What’s the latest on the discussion about drug decriminalisation in Brazil?

Find out more about the discussion on drug decriminalisation in the Brazilian Supreme Court and Congress, and how the Proposed Constitutional Amendment on drugs (PEC on Drugs) could represent a setback for the country

Foto: Marcello Casal Jr/Ag. Brasil

In March, the debate, that has been dragging on since 2015, on the decriminalisation of drug possession was resumed by the Supreme Federal Court (STF). This case revolves around the constitutionality of Article 28 of the current Drug Law (11.343/2006), which addresses transportation and storage for personal use. Some of the ministers advocate for a threshold in grams to differentiate between users and traffickers. This is not defined by law.

Concurrently, a Proposed Constitutional Amendment (PEC) is being processed in the Brazilian Federal Senate, which aims to establish the prohibition of carrying and possessing any quantity of drugs, under the justification of combating trafficking rigorously. The text of the PEC is straightforward and repeats much of what is already provided for in the Drug Law, including the lack of clear criteria on how the differentiation between personal consumption and trafficking is made.

According to civil society organizations working on the issue, the proposed text by Congress could represent a setback for Brazil in the global debate on drug policy change. “Due to the lack of objectivity in determining what would be considered an amount for personal use or for trafficking, the incidences of structural racism and other inequalities in the country end up generating serious injustices and consequences for poor people and those living on the peripheries.” Explains Gabriel Sampaio, Director of Litigation and Advocacy at Conectas Human Rights.

See below for further explanation.

The origin of the discussion in the STF

According to Article 28 of the Drug Law, possession for personal use is a minor offence, with penalties such as receiving a warning about the effects, community service and participation in educational programs. However, there are no criteria distinguishing possession for personal use from trafficking which is punishable by imprisonment.

In practice, this means that individuals detained with the same quantity of drugs can meet very different fates, as assessment is subjectively carried out by the police, the Public Prosecutor’s Office, and the Judiciary. “The decision on whether someone is a user or a trafficker, particularly for black, poor, and marginalised individuals, tends to be quite different compared to people from other social classes and phenotypes.” Explained Gabriel Sampaio.

The Drug Law is the one under which most individuals are incarcerated in Brazil and black people make up 68% of defendants prosecuted for drug trafficking, according to data from the Institute of Applied Economic Research (Ipea) published last year.

As the president of the Supreme Federal Court (STF), Minister Luís Roberto Barroso, himself stated: “If a wealthy white kid from the prosperous southern region of Rio is caught with 25 grams of marijuana, he is classified as a user and released. However, if the same amount is found on a poor black kid from the outskirts of the city, he is classified as a trafficker and is arrested. This is what we have to combat.”

The debate in the STF was sparked by the case of an individual caught with three grams of marijuana while serving a sentence for firearm possession at the Provisional Detention Centre in Diadema, São Paulo, in 2009. They ended up receiving a further conviction, this time of two months of community service.

At that time, the Public Defender´s office alleged that article 28 of the Drugs Law was unconstitutional. The criminalisation of the possession and carrying of drugs for personal use was seen to be in violation of article 5 of the Constitution, in which it says that “a person´s intimacy, private life, honour and image are sacrosanct and compensation for material and moral damage resulting from violation of these aspects is guaranteed.”

During the debate on the state’s power to interfere in someone’s choice to consume a substance, the Supreme Court shifted the focus to ensuring equal treatment for anyone caught carrying drugs throughout the whole country. However, at a certain point in the proceedings, it became clear that the future decision would apply to one single drug – marijuana.

Conservative reaction

In September 2023, the President of the Senate, Rodrigo Pacheco (PSD-MG), presented the so-called PEC on Drugs.

The proposal is to add to Article 5 that “the law considers it a crime to possess and carry narcotics and related drugs, regardless of quantity, without authorisation or in violation of legal or regulatory provisions. The distinction between trafficker and user is to be taken into account and should be based on all the factual circumstances of the specific case. Users should receive alternative sentencing from imprisonment and should receive treatment for dependency.” The text was approved by the Committee on Constitution and Justice (CCJ) on March 13 and is expected to be brought to the floor on April 3.

Regarding discussions on quantity and types of drug, the PEC is sending a clear message to the STF. Pacheco´s main argument as well as that of those in favour of the amendment is that the Supreme Court’s decision could lead to what they call “trafficking in small quantities.”

Black lives under threat

As explained in an article published in the newspaper, O Globo, the current policy of criminalisation drives users away from health and care services, jeopardizes the future of young people in peripheral areas and fuels criminal organizations.

In Latin America, only Brazil, Suriname, and Guyana criminalise the possession of drugs for personal use. In countries like Paraguay and Colombia, individuals have been able to possess illicit substances since 1988 and 1994, respectively. Uruguay became a reference point in 2013 by regulating the entire cycle of marijuana consumption, placing it under state control. The possession of other drugs had been decriminalised in the country since 1974.

According to Gabriel Sampaio from Conectas, lawmakers are adopting a misguided strategy by analysing the Supreme Court’s judgment from a moral standpoint. The issue affects a historically marginalized population, which will continue to suffer if the PEC is approved. It is an attempt to provide a simplistic answer to a complex problem, ignoring social statistics and scientific literature that has already demonstrated that prohibition is not the best approach.

Pressure from civil society

A coalition of 36 civil society organisations have launched a platform dubbed “Users are not criminals” to show the risks of the PEC in question. According to the organisations, criminalisation amplifies inequalities as it affects disenfranchised communities more. Imprisonment for non-violent crimes overburdens prisons and fuels recruitment by criminal factions, thus boosting crime as the prison system grows.

The platform also emphasises that drug policies need to be based on scientific evidence and international best practices, focusing on public health, prevention, care outside the prison system and risk and harm reduction, instead of purely punitive approaches aimed at suffocating criminal structures that corrupt the functioning of democratic institutions.

Last week, the organisations also met with the President of the Senate to express their concerns and request the wide participation of civil society in discussions on the PEC. In response, a debate session was scheduled to take place on April 15. This will be an important opportunity for people to hear from experts in the field in order to enrich the discussion in the Senate and to raise awareness among lawmakers, the aim of which is to prevent setbacks.