How Brazil’s institutional crisis shaped a terrible drug policy

Natália Scalzaretto . May 18, 2019

While Brazil’s streets were taken by nationwide protests against budget cuts in education and the government engaged in a full-scale battle against lawmakers in the House of Representatives, Brazil’s senators approved a new National Drug Policy that, in practice, adopts a punitive approach against drug users—which will potentially have severe impacts on the country’s healthcare and security systems.

Despite spending almost six years debating the matter with experts in special committees, senators decided to scrap every amendment proposed and approve the bill as it was passed by the House of Representatives, before all the debates took place. Their argument was that reverting to the original bill would avoid further delays to the proposal’s approval. The decision comes just weeks before the Supreme Court is set to rule on whether to decriminalize personal drug consumption (even if the drugs themselves remain illegal).

As recalled by the BBC, <a href="https://www.bbc.com/portuguese/brasil-48299757">the bill won’t make upcoming trials obsolete</a> before they even happen—as Justices are basing themselves on a constitutional principle that you can only arrest someone if their behavior harms a third person. However, the Senate’s move is a clear message to the Judiciary branch: justices should not interfere in lawmaking. This newest chapter of Brazil’s ongoing institutional crisis is backed by the president’s office. The Citizenship Minister Osmar Terra—who actually proposed the bill when he served as a lawmaker, back in 2010— reportedly said President Jair Bolsonaro has committed himself to sanction the bill before the Supreme Court rules on the matter. Mr. Bolsonaro will, however, veto some articles—regarding mandatory minimum sentences in cases of multiple defendants accused of “criminal association for drug distribution,” and about creating quotas for companies to hire recovering drug addicts. <h2>What does Brazil’s new Drug Policy say?</h2> The bill alters the 2006 anti-drug act and, consequently, the National System of Public Policies towards drugs (Sisnad), which is responsible for coordinating preventive measures, healthcare, and policies to fight drug trafficking. The main changes include the increase of mandatory minimum sentences for gang leaders (from 5 to 8 years), in parallel to smaller sentences if the circumstances of the offense were considered less harmful. For experts, however, the bill fails in defining a major topic: how do you tell a drug dealer from a drug user? According to a study by the Brazilian Association of Jurimetrics, state courts in São Paulo are basing themselves on the quantity of drugs found by the police. In most cases, up to 2 grams of cannabis (around two to three joints), 1.7 grams of cocaine (enough for around 15 to 20 average doses), or 1 gram of crack (roughly four rocks) are considered compatible to personal consumption. On the other hand, having at least 32 grams of cannabis, 20 grams of cocaine or 9 grams of crack qualifies one as a dealer. A committee formed by healthcare experts appointed by House Speaker Rodrigo Maia has recently recommended the decriminalization of drug consumption in Brazil and suggested the threshold between personal use and dealing as <a href="https://brazilian.report/society/2019/02/08/brazil-plan-drugs/">ten doses</a> of a substance. The difference is vital, as users cannot be arrested, according to the <a href="https://www.nexojornal.com.br/explicado/2017/01/14/Lei-de-Drogas-a-distin%C3%A7%C3%A3o-entre-usu%C3%A1rio-e-traficante-o-impacto-nas-pris%C3%B5es-e-o-debate-no-pa%C3%ADs">anti drug act</a>. They must, instead, do community service and go to rehab centers. But judges have total discretion to consider a defendant as either a user or a dealer. And “social circumstances” around a person are a key factor taken into consideration. For sociologist Julita Lemgruber, a former ombudswoman at the Rio de Janeiro Police Department, structural racism creates a double standard where white offenders are more prone to be classified as users. “This legislation gives the judge complete freedom to analyze each case depending on the accused person’s profile (…) and the law says the judge should regard the personal and social circumstances of the crime. Of course, this was like a blank check for judges to incarcerate more and more poor black kids—mainly kids who live in the poor areas of big cities in Brazil,” she said on the <a href="https://www.youtube.com/watch?v=3vctO5QUQls&t=208s">Explaining Brazil</a> podcast. <script src="https://www.buzzsprout.com/299876/1078982-47-brazil-s-war-on-drugs-failed-what-next.js?player=small" type="text/javascript" charset="utf-8"></script> For Senator Styvenson Valentim, the bill’s rapporteur, establishing an objective limit to drug use would essentially be like giving people “permission for using drugs in our country.” He also supports that, as the bill foresees a reduction of one-sixth to two-thirds of the penalty for “lighter” circumstances—e.g. if the accused person is not a repeat offender—it may reduce the imprisonment cases in Brazil. According to the government’s <a href="http://depen.gov.br/DEPEN/noticias-1/noticias/infopen-levantamento-nacional-de-informacoes-penitenciarias-2016/relatorio_2016_22111.pdf">most recent available data</a>, as of 2016, Brazil had 726,700 prisoners—a 700-percent bump in 25 years. Sixty-five percent of the incarcerated population is black and 51 percent did not complete secondary school. About 25 percent of male prisoners are in prison for committed drug-related offenses. Among women, the rate goes up to 62 percent. <h2>A path to recovery?</h2> Brazil’s drug policy model is considered “prohibitionist,” according to international standards. The new text loosens rules for forces rehabilitation and adds therapeutic communities to the national structure of drug addiction treatment. For healthcare experts, both approaches are based on total abstinence, a treatment with a high rate of failure. Psychiatrist Leon Garcia, who works at the Psychiatry Institute of Hospital das Clínicas, in São Paulo, says forced rehabilitation may create a backlash effect, as well as being detrimental to the patients’ human rights. “Forced rehabilitation is an exception for emergencies, when the person’s life is at stake. To transform it into a public policy may break people’s confidence in health professionals. So, people who need help will start to run away from doctors as they run away from the police,” he told The Brazilian Report. As it is now, the law allows forced rehabilitation if civil servants or family members deem it necessary. The internment has a maximum period of 90 days, which Mr. Garcia believes to be an exaggerated amount of time. “Being sober for three to four days, the person is able to decide about their options, despite their desire to use drugs. Establishing an intervention time seems like a penalty and shows an intention to substitute prison for internment.” The other treatment option introduced by the law is not new, actually. The first therapeutic communities arose in Brazil in the 1970s as a way to fill the gaps left by the government; currently, they’re defined as “non-profit legal entities which shelter drug addicted people”. <a href="http://www.ipea.gov.br/portal/index.php?option=com_content&view=article&id=34533">Research</a> by Brazil’s Institute for Applied Economic Research shows that these institutions adopt “ancient psychiatric methods of treatment, such as social isolation, under strict behavior rules and the watch of a directing team.” That would be very different from the so-called “damage control” measures, that may even adopt abstinence, but also other strategies such as the progressive reduction of consumption. The same study revealed that these communities have a religious bias and, over time, developed increasingly ties with the legislative branch, which culminated in a parliamentary caucus to support them—the same caucus that worked on the new bill. If the bill is signed into law, these communities will be officially part of Sisnad, but it has been eight years since they started to receive public funding under president Dilma Rousseff’s program “Crack: we can defeat it.” Data obtained from the National Secretariat for Drug Policies (Senad) systems shows that Brazil currently spends almost BRL 100 million with payments for these communities. As <a href="https://www.nexojornal.com.br/expresso/2019/05/16/Como-as-comunidades-terap%C3%AAuticas-ganham-for%C3%A7a-no-Brasil">reported</a> by news website Nexo, the government estimates total spendings with this model will amount to BRL 149 million in 2019—a 223-percent increase from 2018 levels. Época magazine reports that the government is willing to increase the number of vacancies in these communities from 10,000 to 20,000—at a cost of BRL 297.8 million. For Mr. Garcia, who used to be a director at Senad, this money will probably come from existing systems, such as the center of psychosocial support (Caps), that attends people close to their communities. However, in his view, financing is not the biggest concern related to these communities. “The challenge for them is not to become hospices. These places offer treatment for six to nine months, isolating people, under a religious and full abstinence approach. They do not make social reinsertion easy. There’s the risk that they will become hospices.”

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Natália Scalzaretto

Natália Scalzaretto has worked for companies such as Santander Brasil and Reuters, where she covered news ranging from commodities to technology. Before joining The Brazilian Report, she worked as an editor for Trading News, the information division from the TradersClub investor community.

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