How Drug “Decriminalization” Fueled Brazil’s Mass Incarceration Crisis

    At first glance, Brazilian President Luiz Inácio Lula da Silva’s cabinet looks very different from that of predecessor Jair Bolsonaro. It comprises many scientists and other experts in their respective fields, where the previous administration favored military and neoliberal ideologues. Minister of Human Rights Silvio de Almeida is among those who say they support a public health approach to drug use rather than a carceral one. But time and again, we see lip service performed by officials we call “progressive,” while we wait for their actions to match their words.

    In a March 7 interview with BBC Brazil, Almeida said he supports decriminalization in light of the country’s mass incarceration crisis. He acknowledged that Brazil’s previous efforts at decrim are in fact what facilitated that crisis. But he did not acknowledge that decrim, even a more suitable model of it, would do nothing to reduce the current prison population, nor stop police officers from applying the law however they wanted.

    The partial decriminalization policy implemented under Lula’s first administration in 2006 was a disaster. It applied only to possession for personal use, but did not establish any thresholds that defined it, leaving police officers with the power to decide whether they wanted to arrest drug users for possession or for “trafficking.”

    Trafficking comprised nearly half of all convictions by 2015.

    Police, of course, tend to decide that so-called traffickers are Black people and Indigenous people, along with women who are caught trying to bring relatively small quantities of drugs to incarcerated relatives and loved ones. Over the next decade, rates of incarceration rose 27 percent. Trafficking, which made up about 11 percent of convictions prior to the decriminalization of personal possession, comprised nearly half of all convictions by 2015.

    Convictions for trafficking bring longer sentences than those for possession, and today more than 800,000 people are currently in Brazil’s prisons. The country’s mass incarceration crisis is behind only those in the United States and China.

    Almeida told BBC Brazil that the Supreme Court should move forward with the long-delayed hearing of a 2015 lawsuit brought by the São Paulo state public defender, which argues that it is illegal to criminalize personal possession, which since 2006 has been punishable through community service rather than incarceration. And the lawsuit should indeed move forward. But possession convictions are not the crux of the issue, and he knows that. Nonetheless, Almeida confirmed that the administration is not currently pressuring the Supreme Court to hear the lawsuit.

    In about three out of four trafficking arrests, police are the only witnesses. One study found that between 2005 and 2017, the average quantity of crack cocaine that led police to arrest someone for trafficking was just 9.4 grams. Black people are convicted of trafficking at higher rates than white people, for lower quantities of drugs.

    It is not uncommon for police officers to plant drugs on those they wish to incriminate.

    In 2019 a proposed bill attempted to address the criminalization of women as “traffickers” for bringing small amounts of drugs to incarcerated loved ones. It suggested a personal possession threshold of 10 doses, which police surely would have interpreted however they wanted as well.  

    Advocates and public figures have been calling on Lula to review the current model, by which they usually mean establishing thresholds. But there is no threshold for personal possession, no matter how clearly defined, that would disempower a militarized police force from carrying out state violence against low-income people of marginalized race and genders. It is not uncommon for police officers to plant drugs on those they wish to incriminate.

    Though Almeida framed decriminalization as a response to the mass incarceration crisis, neither he nor the rest of the administration have called for decarceration measures like commuting drug-related sentences, even in limited numbers. They parrot generic narratives about decriminalizing drugs to reduce the number of people in prison, when even these words—empty thus far—don’t describe anything that would free them.



    Photograph of Brazil federal police via Wikipedia/Creative Commons 2.0

    • Felipe is a Brazilian anthropologist. He’s a criminology lecturer at the University of Manchester, where he researches drug policy, state violence, structural racism and reparations for historical inequalities. He lives in London.

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