Chile is advancing a controversial reform that could impose harsher penalties for cannabis possession by shifting legal criteria from quantity to perceived “potential harm.” The move has sparked a constitutional challenge, raising concerns about legal ambiguity and the risk of criminalizing users, growers, and patients.
Last week, the Chilean Congress advanced an amendment to Law 20,000 that toughens penalties for possession and small-scale trafficking of drugs classified as capable of causing “serious toxic effects or considerable harm to health.” Does cannabis fall under this category? Apparently, yes.
This is not the first time the country has found itself caught between two opposing viewpoints: one that recognizes the plant’s therapeutic value and another that pushes for harsher penalties. But this time, the conflict is escalating—not only politically, but constitutionally as well.
In response to this decision by the authorities, 37 members of Congress—in an effort led by Representative Ana María Gazmuri—filed an appeal with Chile’s Constitutional Court to block this new regulation, raising questions about who can be considered a criminal and under what criteria. The main concern is that it does not only target large trafficking networks, but could also affect users, growers, and even patients who use cannabis for therapeutic purposes.
From Quantity to “Potential Harm”: The Shift Redefining Prosecution
For years, Chilean law operated with relatively clear criteria: the amount of substance seized helped distinguish between personal use and trafficking. That threshold, though imperfect, served as a benchmark under Article 4 of Law 20,000, which penalizes the possession of small quantities unless personal use or medical treatment is justified.
This reform changes that logic. The new approach allows for harsher penalties even in cases involving small quantities if the substance is deemed capable of causing “serious toxic effects or significant harm to health.” Legally speaking, this means that certain cases could now be subject to the highest penalties provided for in Section 1 of the same law, significantly increasing their severity. In other words, the focus shifts from what is measurable to what is interpretable.
This is a structural change that will eventually lead to measures based on overly broad categories such as “potential harm,” where the scope for judicial interpretation could widen, and with it the potential for greater arbitrariness.
A Tougher But Less Clear Reform and a Constitutional Challenge
In response, 37 members of Congress filed a petition with Chile’s Constitutional Court seeking to block the law, as reported by BioBio Chile. The petition was filed on April 13 and directly targets the core of the reform, specifically an amendment that changes how Article 4 is applied to substances considered highly harmful.
Now, the Constitutional Court must decide not only whether to accept the petition but also whether to suspend the enactment of the law, which could temporarily delay its implementation.
According to the petition, the issue is not only the increase in penalties, but also the lack of clear boundaries. As the document itself states: “It does not exclude preparatory acts for the permitted personal use of cannabis.” This implies that actions related to consumption—even if they do not constitute trafficking—could still be subject to criminal investigation.
Since 2015, Chile has recognized the medicinal use of cannabis under the regulation of the Chilean Institute of Public Health. However, this openness coexists with a classification that still categorizes the plant as a high-risk substance under Decree 867, which means that cannabis is subject to regulations designed for substances deemed more dangerous.
This contradiction is not new, but it is persistent, and its effects are substantial. The petition itself warns: “People who use cannabis (…) are equally subject to prosecution, raids, arrests, and trials.” In this context, harsher penalties do not necessarily bring order to the system. On the contrary, they may deepen legal uncertainty for those already living in this gray area.
The bill is part of a broader policy to combat substances considered high-risk, and is not explicitly framed as a law against weed, even though the plant falls within the categories covered by its current legal classification. However, the wording does not clearly distinguish between types of drugs or levels of harm. This creates a tension that is hard to ignore, effectively punishing two distinct behaviors “with the same severity.”
Furthermore, various analyses warn that this ambiguity could open the door to more raids, intrusive investigations, and criminal prosecution even in cases of personal use, thereby expanding the scope of the punitive system.
And when the law fails to distinguish, the criminal justice system can expand downward in scope. Not necessarily toward drug trafficking networks, but toward those most vulnerable in the chain: users, small-scale growers, and patients.
The Knot Chile Has Yet to Untie
Regardless of what Chile’s Constitutional Court decides, the conflict once again highlights a core problem. Chile recognizes cannabis in the medical sphere, but continues to treat it as a threat under criminal law. This dual logic, in addition to being incoherent, is directly operative, as it defines who can exercise a right and who remains under suspicion.
When the line between crime and use is unclear, punishment is not distributed neutrally, and it is within that diffuse and open-to-interpretation margin that the real debate is being played out today.
