On Tuesday (25), the plenary of the Supreme Court (STF, in Brazil) decided by a majority (7-4) to decriminalize the possession of marijuana for personal use. The justices also decided to establish a maximum amount for differentiating users and drug traffickers: the amount of 40 grams or six cannabis plants, which was announced at the court session on Wednesday (26).
The last to vote, Justices Luiz Fux and Carmen Lúcia, presented divergent positions. On the one hand, Fux was against granting the appeal being heard, taking a stance against decriminalization and against defining a quantity for possession for personal use.
Carmen Lúcia, on the other hand, voted to uphold the appeal and establish a parameter for consumers and traffickers until the Legislative and Executive branches take a decision on the matter.
The understanding reached by the court’s justices has general repercussion, meaning that it applies to all cases related to the issue within the scope of the Brazilian judiciary.
Gabriel Sampaio, the Director of Litigation and Advocacy at the human rights NGO Conectas, explains that the decision is fundamental to correcting injustices committed by the justice system, especially against Black and poor people.
"It changes a lot of things for people who use drugs, for drug policy itself and its application within the criminal justice system. What has emerged from this rule is that there can no longer be totally discretionary differentiation, particularly on the part of the police, and subsequently by justice system agencies to differentiate between users and traffickers," he said.
For him, the differences in applying the law are consequences of an unequal social structure.
"This differentiation was marked by structural racism and economic inequalities, which unfairly punished people, especially Black and poor people living in impoverished neighborhoods, due to the lack of a judicial decision like this one from the Supreme Court or even a criminal policy aimed at avoiding this type of injustice," he explains.
For his part, Cristiano Maronna, a lawyer from the Legal Network for Drug Policy Reform (Rede Reforma, in Portuguese), questions the loopholes that have yet to be elucidated in the announcement of the decision or from the contradictions that may arise after the Supreme Court’s new understanding of the matter. According to him, it is necessary to value the testimony of police officers, seen as a kind of "queen of evidence" to justify convictions for drug trafficking.
"If possession of drugs for personal use is considered by the Supreme Court to be a mere administrative offense, then can states, the Federal District and municipalities legislate on the matter since they have concurrent competence to do so? We've already seen some examples of municipal laws imposing fines on people caught using drugs in public places," he questioned.
Activists have different views on the impact of the results
Dário de Moura, an activist for the legalization of marijuana in Belo Horizonte, Minas Gerais, celebrated the Supreme Court’s decision.
"It's a historic moment, a decision Brazil didn't have. That’s a new moment in law that needs to be celebrated because it allows for the review of sentences or cases that are in progress, and more than that, it makes it so that the police have to have other evidence and not simply a small amount [of marijuana] to be able to declare a person a drug dealer," he said.
For him, the change in the judiciary's understanding of the matter will prevent a person from being "booked" by the police, or from the case being used to argue recidivism in the event of a new offense being committed.
"This is a great change in Brazil and allows people to get out of jail, therefore reducing the chances of people being arrested for a minor cause like carrying marijuana," he said.
However, for Júlio Delmanto, a journalist, historian and member of the São Paulo Marijuana March, the Supreme Court's decision changes nothing about the reality of cannabis users.
"The change is only symbolic. Therapeutic use has already been guaranteed by court decisions, associations and even government policies, reflecting the growth of the debate and the anti-prohibitionist movement," he says.
"Rich and white people will continue to be treated by the courts as users and the Black and poor as drug traffickers. Even if a quantity is defined, the justices have already emphasized that the final word will be with the courts and the police, just as it is today," he laments.
Marijuana is still prohibited
On several occasions during the discussion, the president of the Supreme Court made a point of repeating that it was not a question of deciding on the release of marijuana but only of the nature of the "illicit act" committed, a warning also made by Moura.
"It's important that we also talk about what doesn't change. In other words, if you're caught with a small amount [of marijuana] on the street or if you're smoking on the street, you'll continue to be approached by the police and taken to the police station. You'll be beaten up. That's a struggle that continues," he said.
The decision
With the votes of Luiz Fux and Carmen Lúcia, 7 of the 11 justices voted to decriminalize the possession of marijuana for personal use. Of them, six justices voted for the unconstitutionality of article 28 of the Drug Law, which establishes penalties for "anyone who acquires, keeps, has in storage, transports or brings with them, for personal consumption, drugs without authorization or in disagreement with legal determination". As a result, the article is no longer valid.
In addition, a majority was formed to establish objective parameters to distinguish users from traffickers until the Legislative and Executive branches act on the matter. Justices agreed upon this parameter and announced it in the session held on Wednesday (26).
The Supreme Court decriminalized the possession but made it clear that the substance remains prohibited and that police authorities must approach anyone caught consuming marijuana. The difference is that there will be no criminal consequences.
Justices’ votes
Justices Gilmar Mendes, Edson Fachin, Luís Roberto Barroso, Alexandre de Moraes, Rosa Weber, and Carmen Lúcia voted for the unconstitutionality of article 28 of the Drug Law.
Justices Cristiano Zanin, André Mendonça and Nunes Marques voted against decriminalization and for the constitutionality of article 28, although Zanin supported the initiative to establish a quantity to differentiate possession for personal use and drug trafficking.
Dias Toffoli voted for the constitutionality of article 28, but defended decriminalization.
Gilmar Mendes, Edson Fachin, Luís Roberto Barroso, Alexandre de Moraes, Rosa Weber and Carmen Lúcia voted in favor of establishing objective parameters to distinguish users from traffickers until the Legislative and Judiciary powers take on the issue.
Edited by: Thalita Pires
