Overview of drug laws and legislative trends in Brazil.

Trend

Brazil is debating reform of current drug legislation. Changes to the Criminal Code are being discussed in Senate and the debate includes new articles on drugs. Several legal bills to reform the existing drug law are waiting to be reviewed. The most polemic debate is about the application of forced treatment on crack users. Under the government of Dilma Rousseff, Brazil is increasingly becoming a regional reference on security issues. The country is taking on regional tasks in the monitoring and tracking of coca crops and cocaine trafficking, using high level technology and involving both police and military forces to play a predominant role.

Law

Drug Law 11.343 has been in place in Brazil since August 23, 2006. The law introduced important changes in the country’s drug legislation as it depenalized consumption and rejected incarceration for drug users, even in cases involving repeat offenses. Article 28 of the law includes alternative measures for punishment. While the 2006 law broadened the legal difference between consumers and traffickers – with the second group facing prison time – it does not strictly define who falls into each of these categories. (See A lei na prática)

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Drug laws and legislative trends in Brazil

Historically, Brazilian drug legislation has been strongly influenced by the UN drugs conventions. Under these conventions, Brazil committed to 'combating' drug trafficking and reducing consumption and demand through any means possible, including the most drastic one, criminal law. Moreover, the official commitment to the international narcotics monitoring system and the close diplomatic and trade ties between Brazil and the United States led to the adoption of a prohibitionist approach that was very much in line with the U.S. war on drugs.

Current Legislation

Brazil has different legal instruments that govern the criminal treatment of controlled substances: The 11.343 Drug Law, August 23, 2006 and the Criminal Code. Moreover, drug crimes fall under so-called Heinous Crimes Law (8.072 of 1990), and therefore several rights and benefits of the accused are suspended, such as freedom pending trial. In this sense, the 2006 Law represents progress.

One of the main features of the 2006 narcotics law is the express recognition of principles such as “respect for the fundamental rights of the individual, in particular in terms of autonomy and freedom.” (Article 4, I), recognition of diversity (Article 4, II) and the adoption of a multi-disciplinary focus (sub section IX). Moreover, the law establishes guidelines aimed at preventing drug consumption through “strengthening individual autonomy and responsibility regarding the illicit use of drugs” (article 19, III) and the “recognition of the reduction of harm as a desirable outcome of prevention activities” (sub section VI). The legal consideration of these principals is crucial, as it reflects a new approach, which is in line with moderate prohibition, in particular with the adoption of the reduction of harm as an official policy.

With regard to drug use, an important change was the decriminalization of use, and the rejection of prison sentences for users, even repeat offenders through Article 28, which allows alternative penalties as follows: “Whoever acquires, keeps, holds in storage, transports or carries upon himself, for personal use, drugs without authorization or in violation of legal or regulatory decree, shall be subject to the following penalties: I: warnings about the effects of drugs; II: community service; III: educational measures, completion of an educational course.”

Beyond this, there are other positive aspects, such as the equivalence of cultivation for personal use to personal use itself, as put forth in Art. 28, §1. Another act which, under  the old law, was equated to traffic is the shared consumption of illicit drugs; it too saw a reduction of penalties (Art. 33, § 3)19when delivery is occasional, made to someone with a relationship to the subject, and has no profit motive, a scenario distinct from that of the professional trafficker, which justifies the softening of the punishment. With respect to the user, therefore, these changes may be considered positive, as they include a reduction of penal control and a certain differentiation between kinds of acts.

While preventive detention is not obligatory in Brazil, in the case of drug crimes, courts apply it fairly often, regardless of the gravity of the crime. Drug crimes are classified “heinous” or serious crimes, together with murder, rape and kidnapping, without taking into account the degree of participation. This has become one of the main causes of overcrowding in Brazilian prisons. In 2012, nearly 40 percent of the prison population had not been sentenced and one quarter imprisoned on drug charges.

Moreover, the law continues to lack a clear differentiation between consumption and traffic. According to legal criteria, this differentiation should be determined, taking into account the amount, the nature (or quality) of the drug and other elements, as well as the place and other objective and subjective circumstances, such as the prior convictions, social and personal circumstances. These vague criteria are so difficult to apply that, in practice, the distinction depends on the corresponding authority in each case.

Regarding drug trafficking, the current law reserves an extremely strict criminal treatment for this crime, as the minimum penalty increased from three to five years, although with the possibility of a reduction in the sentence. The crime of trafficking is currently described as follows:

“Article 33: to import, export, refer, prepare, produce, manufacture, obtain, sell, expose to sale, offer, store, transport, carry, keep, prescribe, administer, or deliver for the consumption or supply, narcotics – even if for free – without authorization or in violation of the legal or regulatory norms. Punishment: Imprisonment for 5 (five) to 15 (fifteen) years and payment of 500 (five hundred) to 1,500 (one thousand five hundreds) days-fine.”

The first clause of article 33 also establishes three additional legal figures that enable or are related to trafficking in order to cover the entire illegal drug production chain. As a result, the law is clearly intended to cover all possible behaviors that could be related to the production, distribution, trade and consumption of drugs.

While the 2006 law broadens the legal difference among consumers – subject only to alternative measures – and traffickers – who confront long prison sentences – it does not strictly define who fits in each of these categories. While Law 11.343 represents progress, it is still far from ideal. The law reveals that the legislative power still has a preference for prison sentences, even for small-scale traffickers. For this final group, it would be better to apply a reduction in the sentence. While the judge can recognize the insignificant role the accused plays in the illegal drug trade, the law prohibits substituting prison for alternative punishment. This is the case despite the fact that Brazilian law permits this substitution in cases involving up to four years for all other crimes perpetrated without violence or serious threat, as would be the case for a small scale drug trafficker.

Impact of legislation on the prison situation

The Brazilian prison system is extremely overcrowded. Currently, there is a deficit of 230,000 places, which implies terrible conditions for the inmates. The country also suffers from a very common problem in Latin American countries: an excessive number of provisional inmates. These are people deprived of their freedom without a definitive sentence. The national percentage of provisional inmates is currently around 38 percent (December 2012). Preventive detention for cases involving drugs is not obligatory, but in practice is frequently applied and is the second leading cause of imprisonment.

According to data from 2012, Brazil currently has around 548 thousand people deprived of their freedom in the prison system, including those detained in police stations. In 10 years (from 2000 to 2012) the prison population more than doubled, growing from 233,000 to over half a million. This tendency to increase has been observed since the early 1990s, reflecting the impact of a criminal system based on harsher legislation, the limitation of guarantees and a focus on repression.

Within this general panorama, the total number of people detained for drug trafficking represents the second largest group (133.946 ) in the system, after the crimes against patrimony which traditional hold first place.

The following table represents the number of detained for drug trafficking (2005 – 2012) regarding the total prison population:

* Source: Ministry of Justice, Brazil

According to this data, the number of people condemned for drug trafficking nearly doubled since Law 11.343 came into effect in 2006. As a result, the option of favoring a repressive criminal response to drug trafficking has efficiently contributed to increasing the Brazilian prison population in recent years. This is particularly true for small scale illegal drug traffickers condemned to long prison sentences, something that adds to the isolation and stigma their face. Another noteworthy aspect is the growing participation of young people in drug crimes.

Legislation and reform

Listed below is the development of drugs legislation in Brazil during the past decades:

• 1940 - Art. 281 of the Criminal Code establishes the crime of clandestine commerce or facilitation of the use of intoxicants.

• 1966- Law 4451 included plant species from which illicit drugs can be derived in the list of crimes.

• 1967- Law Decree 159 extended the legal prohibition to the amphetamines and hallucinogens.

• 1968- A new drug law (Law 385) was presented at the height of a de facto regime. This new drug law not only criminalized the behavior of users, but also equated them to traffickers, with penalties of one to five years of prison, plus fines.

• 1976- Law 6,368, conceived in the midst of the political “opening,” revoked article 281 of the Penal Code, and gathered the drug laws in a single, special law. Drugs represented a presumed danger to public health.

•  1990- Law 8,072 The Law of Heinous Crimes, equating drug offenses with murder and violation, contributed to an increase in the number of imprisoned for drugs related offenses.

• 1995- Law 9,099 relaxes the penalties for the crime of “consuming narcotic drugs”.

• 1998- Law 9,714 shows a tendency towards a certain form of “depenalization” of consumption.

• 2006 - The current drug law is born. The Supreme Federal Court modifies the interpretation of Law 8,072. The National System of Public Policies on Drugs (SISNAD) is created, focusing on the prevention of drug use.

Today, there are three legal reform proposals. One of them proposes compulsive incarceration for crack users and an increase in the sentences for drug trafficking, that is now in the process of political approval. The other two propose the decriminalization of possession for personal consumption, possession of plants for personal consumption and a clear distinction between the trafficker and the user, both of them seem to lack sufficient political support.

Together with a public campaign, a legal proposal was presented under the name “Law on drugs: it's time to change” under which this legal project, beyond establishing objective differentiation criteria between the distributor and the user and determining the amount of drugs seized for a maximum of 10 days of self-consumption - whose daily dose should be defined by federal bodies - supports institutions who attend those who suffer from drug abuse, without fear of being sent to jail. The proposal was presented to the Chamber of Deputies by the Brazilian Commission on Drugs and Democracy in August 2012, signed by 110,000 people.

The second project underway is reform of the Penal Code, which was developed over seven months by a commission of legal experts and lead to a draft bill, presented to the head of the Senate on June 27 2012. The ambitious proposal, which seeks to modernize the Code, considers the depenalization of planting, cultivating and harvesting plants aimed at drug production for personal use, carrying drugs for personal use, equivalent to a dose for five days of consumption.

Meanwhile, tendencies that oppose the humanizing trend of public policies regarding drugs in Brazil are much stronger represented in the reform debate: the compulsive treatment and incarceration of crack users is an example, and it has begun to be applied in some cities, such as Rio de Janeiro, preparing for a clean and safe image for the World Cup and Olympic Games, but also in Sao Paulo, its legal foundation is in the process of being approved.

On December 12, 2012 the Comissão Especial do Sistema Nacional de Políticas sobre Drogas (Special Commission from the National Drug Policy System), of the Chamber of Deputies, unanimously approved a legal reform project for the 11.343/06 Law on Drugs. Among other measures, the text defines the role of the municipalities, the states and the Federal state in the “combat of illegal drugs”, it increases punishment for drug trafficking with a “high offensive potential” such as crack and allows for the obligatory hospitalization of users for up to six months. Currently, the law allows for five to 15 years of incarceration for drug trafficking. The approved text, Legal Project 7663/10 of Congressman Osmar Terra, establishes an increase in the punishment of between a sixth to two-thirds if the crime involves drug trafficking that is potentially more offensive, like crack. Its approval, after some slight reforms, in the Chamber of Deputies was reached in May 2013, despite fierce opposition, particularly by civil society groups. Critics see risks in the changes that disproportionately punish the users and small scale sellers who sell drugs to support their own addiction. It also fundamentally questions the approach of compulsive treatment. It is now to the Senate to decide of the measure will become a ruling legal framework in Brazil.

Other areas of reforms

There is also pressure in favor of the reform from the judicial power. In the judicial practice there are several examples of rulings that seek to broaden the interpretation of the law, regarding the amount for personal use and for preventive detention.

In September 2010 the legislative option aimed at increasing repression as well as the exclusive option for imprisonment were questioned before the Supreme Federal Tribunal of Brazil. The Tribunal ruled in favor of a person accused of trafficking 13.4 grams of cocaine and discussed the prohibition on substituting a prison sentence for small scale drug trafficking with restrictive measures, as contemplated in paragraph 4 of article 33 in the Law on Narcotics. The majority determined that this prohibition was unconstitutional and established that the possibility of substitution should be addressed on a case-by-case basis.  In the opinion of some authorities, this ruling could benefit many other small scale traffickers and decrease the size of the national prison population, give the high number of small traffickers imprisoned in Brazil.

Brazil in the international debate on drug policy

The Dilma Rousseff government in general has assumed a low profile in international scenarios and forums and in the (reform) debate on drug policies, with the exception of interdiction, an issue where Brazil is increasing its regional influence. Several countries from the Andean region have signed bilateral police and military cooperation agreements with Brazil, that seems to replacing or complement the role traditionally occupied by the United States.

Brazil was extremely active in the defense of reduction of harm policies in the international arena, in particular during the first term of President Lula da Silva (2003-2007) but in recent years it has lost the role of encouraging reform to the drug policy. At the OAS drug policy debate Brazil is particularly absent.

Brazil's civil society is active in the promotion of alternative policies and is the country of origin of one of the main representatives of the Latin American Commission on Drugs and Democracy, that later became the Global Commission on Drugs: one of its active members is former president Fernando Henrique Cardoso.