Landmark case in Brazil to test hard-line 'war on drugs'

The Supreme Court is weighing whether to decriminalize possession of small amounts of drugs. Many say current policy yields arbitrary sentencing, overcrowded prisons.

Eraldo Peres/AP
Supreme Court Judge Gilmar Mendes attends an ordinary session of the Supreme Court in Brasilia, Brazil, Aug. 13.

Brazil’s Supreme Court began hearing a landmark drug case this week that could fundamentally change how drug users are viewed and punished. 

Conviction as a “user” in Brazil currently leads to a criminal record and increased penalties for any future crime, while conviction as a trafficker leads to a minimum of five years behind bars. Brazil’s laws mirror many that flooded the region starting in the 1980s amid a hard-line “war on drugs."

But a focus on total prohibition has resulted in too much arbitrary sentencing and severely overcrowded prisons, many observers say. Poorer Brazilians have also taken a hit from sentencing guidelines that encourage classification of defendants by socioeconomic status, often leaning on things like the neighborhood where they were arrested to determine if they are a user or a trafficker.

If the court votes in this case – an appeal on behalf of a prisoner caught with drugs in his cell – to decriminalize possession of drugs for personal use, it could send a message that the strategy has gone too far, and help shift perceptions of drug policy as simply a criminal issue.

“Across Latin America drug policies are a primary factor fueling … prison population crises,” says Coletta Youngers, a senior fellow at the Washington Office on Latin America (WOLA), who studies drug policy in the region. Nations that have already decriminalized possession for personal use are part of a regional trend toward viewing drug policy as a public health concern, instead of a criminal one.

Approving decriminalization in Brazil “would help move future debate and reforms in that direction,” Ms. Youngers says.

When Brazil last amended its drug possession law in 2006, the minimum sentences for trafficking rose from three years to five years. Since then, the prison population more than quadrupled, growing from 31,520 prisoners in 2006 to 138,366 in 2013. The system is more than 200,000 people over capacity.

Brazil’s prison population echoes many of those in the region: Some 10 Latin American countries have prison systems that are 200 percent above capacity, including El Salvador, Bolivia, and Peru.

Youngers estimates that about 30 percent of male prisoners in South America are there for drug offenses, as are between 60 to 80 percent of female prisoners.

But death tolls from a drug war that spans the region have also driven discussion about whether current drug policies are working.  

A 2013 report by the Organization of American States made waves when it deemed prohibitionist drug policies ineffective and encouraged Latin America and the US to experiment with “nontraditional” approaches. “This could involve legalization, harm reduction, investing more in treatment regimes. The precise formula should vary according to the democratic decisions of each country,” the report read.

Later that year, Uruguay moved toward legalizing marijuana and putting the production, distribution, and sale of the drug under state control. Ecuador approved reforms to its penal code last year, drastically reducing sentences for small amounts of drug possession. The change could also be applied retroactively, potentially releasing up to 7,000 people from prison.

Brazil would be a late mover in South America if it decides to decriminalize possession for personal use, says Pedro Abramovay, former secretary of justice in Brazil and current director of the Open Society Foundation’s Latin America program. That adds importance, he says: "The fact that Brazil [has been] significantly behind in the region on drug policy is often used as an excuse for other countries not to advance.”

Among those that could be influenced by Brazil’s decision is Argentina, which has not updated drug possession laws despite a 2009 high court ruling that it is unconstitutional to criminally sanction the personal possession of drugs. And in Mexico, where drug possession is legal in small amounts, advocates say they are not only watching for the outcome, but are taking notes on how the issue is argued.

Some Brazilian law enforcement officials, such as Attorney General Rodrigo Janot, warn that decriminalization will increase both drug use and drug trafficking in Brazil. That’s the concern of officer Flavia Louzada, who polices Rio de Janeiro’s Complexo de Alemão favela, along with the over 80 percent of Brazilians who said in a 2014 poll that they oppose decriminalization. Ms. Louzada says she fears the nation of 200 million could face more drug users than the public health system can handle if decriminalization goes through.

“The problem of drug consumption in Brazil has been well-known for a long time,” says Mr. Abramovay, from the Open Society Foundation. He points to a recent study by the think tank Release, which found little change in drug use in 20 countries with recent decriminalization measures.

The judge presiding over the case, Gilmar Mendes, voted in favor of decriminalization, and a second judge – there are 11 in all – asked for more time to review case documents. The hearings will pick up again once that process is complete.

Maria Lucia Karam, who served as a judge in Brazil's courts for nearly two decades, agrees with Justice Mendes’s vote on the issue, and hopes others follow his lead. "Repeatedly, we've seen War on Drugs policies produce worse outcomes for health than drug use itself.... More than a failed policy, it's a harmful one."

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