Brazil Drug Decriminalization Norm To Segregate Trafficking From Personal Use

The decriminalization of drug possession for personal use is under trial at the Federal Supreme Court (STF), based on the modification of article 28 of the Drug Law. The process follows a certain trend in countries such as Portugal and Uruguay, in addition to meeting a demand from civil society. Specialists from the University of São Paulo clarify the debate on the topic that, in theory, differentiates personal use from the drug trade. The legal aspects of this discussion need to be taken into account. Sérgio Salomão Shecaira, professor at the Department of Criminal Law at the Faculty of Law at USP, discusses the modification of the law, as well as the possible impacts on trials for drug possession that are in progress. Maria Gorete Marques, researcher at the Center for the Study of Violence at USP (NEV-USP), on the other hand,

What does the law say
In Brazilian law, there are no specifications about what characterizes the drug user and the one who sells it. The current Law on Drugs – one of the objects of the Supreme Court’s vote and which establishes the National System of Public Policies on Drugs – modified a 1976 law that was already considered outdated and that established a penalty for drug users.

However, Shecaira considers that the law maintains a duality. “On the one hand, there is Article 33, formerly Article 12 of the repealed law, which establishes a tougher penalty for the trafficker; and on the other hand a lighter penalty for the user. In the current law it is article 28, former article 16 of the repealed law. The main difference is that this current article 28 does not provide for a custodial sentence for drug users in this sense. This law was an improvement over the repealed law that provided for a sentence of six months to two years, but it did not clearly establish who is the user and who is the dealer.”

Personal use or trafficking?
Maria Gorete explains that, since the approval of the law in 2006, there has been a discussion about the difficulty of classifying an individual as a user or a dealer, since the legislation is very comprehensive.

Without an explicit delimitation between the two typifications, the researcher emphasizes the determining power of police officers and their narratives in cases of drug seizures. “One of the points that have gained a lot of density on the issue is the power of definition that ends up being given to the police, as they are the ones who will provide the elements that will direct the user or drug dealer profile”, points out Maria Gorete.

Thus, the decision of the judiciary creates a great dependence on the positioning of the police forces, which sometimes go beyond the law and are influenced by personal and social circumstances. As a result, in the researcher’s view, the margin of condemnation of people who are not in the condition of traffickers is much greater and the poorest population is the most affected.

Schecaira goes into more detail about the problem: “Who will define whether a quantity of drugs seized is intended for use or sale is, in the first place, the military police. Soon after, the police chief who will record the act; then, the prosecutor who will file the complaint; and, finally and fourth, the judge who will decide whether that person is a user or not, whether he is a drug dealer or not,” explains the professor.

When a large amount of drug is seized, it is understood that it is intended for sale, but when the amount is small, the criterion used is the context of the seizure of the drug, which gives rise to discrimination due to social and racial factors and demonstrates a failure in the law, evaluates the teacher. “That’s where a certain human filter comes in, which is a very conservative filter. For example, if the drug is seized in Jardins, in the Pinheiros neighborhood, in Perdizes, or in Leblon and Ipanema, in Rio, and not in the Rocinha favela, in the Heliópolis and Paraisópolis favelas, we have an appreciation on the part of the judicial actors in a different way; 30 grams seized in the favela is usually said to be destined for drug trafficking, 30 grams seized from someone in the neighborhood of Perdizes or Higienópolis is destined for use.”

Schecaira also adds: “Another reading that is done, and also very traditional, is that if people are black or brown and are in a poor place and have money in their pockets, these people are often confused or declared as drug dealers”, he argues. In the professor’s opinion, what is at stake is the context of the seizure of the drug, which needs greater legal certainty.

Furthermore, Maria Gorete adds that the lack of differentiating criteria also directly impacts incarceration rates. For example, the researcher says that trafficking is the second main reason for arrests among men and the first among women. “It is important to look at other experiences, such as those of Portugal and Uruguay. So, it is worthwhile for Brazil to update itself on this agenda, which is also a demand from civil society”, reflects the researcher.

new regulations
One of the main parameters for the decriminalization of drugs is quantity. In some countries around the world, such as Portugal, explains Shecaira, there is a model that defines minimum amounts for seizure of all drugs, which would consider a user and not a dealer. In addition to this measure, Maria Gorete complements the need for a change in policy that is very much based on ostensive policing and with little investigative power. A NEV-USP survey, carried out in 2011, on provisional drug arrest and its approaches pointed out that only 4% of them were motivated by investigative work. The other cases came from flagrante delicto or policing.

“Ostensive policing takes the edge of trafficking, the person who is acting already has a certain precariousness and, many times, is exercising this activity even for survival, but there is no investigative investment to know the circuit of this drug”, clarifies the researcher. She defends the need to go beyond the so-called “drug war policy” towards a more effective solution. Thus, arresting an individual on the fringes of the drug trade does not change the criminal network in any way.