're aimed at the most vulnerable people who are the consumers and or the small traffickers. Now, what type of drug? So at the column all the way to the left, you have the absolute number of people who were sentenced for marijuana crimes. So when this survey was carried out in 2011, 2012, there were something like 42,000 people in the federal prison system. That's about doubled since. So these numbers are, but of course we weren't allowed to do another survey after this came out. So we don't have numbers that are more recent. But you can see here that it's a little bit above a fourth of the people sentenced, already sentenced in federal prisons are sentenced for crimes relating to marijuana. 10,000 are exclusively for marijuana. So this is not like your dealer who had many different things that was offering. This is odds are consumers. So again, this is an exercise of before Calderon and after Calderon, we don't see that much of a change, but we do see a tendency. Other drugs go down and marijuana goes slightly up. Now, what is the value of the drug that is being carried? Just to figure out what we're investing or resources in. The numbers you see there, as you can see 41% were possessing less than 500 pesos. So 500 pesos and so of course with Trump winning the election the peso has plummeted, so it's not a fair comparison. But back in 2012, we were about, so we were about 10 to one with US dollars to give you an idea. By yeah, 12 to one with US dollars. So this is basically carrying around less than around 40 bucks worth of pot is your typical federal prisoner or your most frequent federal prisoner. Now let me go back, so these are major costs. I mean, these are major costs in terms of human rights violations and these are major costs in terms of budget and institutional and human resources invested in the war on drugs. How big of a health problem do we have that requires us to address it in such a brutal and costly manner? So these are numbers and let me tell you a little story about how these numbers are. So the blue column is the response of the 2011 National Addiction Survey to the question of have you ever used marijuana, cocaine or whatever? Have you ever used it in your life? Then the green column is have you ever used it within the last year? And the yellow column is have you used it within the last month? Now, as most of you who are at least a little bit interested in health law know, and if you know anything about drug use, your health problem is located in the yellow column. I mean, you could have problematic use which is less frequent than that and let me just give you the example of the person who drinks, you know, gets drunk every six months but gets aggressive or decides that he's a great driver while drunk. So that's problematic use. That can derive a health problem. I'm not saying that that's not there. But your core health problem is with the users who are frequent users. So it's not even the .6 there of marijuana that you could consider if you consider marijuana use of health problem that you could consider a health problem. It's smaller than that, but it's within that. Of course, we don't ask because we don't have really good surveys on drug use. We don't ask for frequency within the time period of the month, so this is the best we can get to pinpointing where the health problem lies. Now, the drug war was launched in 2006 and the only piece of hard data that the federal government used to support its claim that Mexico had to take this seriously because we were going from being a transit country to being a consumer country was the blue column. Having used drugs ever in your life. Now, there are many problems with using that number. One of which is that's not where the health problem lies. The other is that the argument was it has grown over the years. And the response is, of course it's grown. If my grandma had a joint in 1962 and she was asked whether she had ever had a joint in 2011, she would say yes. If she's asked whether she's ever had a joint in 2013, she would say yes. So there's no way of that column diminishing except through death, right? So by design, that number always grows. But that was the argument, that was the data that supported the only piece of hard data cited by government programs supporting the launch of the world drugs in Mexico. So let's do another exercise. How big is the drug problem in terms, in relative terms, to other health problems in Mexico? And here we used the death toll. And the reason we use the death toll to do this exercise, and there's a lot of things that I need to make precision about this graph you're gonna see, is death is a health problem that is comparable across causes, right? It's very difficult to assess and epidemiologists do this, but we don't have any epidemiologists at our drug policy program, unfortunately. We've tried, we couldn't them, but no epidemiologist has ever worked at my university. The few epidemiologists that Mexico has goes to the National Health Institute. So it's a different blogging. Anyway, that's just an excuse for saying we could be doing more sophisticated assessment of the health problem, but I'm a lawyer, so I'm not sophisticated. Anyway, the point is, if you look at the numbers, that's the death toll. Okay, so why did we use death? Because it's comparable across causes, eh? And second, because there's no under-reporting, or there's less under-reporting than other health problems. So if hospitalization, you can have under-reporting, mental health problems, there's under-reporting, but death, there's a body when there's a death, and a body usually gets registered. Of course, not all bodies get registered when you look at the clandestine graveyards that we found all across Mexico, but by and large, most deaths get reported, right? So this is data from the National Health System on different causes of death, and we decided to do the exercise as conservatively as we could. Only deaths that were directly attributed to overdose of both legal and illegal drugs. So you're gonna look at a number that is very low for tobacco, you're gonna say, nah, that's not right. True, tobacco numbers are much higher when you look at all the tobacco-related illnesses. Here we're literally looking at overdose, meaning you probably had a heart attack while smoking your 80th cigarette of the night, right? Not you had lung cancer after four years of smoking. But let me just illustrate this. So this is licit drugs, direct death from licit drugs. That's overdose of tobacco and or alcohol. Next we have, or biggest health problem, diabetes. This is homicides, and you're gonna say, homicide, well yeah, homicide is a health problem, actually as an epidemic in Mexico today. Because look at the way it climbed after the launch of the Warren Drugs in 2006. Actually, part of the argument is Warren Drugs has very likely generated a much bigger health problem through an epidemic of homicides than the problem that we had from drug use. Now those numbers, the very short line in gray, those are the homicides that the government attributes to the drug war, either in fighting between the criminals or fighting between authorities and criminals. So as you can see, a good portion of the increase in homicides during that period can be directly related to the enforcement of drug prohibition. Now let me give you the absolute numbers for that. So that's in 2014, we had 87,000 deaths directly attributed to diabetes in Mexico. We had 23,000, a little bit above 23,000 homicides. We don't know the number because the government stopped reporting how many of these were related to the Warren Drugs in 2010. But in 2010, we had 15,000 homicides, deaths resulting from the Warren Drugs according to the government. 2,500 for illicit drugs, again, this is not lung cancer but rather a heart attack, and a grand total of 70 deaths resulting from overdose of all illicit drugs. So let me further delve on the issue of homicide as a major health problem. In 2009, for the first time, car accidents were debunked as the primary cause of death in ages 15 to 29. In 2009, homicide became the principal cause of death in ages between 15 to 44 years of age in Mexico. So for that age range, our primary cause of death is violence. So what does that make us think? There's been great efforts to tally the costs of the Warren Drugs in terms of budget, in terms of divestments in economics, in terms of imprisonment and what that costs, in terms of human rights and discrimination, et cetera. We think that we should add one tally that is called the constitutional cost of the Warren Drugs because much of what we are looking at in terms of abuse by authorities can be explained or needs to be explained in a context in which we are radically reconfiguring many of our legal institutions to allow for a better persecution of drug crimes and a better enforcement of drug prohibition. So let me bring in the theoretical portion of the talk. We propose that a constitutional cost is the undermining of a constitutional commitment. Now what is a constitutional commitment? It's a principle, a right, an institution, anyway, a value, a constitutional value that lies at the core of the project of a political community. Now there's two types of issues that we need to address when we try to think of a country as a political community, as a constitutional project. One has to do with the boundaries of who belongs to the political community and who doesn't. Boundaries are in fashion now, again. So just to borrow from political issues, theory, basically boundaries in establishing the them and the os allow the political identity to form and to configure itself. Now that's not enough. Boundaries are not enough. There has to be something else that ties a political community together. Historically the nation's state when it evolved in late medieval Europe, it had to do the common points for a community had to do with race or history or language or ethnicity or all of those put, or religion or all of those put together, right? The idea of the nation state. However, modern nation states, such as the ones that were established on this continent when we began our processes of independence as from colonial powers, did not have to do with race or ethnicity or language or religion. Canada knows this well. It's a multicultural country and that lies at the core of its identity, the French and English identities and religions and eventually now the native communities are now brought into the narrative. 19th century was more French and English only to the exclusion of the rest. But the idea of a race or a language or a religion tying the political community is no longer true for the nation state. What is true is that there are a series of political commitments that we all agree to share. So I illustrate this, and it's hard for me to illustrate this with Canada because I know Canada as well, but I illustrate this with Mexico by saying why is a Chihuahuan, Chihuahua is the largest and northernmost state in Mexico and it's right on the border with Texas and with Arizona. Why does a Chihuahuan who probably eats burritos and dresses and listens to music that is much closer to Texas participate in the same political community as a tzotzil from Chiapas. The tzotzils from Chiapas do not speak Spanish like the Chihuahuas do. Their food is probably closer resembling the Guatemalan food. Their language resembles more closely Guatemalan language. Their ethnicity is closer to the Guatemalan than the Chihuahuas. However, Guatemala and Texas are not part of the same political community and Chiapas and Chihuahuas are part of the same political community. Why is this so? Because we have made decisions, political decisions, to rally around certain commitments. So these commitments are important. Which are these commitments? And they can change over time of course, but usually there's a conscious decision to change. So what are these commitments? Democracy, federalism, civilian government, et cetera. Now the idea of a constitutional cost is to try to identify a phenomenon that is different from unconstitutional laws or institutions or practices. Because as we will see, some of the constitutional costs at least in Mexico have been embedded in the constitution. And it is also, we're trying to identify with the idea of constitutional cost, something that is different from unconstitutionality and something that is different from constitutional change. So what has to happen for a constitutional cost to occur? It doesn't matter if it's in the constitution or in a law or it's just a practice. What is important is that it undermines a constitutional commitment, but that that constitutional commitment is still held as valid as a commitment of the political community. So let's say that we decided to drop federalism in Mexico and embrace a centralist regime. Federalism was one of the key battlegrounds during the 19th century. We went through something like six constitutional orders and three major civil wars and many other coups in order to define whether we're gonna be a centralist country or a federalist country. So federalism is a major issue in the political movement. We could decide to become a centralist country. We could amend the constitution. If we did so, that is not a constitutional cost. Because we are rejecting our previous commitment to federalism and embracing a new commitment to centralism. The problem is when you simultaneously affirm federalism, but then you undermine it through laws or practices. So let me give you two examples. In Mexico, we held, and this I think was part of our core constitutional commitments for most of the 20th century, the national monopoly, national public monopoly on oil. This is, I mean, just to give you an idea how important this was. We celebrate our independence day. We celebrate the Cinco de Mayo, which is when we defeated the French, when the French invaded. We celebrate the birth of one of our most important presidents. And we celebrate the day in which we expropriated the oil companies from the British and American enterprises. It's a national holiday. It was that important in 1938. Now, two years ago, we amended the constitution and decided to withdraw from the idea of a public monopoly on oil. That is a constitutional change. That is not a constitutional cost. A constitutional cost, and we will look at it, is when we decided in 2009 that for the first time since the last centralist regime in 1953, we were going to have the possibility of federal Congress dictating state criminal policy. Now I know here in Canada that criminal law is a federal jurisdiction, and that's fine, and there's many good reasons why that should be so. But in Mexico, since 1853, we had had absolute autonomy on the part of the states to determine their criminal policy until 2009 when the war on drugs justified a constitutional amendment to create what we call now concurrent criminal law, which is basically criminal law that the Federation defines, but that the states have to carry out and implement. And that's the reform I was alluding to when the jurisdiction was shifted. So this is an illustration of a constitutional cost. And please appreciate, because it took me a very long time to figure out how to draw and use collages. So I'm gonna go back and forth so that you truly appreciate it. So this is a political community, right? There's DOS and there's a Dem and there's a clear boundary between DOS and the Dem. And if somebody is not a threat and outside to the political community, she's an alien. And if she's not a threat and she's inside the political community, she's a citizen. If she is a threat of some sort outside the political community, she's an enemy. And if she's a threat of some sort within the political community, she's a criminal. Now, the difference between criminal and enemy is very important because the criminal is depoliticized by definition. And the enemy is politicized by definition. The enemy threatens, at least in our imagination, threatens the political community. Existentially threatens the political community. That's why it's justified to eliminate an enemy. Whereas the criminal doesn't threaten the political community, the law depoliticizes the criminal and treats her as just somebody who infringes the law. And the law punishes the criminal, but it also protects the criminal because the criminal is part of the political community. It does not protect the enemy. There is some protections on their international law, but that's a whole different bulging. There is no national protection. The law does not protect the enemy as a core function. It does protect the citizen as a core function. Now, what happens, and of course, there's a constitutional commitment such as presumption of innocence, due process, Republican government, federalism, right to privacy, right to health. In Mexico, we have right to health as a constitutional right. With a constitutional cost, what happens is this. The boundary becomes porous, and the criminal is pushed out of the political community and pushed into a figure akin to the enemy. Now, how do we do that? How do we push the criminal outside of the political community? Well, one way is speaking of the criminal as an enemy. Or by opposition to citizens. There's a famous phrase when President Calderón, who launched the war on drugs, renegurated a park in Ciudad Juarez. He said, this park has been reclaimed for citizens, not for criminals. Whoa, wait, wait, criminals are citizens, right? Well, how do we know where they're citizens? Well, they're detained, they're not killed. They are detained by the police, not killed by the military. So when you take the military to persecute the criminals, and you tell the military to kill them, what you're doing is you're treating the criminal as an enemy. So you're modifying your political community because you're pushing part of your political community outside of the political community, and you're politicizing them and doing that. So the border becomes porous, but also the commitments tend to disappear. Here, I'm gonna go back so that you appreciate my art. You see the bright blue in the right to privacy, how it pales down. Well, that has happened. We have adopted laws and adopted constitutional clauses that allow for those laws to happen, in which first we said, okay, so we need to be able to have geo-referencing of mobile phones. So we changed the law so that the government could ask a judge to geo-refer... Had an expedite procedure to ask a judge to ask the telephone company to quickly give them the geo-localization of a telephone. And then we had another package of constitutional legal reforms, sorry, of legal reforms, not constitutional reforms. And we said, well, you know, we can drop the judge. Why not just have the attorney general ask directly? It has to be the attorney general directly asking for the geo-referencing. Then we dropped the idea that it should be the attorney general. And he said, you know, the attorney general or whoever the attorney general authorizes to do this. And then we shifted it a little bit more and the next amendment was not the attorney general or somebody who they authorized, but the ministerio publico, which is basically the criminal investigator, the district attorney. It's not the attorney general, it's the district attorney or whoever the district attorney authorizes. And then we did a last reform and we did a big telecommunications law. We introduced, you know, no justification in the initiative, but we shifted from geo-localization to our metadata. Do you know what the metadata is? I had to learn this. I expect you guys to know more about it. So the metadata is all the information regarding a message except the content of the message. So if you WhatsApp somebody, the message, you know, hi, how are you? That's the message, that's the data. The metadata is there were, you know, eight characters sent from this phone to this phone at that time using this software. Now as anybody who has a drinking and texted late at night knows, you know, knowing at what time what kind of software was used from where to what phone can be very telling. There's a lot of information in the metadata. So our right to privacy has been somewhat diminished. So don't drink and text. So let me, I'm gonna use two examples of where we've done constitutional cost. There's many more. And there's a very boring working paper in which I actually list all of them starting from 2002 and ending in 2012. And it's probably the most boring piece that I've ever written but it's an important tally to keep count of. So I'm just gonna choose two. So this illustrates what I'm calling the conflation of functions. Now what is the conflation of functions? When I was young and studying law, I was taught that there were three different categories of security activity, so to speak, which warranted the intervention of three different institutions which were distinct and separate. One thing was, one was public security, which was in charge of the police. The other was criminal investigation, charged with the attorney general. And the last one was national security which was in charge of the army. Now what we've done is we've blurred the distinctions between these institutions and these functions. So we've given the police who used to be charged with preventing crime with investigative functions which were prior exclusive of the attorney general. And we've authorized the army to do public security functions which were before the exclusive jurisdiction of the police. And what we have in the end is two types of things. The first, great insecurity for citizens because when you get stopped in the street, when I was a kid learning to drive in Mexico City, the first rule my brother told me was make sure that if you get stopped, you get stopped by a tamarindo. Tamarindo, tamarind, candy, but it's brown, that's the point. So the uniform of the police that did the transit police was brown. The prevented police was blue. And one of the key issues was don't allow the prevented police to try to charge you for an infraction because that means that they're probably trying just to get and extort some form of money from you, right? We have very corrupt police in Mexico City. And so if a blue guy stops you, that means that he's trying to get money out of you. If a brown guy stops you, he has the authority to do that. So it was clear. I had some signaling as to whether the authority was proceeding correctly or not. Today, the conflation is not between blue and brown, but between the military and the police. So when I go into A Oascar Lientes, the town where I live, I get stopped by the military on the way in, but I get stopped by the state police on the way out. Why that is so? Who knows? Do they have authority to do that? Not really, but we've given, we've started using the military to do police functions as you saw 25% of the tensions. Now let me just illustrate this with one piece of data. In 2012 when the Attorney General took office, he reported that 90% of his investigators were assigned to bodyguard duties. That means the Attorney General was no longer doing criminal investigation. Who was doing the criminal investigation? Either nobody or the military. Another example is reduced due process rights, reducing rights. So one is conflation of functions, the other is reducing rights. So what we did in 2008 is we made a constitutional reform and we said it is very, very, or criminal justice and it's very deficient or Attorney General's office is not working and it's not working because it's opaque. We need to make it more transparent. There's very little in sentence for them to do their job right. If we make it transparent and we can observe them, they'll have incentives to do their job right. But the president said, yes, but that transparency won't work for drug crimes. I need opaqueness. I need discretionality. So we introduced, basically, what was a Patriot Act for the United States instead of it being an act we introduced it into the Constitution and instead of terror, it was drug trafficking. And so drug trafficking is now persecuted on the regime of reduced rights, which include, for instance, the possibility of detaining you without charge for up to 80 days, in communicating you or establishing special detention measures which are not specified. Now, there's an expansive thrust of the exception regime and when we look at the numbers, they're pretty appalling. See, the exception regime is supposed to operate only for organized crime. But when you actually ask the people who are in prison, what you find out is that only 14 of the people that are in prisons are sentenced there for organized crime, yet 27% report having been subjected to this detention without charge for up to 80 days. Now, the graph that you see below that is very telling also. The light green represents the number of times the Attorney General used the detention without trial over the years. It went from 42 in 2006 to 1,679 in 2010 when they stopped giving that information. The convictions for organized crime went from 137 to 148. So the argument that we were gonna make this more efficacious is not working. Now, is this Mexican exceptionalism? I'm not gonna delve too much into this, but no, we have found good data for Colombia, which has had special criminal justice regimes for a long time and there's also a lot of case law in the case of the United States in which you have somewhat flexibilization of the discretionality of that police may exercise when dealing with drug crimes. Now, I wanna finish with a little food for thought. Why hasn't the soldier crossed the road? So let me just put this out there. The most important change in drug policy in Mexico does not require legal change. It requires that we have the military cross the road. Today, and let me illustrate this with an anecdote by my cousin, my cousin did this protest against the extra judicial executions and they walked from the southern border sorry, from Mexico City to the northern border. In that trajectory, they were stopped by the military 53 times. On the way back, they were not stopped at all. So we are policing the roads that go north to the United States. We are basically policing drugs so that they don't get to the United States. Now, if they're already in Mexican territory, if they were produced outside, such as cocaine, and they're trying to get to the United States, but we don't let them get to the United States, what are we doing with that drug? We're dispersing it in the Mexican territory, making it more available for a population. And we're very likely making authorities part of the network of dispersing those drugs inside the territory because when you bribe somebody and you have drugs and you're going north, you don't have cash. So what do you bribe them with? A bit of cocaine. But then that police officer, that soldier, has to either consume it or place it in the local market. Now, why would anybody do that? It's in our best interest, supposing that drugs are this evil thing that we really don't want or people consuming, supposing so. What we should be doing is trying to get it out of our territory as quickly as possible. Let it get to the border. Stopping it disperses violence and disperses drugs. The US knows this well. Have you ever heard of a battle taking place when the shipments move from El Paso to Chicago or to Baltimore or to New York? The US knows better than to try to stop the drugs from getting to the endpoint. What they do is they wait for them to get to the endpoint and then they do the enforcement in the local communities with consumers. Now, I'm all for regulating drugs. I'm not saying that that's what we should do. I'm just illustrating the point that it's very stupid to focus on stopping the drugs from getting to their destination because you basically have to militarize the country. Yet we do it. And we do it so that the drugs don't leave our country. The drugs want to get out of our country. We're not the big market. So the more I look at this, the more I see the whole strategy of the war on drugs in Mexico as basically an outsourcing scam of the DEA. They are, or the US policy, they are trying to keep the drugs from reaching their border or from reaching their destination when it's outside their border. They cease to do that and they give us a little bit of money so that we put our soldiers into those efforts. And then they cease to do that when it crosses the border. So that's how intelligent our drug policy is. Now, we're doing that which is not in our best interest. It probably makes worse a problem that is not a big health problem. But in the process of doing so, we are reconfiguring our political community. We are undermining our constitutional commitments. We are devastating a rule of law and we are degenerating the practices of our authorities. It's not a very sound policy and certainly not a very healthy policy in more ways than one. I'm gonna leave it at that and hope that you found that interesting and wait for some questions. Thank you. A couple minutes for a question. I really appreciate some of the points that you made. Specifically the questions around your marijuana comments that it's the largest percentage of drug crimes that are actually either incarcerated or possession. Similar landscape here in Canada. However, facing the reality that legislative landscape is probably changing in Canada over the next, you know, 48 months, 24 months. What would you feel is a potential impact on that from Canada's viewpoint on the war and drugs? And the federal government taking the role of opening up Canada's legislation at the level two public consultation, which they did this past summer, in order to get that feedback, what would be some of your best learnings that could have been passed on in that consultation process? Well, so let me try to respond to ways. So Canada legalizing marijuana is not gonna be very important for the Mexican market because Canada is not as big a consumer as the US. It's much more important California legalizing, for instance. California produces much of the pot that it consumes, but it consumes a lot of pop, so they have to import it. So that's gonna have a bigger impact in Mexico. We did some exercises, and there's a paper published on exercises on different scenarios, and one of the scenarios was precisely what's going on. Mexico legalization of marijuana, specifically Mexico-US. So one scenario was what happens if the US continues down the path of regulation and we continue down the path of militarization, and that is the worst scenario for Mexico. There's going to be a need to place the drug that is being excluded from the US market and displaced by legal pot. That's gonna have to be placed in Mexico, so pot is going to be cheaper and more accessible in Mexico, and violence increases because they now have to fight, the fighting is not going to be only for the roots of transit, which is where the money is, but as that is placed in the local market, the more important in fighting is gonna be for the local markets, which is far less, far more dispersed than the roads. So that's one thing to say about that. The consultation process. First of all, the thing I think we need to learn from Canada is to actually just do it and get on with it. We've had a consultation process. Last year, Supreme Court declared that it was unconstitutional to establish a total ban on marijuana, so Congress and the executive established their own fora, they didn't have a joint fora, they had separate fora, and we had discussions for two months. My drug policy program was consulted, we sat, we sent different specialists for different, we spoke a date, et cetera, et cetera, et cetera, and at the end of that, two bills, well, about six, but two bills were introduced. One for full regulation, which we actually helped draft, was introduced by the president of the Senate, and the other for regulating only medical marijuana, which was presented by the president. Both are stalled in Congress. I think that a consultation should be a process that educates us all, and I think that your consultation, did, I mean, I'm not saying it was perfect, but I think that that was the understanding under which your consultation process took place. Our consultation process, the logic that seemed to inform it was to legitimize decisions that were not going to be taken place based on what was discussed there. Those decisions were taking place elsewhere, and honestly, they were pretty improvised. When you look at the federal government's initiative, the president's initiative, and is going back and forth with the UNGA 2016 meeting, they were improvising all over the place. I mean, the law, the person who drafted that bill doesn't really know drug law, like the basic aspects of drug law. Our law, of course, I think was beautiful, and we literally did the exercise saying, this is not gonna pass, but we need to start with the landlord, what is the idea of regulation? It actually ended up pretty close to what the Lib Dems proposed in Britain, so they're doing their job well. But that debate really didn't take place in the consultation for it. It took place in back rooms, in which civil society organizations consulted us and said, we want you to draft an exemplary bill, and then they went and convinced the president of the Senate to present it. The fora were not serious. They were not places where the real exercise was taking place, and that has to do a lot with the malfunctioning of our legislative power. I mean, this is not a problem only of drug war, but our legislative power has increasingly become a place where negotiations take place at the very high level of the different parties' leaderships, and then there's just vote. And whatever happens publicly is for show. I'm wondering which, if you're thinking about all these different arguments, whether it's the argument around health and how disingenuous a claim seems to be around possible, the need for falsehood in the first place, versus where you finished around degenerating authorities and political commitments that have been made, being eroded. Do you see sort of strengths or weaknesses in sort of pursuing one or the other of where you sort of going with this in your work, or is it to do all of this? Well, the first thing I should say is I've tried these different lines, and I failed over and over. We failed. We haven't been able to convince a majority of decision makers to make a change. When I first started working on this, my model was tobacco control. That's where I came from. And what I felt had really done it for tobacco control is that we had pretty good data. We had pretty good numbers to show that it was a very bad idea not to do something about tobacco and that tobacco was a big problem. And the data was there. So the first objective of the drug policy program was to gather the data that was existing and to put it out there. And we've done that and it hasn't been enough. It hasn't worked. There's a lot more prejudice than actually just looking at the numbers. So let me again do an anecdote. The people who won the case before the Supreme Court in last November a year ago, they first asked me to do the litigation. The activists who were working on this looked me up to the litigation. For many different reasons, both personal and institutional, I no longer do litigation. So I declined, but I offered to advise whoever that they got to be the lawyer. When they got a lawyer, we had long discussions and I said, listen, there's three ways of arguing this constitutionally. The most important argument I think is the health argument. If we have a right to health and the policy is doing more harm to health than what it purports to eliminate, then we have a good argument that for health reasons it's unconstitutional. However, the data is not there yet. We don't have the smoking gun yet in terms of the data that needs to be put in place as you have in tobacco with causality. Causality is much more complex in terms of the homicide and the presence of the military. So I wouldn't argue that one yet. The second channel you have had just been tried and had failed, which is a very abstract argument which is very easy for our judges to grasp or judges are very formalist, very, very formalist. And it's the disproportionate nature of the punishment. So we did studies in which, I didn't do this. This was done by a collective which is headed by a colleague who also happens to be my wife. But that has people working in nine countries in Latin America and they do like every two years they do like a monographic study that's replicated for every country relating drugs and law. And they did one in registering the punishments for drug use and possession and the punishments for other crimes. And just to give you an illustration, we have much harsher punishment for drug possession and for transport, for drug transport, not possession for transport and for child abuse in Mexico. And so one argument was this is disproportionate. This is also disproportionate in two senses. One when compared to other crimes and the other is compared to the harms. So if you're possessing to consume and you're harming yourself, why are you getting, if we're trying to protect your health by banning you from using drugs, health conditions in prisons are not precisely gonna help. So sending you three months to prison is counterproductive and disproportionate. That had just failed when they were starting this. It had failed on the grounds, somebody had made the case because they had been, they were in prison and they were caught with drugs in prison. The guy had an issue of dependency and he really needed a drug and he had gotten it through contraband. And so basically said, this is something I need, it's disproportionate to prolong my sentence because of something I need and something which in any case, you guys should have made sure I didn't get. Because I'm in prison, you're supposed to control everything that goes in and out of prison. That had just failed. So they decided to do a long shot which I thought was gonna fail which was arguing personal freedom. And I thought it was gonna fail because we have a set of very conservative judges and for different alignments in political context of what was going on in the court, there were appointments coming in the court and the court was trying to fend off an insider of the executive to being appointed to the court and the court basically sent a signal to the president that if you don't, we're gonna tinker with your policy if you tinker with our configuration. And so they took the case and they ruled in favor of or against the law banning. And so what I'm saying is the argument that I thought was the weakest is the one that has proven to be the most effective. So don't ask me what the strategy should be. But I think we should try all of them. And one of the things we're doing or we're proposing, we're trying to get funds to do next year, one of the people that we fired, the recent chairs of the drug policy program is a social psychologist. So his project is to do experiments with people and testing out different arguments in different cohorts of people to see what kinds of arguments actually appeal to people in their way of thinking about drug policy. So it's in our agenda and when we finish that report, I'll be glad to tell you what our psychologist found out. We're slightly over time, but is there one last writing question? Is it a question on the slide with drug crimes and possession? And it is said that in 2013, there was a big draw, is there a reason? Let me go back to that. Which one is it? I have a lot of slides. I'm very patient. Is it this one? Yeah, this is basically because it was up to May 2013. So it was only from January to May. So that's that. That's exciting explanation. Yeah. And then this one. Yeah, the draw, well, use stopped being registered because they kept reporting the people they detained for use until 2011 when they gave the information and then we cried wolf. It's like, seriously, you have a category for people you're detained for use when use is not a crime. And so they basically shifted the use into possession. They recatalogued that. So that's why that disappears in use. But in general, the percentage that is represented has to do with the fact that the jurisdiction was altered. And it's starting in 2009 and between 2009, 2012, states started prosecuting drug crimes which they didn't prosecute before. So the bulk of the drug crimes which are possession and pedigaling were shifted into states' jurisdictions. So that's, and this is only federal. So that's also, I think, not that exciting. Anyway. Great. Let me thank you very much for an exceptional presentation. I think in its architecture demonstrates the value of your program as interdisciplinary. I mean, it's quite striking as a way of being legal argument. If I could just make one thought. I mean, it's a provocative piece because in some ways I think maybe the main claim is to say this is a war on drugs and to make a government-owned war. And it's more than metaphoric sense, right? I mean, you're actually proving the case that it's a true operational war and asking for the political and legal legitimacy of war not in its cultural metaphoric sense. So it's a striking comment, but I just wanna thank you again for offering this and please join me in thanking Alejandra for this being here. Thank you.