On November 11, 2019, Supreme Court Justice Gilmar Mendes granted habeas corpus to a woman who had been “sentenced to 6 (six) years, 9 (nine) months and 20 (twenty) days in prison, to be served in an initially closed regime, for possession of 1g (one gram) of marijuana.” According to him, the punishment violated the principles of proportionality. The sentence was inappropriate because the crime was “insignificant and of minimal offensiveness.” 

The Judiciary branch thus corrected the limbo that the Legislative branch created in 2006 when it established the National System of Public Policies on Drugs (Sisnad). This law does not differentiate between users and traffickers. For 18 years, it was up to police officers and judges to differentiate, and punitive blunders like this were made chiefly in the lower courts. Few cases were lucky enough to go up to the Court of Justice or the Supreme Court. 

That is, until the Supreme Court corrected the deficient law by decriminalizing the possession of up to 40 grams of narcotics for personal consumption. For the private use of narcotics, punishment takes place in the administrative sphere with warnings and educational measures. Trafficking remains criminal with a penalty of 5 to 20 years in prison. However, the National Congress has now started a campaign contradictory to the Supreme Court. Among parliamentarians, the Supreme Court’s decision is seen as yet another attack on the Legislative by the Judiciary.

Congress sees this as a violation

The rapporteur in the House, deputy Ricardo Salles (PL-SP), criticized the Supreme Federal Court’s (STF) vote, claiming the decision has violated the merits of Congress.  Salles has a point in his complaint. According to the principle of the separation of powers, the Supreme Court’s decision does not bind the Legislative Branch. This makes it possible for parliamentarians to pass legislation contrary to what was decided by the Court. On the other hand, there should be the understanding that the Supreme Court corrected a flaw in legislation rather than drafting legislation. The STF would have invaded the parliamentary arena if it had legalized the drug – which means passing a law that regulates and allows conduct – which did not happen. 

Senate president Rodrigo Pacheco (PSD-MG) also criticized the STF’s decision. He repeated Salles almost ipsis litteris with the argument of “encroachment on the competence of the legislature.” “I disagree with the Supreme Court,” Pacheco said. “There is a legal, political and rational logic to this, which, in my opinion, cannot be broken by a judicial decision that singles out a certain narcotic substance, invading the technical competence of Anvisa and invading the legislative competence of the National Congress.”

President Luiz Inácio Lula da Silva followed Pacheco’s reasoning: ” The Supreme Court doesn’t have to get involved in everything, it needs to take the most serious things about what concerns the Constitution, and become master of the situation, but it can’t take anything and start arguing, because then it starts to create a rivalry that is not good for democracy, nor for the Court, nor for the National Congress,” he said. “I think it’s noble to differentiate between the consumer, the user and the dealer. We need to have a decision on this, not in the Supreme Court, but in the National Congress, so that we can regulate it,” he added.

Congress is scrambling to regain control

The Supreme Court’s final deliberation has clearly created a conundrum for Congress. As a result, the House of Representatives is now debating the Proposed Amendment to the Constitution 45. Known as the Drugs PEC, the Senate created and approved the legislation last year. While the 2006 law criminalizes drugs, it does not stipulate the amount. The Drugs PEC establishes that the possession of any amount of illegal drugs is a crime in an opinion diametrically opposed to that of the majority of Supreme Court justices. The public has since denounced the Drugs PEC and called for new legislation. But after the well-deserved public beating he took when he promoted the urgent approval of the Anti-Abortion Bill, the Speaker of the House, Arthur Lira (PP-AL), would rather do anything than face a new Legislative agenda.

Even so, Lira ordered the creation of a special committee to deal with the PEC. According to the procedure, the parties must appoint representatives to the committee, which will have 34 members. The issue is unlikely to be dealt with until the October municipal elections in the House. However, Lira will have to do something sooner in order to please the large conservative caucus. He heavily depends on it to be reelected as the president of the House in February 2025. The committee has a minimum period of ten sessions to debate the PEC on Drugs before the issue is taken up in plenary. 

Relief for the prison system

The future application of the ruling will have consequences for the Brazilian prison system. The Institute for Applied Economic Research (Ipea) found 42,631 out of the 852,000 inmates in the country fall under what the STF considers a violation of the principles of proportionality . The release of these prisoners would save the public coffers around R$1.3 billion, according to data from the Atlas of Violence 2024 survey drawn up by Ipea and the Brazilian Public Security Forum.  According to the National Council of Justice, there are at least 6,345 suspended cases awaiting the outcome of the case.

The number of people out of jail and the savings would be even greater if the limit were 100 grams rather than the current limit of 25. “We estimate that the cost of imprisoning people who could be presumed to be drug users exceeds R$2 billion each year for the state, considering the combination of objective criteria in scenario B (100g of cannabis and 15g of cocaine),” the report states. The study also indicates that the resources currently channeled into public security would be better spent in the areas of education and health with prevention programs.

According to experts, the STF’s resolution should have a significant impact on the incarceration of people arrested or convicted of possessing small portions of drugs, especially marijuana. “The Supreme Court ruled that possession of drugs for personal use will remain an administrative offense. So it is possible to apply sanctions of an administrative nature, no longer criminal,” says Carlos Wehrs, a law professor at FGV Rio. For him, the decision was intended to tackle the systemic injustice that occurs when arrests are made, which almost always marginalize Black people and the poor. 

Data from Ipea reinforces this thesis: Black people are more likely to be arrested for drug trafficking in the case of police patrols. In a technical note published in October last year, Ipea analyzed the racial profile of defendants prosecuted for drug trafficking in state courts. It considered a sample of 5,121 defendants out of a total of 41,100 cases. These are cases whose sentences date from the first half of 2019. 

Of all the defendants, 46.2% are Black and 21.2% are white. “It is possible to affirm that the crimes of the 2006 Drug Law are responsible for the prosecution and incarceration of mostly black people,” the study points out. If we consider those arrested in the act, based on police approaches citing suspicious behavior, 51.3% are black and 20.3% white. In the case of flagrant arrests on public roads, 52.8% are black and 20% white. “This suggests that black people are more likely to be approached during overt street policing than white people,” says the note. The decriminalization of marijuana won’t only be an economic save for the prison systems. It will also be a social ruling that tackles a prejudiced system.

Marijuana around the world

Brazil has much to learn about the decriminalization of marijuana from the wider world. According to the UN, Europe is the largest cannabis market in the world, since 23 countries have decriminalized both medicinal and recreational use. It is consumed by 8% of the European population. The global weed market is estimated at $61 billion USD, and projections indicate that the number should double by 2028. Brazil, since it decriminalized possession and not the drug itself, will not suffer an impact on the economy. However, it can still catch a glimpse of the effects the decision can have on its society and economy.

In Portugal, possession of up to 25 grams has not been a crime since 2001. The National Health Service pointed to a reduction in the prevalence of drug use and a greater awareness of the risks of marijuana. However, average use in Portugal is higher than in Europe: 9% compared to 8%, respectively. In Uruguay, where the entire cannabis chain was legalized in 2015, marijuana trafficking fell from 58% to 11%. Just as among the Portuguese, 14.6% of Uruguayans are users, an increase since 2011. Canada allowed recreational use in 2018, and issued a report in 2022 indicating a drop in consumption among teenagers. 

There are other examples in South America. Medical cannabis has been legal in the Argentinian provinces of Chubut and Santa Fe since 2016. In Chile, cultivation for medicinal purposes has been authorized for 10 years. The same goes forColombia since 2015. Ecuador allows possession of up to 10 grams for personal consumption.

In the USA, 23 of the 50 states allow recreational and medicinal use. As everything becomes a source of revenue there, the legal cannabis market was valued last year at between $27 billion USD and $30 billion USD. Growth is expected to reach 50% by the end of 2025.

Brazil has something to learn from these countries. From the prison systems to recreational use, decriminalizing marijuana will benefit the social and economic aspects of the country. However, that is only part of it. Until Congress and the STF can work together, Brazilians will continue to face a prejudiced system.

Postscript: How the Supreme Court voted

In favor

Gilmar Mendes

“To address the issue in the context of public health and not public security.”

Rosa Weber

“Chemical dependency and drug use are issues within the scope of public health and social reintegration policies.”

Alexandre de Moraes

“People who used to be classified as users are now classified as petty traffickers, who carry a longer sentence. There has been an increase in incarceration.”

Luís Roberto Barroso

“What we want is to avoid discrimination between rich and poor, between whites and blacks.”

Edson Fachin

“The addict is a victim and not a germinal criminal. The addicted user should be treated as a patient.”

Dias Toffoli

“I am convinced that treating the user as a drug addict is not the best public policy.”

Cármen Lúcia

“There is (today) unequal treatment by the state itself, which is obliged by the Constitution to promote equality.”

Against

Cristiano Zanin

“The decriminalization, even if partial, of drugs could contribute even more to the worsening of this health problem.”

Luiz Fux

“We are not elected judges. Brazil does not have a government of judges. In a democratic state, the highest body is Parliament.”

André Mendonça

“The legislator defined that carrying drugs is a crime. Turning this into an administrative offense is going beyond the will of the legislator.”

Kassio Nunes Marques

“The law today has an inhibitory factor. Brazilian society needs instruments to defend itself.”

And the heads of the government

Arthur Lira, President of Congress

“I don’t have an opinion. You don’t give an opinion on judicial decisions, you either appeal or you legislate. It’s not my job to comment on STF decisions.”

Rodrigo Pacheco, President of the Senate

“I disagree with the Supreme Court. (The decision) invades the legislative competence of the National Congress.”

Luiz Inácio Lula da Silva, President

“It’s noble to differentiate between consumers, users and traffickers. A decision is needed, but not in the Supreme Court, it could be in the National Congress.”

[Cheyenne Torres edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.