Court established that even people with 40 g or less of the herb can be detained due to “circumstances of seizure”, such as carrying a “cell phone containing contacts of users or traffickers”
The STF (Supreme Federal Court) decided on Tuesday (June 25, 2024) to allow the possession of marijuana for personal use. In practice, the conduct does not become legal, but it is no longer treated as a crime. consulted by Power360, experts differed on the topic. For them, It is still difficult to know what the practical effect of the Court’s new guidance will be..
The ministers set a limit of 40 grams of marijuana to differentiate personal use from drug trafficking. However, the criterion is relative. It will be up to the police authorities to identify whether there are elements that indicate drug trafficking, such as:
- the way the herb is stored;
- the variety of substances seized;
- the registration of commercial operations;
- contacts of users or traffickers on the cell phone;
- to the “circumstances” of the seizure.
Here’s the complete of the fixed thesis (PDF – 154 kB).
For Marcelo Itagiba, delegate of the PF (Federal Police) and former federal deputy for the PSDB, the new thesis could go in the opposite direction and benefit trafficking. In the former congressman’s assessment, the heads of operations can use the “little planes”as people who transport drugs are commonly called, as if they were users, using the 40 g authorized for personal consumption in a type of “delivery” of marijuana.
“The person who will coordinate these issues is the owner of the delivery service. You will have to arrest the owner of the delivery service, but you will not be able to get to him, because the little planes are selling substances as if they were users.”he declared.
The delegate argued that authorities should punish individuals who are caught in possession of narcotics due to “intention”, and not depending on the quantity of the drug. Itagiba stated that it is up to judges, in criminal proceedings, to define whether the person is a user or a trafficker. The Drug Law (11,343 of 2006) already determines that this definition is at the discretion of the judge.
The decision was also criticized by the colonel of the Military Police of the Federal District and public security specialist, Leonardo Sant’Anna. The PM stated that “nothing has been resolved”, and that the established thesis is “more and more distant” of the population.
“It makes no sense to allow the ‘small quantity’ argument to be the basis for all the social disturbance caused by the ton of legalization that, from now on, will be disguised in 40-gram bundles”he declared. For Sant’Anna, it causes “strangeness” that the Court’s discussion is removed from the operations of large drug traffickers.
In contrast, the decision was celebrated by STJ (Superior Court of Justice) minister Daniela Teixeira, who praised the Supreme Court for defining a “safe and numeric parameter” to distinguish the user from the dealer.
To the Poder360Teixeira denied that the release could have negative effects, as it will still be up to the delegates to analyze the circumstances in which they find the drug. “The process is usually well instructed, the arrest is made in the act, the scales, the equipment for making and separating the drugs are seized, and these people usually have larger quantities of drugs”stated the judge.
For the full professor at FGV (Fundação Getulio Vargas) and full associate of the Brazilian Public Security Forum, Rafael Alcadipani, the issue of “delivery” is a possibility, but, according to him, this type of trafficking already exists today.
“It is part of drug trafficking to try to use every possible way to benefit. We know that today, for example, they use minors, people who, if arrested, receive lesser sentences. They will play with what we have in the law.”said the teacher.
In the same vein, sociologist Carol Grillo stated that the possibility exists, but, in her view, small-scale marijuana trafficking is not a problem for public safety and, if small-time drug dealers were wrongly classified as consumers, this would not have a negative impact. .
Grillo is also coordinator of Geni (Group for the Study of New Illegalisms at the Universidade Federal Fluminense). According to her, arresting a small drug dealer who does not carry a firearm could be more negative for society than treating him as a user, since, inside the prison, he could be lured by criminal factions and in fact become part of the organized crime.
NO DRASTIC CHANGES
Judge Marcelo Semer, of the 13th Criminal Chamber of the TJ-SP (Court of Justice of São Paulo), stated that the STF decision has a meaning “merely rhetorical”since, at the same time that it authorizes the personal possession of up to 40 g of marijuana, it continues to prohibit the drug trade and allows police authorities to take into account the “circumstances” where the user is located.
Furthermore, quantity is not the only factor that determines arrest. If the police find evidence of trafficking, even if the individual has less than 40g, he or she can still be arrested.
In Semer’s assessment, judges trust the police officers’ word excessively. “In the end, this ‘user’ status will still be very much in dispute. But that’s how it is, all the STF’s guarantor decisions begin as a revolution and end with the mountain giving birth to a mouse”he declared.
According to Felippe Angeli, coordinator of advocacy of the Justa platform, specialized in managing the Justice system, what the Supreme Court did was “create a presumption” which is not absolute, as user status can be removed by authorities regardless of the amount of marijuana found.
“Until there is regulation, this will continue to be handled by the police authority, police station, so it is an important change, but it is not such a drastic change either”said Angeli to Poder360.
Despite believing that the new thesis has positive effects, the lawyer stated that it is still a “shy decision” by the Supreme Court in relation to current legislation. “There are differences, but not that many differences. The police authority can consider the elements and rule out the question of quantity.”he declared.
For him, the main impact will be on black and poor individuals from the outskirts who, according to Angeli, are considered drug dealers because “racial biases”.
TOTAL RELEASE
The Federal Supreme Court decided this week to only allow personal possession of marijuana. However, at the beginning of the trial in 2015, the minister and rapporteur, Gilmar Mendes, had voted for the release of the possession of all drugs. Later, in 2023, the magistrate decided to adjust his vote to accompany the other members of the Court, restricting his understanding to the cannabis.
In the view of retired lieutenant colonel of the São Paulo Military Police, Adilson Paes, this would be a better alternative than just allowing marijuana possession. According to him, the release of all drugs will not put an end to trafficking, but it could bring “social justice”.
Paes claims that police action is based on prejudice and discrimination and states that the possibility of a poor, black person being arrested for trafficking is “infinitely superior” to a white, middle or upper class person being arrested with the same amount of drugs.
In the same understanding that total release would not put an end to trafficking, Luís Flávio Sapori, a specialist in the sociology of the crime of violence and former deputy secretary of Public Security in Minas Gerais, assesses that organized crime will continue to exist, since trafficking will always may offer a product of lower quality and cheaper than the legal product.
Sapori cited the clandestine trade in alcoholic beverages and cigarettes as examples. Like Paes, the sociologist also argues that freeing consumption helps reduce the undue imprisonment of young users, in addition to reducing the economic and political power of organized crime.
CONGRESS PERFORMANCE
As established in the thesis, the Supreme Court’s decision will be valid temporarily until the National Congress legislates on the matter.
Parallel to the debate in the Court, the discussion is already underway in the Legislative Branch through the PEC 45 of 2023known as the “PEC of drugs”.
In contrast to the Supreme Court, which sought to discuss the release, the PEC in question proposes to criminalize all drugs – including marijuana.
Both Júlio Hott, retired delegate of the Civil Police of the Federal District and specialist in criminal law, and Marcelo Itagiba, delegate and former deputy, agree that the issue of drugs should be debated by Congress.
Itagiba argues that no one has the authority to allow marijuana consumption other than Congress and the Anvisathe body responsible for the ordinance that determines which drugs are prohibited.
Likewise, Hott agrees that regulation by the Legislative Branch would be appropriate, despite believing that the current legislation is outdated. For him, the Supreme Court dealing with the issue is a “interference”as well as a way of usurping the competence of congressmen.
“This discussion and regulation should indeed be carried out by the National Congress, because we know that there is a discussion and there is a demand for greater repression of these conducts. This comes from society and the representation of society comes from the National Congress”he stated.
THC GRADATION
When defining the amount of marijuana that will be considered legal for personal consumption, the ministers did not go into a detail that could be relevant later and create confusion: what type of cannabis are referring to.
There are a variety of plants that produce different hallucinogenic effects to a greater or lesser degree. It all depends on the level of THC (tetrahydrocannabinol), the active ingredient in the drug and sought after by people who use the substance recreationally.
The THC contained varies between parts of the plant: from 10% to 12% in the flowers, 1% to 2% in the leaves, 0.1% to 0.3% in the stems, up to 0.03% in the roots, explains a text from the Unodoc (United Nations Office on Drugs and Crime).
Even with the STF ruling that 40 grams is considered legal for possession and personal consumption, it is not clear whether this refers to cannabis flowers, leaves, stems or roots. There is a big difference between each part of the plant.
“Marijuana has undergone major changes since the 1970s. New production methods, such as hydroponic cultivation, have increased the potency and negative effects of tetrahydrocannabinol (THC), the most psychoactive substance found in marijuana. It is important to understand the potency of marijuana because of its links to health problems, including mental health,” says UNODC.
#STF #legalizes #marijuana #practical #effect #limited