Brazil’s Supreme Court on Tuesday passed a resolution decriminalizing possession of marijuana for personal use, making the country one of the last Latin American countries to do so and potentially reducing its massive prison population.
The final vote on Tuesday marked the first time since deliberations began in 2015 that a majority of the 11-judge Supreme Court has voted in favor of decriminalization.
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The Supreme Court has yet to decide the maximum amount of marijuana that would be considered for personal use and when the ruling would take effect. That decision is expected to be completed as early as Wednesday.
The Brazilian Supreme Court holds a hearing on the corruption conviction of former Brazilian President Luiz Inacio Lula da Silva, in Brasilia, Brazil, April 4, 2018. The Supreme Court decriminalized possession of marijuana for personal use on Tuesday, June 25, 2024. (AP Photo/Eraldo Pérez)
All of the justices who voted in favor said decriminalizing marijuana should be limited to possession of enough for personal use. Sales of the drug would remain illegal.
In 2006, Brazil’s Congress approved a law aimed at providing alternative sentences, such as community service, for individuals arrested for possessing small amounts of drugs, including marijuana. Experts say the law is too vague and doesn’t set specific amounts to help law enforcement and judges distinguish between personal use and drug trafficking.
Police continue to arrest people with small amounts of drugs on suspicion of trafficking, and the population of Brazilian prisons continues to rise.
“The majority of pretrial detainees and convicted drug traffickers in Brazil are first-time offenders, carrying small amounts of illegal drugs, caught in routine police operations, unarmed and with no evidence of links to organized crime,” said Ilona Szabó, director of the Igarapé Institute, a think tank that works on security issues.
In response to the Supreme Court’s ongoing deliberations, Congress has introduced separate bills to tighten drug laws that would complicate the legal situation surrounding marijuana possession.
The Senate approved a constitutional amendment in April that would criminalize possession of any amount of illegal drugs. The House of Representatives’ Constitutional Committee approved the proposal on June 12, but it must go through at least one more committee before it can move to a full House vote.
If lawmakers pass such a bill, it would override the Supreme Court’s ruling but could still be challenged on constitutional grounds.
Senate President Rodrigo Pacheco told reporters in the capital, Brasilia, it was not the Supreme Court’s role to make a decision on the matter.
“The appropriate path forward for this discussion is through the legislative process,” he said. “This is clearly something that will generate broad debate and is of utmost interest to Congress.”
Last year, a Brazilian court allowed some patients to grow cannabis for medical purposes after health authorities approved guidelines for the sale of cannabis-derived medicines in 2019. But Brazil remains one of the few Latin American countries that has not decriminalized possession of small amounts of the drug for personal consumption.
Activists and legal scholars have long called for a Supreme Court ruling in a country that now has the world’s third-largest prison population. Critics of current laws say users arrested for possessing even small amounts of drugs are often convicted of trafficking, landed in overcrowded prisons and forced to join prison gangs.
“Right now, trafficking has become the main means of incarceration in Brazil,” said Cristiano Marona, director of JUSTA, a civil society group that focuses on the justice system.
According to the World Prison Overview, a database that tracks prison populations, Brazil has the third-largest prison population after the United States and China.
According to official data, approximately 852,000 people are deprived of their liberty in Brazil as of December 2023. Of these, about 25% were arrested for drug possession or trafficking. Brazil’s prisons are overcrowded and black citizens are disproportionately represented, making up more than two-thirds of the prison population.
A recent study by the Brazilian research and education institute Insper found that black people found by police in drug possession are slightly more likely to be charged as drug dealers than white people. The authors analyzed more than 3.5 million records from the São Paulo Public Security Department from 2010 to 2020.
“A step forward for Brazil’s drug policy! This is a public health issue, not an issue of security or incarceration,” left-wing lawmaker Chico Alencar wrote on X after the verdict.
Gustavo Scandelari, a Brazilian criminal law expert at the law firm Dotti Advogados, said he didn’t think the ruling would bring about much change from the status quo, even after the Supreme Court set a limit on marijuana quantities for personal use. Scandelari argued that quantity is one criterion for authorities to determine whether someone is a seller or user, but not the only one.
Some Brazilians, like Alexandro Trindade, 47, of Rio de Janeiro, are outraged both by the Supreme Court’s decriminalization of marijuana and by Congress’ efforts to keep it illegal.
“The Supreme Court is not the right place (to make such a decision), it should be put to a referendum and the people should decide,” Trindade said. “Both the Supreme Court and parliament are strongly against society on this matter.”
Like other countries in the region, including Argentina, Colombia and Mexico, medical cannabis use is permitted in Brazil, but in a highly restricted form.
Marijuana use is fully legal in Uruguay, and recreational use by adults is legal in some U.S. states. In Colombia, marijuana possession has been decriminalized for a decade, but a bill to regulate recreational use and allow legal sale of marijuana failed to pass the senate in August. Colombians can possess small amounts of marijuana, but selling it for recreational purposes is illegal.
The same is true in Ecuador and Peru. Distribution and possession remain both illegal in Venezuela.
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Argentina’s Supreme Court ruled in 2009 that it was unconstitutional to punish adults for using marijuana when they were not harming others, but the law has not been changed and users continue to be arrested, although most cases are dismissed by judges.
Uruguay was the first country to legalize recreational marijuana use in 2013, but the law only went into effect in 2017. In Uruguay, the entire marijuana industry, from production to distribution, is under state control, and registered users can purchase up to 40 grams of marijuana per month through pharmacies.
