06/25/2024 – 19:18
The Federal Supreme Court (STF) recognized this Tuesday, 25th, that possession of marijuana for personal consumption is not a crime. Ministers are still debating objective criteria to differentiate users and dealers, including quantity of drugs. The trial is expected to conclude tomorrow.
The decision will only have practical effects when the trial is concluded and the ruling is published.
The Drug Law, approved in 2006, does not punish possession with a prison sentence. With this, the ministers declared that this is not a criminal offense, but an administrative offense. The position that addiction is a public health problem prevailed.
“Nobody started from the premise that the drug is positive. On the contrary, we are stating that it is an infraction. But it is necessary that there is treatment for addicted people”, defended Gilmar Mendes, dean of the STF and rapporteur of the process.
Ministers Gilmar Mendes, Rosa Weber (retired), Luís Roberto Barroso, Edson Fachin, Alexandre de Moraes, Dias Toffoli and Cármen Lúcia voted in favor of decriminalization.
Cristiano Zanin, Kassio Nunes Marques and André Mendonça were against decriminalization.
The consumption of marijuana has not been legalized, that is, it remains prohibited by law. The difference in practice is that whoever is classified as a user will not have a criminal record. “What I find most harmful is the criminal image that is placed on the user and which inhibits them from seeking help in cases of addiction”, defended Dias Toffoli.
The penalty for users remains the same as provided for in the legislation – warning about the effects of drugs, provision of community services and participation in educational programs or courses.
The ministers also defined that the contingency resources of the National Anti-Drug Fund must be released and that part of them must be used in educational campaigns about the harm of drugs.
At the end of the trial, there were doubts in the STF about how to frame minister Luix Fux’s vote. He argued that the Drug Law is constitutional because it does not punish possession with imprisonment. The minister also said that he does not consider possession of marijuana a crime.
“All the premises that I established here, considering article 28 constitutional, are in the sense that those sanctions are constitutional, however I do not consider article 28 a crime. I consider that the article is constitutional, because the legislator did not impose penalties inherent to the criminalization of use, so I consider it constitutional for that reason”, he explained at the end of the session.
The tendency is for his position to be aligned with Toffoli’s vote, which had also caused confusion. Regardless of the final interpretation of Fux’s vote, the score is already set in favor of decriminalization.
Toffoli complements vote
Last week, the STF released Minister Dias Toffoli’s position as a partial divergence – a vote to maintain the legislation as it is, with the exception that, in his assessment, it no longer criminalizes the user.
This Tuesday, when the trial resumed, he asked to speak and clarified that the position was in favor of the decriminalization of consumption, not just of marijuana, but of all drugs, which consolidated the majority.
“Decriminalization already has six votes. My vote is in addition to the vote for decriminalization. This morning Your Excellency (Barroso, president of the STF) asked me how my vote was to be proclaimed. Therefore, I thought it would be good to make this addition. If I wasn’t clear enough, it’s my mistake, as a communicator,” said Toffoli.
How to differentiate users from drug dealers
The second stage of the trial revolves around the quantity of drugs that should be used as a parameter to distinguish the consumer from the dealer. The proposals presented so far range from 25 to 60 grams. Ministers have been talking to approve an intermediate amount of 40 grams.
This is a central point because, in the opinion of the ministers, it will help to standardize sentences and avoid prejudiced approaches. Studies cited in the plenary show that black people are convicted as drug traffickers in smaller amounts than white people. The level of education also generates distortions in convictions – tolerance is greater for those with more education.
“The quantity has been used, regrettably, as a form of social discrimination”, criticized Alexandre de Moraes.
The quantity, however, will not be a sovereign parameter, but a circumstantial one. Other elements can be used to analyze each case. If a person is caught with a precision scale, for example, they can be reported as a drug dealer, even if they have a quantity of drugs below the limit with them.
Crisis with Congress
The trial deepened the animosity between the STF and Congress. The evangelical bench reacted in force. The president of the Senate, Rodrigo Pacheco (PSD-MG), also publicly spoke out against interference by the Judiciary. He argues that drug regulation is up to the Legislature and should not be discussed by the Supreme Court.
Deputies and senators debate a proposal by Rodrigo Pacheco to circumvent the STF and include in the Constitution the criminalization of drug possession, regardless of quantity. A special commission will be created to debate the text.
“We are taking on problems that are not ours, due to the failure of society’s other decision-making bodies. And then they call us activists”, criticized Toffoli this Tuesday.
See how each minister voted:
In favor of decriminalization
Gilmar Mendes (rapporteur)
“Decriminalize yes, but more than that: treat the issue within the scope of public health and not within the scope of public security.”
Rosa Weber (retired)
“Chemical dependence and drug use are issues that fall within the scope of public health and social reintegration policies. Having defined the issue as a public health problem, I consider the use of the State’s criminal apparatus to prevent the consumption of narcotics to be disproportionate.”
Alexandre de Moraes
“Anyone who knows Criminal Law knows that only what is punished with imprisonment and detention is a crime and only what is punished with simple imprisonment is a misdemeanor.”
Luís Roberto Barroso
“What we want is to avoid discrimination between rich and poor, between whites and blacks. We want a rule that is the same for everyone. And setting a quality prevents this type of discriminatory treatment. Nobody is legalizing drugs.”
Edson Fachin
“The addict is a victim and not a germinal criminal. Users in a situation of dependence must be treated as sick.”
Toffoli Days
“I am convinced that treating users as drug offenders is not the best public policy.”
Carmen Lucia
“In this context, there is an anomie defining criteria, which leads to inequality in treatment by the State itself, which is obliged by the Constitution to promote equality, and in addition to insecurity.”
Against decriminalization
Cristiano Zanin
“I have no doubt that drug users are victims of drug trafficking and criminal organizations, but if the State has the duty to look after the health of all, as provided for in the Constitution, the decriminalization, even partial, of drugs could contribute even more to the worsening of this health problem.”
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. No country in the world has done this by court decision.”
Kassio Nunes Marques
“The biggest concern for most Brazilian families is not whether their child will be arrested or not. The concern is that the drug does not enter your home. For this, the law today has an inhibitory factor. Brazilian society needs instruments to defend itself.”
Decriminalization, decriminalization and legalization
– Decriminalize: an action is no longer considered a crime, that is, the attitude no longer has effects in the criminal sphere, but can still be considered a civil or administrative offense.
– Decriminalize: the prison sentence is replaced by punishments of another nature.
– Legalize: an act or conduct becomes permitted through specific legislation, which can regulate the practice and determine its restrictions and conditions.
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