STF may reverse Bolsonaro policy if it decriminalizes drug possession

The Federal Supreme Court (STF) will resume, this Wednesday (2), the judgment that may decriminalize the possession of drugs for personal consumption. As the deliberation approaches, entities interested in the subject have mobilized to influence the ministers’ vote. One of the last demonstrations was from the São Paulo Public Prosecutor’s Office, which is against decriminalization. The body maintains that a favorable decision by the Supreme Court would clash with the Anti-Drug Law, especially in a change introduced in the government of former President Jair Bolsonaro (PL), which increased the fight against drug trafficking and improved the treatment of addicts.

The São Paulo Public Prosecutor’s Office is Alexandre de Moraes’ original body, the next to vote. His position is the object of great expectations, due to his history linked to public security, not only in the MP, but also in the Executive.

The decision of the STF has been awaited since 2015, when the trial began. At the time, the rapporteur, Gilmar Mendes, and ministers Edson Fachin and Luís Roberto Barroso voted in favor of decriminalization. In summary, they argued that treating users as criminals was a stigmatizing factor and an ineffective measure to reduce the damage caused by chemical dependency. At the time, the analysis was paralyzed by a request for a review by Minister Teori Zavascki.

In 2018, Moraes, his successor on the Court, said he would be able to vote, but since then, the action has not been filed. Behind the scenes, one of the reasons was the stricter policy of the government of Jair Bolsonaro in the fight against drugs, with records of apprehensions. The assessment, at the time, is that a decriminalization via the STF would bring yet another point of friction in the relationship between the Court and the Executive. Now, with the left in power, in favor of decriminalization, such a decision would be less politically traumatic, although with some resistance from Congress.

In the judgment scheduled for Wednesday (2), in addition to Moraes, Justices Kassio Nunes Marques, André Mendonça, Dias Toffoli, Cármen Lúcia, Luiz Fux and Rosa Weber will be able to vote. After Moraes, any of them can request a review and paralyze the trial again.

MP-SP arguments against the decriminalization of drug possession

The manifestation of the MP from São Paulo, presented in May, sought to refute arguments commonly used by those who defend decriminalization. For this, the agency cited a recent amendment to the Anti-Drug Law, sanctioned and approved in Congress with the support of Bolsonaro, and also the growing problem of cracolândias, which have spread across the country, in capitals and medium-sized cities. Contrary to what is imagined, an eventual decriminalization would release not only the consumption of marijuana, but also hard drugs, such as crack, cocaine, heroin and others.

To defend the continuation of the penalty, the Attorney General of Justice of São Paulo, Mário Luiz Sarrubbo, used a change made in 2019 in the legislation. That year, drug policy changed to reinforce the role of therapeutic communities and allowed the involuntary hospitalization of addicts. The penalty for the user – which is not imprisonment and is limited to warning, provision of services to the community and attendance at a program or course – remained, but with the possibility of mitigation if the amount seized is low and “demonstrates less potential harm to the user”. conduct”.

The law, approved by Congress and sanctioned by Bolsonaro, is based on the principle that, although drug consumption is an individual decision, it does not only cause damage to the user, but also to public health and the safety of the community. The problem is not just a personal one, but a social one, as the situation in cracolândia demonstrates, where deaths from violence and various diseases abound. It was on this basis that the MP-SP maintained, before the STF, that it is still appropriate, necessary and proportionate to penalize drug possession, without the user being taken to prison, but subjected to measures that may keep him away from addiction.

“From a normative point of view, the State recognizes its limits with regard to the decisions of each individual in relation to drug consumption, without ignoring, however, that the misuse of psychoactive substances interferes in social life, that is, in society itself. […] The proliferation of drugs is, visibly, one of the main causes of the increase in crime across the country, including the formerly peaceful inner cities”, says the MP-SP.

According to the agency, the purpose of penalizing possession for consumption is not to protect the individual from himself, in a paternalist conception of the State, but to prevent the increase in violence, the deterioration of social and family life, and harm to collective health.

Criminalization, even with mild penalties, would be a way to contain the proliferation of drugs and the damage they cause, especially given the insufficiency or non-existence of public policies to preserve public health and safety in the context of drug trafficking.

The MP cites, as an example, a 2012 study that found that the mortality rate among crack users in São Paulo was seven times higher than in the general population. More than half were victims of homicide, a quarter died of AIDS, and a considerable number of overdoses and hepatitis B.

Another argument concerns trafficking. The MP maintains that a logical consequence of the decriminalization of carrying would also be the decriminalization of commerce, something expressly prohibited by the Constitution. The idea here is that it makes no sense to decriminalize consumption and punish supply, especially since the latter feeds off the former.

“The acquisition of illicit psychoactive substances by the user is just the final act of a long chain of crimes, which we have all followed in recent decades, which generated powerful and violent criminal organizations, bringing serious public order problems to the producing regions”, says the agency, adding that consumer regions are also dominated by criminal organizations.

The MP also refutes the main argument of decriminalization advocates, that criminal punishment offends the user’s right to personality and privacy. The body argues that the STF should respect the option of Congress, which instituted the penalty as a brake on the proliferation of drugs. It maintains that the measure is adequate, that is, appropriate to pursue this objective, of a collective nature; it is also necessary, given the absence of other effective policies for this purpose; and proportional, given that it does not unreasonably affront the users’ privacy and right to self-determination in their personal choices.

“It is true that other countries have taken the path of decriminalization, even partial, of illicit drugs. It turns out that these, by adopting such a solution, did so as a state policy, bringing, including to the public service, means to deal with practical problems inherent to the liberalization of these substances”, says the manifestation.

The agency returns to the problem of cracolândia, questioning what would happen if, overnight, no one was subject to punishment at the “end of the criminal drug trade chain”. “Where can users smoke their portion of crack? On the school sidewalk? Is it acceptable to inject cocaine into the bloodstream in a public square, in broad daylight? By the way, who will sell the drug? Are such “freedoms” really in accordance with the Brazilian Federal Constitution? We believe not”.

House Security Committee approves bill that provides penalties for drug users

One day before the judgment at the STF, the Public Security Commission of the Chamber of Deputies approved, this Tuesday (1st), a bill that provides for imprisonment of two to four years for those who acquire, store, store, transport drugs without authorization or in disagreement with the legal or regulatory determination.

After approval by the collegiate, the text will go to the Constitution and Justice Commission (CCJ). And, if it passes the CCJ, it will be ready to be voted on in the plenary of the Chamber.

In addition to imprisonment, the text provides for the payment of a fine in the amount of five to seven salaries. The penalty also applies to those who sow, cultivate or harvest plants intended for the preparation of small or large quantities for the production and sale of illicit drugs.

The committee’s rapporteur for the matter, Deputy Cabo Gilberto Silva (PL-PB), stressed that drug use “has been one of the major problems of our society. Young people are the ones who suffer the most.”

After approval by the commission, deputy Osmar Terra (MDB-RS) warned that the Federal Supreme Court will be able to consider this Wednesday (02) the decriminalization of drug possession in Brazil, a “very serious decision”, according to him, that could increase drug consumption and strengthen drug trafficking in Brazil.

He suggested to the chairman of the committee, deputy Ubiratan Sanderson (PL-RS), that he send a note to the Supreme Court with the position of the members of the Commission for Public Security and Combating Organized Crime, asking the Supreme Court not to vote on the matter this Wednesday.