Brazil’s Supreme Court decriminalises personal Marijuana possession

On Tuesday, the Brazil’s Supreme Court made the decision to decriminalize the possession of marijuana for personal use, which will put Brazil on par with a majority of other Latin American countries and help free up space in a prison system that is rapidly becoming overcrowded. It is the outcome of a total vote, made up of each justice of the Supreme Court, which has deliberated since 2015.

The Supreme Court justices still need to decide the maximum amount of marijuana that qualifies as personal use and establish when the ruling will take effect, with a decision anticipated as early as Wednesday. All the justices who voted in favour agreed that decriminalisation should be limited to possessing quantities appropriate for personal use, while drug sales will remain illegal.

In 2006, legislation was approved in Brazil that targeted punishing those caught with drugs, including marijuana, with options such as community service. Nonetheless, the law was dismissed by pundits for being generic regarding the quantities that differentiate between personal use and trafficking. As a result, police carried on charging people possessing small quantities of drugs under the charge of trafficking, and the prison population continued to rise. 

Ilona Szabó, president of the Igarapé Institute involved in public security, said, “The majority of pre-trial detainees and those convicted of drug trafficking in Brazil are first-time offenders who carried small amounts of illicit substances with them, caught in routine police operations, unarmed, and with no evidence of any relationship with organized crime.”

World Prison Brief Statistics on Brazil

Concerning the current work of the Supreme Court, Congress has introduced a bill on the reinforced restrictions of drug use instead of legalizing marijuana possession, which might cause additional confusion in the American legal system. It conducted surveys in April, in which the Senate approved a constitutional amendment to outlaw even a speck of compulsory substances. The lower house’s constitutional committee passed this suggestion on June 12, and it will require other committees to review before going for a vote on the floor. Passage of this measure by lawmakers would remove the Supreme Court’s decision, although the bill may be considered unconstitutional.

In Brasilia, Senate President Rodrigo Pacheco told reporters that the Supreme Court should not be making decisions on this issue. He said, “There is an appropriate path for this discussion to move forward, and that is the legislative process. It is something that, obviously, arouses broad discussion, and it is a subject of preoccupation for Congress.”

Previously this year, the country’s health regulator approved guidelines for the sale of medicinal cannabis products, and last year, a rare decision made by a Brazilian court allowed some patients to cultivate cannabis for the treatment of their illnesses. Still, Brazil is one of the few countries in Latin America where there is no decriminalization of possession of a certain amount of drugs for personal use.

Such individuals as activists and legal scholars have been calling for the U.S. Supreme Court to issue its judgment in the country with the third-biggest prison rate. Critics opine that current laws mean that users are convicted of trafficking just because they possess small quantities of the prohibited drugs and end up spending time in horrific, crowded prisons only to ‘graduate’ to becoming gang members. 

The director of JUSTA (a civil group focused on the justice system), Cristiano Maronna said “Today, trafficking is the main vector for imprisonment in Brazil.”

According to the World Prison Brief, Brazil has the third-highest prison population in the world, following the US and China. 

Another piece of official data indicates that in December 2023, there were 852,000 individuals in Brazil’s correctional facilities, 25% of whom were arrested for drug-related offenses. Currently, an estimated half a million prisoners are held in the country’s jails, and black people form over two-thirds of the jail population. 

Insper The Brazilian Research and Education Institute recently published a study that revealed that black people found by the police with drugs were slightly more likely to be charged with trafficking than whites. This paper analyzed data compiled from records of Sao Paulo’s public security secretariat, with more than 35,000,000 records from the years 2010 and 2020.

“An advance in drug policy in Brazil! This is an issue of public health, not security and incarceration,” remarked Chico Alencar, a leftist lawmaker.

On the other hand, Gustavo Scandelari, a specialist in Brazil’s penal code at Dotti Advogados, expressed doubt that the ruling would lead to substantial changes from the current situation, even after the Supreme Court sets a maximum limit for personal marijuana use. Scandelari suggested that while the quantity of marijuana will continue to be a factor in determining whether someone is viewed as a dealer or a user by authorities, it won’t be the sole criterion.

Alexandro Trindade, a 47-year-old resident of Rio de Janeiro, is among the Brazilians who are dissatisfied with both the Supreme Court’s decision to decriminalize marijuana and Congress’s efforts to maintain its illegal status. Trindade stated, “The Supreme Court is not the right place for such a decision. This should be submitted to a plebiscite for the people to decide; both the Supreme Court and Congress have been very opposed to society in this.”

Similar to Argentina, Colombia, and Mexico, it also allows medical marijuana use but regulates it tightly. Uruguay legalizes all forms, and several American states have legalized it for their citizens, for recreational purposes, for instance. In 2012, Colombia decriminalised the possession of marijuana, but in the recent year around August, a Senate bid to pass a law to tax and regulate the sale of the herb for recreational use was debunked. Although the Columbian people are allowed to hold up to 22 grams of marijuana, consumption of marijuana for recreational use is prohibited. 

However, in Ecuador and Peru, consisting of South America, distributing and possessing marijuana is prohibited, and the same can be said for Venezuela. In 2009, Argentina’s SCJN stated that it was unlawful to punish adults for marijuana use if this did not cause harm to the rest of society. However, to the present, there have not been any shifts in the laws, yet the users still get arrested; however, many are released by the judges.

Uruguay was the first country that, in December 2013, legalized recreational marijuana, with the program going into full effect in 2017. Cannabis for medical use in Uruguay is subject to complete state regulation in every phase, starting from cultivation up to sale in pharmacies, and authorised patients are allowed to buy up to 40 grams per month. 

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