STF may decriminalize marijuana possession in a divided Congress

The Federal Supreme Court (STF) resumes this Wednesday (6) the trial that could decriminalize the possession of marijuana for personal consumption. There are already five votes to declare unconstitutional the article of the Drug Law that provides for criminal punishment for the user. If just one more minister out of four who have not yet voted takes a position in this sense, there will be a majority of six, among the 11 members of the Court, in favor of decriminalization.

The tendency is for the Court to set a quantity to differentiate the user from the trafficker, who will continue with the criminalized activity. To date, the most accepted suggestion within the Court was made by Minister Alexandre de Moraes, who indicated a limit between 25 and 60 grams, or six female plants, in the case of home cultivation.

The next minister to vote is André Mendonça, who in August last year asked for the trial to be interrupted to have more time to analyze the process. After him, Kassio Nunes Marques, Luiz Fux, Dias Toffolli and Cármen Lúcia vote. There is a good chance that at least one will vote for decriminalization.

A decision in this regard should provoke an immediate reaction from Congress, which is divided on the issue, with a likely majority against decriminalization.

PEC that criminalizes possession of marijuana and other drugs should be analyzed this Wednesday

Senator Efraim Filho (DEM-PR) has already announced that the Constitution and Justice Committee (CCJ) of the Senate should vote, also on Wednesday, on a proposed amendment to the Constitution (PEC), authored by the President of the House, Rodrigo Pacheco (PSD-MG), to maintain possession as a crime.

“The law will consider possession and possession, regardless of the quantity, of narcotics or similar drugs without authorization or in disagreement with legal or regulatory determination as a crime, observing the distinction between the trafficker and the user, alternative penalties to prison and addiction treatment”, says the text of the PEC.

To be enacted, PEC 45/2023 would still need to go through two votes in the Senate plenary, with at least 49 votes in favor, that is, 3/5 among the 81 senators, and also in the Chamber plenary, with at least 308 votes among the 513 federal deputies.

STF ministers defend decriminalization to end social and racial discrimination

Within the STF, the main argument for decriminalization is the fact that some users are classified as small-time drug dealers, and as a result, end up in prison. Current law says that possession of marijuana and other drugs for personal consumption does not lead to a prison sentence, but to a warning, community service and attendance at an educational program or course.

For most ministers, however, the police end up arresting people with low amounts of drugs as drug dealers due to social and racial discrimination, that is, black and poor people.

Therefore, the proposal is to free anyone who possesses marijuana below a certain quantity from any criminal prosecution. The person would only be classified as a drug dealer, regardless of the quantity, even if low, if there is evidence that they intended to sell the drug, such as the presence of money, small packages, scales and a hiding place, for example.

An alternative proposal was made by Cristiano Zanin, who defended the maintenance of possession as a crime, but the definition of a quantity to differentiate the user, who would continue to be subject to alternative penalties, from the drug dealer, who would continue to be subject to a prison sentence.

In recent interviews, the president of the STF, Luís Roberto Barroso, who voted in favor of decriminalization in 2015, has highlighted that the Court will only set a quantity of drugs that differentiates the user from the dealer.

The five votes given so far, however, make it clear that anyone who possesses marijuana would no longer be subjected to criminal proceedings, which involves an investigation, complaint and criminal action in court. There are suggestions that users suffer the same sanctions as the current law, but on an administrative basis, that is, applied by the police themselves or another public body in charge of the case.

Opponents see STF interference in Congress decision on the issue

Parliamentarians who oppose the decriminalization of marijuana possession say that criminal punishment is an option for the Legislature, confirmed not only in 2006, when the Drug Law was approved, but also in 2019, when it was updated.

Decriminalization via the STF would, in the group’s view, be another case of judicial activism and interference by ministers in a Congressional matter. They oppose decriminalization because they understand that the measure will increase drug use and further strengthen trafficking.

“The most important article of the Constitution is ‘all power emanates from the people and in their name will be exercised by their elected representatives’. Who are the elected representatives, to speak on behalf of the people, since 200 million Brazilians cannot all come together, everywhere to decide? Those who represent the people are the deputies and senators. The Supreme Court does not represent the Brazilian people, it is a body to monitor compliance with the Constitution and laws. That’s why this trial scheduled for Wednesday should not be done”, says Osmar Terra (MDB-RS), one of the biggest critics of decriminalization.

“The request we make is that the Supreme Court reflect on this. Seventy percent of the population is against the release of any type of drug, in any quantity. Congress has already decided twice, in the last 18 years, not to release the possession of drugs. It’s a crime, even if it’s not punishable by imprisonment”, continues the parliamentarian.

The deputy supports opponents of its use, such as psychiatrist Ronaldo Laranjeira, coordinator of the Alcohol and Drugs Research Unit at the Escola Paulista de Medicina at the Federal University of São Paulo. “It will greatly facilitate small trade and organized drug crime in Brazil,” he said, in a video released on the social network X.

Proposals for medicinal use have support in the Chamber and Senate

In the Chamber, however, there is a mobilization of left-wing deputies to approve a bill in the opposite direction, which would legalize the cultivation of cannabis in Brazil, for medicinal and industrial purposes (PL 399/2015).

Parliamentarians in favor say that the production of medicines with substances from the plant (used to alleviate some seizures, mainly) is very expensive, since the inputs are imported from abroad, due to the prohibition of marijuana in Brazil. Internal production, by authorized companies, would make the purchase cheaper. But the proposal goes further and also foresees production for use in cosmetics, fabrics and paper.

“This is not a topic for a political segment of Brazilian society, it is a topic for science. The whole world has already advanced in research on the medicinal use of cannabis and we cannot be left behind due to purely moral aspects, knowing that we are preventing a portion of Brazilian society from having cannabis-based medicines”, he said, in September, the Minister of Agrarian Development and Family Farming, Paulo Teixeira (PT), in a public hearing on the topic in the Chamber. A former deputy, he is one of the project’s enthusiasts.

Parliamentarians, security authorities and doctors opposed to PL 399/2015 point to the risk of weak supervision that ends up leading to the diversion of marijuana for recreational use or very flexible prescriptions for medicinal use.

“This risk exists, including the experience of other countries, such as Uruguay, which followed a similar path, shows this reality. There, the phenomenon called ‘gray market’ occurred, which is the market resulting from the diversion of marijuana planted on authorized farms. This is a very relevant concern that cannot be left aside,” he told People’s Gazettein 2021, prosecutor Lucas Gualtieri, coordinator of the Special Action Group to Combat Organized Crime (Gaeco) of the Federal Public Ministry in Minas.

Regulation of cannabis for medicinal purposes is proposed in three other projects

In the Senate itself, there is another more recent project, presented in November 2023 by senator Mara Gabrilli (PSD-SP), which also allows and regulates production for medicinal and industrial purposes.

“The proposal is comprehensive and seeks to reduce bureaucracy in access for those seeking plant-based medicines, including in veterinary medicine. In addition to health, the text provides guidelines for the production of cannabis in the national territory, encouraging our agribusiness and scientific research. Another new feature is the possibility of self-cultivation, with medical prescription and full supervisory control,” he said at the time.

Senator Paulo Paim (PT-RS) has another bill (PL 89/2023) to ensure the right to medicine, national or imported, based on cannabis, in public and private health units affiliated with the SUS.

Another similar proposal is PL 5158/2019, by senator Eduardo Girão (Podemos-CE), which provides for the distribution of cannabidiol by the SUS, but does not include other medicinal substances produced from marijuana. He opposes the decriminalization of marijuana possession, as the Supreme Court may decide.

“An evil that destroys lives and families! Against this political-ideological activism, which tramples on the prerogatives of legitimately constituted Powers – in fact, Congress has already expressed itself twice in favor of zero tolerance (which is a crime to carry) –, we are acting so that such a trial is postponed, until the PEC in progress in the Senate CCJ be appreciated”, he posted on X.