Supreme Court and Congress in tug-of-war over cannabis decriminalization

In Brazil, if a person is caught by the police with a relatively small amount of cannabis, there is no certainty about whether they will be arrested. But several surveys prove that, if the person in question is young, black, and poor, the chances of them going to jail are much higher.

Even though drug possession with intent to sell and possession for personal use are both theoretically crimes, since 2006, Brazilian law states that only drug dealers should go to jail. In these cases, penalties can reach 15 years in prison. Drug users, in turn, are subject to measures such as community service and mandatory educational courses.

The problem herein is that the law does not provide precise criteria to differentiate possession with intent to sell and possession for personal use, leaving this distinction up to the police, prosecutors, and judges. Faced with this normative vacuum, the decisions of a mostly white and wealthy justice system are highly discrepant, reflecting racial and class discrimination in several cases.

A survey by the Brazilian Jurimetrics Association shows that, in São Paulo, people with a university degree are only considered drug dealers if they are caught with at least 49 grams of cannabis on average — while just over 32 grams is enough to put an illiterate person behind bars.

Since 2011, an appeal has been questioning this situation in the Supreme Court, which began evaluating the case in 2015. After years of interruptions, the trial began moving forward again in August 2023 before being delayed on further occasions — the most postponement coming in early March. Each time, a different Supreme Court justice issues a request for more time to analyze the case.

So far, eight of the Supreme Court’s 11 justices have issued their decision on the matter. The score is at five to three in favor not only of saying that there must be objective criteria to differentiate between drug dealers and users, but also to set these criteria and decriminalize cannabis possession. There was some discussion about decriminalizing the possession of all drugs for personal use, but it was agreed that...