On a historic Tuesday, Brazil’s Supreme Court voted to decriminalize the possession of marijuana for personal use, positioning the country among the last in Latin America to undertake such a reform. This decision holds the potential to significantly alleviate the country’s overwhelming prison population. With the final votes tallied, a majority of the justices on the 11-member court have expressed their support for decriminalization, a process that commenced in 2015
While the court has reached a consensus on decriminalization, the justices must still delineate the maximum allowable quantity of marijuana that qualifies as personal use. Additionally, they need to establish the timeline for when this ruling will be implemented, with expectations to finalize these details as early as Wednesday. It is crucial to note that the decriminalization applies strictly to marijuana possession for personal use; the sale of marijuana remains illegal. This nuanced distinction ensures that the reform targets individual users rather than those involved in drug trafficking.
The journey towards this landmark decision began in 2006 when Brazil’s Congress enacted a law aimed at imposing alternative penalties, such as community service, on individuals caught with small amounts of drugs, including marijuana. However, experts critiqued the law for its vagueness, as it failed to specify the quantity that differentiates personal use from drug trafficking. Consequently, law enforcement officers continued to arrest individuals for carrying small amounts of drugs under trafficking charges, exacerbating the growth of Brazil’s prison population.
Ilona Szabó, president of the Igarapé Institute, highlighted a critical issue within Brazil’s justice system: “The majority of pretrial detainees and those convicted of drug trafficking in Brazil are first-time offenders who carried small amounts of illicit substances, were caught in routine police operations, unarmed, and with no evidence of any relationship with organized crime.” This insight underscores the need for a clearer legal framework to distinguish between personal use and trafficking.
In response to the Supreme Court’s deliberations, Congress has advanced a proposal to tighten drug legislation, further complicating the legal environment surrounding marijuana possession. In April, the Senate approved a constitutional amendment criminalizing the possession of any quantity of illicit substances. Following this, the lower house’s constitutional committee approved the proposal on June 12, requiring it to pass through at least one more committee before proceeding to a floor vote. Should this legislation pass, it would take precedence over the Supreme Court’s ruling but could still face constitutional challenges.
Rodrigo Pacheco, President of the Senate, emphasized the legislative process as the appropriate avenue for addressing this issue. Speaking to reporters in Brasília, he stated, “There is an appropriate path for this discussion to move forward, and that is the legislative process. It is something that, obviously, arouses broad discussion and is a subject of preoccupation for Congress.” This sentiment reflects the ongoing debate and the complex interplay between judicial and legislative actions in Brazil.
In recent years, Brazil has made incremental progress regarding the medical use of cannabis. In 2019, the health regulator approved guidelines for the sale of medicinal products derived from cannabis, and last year, a Brazilian court authorized some patients to grow cannabis for medical treatment. Despite these advancements, Brazil remains one of the few Latin American countries that have not decriminalized the possession of small quantities of drugs for personal use.
The Supreme Court’s decision has been long-awaited by activists and legal scholars, particularly in a country where the prison population ranks third largest in the world. Critics argue that current legislation leads to users being convicted of trafficking charges for possessing even small amounts of drugs, resulting in their incarceration in overcrowded jails where they are often compelled to join prison gangs. Cristiano Maronna, director of JUSTA, a civil society group focused on the justice system, noted, “Today, trafficking is the main vector for imprisonment in Brazil.”
As of December 2023, official data indicated that approximately 852,000 individuals were deprived of liberty in Brazil, with nearly 25% arrested for drug possession or trafficking. The prison population is disproportionately composed of Black citizens, who account for over two-thirds of the incarcerated. A study by Insper, a Brazilian research and education institute, revealed that Black individuals found with drugs by police were slightly more likely to be indicted as traffickers than their white counterparts. This study analyzed over 3.5 million records from São Paulo’s public security secretariat between 2010 and 2020.
Following the Supreme Court’s ruling, leftist lawmaker Chico Alencar expressed support, writing on X (formerly Twitter), “An advance in drug policy in Brazil! This is an issue of public health, not security and incarceration.” However, not all experts foresee a significant shift in the status quo. Gustavo Scandelari, a specialist on Brazil’s penal code at the law firm Dotti Advogados, argued that the ruling might not drastically change the current legal landscape. He stated, “The amount will remain one determinant of whether authorities consider a person a dealer or a user, but not the only one.”
Brazil’s approach to marijuana decriminalization can be contrasted with policies in other Latin American countries. For instance, Argentina’s Supreme Court ruled in 2009 that penalizing an adult for consuming marijuana without harming others was unconstitutional. However, the law remains unchanged, and users are still arrested, though most cases are dismissed by judges. Uruguay stands out as the first country to legalize marijuana for recreational use in 2013, fully implementing this policy in 2017. Uruguay’s entire cannabis industry, from production to distribution, is state-controlled, allowing registered users to purchase up to 40 grams of marijuana per month through pharmacies.
In Colombia, possession of small amounts of marijuana has been decriminalized for a decade, but efforts to regulate its recreational use legally have faced obstacles. Despite the decriminalization, selling marijuana for recreational purposes remains illegal. Similarly, Ecuador and Peru have decriminalized possession but maintain strict prohibitions on distribution, while both distribution and possession are illegal in Venezuela.
The Supreme Court’s ruling in Brazil is a pivotal moment in the country’s drug policy, shifting the perspective from a punitive approach to one that recognizes the issue as a matter of public health. This paradigm shift aligns with global trends where numerous countries are reconsidering their drug policies to reduce incarceration rates and address the underlying health and social issues associated with drug use.
