The title of this article refers to a parody that became known in the playgrounds of Brazilian schools in the 1970s — and that was sung by the kids even during the heaviest years of the military governments. The original song was called Eu Te Amo Meu Brasil. She was successful in the interpretation of the group The Incredibles and was an important piece in the propaganda of the authoritarian regime. In the parody, the praise for the beauties of the country that was in the original verses was replaced by the apology for drugs. The first of them, which read, “The beaches of Brazil, sunny, la-laiá-lá” was replaced by “marijuana in Brazil was legalized, la-laiá-lá”.
The parody continued with quotes that made no sense either in the past or in the present — but it was impossible not to remember it after last Tuesday’s session of the Supreme Court (STF). The justices put an end to a case they began evaluating in 2011. Between stoppages, requests for review and surprising votes, the Court, by six votes to five, decriminalized the possession of up to 40 grams of marijuana. According to the decision, from now on it is no longer a crime to acquire, store, transport or carry this amount of marijuana for personal use.
From now on, anyone caught with any amount of marijuana up to that limit will be considered a user. Above that, he should be framed as a trafficker. What will happen is a mystery. At the same time that it allows the user to walk around with his 40 grams of weed in his pocket, the measure continues to prohibit the trade and does not disallow police action against traffickers – even because, if the purchase is now allowed, the sale of the drug remains a crime.
The same treatment will be given to those who keep a marijuana plantation indoors. Anyone who grows up to six feet of the female plant—which contains the substances that “get you high”—will be able to say that they are there for their own use. Above that, you will be framed as a trafficker.
“VAPOR” AND “AIRPLANE” — Anyone caught with 39.9 grams of marijuana may be considered a trafficker as long as the “circumstances” of the arrest indicate that that individual, in addition to using, also sells the plant. What can be foreseen is that any investigation involving marijuana trafficking will be the subject of endless discussions and will most likely open space for quarrels that will further overload a system that, by getting caught up in meaningless minutiae like this, ends up not doing what society expects it to do.
Another point that came into focus and caused a stir after the decision was announced, was the limitation that the decriminalization of marijuana obviously imposes on the work of the police. No one should be surprised if, by chance, one of these modern geniuses of the “guaranteeist” law appears to demand that, in addition to the body cameras that they will have to carry attached to their uniforms during operations, the police officers should also be required to carry a precision scale to assess when approaching the suspects whether or not the seized marijuana exceeds the limits defined by the STF.
It is likely that the courts’ treatment of the small-time trafficker, which many people already considered lax even before this decision, will become even more flexible. And that the minutiae and legal chicanery that already happen left and right in criminal proceedings make it practically impossible to punish the people who are at the gateway to the criminal system that begins with trafficking and evolves to other drugs.
No one gets to the top of any criminal organization, the kind that is responsible for selling tons of substances much heavier and more harmful than marijuana without starting with it. And no one becomes a drug kingpin without having been, at the beginning of the criminal “career”, a “mule”, a “plane” or a “steamer”. In time: “airplane” or “mule” are those subjects who transport small amounts of drugs from one point to another and have direct contact with the user. The “vapor” is usually the minor in charge of watching the drug mouth and, after raising the alarm, “evaporate”, that is, disappear, at the first sign of the presence of the police.
As soon as the decision was announced, the discussion took the expected turn and, like any topic that is debated in Brazil, ended up descending into the usual exchange of accusations between supporters and opponents of the government. The “progressive” left applauded the measure because it considers it a protection of users against police action that, according to this group, has the sole objective of expanding the systematic punishment of blacks and the poor in the most vulnerable communities. The right, for its part, did not take long to identify in the decision one more proof that the Brazilian judiciary, in the opinion of its most reluctant supporters, works more in favor than against drug traffickers.
Both sides are wrong to approach this debate with superficial arguments that, in the end, only serve to keep the discussion on the surface – when the right thing would be to deal with the subject calmly and thoroughly. A controversial measure like this is valid both for the decision taken – and which must be respected until further notice – and for its repercussion on society. And the repercussions, in this case, were the worst possible.
In the opinion of public opinion, the judiciary seems even committed to lightening the burden of the law on small traffickers. So much so that, as soon as the sentence was handed down, the National Council of Justice (CNJ) convened a task force that, after the publication of the ruling, will assess the situation of the 6,343 cases involving marijuana possession that were stalled throughout the country awaiting the pronouncement of the Supreme Court.
In addition, a survey will be made of all the cases already judged that may have the sentence changed depending on last Tuesday’s decision. “The basic rule, in criminal law, is that the law does not retroact if it aggravates the situation of those who are accused or imprisoned. To benefit, it is possible,” said the president of the STF, who is also president of the CNJ, Minister Luís Roberto Barroso.
Another point recalled by Barroso after the decision is that the measure will have a positive impact on the prison system, reducing costs and also overcrowding in prisons. According to a survey by the Institute of Applied Economic Research (IPEA), of the 852,000 people taken to the Brazilian prison system, according to data from the National Secretariat of Penal Policies, about 19,000 are serving sentences for having been arrested with up to 100 grams of marijuana.
This group costs the prison system throughout the country about R$ 592 million per year. It includes the nearly 9,000 inmates convicted after being caught with up to 25 grams of marijuana. This second group costs the prison system around R$ 263 million per year. The question is: is this money well spent by keeping people who have broken the law in jail? Or should it be aimed at strengthening security and the public health system to protect society from criminals who will be put on the street and who, most likely, will return to lead the same life that took them to jail?
It must always be remembered that people who are imprisoned for carrying small amounts of drugs are not in jail just because an authoritarian police officer, in his own judgment, decided to put them behind bars. To be in a penitentiary, they were arrested in flagrante delicto or, after an investigation, that material and human resources paid for by the taxpayer.
They were entitled, at the time of arrest, to a custody hearing in which they were able to explain themselves to a judge. Those who did not have the money to hire a lawyer were entitled to a Public Defender appointed by the State. They were then denounced by the Public Prosecutor’s Office, which accepted the arguments of the police authority and forwarded the case to the courts. The action was accepted by a magistrate who, after following the procedures provided for by law, found the defendants guilty and sentenced them to imprisonment.
Throughout the process, they had a broad right of defense — while the police officers who arrested them were forced to prove once, twice, ten times that they had followed the legal procedure and were right to act against that individual.
One of the characteristics of Brazilian law, which treats drug trafficking as a heinous crime, is that a person will only be arrested for this reason if there is physical proof that the drug exists. Photographs, testimonies and even receipts from the operation are not, in these cases, sufficient evidence for the prosecution to proceed if the drug is not in the dealer’s possession at the time of arrest. Afterwards, it must be kept in deposits until the final judgment of the case.
In other words, although the ostensible signs of the presence of drug trafficking are everywhere, it is very difficult to be convicted of this crime in Brazil. Therefore, to say that these 19,000 people who are serving sentences for carrying “small amounts” of drugs are deprived of their liberty due to some kind of arbitrariness of an unjust system is to trample on all the credibility of the police and justice system in Brazil.
HEATED DISCUSSIONS — The STF’s measure makes life easier for the user, but it does not promote a liberation as general as it seems. It establishes that, regardless of the amount of the drug in the possession of the person under investigation, the police authority must observe other aspects before considering him or her only a user. Before releasing the accused, it will be necessary to analyze the way the herb is stored, the variety of the substance seized, the record of commercial operations related to the drug, contacts of users or traffickers on the cell phone, and also the circumstances of the seizure.
In other words, there is still a lot to discuss around this issue before imagining that no one will have problems if they are caught in possession of a small amount of the drug. Everything will remain more or less as it is today and this is what arouses curiosity about the motivation of the STF in carrying out this trial at this especially delicate moment in the relationship between the powers.
The circumstances surrounding the conclusion of the trial give the impression that, rather than closing the matter, the Supreme Court intended to assert its power at a time when Congress does not seem willing to cede more space to the Judiciary. When the bill started again last year and the trend began to emerge that ministers tended to approve decriminalization, Congress rushed and accelerated the processing of Constitutional Amendment Proposal 45, of 2023.
Known as the Drug PEC, the matter, authored by the president of the Senate Rodrigo Pacheco (PSD-MG), establishes tougher criteria to classify drug trafficking and, in short, considers a crime what the STF understood it is not. The bill is expected to be put to a vote in the coming days and everything indicates that it will be approved. This means that the Supreme Court’s decision does not end the discussion and that the approval of PEC 45 by Parliament, when it happens, will only serve to add fuel to the fire and prolong a debate that, with all due respect, is too important to continue to be fought outside technical and scientific limits. And it cannot continue to be carried out, as has been happening, at the whim of political passions or the dispute between powers.
“The Supreme Court doesn’t have to meddle in everything. She needs to take the most serious things, especially the Constitution, and become master of the situation. But you can’t take anything and keep arguing, because then it starts to create a rivalry that is not good, the rivalry between who is in charge: Congress or the Supreme Court?” said President Luiz Inácio Lula da Silva, in an interview with Portal UOL, when commenting on the decision of the justices on the decriminalization of marijuana.
The president is right, but we must also consider the other side of the coin. In the same way that many people consider it strange that the STF began to move just at the moment when Congress is evaluating a PEC on the subject, the fact is that parliamentarians also only showed concern about the matter after the trial began to move in the Court. It would have been better if a serious and in-depth negotiation between the three powers had dealt with the issue and generated much more positive results than the mismatched and hasty decisions that have been taken around such a sensitive issue.
Society, of course, did not take kindly to the ministers’ decision — especially at a time when drug trafficking is the most evident side of the wave of violence that has turned public safety into the No. 1 concern for citizens. The issue is too serious to be limited to defining only a certain amount of grams of marijuana, defined without any criterion other than the will of the ministers. The 40-gram limit set at last Tuesday’s session was set without any scientific criteria. It reflects only the average of the proposals presented by the ministers since the issue began to be dealt with by the House, in the distant year of 2011.
A law on the subject should involve several aspects. It is necessary to consider that, even though it is considered a milder drug, marijuana acts on the central nervous system and causes effects that include, among others, long-term cognitive deficits, anxiety, psychotic episodes and loss of concentration. Weed is the gateway to the world of drugs. After trying it and getting used to its effects, it is common for users to experiment more radically with cocaine and other harder substances.
That is, it doesn’t matter if marijuana is the main star or a mere supporting player in the world of drugs. What matters is that she is part of an increasingly solid, powerful and harmful criminal machinery – which must be analyzed not only from the criminal side but also from its social effects. Marijuana is part of a system that must be seen in the light of law, social issues, public health and, of course, safety. And never of the ideology of those who defend or those who attack its use.
Want to stay on top of the day’s top news? Click here and join our WhatsApp channel
