What could change in the trial on marijuana possession in the STF?

The Federal Supreme Court (STF) resumes this Wednesday afternoon (6) the trial on the possession of drugs for personal consumption. The Court’s decision will have an impact on at least 6,345 cases, according to data from the National Council of Justice (CNJ).

The scoreboard already has five votes to declare the article of the Drug Law that provides for criminal punishment for the user unconstitutional. Just one more vote left for the decriminalization decision to take effect for consumption

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 first minister to vote on resuming the trial will be 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.

This Tuesday (5), the President of the Court, Luís Roberto Barroso denied a request from the Evangelical and Catholic benches to postpone the trial, after receiving representatives from the Evangelical Parliamentary Front and the Catholic bench. The trial can only be postponed if a minister comes to ask for a view again.

Barroso told parliamentarians that he understands the concern, but stressed that it is not possible to comply with the request, as the agenda would be empty. “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.

Parliamentarians criticize the interference of the judiciary in a matter that should be discussed and defined by the National Congress. Federal deputy Osmar Terra (MDB-RS) criticized the STF’s initiative “in wanting to determine the quantities of drugs to be taken by someone”. According to the deputy, the STF can “open the door to all drugs”.

In the Senate, the opposition tried to speed up the vote on PEC 45/23, which amends art. 5th of the Federal Constitution, to “criminalize the possession and possession of narcotics and similar drugs without authorization or in disagreement with legal or regulatory determination”. However, the president of Congress, Rodrigo Pacheco (PSD-MG), asked to wait for the STF’s decision before drafting the PEC.

What can change

The STF will define whether it is a crime for a person to have drugs for their own consumption, in addition to establishing, in relation to one or more substances, the quantity considered to be for individual use. The discussion does not involve drug trafficking, a conduct punished as a crime that will continue to be an offense, with a penalty of 5 to 20 years in prison.

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.