This briefing paper analyses the impact of drug policy on incarceration in São Paulo (Brazil), based on information collected among 1,040 people caught for having committed a drug-related offence (i.e. arrested in “flagrante delicto”) between 1st April and 30st June 2011. The objective of the research was to use empirical data on those caught in the criminal justice system for drug traffic to demonstrate the fragile distinctions between drug users and traffickers, provide information on how police officers deal with drug-related offences, and analyse how the judiciary effectively responds to these crimes (at least in the initial phases of the criminal justice process).

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This researchis expected to inform and assess some of the consequences of the currentBrazilian drug policy, taking into account its impacts on prisoners’rights and on the criminal justice system as a whole.

Conclusions and recommendations

Data analysed in this briefing paper reveals that, although drug possession for personal use was depenalised in the 2006 Brazilian drug law, people caught with very small amounts of drugs continue to be arrested and punished for drug trafficking. In fact, available data shows that the prison population has increased since 2006, and this is mostly due to drug law enforcement efforts. These arrests have caused disproportionate harm to vulnerable groups in society, and have increased pressure on an already slow and ineffective criminal justice system, contributing to prison overcrowding, draining economic resources and causing much avoidable human suffering.

Available evidence shows that the increased arrests of minor drug offenders have had little impact on reducing drug supply or demand in Brazil. Although there is no consistent information on the evolution of drug use in the country over the past few years, available data show a rise in cocaine and crack use prevalence, while cannabis use has remained relatively stable.

There are inherent challenges to reforming the national drug policy in a country as big and diverse as Brazil. Nevertheless, the adoption of objective criteria to guide the implementation of the drug law – in particular in defining the type of offence and in sentencing – could be beneficial in many aspects. Although taking into account the specific circumstances and evidence available for each case, the application of quantity thresholds, as well as criteria determining the role and motivation of the offender (i.e. mitigating factors), can constitute much more reliable benchmarks for judges to assess (I) whether the offender is a user or a dealer; (II) whether pre-trial detention is necessary; and (III) which sentences to impose.

Ideally, distinctions between users and dealers should be made on a case-by-case basis, taking into account all the specificities of the circumstances. However, as this paper has shown, the sole application of subjective criteria in a country widely marked with deep socio-economic inequalities has not resulted in a just and adequate application of the law, and has led to increases in arrests and the imposition of disproportionate sentences for minor offences.

The adoption of quantity thresholds would need to be closely analysed and evaluated to prevent unintended consequences – such as increases in the number of people who use drugs being incarcerated for trafficking if the quantity thresholds are set too low. In addition, it is also crucial to offer judges suitable options to take into account the specificities of each offender when deciding whether to impose pre-trial detention or release. An opportunity to do so was offered in 2011, with the revision of Law 12,403. The revised law offered judges a wider range of measures for those arrested in flagrante. Judges were no longer limited to either keeping the accused in pre-trial detention or to release them.

Instead, the legislation offered options such as bail, electronic monitoring, home arrest, periodic attendance to court, prohibition to attend specific areas or places, obligation to remain at home during night-time, prohibition to contact specific people, prohibition to leave a specific geographical area, suspension of work activities (for civil servants), etc. Disappointingly, Law 11,403 prevented bail for drug trafficking offences, which significantly reduced its impact for drug-related offences – as research has shown.

It is also essential for the judge to truly assess the characteristics of the offenders and circumstances in which the offence took place. An initiative recently initiated in São Paulo indicates that when talking to the offenders in person, judges were more likely to grant them pre-trial release. The so-called custody hearings are opportunities for the judges to assess the necessity of the preventive detention upon not only analysing files and documents, but interviewing the arrestee in person. In the framework of these hearings, judges talk to the arrestees within 24 hours after the arrest, what means that they can grant pre-trial release or put the accused in pre-trial detention based on other sources than just the police reports.

Under the previous criminal justice procedures, the offender would usually only have the chance to talk to a judge months after the arrest, when his/her case went to trial. These hearings have produced an impressive impact on pre-trial detention. Only a month after these hearings started, 42% of those sent to custody hearings were released (according to preliminary evaluations broadcasted by newspapers). Although there is no information on the specific impact of these hearings on drug-related arrests, this is an interesting development which should be monitored and applied more widely in Brazil. Enhancing qualitative and quantitative research on the implementation of Brazilian drug policy is paramount to identify the shortcomings of the system, police misconduct, bias in policy implementation, etc.

Reviewing Brazilian drug policy into a fairer and more rational strategy to address drug offences requires a deeper understanding of the circumstances of drug use and dealing offences, and of alternative policies to imprisonment in other parts of the world. With careful consideration and proper adaptation to local circumstances, the adoption of quantity thresholdss could be a way of moving in the right direction.