House proposes bill that provides for imprisonment for drug users

The Public Security Committee of the Chamber of Deputies included as the first item on its agenda this Tuesday (20) the bill that determines prison sentences of two to four years for drug users. Bill 4941/2009 is being drafted by Deputy Cabo Gilberto Silva (PL-PB) (read the opinion here).

The proposal will be discussed one day before the Federal Supreme Court (STF) resumes the judgment that tries to overthrow the crimes foreseen in article 28 of the Antidrug Law (11.343/2006), which determines, among other things, penalties for those who possess drugs. for personal use. If the court finds article 28 unconstitutional, drug users who possess small amounts of narcotics will no longer be considered even first offenders.

Today, no one is arrested in Brazil for possessing small amounts of drugs. The penalties for this infraction, according to Article 28, are providing services to the community, warning about the effects of drugs and attending an educational course. The proposal under discussion in the Chamber wants to guarantee the detention, but it may be innocuous if the STF considers the ban on drug use to be unconstitutional.

In practice, when analyzing the issue, the court once again adopts judicial activism, by assuming the role of the Legislative Power, according to specialists consulted by Gazeta do Povo. In recent years, the Legislative Power has discussed the risks to public health and safety with milder penalties for drug users and with attempts to permit the planting of marijuana.

Judgment at the Supreme Court

The process that led to the judgment of the STF, gaining general repercussions, refers to the case of a prisoner who was caught, in 2009, with marijuana for personal use in a jail in Diadema (SP). He was sentenced to community service for the incident. The Public Defender’s Office of São Paulo then appealed to the STF in favor of the prisoner.

The trial of the matter was interrupted in 2015, with a request for a view from the then Minister Teori Zavascki, who died in January 2017. Alexandre de Moraes inherited his vacancy and, in 2019, released the process to be ruled. President Rosa Weber, after postponing it once, has set the trial for this Wednesday (June 21).

Three ministers have already voted in 2015, all in favor of overturning the criminal classification of drug possession. There is, however, a divergence about the types of drugs to be released. Gilmar Mendes, rapporteur for the case, considered that the change should apply to all drugs, while Edson Fachin and Luís Roberto Barroso believed that it should be restricted to the case of marijuana.