Brazil may decriminalize drug possession

Brazil can match to other countries in South America that decriminalized the illegal drugs possession and show more tolerance for the consumption and cultivation for personal use.

On Thursday (Aug. 13), the Supreme Court (STF, in the original acronym) may judge a lawsuit questioning the constitutionality of the prohibition. The lawsuit was filed by the Public Defense Office of the State of São Paulo alleging that drug possession shall not be taken as a crime, because it does not harm third parties.

For experts in public security, human rights and drugs, the STF has the chance to take an important step to grant the drug users' access to health care, in addition to end their stigma to being criminals.

Luciana Boiteux, who is the coordinator of the Research Group in Drug Policy at the Federal University of Rio de Janeiro (UFRJ, in the original acronym), points out that the drug law kept considering the possession as a crime, but it has not established a prison sentence – which was already a breakthrough. “The discussions we have are that this is unconstitutional, based on the principles of liberty, privacy,” she said.

According to Pedro Abramovay, director of the Latin America Program in Open Society Foundation, a non-governmental organization that defends human rights and democratic governance, drug use has not increased in any country where drug possession became more flexible.

"Every country that has decriminalized the use and considered the possession for personal use not as a crime hasn't faced an increased use. So this fear people have of the increased use is an unfounded allegation” he noted.

He believes that the measure may provide easy access to health care by drug dependents. “Currently a doctor who treats a person using crack deals with a criminal. The police mediates it, which makes the medical approach more and more difficult,” highlighted Abramovay, who is also former National Secretary of Justice.

Drug dealer x drug user

With the Supreme Court decision, the difference between drug dealer and drug user that has raised debates on discrimination and violation of human rights in prisons shall not keep being appreciated by the police, nor by the judiciary itself. The current law from 2006 does not establish, as in other countries, the specific amount of possession for each case, leaving the decision to the judge, based on in flagrante delicto and “social and personal circumstances.” “In other words: poor people are drug dealers, rich people are users”, condemns Abramovay.

He said the Supreme Court should set forth, in the sentence, the criteria for being considered a user. “In order to ensure that the constitution is respected, without discrimination, the Supreme may claim that criteria are needed. This is not a minor issue, the lack of definition leads to incarceration. We're talking about one in three prisoners in the country,” stated Abramovay.

At an event in Rio last week, the Justice Minister José Eduardo Cardozo admitted that the “legal loopholes” to differentiate traffickers from users has fed the cycle of violence and overcrowded prisons. According to him, trafficking is the second type of crime holding more people behind bars, following property crimes. For women, trafficking appears as the first in the list.

“There are many users –  who should receive health care; in prison they get in contact with criminal organizations: ie they get in being users and leave as trafficking member,” the minister said regretfully.

The other side

Against the decriminalization of drug possession for personal drug use, the Congressman Osmar Terra from Rio de Grande do Sul believes that the measure is the first step towards the legalization of drugs which, according to him, would be bad for society.

"If using is not considered a crime, people would walk around with drugs. They would take them to school, to the square, give them to friends. And how can it not be a crime to buy, but be a crime to sell? How do you solve this paradox? It will end up legalizing the sale."

Terra disagrees with the thesis that drug use is an individual freedom of choice, which only affects the user. "The addiction is an incurable disease. The person will take it for the rest of life. This can reduce their ability to work and raise a family. " He points out that the user often overloads the family because they are mostly unemployed and unable to look after their family. He concludes: "The freedom of using drug is the family's slavery."

The deputy also relates the use of drugs, whether licit or illicit, to increased violence in the country. "What is the major cause of domestic violence? It's alcohol because it's a legal drug. It's not a crime to buy alcohol. Domestic violence will greatly increase due to the movement of illicit drugs," he says.

The businessman Luiz Fernando Oderich, who founded the NGO Brasil Sem Grades (Brazil No Bars), shares the congressman's opinion. His NGO asks for more security and defends tougher laws to combat violence. His son Max was killed 13 years ago during an attempted robbery.

In his opinion, the user should not be treated as a criminal. However, they often get involved in other crimes because of drug use. "There is a relationship between a non-social behavior and drug use," said the businessman.

The psychiatrist Osvaldo Saide, from the Brazilian Association of Alcoholism and Drug (Abrad, in the original acronym), says that the ideal is not to treat the user as a criminal, but to provide them treatment. However, in his view, it is necessary that the legislation clarifies what to do in cases when crimes are committed under the influence of drugs and in cases which drugs are sold by users to support their own addiction.

To Saide, it would be necessary to create alternatives for the user to receive punishment for the other crime committed or to undergo compulsory treatment. "Chemical dependency leads to a lack of sense of severity of the problem itself. Sometimes, even professional drowns in crack, for example," he mentioned.

The psychiatrist Ana Cecilia Marques, president of the Brazilian Association of Alcohol and Other Drugs Studies (ABEAD, in the original acronym), believes that the decriminalization of use must be discussed by society, but she disagrees about the way it is bein done, in a Supreme Court judgment.

"The law needs to clearly define the specific cases, such as if it's a casual user, or an addicted user. I support decriminalizing, but I think we need all this rigor, which is already lacking in our drug laws. They are unclear, leaving several loopholes. We also lack drug policies. I support it but I fear this process of decriminalization," she noted.

Translated by Amarílis Anchieta