In 2006, Brazil implemented a newdrug law which continued to criminalise various activities related to illegal drugs, such as buying, possessing, transporting, or cultivating them for personal use. However, the legislation softened the punishments for the use of small quantities of drugs. This marked a major change in legislation, from the previous position of total criminalisation of the user. Thus, in Brazil, cannabis users should not be arrested, but rather receive warnings, or be required to participate in community service or educational courses. On the other hand, the legislation toughened the penalties for individuals accused of drug trafficking, including imprisonment for up to 15 years, and more stringent procedural regulations.
Unfortunately, the law has posed a number of issues because it does not contain criteria that differentiates between mere drug users and drug traffickers. Each judge can determine the limit of narcotics that can be considered for personal use, leading to significant discrepancies in judgments and atendency to consider poor, black individuals as traffickers. For this reason, there is an urgent need for objective criteria to differentiate drug users from traffickers. Moreover, Brazilian law contradicts itself since, despite this mitigation in punishment for use of drugs, possession of drugs is still punishable by imprisonment.
The model of judicial control of constitutionality adopted by Brazil allows the Supreme Court to analyse the compatibility of rules in force with the Constitution. In the current scenario, if we analyse the entire Brazilian legal system, to consider the possession of illegal drugs for personal use a crime, goes against the Brazilian constitution as it violates fundamental rights to privacy, freedom, and personality.Furthermore, the country has assumed international commitments, incorporated into Brazilian law by Article 5 of the Federal Constitution: namely, Article 7(3) of the American Convention on Human Rights and Article 9(1) of the International Covenant on Civil and Political Rights. These commitments emphasise the prohibition of arbitrary arrests and imprisonments.
To resolve this interpretative gap, the Supreme Federal Court of Brazil has been adjudicating, since 2015, Extraordinary Appeal No. 635,659. This case will determine the constitutionality of criminalising the possession of small quantities of cannabis for personal use through police investigations and criminal proceedings. The Court is also expected to establish clearer rules for the application of the law, defining the quantity of cannabis that can be considered for personal use.
Currently, five out of the eleven Supreme Court justices have voted in favour of decriminalising the possession of small quantities of cannabis, while three justices have voted against it. The idea of setting a quantity limit to differentiate between a user and a trafficker, however, has been supported by all eight justices who have voted on the matter. Currently, there is no consensus on what that quantity should be; it is to be defined by the justices once the trial has concluded. Although the judgment has evolved over the last year, there is currently no set timeline for when the final judgment will be made.
As a point of comparison, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela, all situated in Latin America, do not regard the use of cannabis as a criminal offence. They have already established, within their legislation, the quantity threshold that distinguishes a user from a drug dealer. Outside the Americas, the same happened in Portugal, a nation that has exerted significant historical and cultural influence on Brazil due to its colonial heritage.
This case is of the utmost importance, as the Brazilian judicial system continues to classify individuals possessing small amounts of drugs as traffickers. Over the last 20 years, this has led to a significant increase in the prison population, primarily affecting the poor, homeless, black people, women, and people living in low-income areas.
It can be concluded that a one-size-fits-all criminal punishment for the simple possession of a small amount of illegal drugs often has disproportionate negative effects, stigmatising the user and hindering prevention and harm reduction efforts. Additionally, these measures exacerbate structural racism and hinder the research and development of medicinal uses for these substances, all while not effectively combating drug use.It is essential to cease the classification of casual drug users as criminals, in accordance with the legislator’s intent and the country’s latest regulations, which allow, with certain authority and in limited situations, the medicinal use and distribution of cannabis by the public health system.
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