The issue is so sensitive in Brazil and the pressures are so great that Brazil’s Supreme Court deliberated for nine years before deciding, this Wednesday, to decriminalize marijuana use. It is the most populated country (203 million) among those that have taken this step. The magistrates made a second momentous decision. They set the threshold to differentiate a user from a dealer at 40 grams of weed (enough for 80 joints) or six female plants. The current drug law left that crucial distinction in the hands of judges, prosecutors and police, who with a notable racist bias tend to consider that, with the same amount of drugs, a white person is a user and a black person is a trafficker. The new criteria opens the door to the review of thousands of sentences, according to the judges.
Brazil thus joins a long score of countries such as Holland, the pioneer in the seventies, Colombia, Mexico, Italy or Germany that allow consumption. The decision of the highest Brazilian court means that, if a person is arrested with less than 40 grams of cannabis, they will not be booked, nor will they have a criminal record unless there is other evidence, such as a scale or a list of addresses, that indicates that the merchandise It is for sale. Smoking a marijuana cigarette is still prohibited, but now the punishment will be an administrative sanction or a rant from the judge. In any case, the herb will be confiscated.
A lawyer who litigates before the Supreme Court took advantage of the historic decision to spread in X one of those sentences that shows the harshness of the current law. In November 2019, a person was sentenced to six years and nine months in closed prison after a gram of marijuana was seized. His gender, age or skin color is unknown, but statistics suggest that he is probably a young, black man who lives in a favela. Although black and mixed-race men make up 27% of the Brazilian population, they account for more than 60% of those charged with drug law.
More than 6,000 court cases were on hold awaiting the highest court’s ruling. A study presented during the deliberations estimated that, with decriminalization below 100 grams, some 60,000 prisoners would be released. Once the criteria have been set, those affected can request a review of their sentences.
The president of the Supreme Court, Luís Roberto Barroso, explained after the momentous decision the reasons that led the magistrates to enter this minefield and finally rule. “It is a way to deal with a problem that is the hyper-incarceration of young novices with good records for carrying small amounts of drugs.” He added that, in the absence of a clear definition to separate the consumer from the trafficker, “there is great discrimination against poor people, generally black, who live in the peripheries.” Not only that. Another added problem, highlighted by the judge, is that “this exacerbated incarceration supplies labor to organized crime in Brazilian prisons.”
Part by part. The Brazilian Congress approved in 2006, during the first government of current President Luiz Inácio Lula da Silva, a drug law theoretically designed so that drug users could serve their sentence with community work without going to prison. But since their lordships did not clearly distinguish those who smoke from those who engage in buying and selling, it had a terribly perverse effect.
It triggered the imprisonment of black kids arrested with small amounts of drugs. First consequence? Since 2000, the Brazilian prison population has multiplied by 3.5 to 850,000 people, placing it only behind the United States (1.7 million) and China (1.6 million), according to World Prison Brief. But the more than a thousand prisons spread across Brazil are not enough, the network is saturated. The prisoners, overcrowded. The deficit of prison places exceeds 200,000.
Thanks to this and the weakness of the State, criminal groups dominate and manage many prisons where, when a prisoner arrives, whatever the crime that brought him there, he must decide which gang he wants to join during his stay, whether he goes to a wing dominated by the First Capital Commando criminal brotherhood, by the Red Commando – both with national presence – or by one of the dozens of local factions. A situation that Brazilian judges and politicians consider undesirable but with which they live with striking ease. That is why Judge Barroso refers to cutting off the flow of criminal labor. In some prisons the situation is so calamitous that inmates depend on their families for food or to have a toothbrush and soap.
The decision of the togados also weighs on a racism installed to the core of society. An academic study published this month supports with data the widespread perception that, in drug matters, authorities treat Afro-Brazilians more harshly than their white compatriots. The double standard is especially pressing when they are arrested with a small amount of marijuana, concludes the Racial Studies Center of Insper University after analyzing 2.5 million complaints from two decades presented by the Military Police of São Paulo. At least 31,000 blacks were accused of being traffickers in circumstances in which whites were considered simply consumers.
The matter is so sensitive that one of the Supreme Court justices made a dissenting vote so cryptic that the next day he had to clarify that he was in favor of decriminalization. And the president of the court gave a brief explanation with ABC of the conclusions to avoid misunderstandings.
The mere idea that drugs can be legalized terrifies millions of mothers who see every day the havoc that drug trafficking, cocaine, crack or marijuana cause to their children and on the streets of their neighborhoods or in Cracolandia, zombie consumers who have taken over several blocks of downtown São Paulo. The evangelical Churches, like Bolsonarism and the majority of parliamentarians, are frontally opposed to any threat of legalization. Congress has a proposal on the table to criminally punish the possession of any narcotic from the first gram. On the other hand, the editorials of the major newspapers have welcomed the decriminalization of marijuana use.
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