Prison reform and drug decriminalization in Tunisia

Alexandra Blackman,[1] Stanford University

*This memo is part of POMEPS Studies 31, Social Policy in the Middle East and North Africa. Download the full PDF here.

In January 2017, Tunisia’s Minister of Justice, Ghazi Jeribi, reported to a parliamentary committee that the country was facing a crisis in its prison system. The crisis resulted from several key factors: chronic prison overcrowding, reports of torture and inhumane conditions in nearly all of the country’s prisons, and an overburdened court system, which gave rise to a large number of pre-trial detainees held for extended periods in the same cells with sentenced inmates. Since the revolution in 2010, there has been growing recognition among Tunisia’s government officials and civil society activists that Tunisia’s criminal justice system requires reform and, in particular, that the country’s harsh drug laws have exacerbated the prison crisis.

This article examines the causes and consequences of high incarceration rates and prison overcrowding, with a particular focus on the link between prison overcrowding and drug sentencing laws in Tunisia. First, I draw a link between criminal justice policy and social policy. Then, I provide an overview of past and present criminal justice policies, showing how Tunisia’s anti-drug laws had long-run negative effects in the country, specifically by increasing incarceration rates and prison overcrowding.

I then discuss current efforts at criminal justice reform with an eye toward how this issue fits into Tunisia’s democratic transition and political reform more broadly. Using a combination of qualitative evidence and an original survey in Tunisia, I show that, while there is broad-based elite support for criminal justice reform, the majority of the Tunisian public opposes the decriminalization of low-level drug offenses as a strategy for addressing prison overcrowding and extremism. Finally, this article explores Tunisia’s different options for pursuing criminal justice reform going forward.

Criminal justice reform as social policy

The study of social policy typically focuses on citizen well-being and social welfare; the primary issues are poverty, education, employment, health, and housing. Previous scholarship has linked criminal justice policy to traditional social policy in a few key ways. First, criminal justice policy and social policy typically reflect a common government approach to deservingness and social marginalization.[2] Second, the effects of criminal justice policy and social policy are inextricably linked; criminal justice policies can play a larger role when traditional social policies, like education and employment, fail. Furthermore, a criminal record can preclude an individual from accessing certain social welfare goods like gainful employment and secure housing.[3] For instance, many individuals previously incarcerated for even low-level drug offenses suffer exclusion from educational and labor market opportunities after release.

Finally, Roberts (2004) outlines the community-level harms that can occur as a result of mass incarceration. Specifically, she highlights that the effect criminal justice policies reverberate throughout local communities and family networks. The incarceration of a family member often places new financial and social stress on the remaining family members through the costs of traveling to visit the prison, the need to supplement the missing income of the incarcerated individual, and the stress of the social stigma and familial disputes over the arrest. These effects can have significant welfare implications, including heightened economic insecurity, stress-related health issues, and weakened social ties.

In recent years, there has been broad international recognition of the dual challenges of high incarceration rates and prison overcrowding, as well as the connection harsh drug sentencing laws shares with both.[4] Many countries have taken steps to reduce the prison sentences associated with the possession and use of small quantities of drugs, particularly cannabis-based products. In addition to addressing the fiscal burden of incarceration on the state, recognition of the social harms inflicted by harsh drug policies often accompanies these reforms.[5]

The prison crisis in Tunisia

According to the World Prison Brief, Tunisia’s prison population is estimated at around 25,000 and has been roughly that high since the mid-1990s, despite the fact that the official capacity of the Tunisian prison system is approximately 18,000. In practice, this means that the prisons have been operating at nearly 150 percent capacity for over two decades, with some prisons reporting an incarcerated population of nearly 200 percent of official capacity. At the end of 2016, Tunisia’s prison population was estimated at just over 23,500, an incarceration rate of over 200 people per 100,000. Almost 50 percent of those in prison in Tunisia are in pre-trial detention, awaiting their trial and sentencing.[6]

The problem of prison overcrowding is not unique to Tunisia. Of the nineteen countries that the World Bank[7] classifies as part of the Middle East and North Africa (MENA) region, only eight have reported their prison occupancy levels since 2011.[8] Six of those eight countries report having overcrowded prisons, ranging from a reported prison occupancy of 240 percent in Kuwait to 139 percent in Iraq and Tunisia. Figure 1 displays the region’s prison occupancy rates, contrasted with those of twelve Western European countries.

Figure 1: Prison occupancy levels (percentage of official prison capacity)

Source: World Prison Brief 2018b

In addition to chronic overcrowding, the expansion of Tunisia’s prison population has compounded other challenges in Tunisia’s prisons, including inadequate living conditions and, in some cases, torture.[9] The Tunisian Human Rights League announced that between October 2013 and October 2015, 400 cases of torture were reported in Tunisian prisons.[10] Despite these public reports, the security forces continue to operate with impunity.[11] Advocats Sans Frontières reports that, although the prisons were designed to keep sentenced inmates separate from those held in pre-trial detention, the two groups are often housed in the same overcrowded cells. Some prison cells are known to hold roughly on hundred inmates at a time, with some prisoners forced to share beds and most prisoners spending twenty-three hours a day in their cell.[12] 

The connection between prison overcrowding and drug sentences in Tunisia

What is the typical profile of incarcerated individuals in Tunisia? More than half of Tunisia’s prison population is under 30, approximately 50 percent have only completed primary school education, and over 97 percent of the prison population is male.[13] These statistics highlight that the highest social costs of criminal justice policy are often born by the same population to which the traditional welfare policies are directed.

Of the 23,553 individuals incarcerated in Tunisia, roughly one-third are facing or serving sentences for drug offenses. The majority of drug cases are young men who were caught with small amounts of marijuana for recreational consumption. In 2016 alone, over 56 percent of those arrested were detained for drug use, primarily of cannabis products.[14]

The rapid expansion of the prison population in Tunisia, particularly of low-level drug offenders can be traced back to 1992, when President Zine El Abidine Ben Ali enacted law no. 92-52 (known as Law 52), which strengthened the criminalization of the use and sale of narcotics in the country and imposed harsh mandatory prison sentences for violations of the law.[15] For simple possession of small amounts of marijuana, a first-time offender could receive between one to five years (with a mandatory minimum sentence of at least one year) and a fine of between 1,000 and 3,000 Tunisian dinars (TND).[16] Those charged with growing or distributing narcotics could face six to ten years with a fine of 5,000 to 10,000 TND, and those linked to gangs or smuggling groups faced mandatory sentences of twenty years to life, in addition to fines ranging from 100,000 to 1,000,000 TND.[17] Judges were given no discretion to reduce any of these mandatory minimum sentences in light of mitigating circumstances or the availability of alternative disciplinary measures.

The social costs of Tunisia’s criminal justice policies

The economic and social costs of Law 52 and of Tunisia’s approach to criminal justice more broadly have been severe. Incarceration and prison overcrowding have been linked to high economic costs, social stigmatization, the expansion of extremist networks, and the expansion of gang and smuggling networks.[18] The economic consequences occur because individuals with criminal records are required to report their criminal history to all future employers, regardless of severity of the crime.[19] A criminal record of any sort vastly decreases an individual’s economic and employment opportunities and can reduce overall economic productivity by banning those with records from studying at public universities or pursuing a job in the public sector.[20]

The harsh criminalization of drug offenses deprives individuals with minor offenses any path toward reintegration into the Tunisian economy and Tunisian society more generally. There is evidence that criminal and gang networks develop and deepen in the context of heightened penalization for low-level offenses and in the absence of efforts aimed at rehabilitation.[21] Mohamed Zorgui, a Tunisian rapper, recounted his experience sharing a large cell with over one hundred other men, including four men who had been convicted of terrorism and were actively recruiting in the prison.[22]

These effects are not limited to the individual convicted but can also affect his or her family and local community. In interviews with several families affected by the law, Bouzidi (2015) highlights the economic and social costs for the family, including the lost wages of the person in prison and the costs of traveling to the prison, as well as the enormous social stigma of having a family member convicted of a crime.[23]

Efforts at reform

In the Middle East and North Africa (MENA), the penalties associated with possession, use, and sale of any drugs remain harsh by global standards. Fourteen of the nineteen countries in the MENA region have laws permitting the death penalty in drug smuggling cases though only a handful of those countries regularly carry out such executions.[24] However, there are growing reform efforts in several MENA countries.[25] In Lebanon, for instance, Skoun, a Beirut-based civil society organization, has been working since 2011 to reduce sentences associated with drug use and improve addiction services.

Closer to Tunisia, Morocco has been at the forefront of decriminalization debates in North Africa. Morocco is one of the world’s largest marijuana producers, supplying much of the European market.[26] Although cannabis remains illegal in Morocco, the government oscillates between cracking down on marijuana farmers and offering tacit acceptance of cannabis farming, particularly in the impoverished Rif mountain region, where marijuana cultivation represents a main pillar of peasant farmers’ livelihoods.[27] Fouad Ali El Himma, a close advisor to King Mohammed VI and a founder of the Party of Authenticity and Modernity (PAM), has pushed for an open dialogue regarding cannabis since 2009. In 2014, PAM released a draft law proposal to legalize marijuana cultivation for medicinal purposes.[28]

In Tunisia, the government sent a draft law on narcotics to Tunisia’s Assembly of the Representatives of the People (ARP) in 2015; the ARP began discussions of the law in January 2017.[29] In the meantime, however, human rights groups and civil society activists, including lawyer Ghazi Mrabet, organized for reforms, popularizing slogans such as “El 7abs lé [no to prison]” and “#baddel52 [#change52].”[30] While the members of Tunisia’s different political parties could not agree to fully repeal Law 52, an elite consensus formed around reducing prison sentences for first- and second-time offenders accused of marijuana consumption.

On March 15, 2017, Tunisia’s National Security Council, chaired by President Beji Caid Sebsi, issued new regulations allowing judges to pardon defendants as soon as their judgment is announced.[31] On April 25, 2017, the ARP finally adopted the proposed amendment to Law 52.[32] Under the modified law, judges have discretion in sentencing for the first two drug offenses. They can consider mitigating circumstances and recommend alternatives to prison, such as medical evaluation and treatment. On May 15, 2017, a criminal court in Tunisia issued the first modified sentence: a suspended sentence of one year in prison and a 1000 TND fine.[33] Human rights groups and civil society activists commended the change but also endorsed further reforms, arguing that judicial discretion has its own limitations and risks.

Several of the government ministers from the current Nidaa Tounes-led government have expressed a willingness to further reform the law. Justice Minister Ghazi Jeribi called the current amendment of Law 52 an interim solution, while the political elite debate further changes.[34] Health Minister Samira Merai pledged that this amendment marked a new approach towards drug offenses, one that prioritizes prevention and addiction services.[35] Leading members of Ennahda have expressed support for reform as well.[36] All stress that they want to reduce harsh sentences but object to full decriminalization of marijuana-related offenses, because they fear that will promote further consumption.[37]

What does public opinion say?

Despite all of the depenalization debate among Tunisia’s political elite, little is known about the public’s support for or opposition to criminal justice reform policies. In July 2017, I fielded a public opinion survey in five of Tunisia’s governorates: Beja, Bizerte, Sfax, Sidi Bouzid, and Sousse.[38]

In the survey, I asked respondents to report whether they agreed with several policies proposed to address extremism in Tunisia. The policies included: creating more jobs, increasing the number of soldiers, increasing the number of police, implementing a training program for imams, and eliminating penalties associated with low-level drug offenses in order to reduce the prison population. Respondents could select: strongly support, somewhat support, somewhat oppose, strongly oppose, and don’t know/refuse.[39] The overall distribution of support and opposition for each of these policies is displayed in Figure 2.

Figure 2: Public support for policies to combat radicalization

Source: Local public opinion survey, July 2017

These results indicate that the majority of Tunisia’s public does not support the decriminalization of low-level drug offenses as a solution to prison overcrowding and extremism.[40] While the vast majority of the public supports the other policies, 60.5 percent of respondents oppose decriminalization of low-level drug offenses, with nearly 45 percent of respondents saying that they strongly oppose such measures. Among the 30.4 percent of respondents who support decriminalization of low-level offenses, their support is more evenly divided among those reporting that they strongly support (17.7 percent) and somewhat support (12.7 percent) such policies.

Table 1 shows the percentages of opposition and support by gender, age cohort, employment, political orientation, and education. These results offer two insights. First, while these sub-groups vary in their support and opposition, the differences are generally quite small. Among all sub-groups, between 50 to 65 percent are opposed to decriminalization, while between 20 to 35 percent support decriminalization. Second, the differences that we observe align with our expectations about who was negatively impacted by the Ben Ali regime’s approach to criminal justice. For instance, respondents between the ages 18 and 35 are more supportive of decriminalization than older age cohorts.[41] Similarly, part-time and unemployed respondents are more supportive of decriminalization, while respondents who had completed secondary education or higher are less supportive. [42] One interesting point to note is the variation regarding the percentage of respondent answering “Don’t Know.” Women, older respondents, and respondents who did not vote in the 2014 elections had less certain views about decriminalization.

  Table 1: Opposition and support among sub-groups

BY GENDER
  Oppose Don’t Know Support
Female 58.4% 11.9% 29.7%
Male 62.5% 6.4% 31.1%
 

BY AGE

18-35 57.5% 6.6% 35.9%
36-55 63.9% 7.1% 30.0%
56 and above 59.8% 16.0% 24.2%
 

BY EMPLOYMENT STATUS

Full-time 63.2% 7.2% 29.6%
Part-time 57.1% 5.9% 37.0%
Unemployed, in labor force 56.4% 8.0% 35.6%
Out of labor force 61.2% 11.4% 27.4%
 

BY 2014 VOTING BEHAVIOR

  Oppose Don’t Know Support
Ennahda 66.7% 6.2% 27.1%
Nidaa Tounes 64.7% 2.8% 32.5%
Other 59.3% 6.9% 33.8%
Didn’t Vote 58.0% 14.0% 28.0%
 

BY EDUCATION

Did not complete secondary education 56.9% 11.9% 31.2%
Completed secondary education 64.7% 5.8% 29.5% 


Locating criminal justice reform in political transitions
 

Despite the notable progress toward depenalization of marijuana consumption in Tunisia, significant obstacles remain. In addition to limited public support, Tunisia’s Ministry of Interior website continues to report the arrests of Tunisians for behaviors related to the consumption and trafficking of marijuana. In a recent case reported on the Ministry’s website, on January 1, 2018, the police reportedly arrested four people in Tunis who had marijuana in their car.[43] On April 3, 2018, the police in Tebourba arrested a man carrying marijuana in his car.[44] Although the reporting of arrests could make the police more accountable, these reports are often framed in a prejudicial light, reporting that the drugs seized in cars are being trafficked if cash – even relatively small amounts – are also found in the vehicle.[45] Given these challenges, it is not clear that further reforms to Tunisia’s criminal justice system will be forthcoming in the near future. However, while the broader attempts at security sector reform have faltered in post-revolutionary Tunisia, the government may have more success with depenalization efforts that do not directly threaten the power of the Ministry of Interior.[46]

 Criminal justice reform efforts follow a familiar pattern to other reforms proposed during Tunisia’s transition: (1) a strong elite consensus, particularly between Nidaa Tounes and Ennahda; (2) a significant divide between elite support for the policy and popular support; and (3) opposition to reform by an institution or actor linked to the old regime. Despite these shared features, the elite consensus on criminal justice reform is more progressive than what the public is demanding, while the elite consensus on economic policy reforms is typically more conservative.

The efforts at criminal justice reform in Tunisia highlight the paucity of research on criminal justice reform in the Middle East and North Africa and the close relationship between criminal justice policies and social policy in that context. Specifically, this article shows that the welfare concerns at the center of social policy, such as poverty and unemployment, may also be addressed through criminal justice reforms. As Tunisia moves toward increasing judicial discretion in sentencing, comparative work from other country cases that have experimented with criminal justice reform is helpful in illustrating the risks and benefits of such an approach.

 

[1] I thank Stanford’s Philanthropy and Civil Society (PACS) Center and the American Institute for Maghrib Studies (AIMS) for their generous support of this project. I thank Caroline Abadeer, James King, and Farah Samti for feedback on earlier versions of this paper. I am grateful for the generous feedback from participants in the POMEPS Social Policy workshop, the Abbasi Student network workshop, and a Stanford Comparative Politics writing group. I also thank the entire team at BJKA Consulting in Tunis, and especially, Samy Kallel and Manel Mansouri, for their assistance with this survey. All errors and omissions remain my own.

[2] Beckett and Western 2001

[3] Roberts 2004; Weegels 2018

[4] Snacken and Beyens 1994; Caumont 2013; UNODC 2015. In this article, I use depenalization to refer to efforts that maintain the criminal status of marijuana use but reduce or eliminate associated prison sentences. Decriminalization refers to policies that eliminate both the criminal status and prison sentences associated with marijuana use. See: Pacula et al. (2005) for a further discussion of the wide array of policy options.

[5] Hughes and Stevens 2010

[6] By contrast, the incarceration rate is approximately 131 in Portugal, 126 in Spain, and 102 in France, with the percentage of pre-trial detainees in those same countries at 15.6, 14.3, and 28.7 respectively (World Prison Brief 2018b).

[7] The World Bank classifies Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia, Syria, Tunisia, United Arab Emirates, West Bank/Gaza, and Yemen as MENA countries.

[8] BBC 2008; Mohammed 2013; Middle East Monitor 2017; World Prison Brief 2018b

[9] Advocats Sans Frontières 2015; Middle East Monitor 2016; Boh 2017; Amnesty International 2018

[10] Similarly, the Organization Against Torture in Tunisia (OCTT) reported 631 cases of torture at the hands of the security forces between 2013 and 2016. See: Middle East Monitor 2016; Attia 2018

[11] In one recent example of the work of police unions to protect officers in the country, in February 2018, a security force union protested at a courthouse in Ben Arous to demand the release of fellow security force members who had been accused of torture (Grewal 2018).

[12] Advocats Sans Frontières 2015. See also: Bajec 2017.

[13] Advocats Sans Frontières, 2015; World Prison Brief 2018a

[14] North Africa Post 2017. Cannabis can be consumed in a variety of forms, all of which are outlawed by current Tunisian law. The terms for various cannabis products in Tunisian dialect include: hashish, zetla, kif, takrouri, and chira. The reported annual prevalence of cannabis use in Tunisia was estimated at 2.6 percent in 2013. By contrast, the annual prevalence of cannabis use in Morocco is 4.2 percent (2004), in Portugal is 2.7 percent (2012), in Spain is 9.2 percent (2013), and in France is 11.1 percent in 2014 (UNODC 2017).

[15] Cannabis products in all forms had been banned under French colonial rule and post-Independence. In November 1964, Tunisia’s first president, Habib Bourgiba, signed a law outlining the new criminal penalties for cannabis and opium use and sale, law no. 64-47. However, Law 52 was a notable shift toward harsher criminal justice policies. Following the 2010 revolution in Tunisia, human rights organizations and civil society associations highlighted how Law 52 had been used to target and imprison certain sub-groups of the Tunisian population under the Ben Ali regime. Many of those arrested were young men from marginalized communities, who, if mobilized politically, could have posed a threat to the Ben Ali regime.

[16] Government of Tunisia 1992, Law no. 92-52, Art. 2,4

[17] Government of Tunisia 1992, Law no. 92-52, Art. 5-7

[18] Roberts 2004; Skarbek 2011; Weegels 2018

[19] Advocats Sans Frontières 2015

[20] Guellali 2016

[21] Advocats Sans Frontières 2015; Bajec 2017. See also: Cuthbertson 2004; Skarbek 2011; Wood 2014

[22] Bajec 2017

[23] Bouzidi 2015

[24] Of the MENA region countries, only Algeria, Djibouti, Lebanon, Morocco, and Tunisia do not permit capital punishment for drug offenders (The Economist 2015).

[25] The Economist 2017.

[26] Roslington and Pack 2013; Blickman 2017

[27] In 2013, according to Morocco’s Interior Ministry, approximately 750,000 Moroccans relied on cannabis farming for their economic livelihood (Martelli 2013).

[28] Hammond 2017

[29] Government of Tunisia 2015, Draft law no. 79/2015; Human Rights Watch 2017

[30] HuffPost Tunisie 2017b

[31] Agence France Presse 2017a

[32] Government of Tunisia 2017, Law n° 42/2017

[33] Boukhayatia 2017

[34] HuffPost Tunisie 2017b

[35] Agence France Presse 2017b

[36] HuffPost Tunisie 2017a; HuffPost Tunisie 2017b

[37] Notably, there is little evidence that depenalization or decriminalization of marijuana use causes a significant increase in the prevalence of marijuana use. See: Kilmer 2002; Laqueur 2015.

[38] This survey question was included in a larger original survey conducted with Marlette Jackson (Stanford University) that examined public opinion toward local governance and elected officials. BJKA Consulting Firm fielded the survey. Data collection lasted two weeks in July 2017. Enumerators read the survey questions to respondents and simultaneously input the responses into tablets. The 1,200-person sample for this survey was selected using used multi-stage sampling. Details on sampling are included in the Online Appendix. Although the survey was constructed to be locally representative, the sample is comparable on all socio-economic indicators to the nationally-representative Afrobarometer and Arab Barometer samples except in the extent that our survey oversamples rural areas. See Table A.4 in the Online Appendix.

[39] An example of the question in Arabic is displayed in Figure A.3 in the Online Appendix.

[40] There are several methodological issues that need further clarification in future public opinion work. First, it would be useful to determine whether public support varies depending on if they are asked about depenalization, decriminalization, or legalization. Second, the question on this survey frames decriminalization as a proposed solution for extremism and prison overcrowding in the country, but there are other ways to frame this policy, including frames that emphasize the economic benefits of decriminalization, the movement toward decriminalization in the United States and much of Europe, the availability of alternative treatments like drug addiction therapy, and, finally, fairness or personal liberty concerns associated with prison sentences for low-level drug offenses. I am currently conducting additional experimental work in Tunisia to examine the extent to which public support for depenalization or decriminalization is determined by how the issue is framed.

[41] This holds even when controlling for respondent gender, education level, and delegation fixed effects, but the effect is substantively small. A one-year increase in the age of a candidate is correlated with a 0.2 percentage point decrease in the probability that the respondent supports decriminalization.

[42] This holds even when controlling for respondent gender, age, employment status, and delegation fixed effects. Completion of secondary education or higher is correlated with a 9 percentage point decrease in the probability that the respondent supports decriminalization. OLS results are reported in the Online Appendix.

[43] Government of Tunisia (Ministry of the Interior) 2018a

[44] Government of Tunisia (Ministry of the Interior) 2018b

[45] It is not clear from the amended Law 52 or the Ministry of Interior website what amounts of cannabis distinguish personal consumption from possession with intent to sell.

[46] Grewal 2018


Online Appendix

In order to access the Online Appendix, please visit: https://www.alexandrablackman.com/research/


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