Brazil Supreme Court Decriminalizes Cannabis, an Uneasy Victory

    Brazil’s Supreme Court has voted to decriminalize marijuana for personal use, nearly a decade after  the historic trial had its initial hearing. Justice Carmen Lucia cast the final vote in favor on June 25, bringing the tally to 7-4. 

    On June 26, justices ruled that personal possession of cannabis is defined as up to 40 grams, and up to six plants. More than that is considered possession with intent to sell, and selling remans criminalized. The Supreme Court has ordered the National Council of Justice to conduct a national survey to identify people currently incarcerated for possession of cannabis under 40 grams, so that their sentences can be commuted and they can go home. But this is Brazil; it’s difficult to imagine that happening on a large scale.

    Research has indicated that in 2019, more than one in three people prosecuted for selling cannabis were carrying less than 40 grams.

    For now, people found with under 40 grams still have to appear in court but can no longer be fined or sentenced to community service. Judges are supposed to either refer defendants to a class about the harms of drug use, or else just send them home. However, judges find many creative justifications for prosecuting someone as a drug seller even if they had under 40 grams, especially if that someone is Black. Perhaps they had cash with them, or the cannabis was in multiple bags rather than just one.

    Brazil’s police lobby is very powerful.

    Police will still confiscate cannabis when they find it, no matter the amount, but possession that falls under the threshold should not result in imprisonment—at least for now. The ruling is only a temporary one. It will expire in December, by which time Congress is supposed to have amended federal drug law with the thresholds that will be enforced permanently. But there’s no guarantee that Congress won’t simply let the deadline pass.

    This is the same Congress that is currently attempting to criminalize possession of any quantity of any illicit substance. The amendment, proposed by the far-right Senate, was prompted by the Supreme Court case. If approved, it would supercede the Court’s ruling. It will now be voted on by the most reactionary Congress since post-dictatorship redemocratization 50 years ago. Constitutional amendments require no presidential approval and cannot be vetoed. They can only be challenged in the Supreme Court.

    The Supreme Court trial has focused on just cannabis. But when it began in 2015, justices were originally planning to consider decriminalizing all banned drugs, as many neighboring Latin American countries have done, and as we saw briefly achieved in Oregon and British Columbia.

    Progress is never set in stone. We saw decriminalization move forward in Oregon and British Columbia, and then saw it pushed backward by reactionary pressure.

    The police lobby in Brazil is very powerful. Punishment and criminalization are celebrated by the public. New private prisons are being built. Most states in Brazil have elected right-wing or far-right governors. As in the United States, arrests and seizures are trumpeted on social media, and are extremely lucrative for law enforcement.



    Photograph by Bernardo Jardim Ribeiro/Creative Commons 3.0

    • 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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