The discussion on decriminalisation of the possession of drugs for personal use which started in 2015 was suspended due to a request for examination of the case by Minister Teori Zavascki, who died in 2017.
Before the suspension, three of the eleven ministers had already declared their votes: the Rapporteur Gilmar Mendes, who came out in favour of the decriminalisation of all drugs and Ministers Luiz Edson Fachin and Luís Roberto Barroso who were in favour of decriminalising marijuana.
The debate was due to be resumed on 5 June 2019, but following an agreement between President Jair Bolsonaro, the Senate, the Chamber and the Supreme Federal Court (STF), Minister Dias Toffoli decided to postpone the discussion indefinitely.
A survey carried out by Agência Pública, analysing 4 thousand sentences for trafficking in São Paulo showed that black people are convicted for trafficking more than white people, even when they are in possession of smaller quantities of drugs. The study “Prisão Provisória e Lei de Drogas” (Pre-trial Detention and Drugs Law) by the Núcleo de Estudos da Violência (Centre for Studies on Violence) at the University of São Paulo (USP), also reiterated the fact that the profile of people in prison for trafficking are young brown or black men, between 18 and 29 years old, who only completed primary school and who have no criminal record.
Understanding the importance of the impact of decriminalisation on society:
“‘Lifting regulations’ is a term used by prohibitionists to infer that we want to remove all controls.” Explained the Unicamp Psychiatrist, Luís Fernando Tófoli, who is also a member of the São Paulo State Board for Public Policies on Drugs. The STF decision is actually about the decriminalisation for the possession of drugs.
The idea is to stop treating users like criminals, although in some cases a person may be subject to punishment, like payment of a fine, for example. Once outside the sphere of criminal law, a problematic user would have easier access to the health service, instead of being sent to jail. Legalisation, on the other hand, is what happens in the case of substances like alcohol and tobacco, the trade and production of which are regulated by public power.
In Latin America, only Brazil, Suriname and the Guyanas criminalise the possession of drugs for personal use. In places like Paraguay and Colombia, people have been allowed to be in possession of illicit substances since 1988 and 1994, respectively. Uruguay became a benchmark in 2013 when it created a system to regulate the entire cycle of marijuana consumption thus bringing it under state control. The possession of other drugs had already been decriminalised in the country since 1974.
In 2018, Alicia Barcena, Head of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) reiterated the importance of thinking of new alternatives to the drugs policy in the region. “Latin America must give serious thought to legalising drugs in order to reduce the human cost of prohibition. Tens of thousands of people across Latin America have died in violence stemming from the struggle to control the lucrative trade in narcotics, particularly in Mexico, where murders fuelled by warring drug cartels reached a record high last year.” She said.
One of the most common arguments used by prohibitionist political sectors — whose greatest exponent is the Minister for Citizenship, Osmar Terra — is that we are experiencing a drug epidemic. This would justify taking extreme measures like the involuntary hospitalisation of problematic users and intensifying imprisonment. The point is that this data this is unfounded. According to research at Fiocruz, the number of crack users in the country is 208 thousand, well below the 370 thousand identified in an earlier study at the foundation. This study also shows that only 1.5% and 0.3% of people said they had used marijuana and cocaine, respectively, in the previous 30 days.
However, the government has not published the data produced by the study, 3º Levantamento Nacional Domiciliar sobre o Uso de Drogas, concluded in 2016 and carried out at the request of the Ministry of Justice. The Fiocruz document, that contradicts the stance of both the Temer and Bolsonaro governments, was revealed in April 2019 by the site The Intercept. Officially, the government alleges flaws in the methodology of the research that cost the public coffers around R$7 million.
People who are arrested in possession of drugs can be classified as traffickers or users. As there is no objective criteria of definition, the person who makes this decision is usually the chief of police, who often accepts police officers’ statements as indisputable proof. A study carried out by Agência Pública showed that, for arrests for up to 10 grams of marijuana, cocaine or crack, in 83.7% of cases the only witnesses heard were the police officers themselves. 59% of convictions were under these conditions, while 44% took place with civil witnesses.
A survey by the São Paulo government showed that, in the state alone, the number of people sent to prison has more than quadrupled in the last 25 years, reaching 235,775 people, making Brazil the country with the third highest detention rate in the world, behind the United States and China. Data from the Justice Ministry and the Secretary for Penitentiary Administration, in 2018, revealed that one third of men and two thirds of women in prison are there for drug trafficking.
According to researchers at the Núcleo de Estudos da Violência at USP, like Bruno Paes Manso and Camila Nunes Dias, authors of the book “A Guerra: A ascensão do PCC e o mundo do crime no Brasil” (The War: the rise of the PCC and the world of crime in Brazil), it is mass incarceration itself that contributes to strengthening organised crime.
A study carried out by Agência Pública, that analysed 4 thousand sentences for trafficking in São Paulo, showed that black people are convicted for trafficking more than white people, even when they are in possession of smaller quantities of drugs. The study “Prisão Provisória e Lei de Drogas”, by the Núcleo de Estudos da Violência at USP, also reiterated the fact that the profile of people in prison for trafficking are young brown or black men, between 18 and 29 years old, who only completed primary school education and who have no criminal record.
In the conclusion of the study, the researchers state that: “The principal consequence of this combative policy has been the creation of a large number of young people with police and criminal records, carrying the stigma produced by prison.” According to the Historian, Eduardo Ribeiro, who is Coordinator on the Iniciativa Negra por Uma Nova Política (Black Initiative for a New Policy), criminalisation not only fails to stop use, but also contributes to the genocide of the black population.
With your help, we want to show ministers the urgent need to make progress in drugs policy. Help us to put pressure on the STF to vote for the decriminalisation of drugs.