Toffoli postpones STF decision that could decriminalize marijuana possession

Minister Dias Toffoli requested a review and interrupted the Federal Supreme Court (STF) judgment that could decriminalize the possession of marijuana for personal consumption. In the Court, there are five votes for the end of the criminal classification of users and three against. With the trial halted, this Wednesday (6), there is no decision, as a majority of at least 6 votes among 11 ministers is required.

With the request for review, Toffoli will have 90 calendar days to further analyze the case and compose his vote. After that, it will be up to the President of the Court, Luís Roberto Barroso, to set a new date for the resumption of the trial. In addition to Toffoli, Luiz Fux and Cármen Lúcia still need to vote. If one of them votes in favor, the majority necessary to approve decriminalization is formed.

In a brief statement, Toffoli said that the Health Surveillance Agency (Anvisa) could define a legal quantity for the use of marijuana.

“The law that establishes what is a legal and illegal drug says that it is up to Anvisa to say what is legal and illegal. I honestly have no idea what might be legal or illegal in terms of amount of use. I think it is up to the legislator and the Executive Branch, in the form of our constitutional regulation, which are the regulatory agencies, to say about this. And it’s very easy for them to wash their hands and throw it at us,” he said.

The analysis of the case began in 2015, in the trial of a man convicted of possessing 3 grams of marijuana inside the prison. The São Paulo Public Defender’s Office asked for the case to be annulled, claiming that the conduct is individual and that the criminal classification violates the right to privacy.

Gilmar Mendes (rapporteur), Edson Fachin, Luís Roberto Barroso, Rosa Weber and Alexandre de Moraes voted for decriminalization. Last year, Cristiano Zanin voted to maintain possession as a crime, and was followed this Wednesday (6) by André Mendonça and Kassio Nunes Marques. During the session, the ministers clarified that, in the event of decriminalization, possession would remain an illegal act, but would not subject the user to criminal proceedings.

As the conduct would remain an illegal act, there was doubt about which authority would monitor the case, to subject them to warning sanctions and educational measures. “By decriminalizing, the police can no longer enter someone’s home for flagrant crimes. But people would also not be allowed to smoke in the cinema”, explained Alexandre de Moraes.

“We are going to play for an administrative offense, what is the administrative authority? It’s not to drive to the police station, who will drive, where? Who will apply the penalty, even if it is a restrictive measure? In practice, we are allowing its use”, replied André Mendonça.

Despite voting against decriminalization, he defended that Congress define a limit to differentiate users from drug dealers. Pro-decriminalization ministers argue that the lack of criteria causes the police to classify many consumers, especially black, poor and peripheral people, as drug dealers, leaving them trapped with violent criminals.

At the session, Barroso said that criminalization also harms young people looking for their first job. “For a poor young person looking for a job, if it appears on their background certificate that they no longer have a primary education, they have an additional difficulty in a life that is already difficult,” he said.

He and other ministers in favor of decriminalization defended the setting of a limit, between 25 and 60 grams, or 6 female plants, to characterize users, who would not be subject to arrest. Mendonça defended that Congress define this limit; until then, the maximum quantity of 10 grams would be established; Zanin and Nunes Marques suggested 25 grams.

André Mendonça votes against the decriminalization of marijuana possession

In his vote, Mendonça said that “there is a bad image in society that marijuana is not harmful.” “It causes harm, serious harm, and greater harm than cigarettes. At the same time, this is extremely important to better limit the quantity, according to the gradation of health risks”, said the minister. He cited studies by doctors, professors and researchers from USP, Unifesp, Uniabc that point out the health risks. According to the study, at least 9% of those who use marijuana become dependent and are subject to schizophrenia, psychosis, bipolar disorder, depression, anxiety, personality disorders and sexual and reproductive disorders.

“Smoking marijuana, transforming marijuana into cosmetics as if it were any other product goes beyond the user and can affect the family and society. The number of children poisoned by accidental ingestion who arrive at the emergency room, traffic accidents, teenagers under the influence of the substance exposed to unsafe sexual relationships and, as a consequence, unwanted pregnancies, or contamination by sexually transmitted diseases”, he stated.

“The escalation to the use of drugs of abuse, involvement in situations of violence or abusive relationships, cognitive impairment and amotivational syndrome, the sharp drop in male fertility and libido, with serious consequences on sexual and reproductive life, as well as cognitive. Commitment to school, university, academic, work, family and social life, among others. The repercussions observed in the studies have been increasing”, he said later.

Nunes Marques votes against the decriminalization of marijuana possession

Like his colleagues, in his vote, he cited studies that point to harm to health, users’ families and the community. He argued that the Drug Law, approved in 2006, has already removed the prison sentence for users, who are subject to warning sanctions, community services and educational measures. He confronted the proposal to transform these criminal punishments into administrative sanctions – the use would remain an illegal act, but not a crime, freeing the user from criminal proceedings, but there is doubt about which authority would monitor the case.

“The solution is contradictory. If the right to privacy prevents the legislator from creating a criminal offense, for the same reason it would also prevent the classification of an administrative offense, as there could be no illegality in the exercise of a fundamental right. The possible solution would be to consider carrying drugs for personal use as lawful, and therefore unpunishable, which could lead to unpredictable consequences for the consumption of narcotic substances in public places, especially in schools and other places frequented by children and adolescents.” , he stated.

Nunes Marques acknowledged that after the Drug Law the number of people arrested for drug trafficking increased, but according to him, this would not be a consequence of the criminalization of users.

“The increase in arrests resulting from the commission of trafficking crimes is a complex and multifactorial phenomenon, linked to the development of macrocrime internationally and in Brazil. Among the causes is the fact that Brazil has gone from being a corridor country for marijuana and cocaine trafficking, between South America and Europe, passing through Africa, to a consumer country, including among the largest consumers of marijuana in the world, and the second of cocaine, second only to the USA. This reality is eloquent confirmation that increased consumption fuels trafficking and decriminalization of possession increases consumption,” he stated.

In his vote, Kassio also cited recent experiences of countries or states that seek to review the decriminalization policy, such as Portugal and Oregon, in the United States. She stated that local authorities have noticed a significant increase in consumption and impacts on public health and safety.

Congress divided over marijuana

In recent days, part of Congress has pressured the STF to postpone the decision or reject the decriminalization of marijuana possession. This Tuesday (5), the president of the Senate, Rodrigo Pacheco (PSD-MG), stated that he would wait for the STF decision to continue with the processing of the proposed amendment to the Constitution of his authorship that maintains the criminalization of possession. The PEC could have been voted on this Wednesday by the Constitution and Justice Commission (CCJ).

“I think that Brazil cannot allow itself to be liberated, to be decriminalized without a discussion of public and scientific policy by the National Congress, which are representatives of the people. We defend this. The maintenance of the law and the constitutionality of the law that was voted on. Remembering that possession for use does not land anyone in prison, and we would be against that,” she said.

This Tuesday (5), evangelical and Catholic parliamentarians met with Barroso to ask for the trial to be postponed. He refused and stressed that it was necessary to establish a single rule to distinguish users from drug dealers.

“We are not going to release marijuana. I am against drugs and I know it is a bad thing and it is the State’s role to combat the use of illegal drugs and treat the user”, said the minister during the meeting. “If a rich, white boy from the South Zone of Rio is caught with 25 grams of marijuana, he is classified as a user and is released. However, if the same amount is found with a poor, black boy from the outskirts, he is classified as a drug dealer and is arrested. This is what we have to fight. And that is what will be judged in the Supreme Court this week,” he said.

In Congress, however, other proposals are being processed to allow the regulation of marijuana cultivation for medicinal and industrial use. 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. There are two similar proposals in the Senate.