Brazilian Supreme Court to decide in a landmark drug possession case (August 13, 2015)

The Brazilian Supreme Court (STF) is slated to decide in a landmark drug case today that could potentially decriminalize drug possession for personal use. The decision could create a new legal framework for drugs in Brazil, where currently possession is a crime, reports Folha de S. Paulo. The newspaper says that three of the court’s 11 ministers said the tribunal is leaning towards decriminalization though the polemic case might take not be decided in one session.

The Court will discuss the constitutionality of the article that criminalizes the possession of narcotics in the Anti-Drug Law, explains Folha de S. Paulo (English). In Brazil drug use is not a crime, but possession – even small amounts for personal consumption – is, according to O Globo. The court will consider a 2009 case in which a person was caught with three grams of marijuana. The defendant is challenging the constitutionality of the drug law, arguing that it interferes with a person’s right to privacy and individual freedom.

A key issue will then be the decision as to what amounts of drugs distinguish personal use from trafficking. A group of experts coordinated by the Igarapé Institute yesterday released a technical note aiming to establish “objective parameters” to define the difference between personal consumption and intent to sell. The goal is to give more security to law enforcement, removing the possibility for discretionary case-by-case decisions. The signatories include former ministers Jose Gomes (Health) and Paulo Vannuchi (Human Rights), the coordinator of a national research group on crack cocaine use, Francisco Inacio Bastos; and the general public supporter of the State of Rio André Luís Machado de Castro. Citing scientific studies and international experiences, the note suggests three different scenarios in which the sums mentioned ranging from 25g to 100g in the case of marijuana; and of 10g to 15g when it comes cocaine and crack, reports O Globo in a separate piece.

Brazil is facing an unsustainable rate of incarceration driven by the growth of prisoners classified as drug traffickers – up to 27 percent of the total of 608,000 inmates in the penitentiary system as of last year -- explain the Igarapé experts. The drug law, which aims to discriminate between dealers and users is applied in a arbitrary fashion, and black and poor people are more likely to receive harsher penalties, according to Dartiu Xavier da Silveira, a psychiatrist who subscribed to the Igarapé note.

The decision presents an opportunity to rectify the problems caused by a 2006 law, which aimed to distinguish between users and traffickers, establishing lower penalties for the former and harsher for the latter. However, in practice, this has meant a skyrocketing rate of trafficking convictions (339 percent), O Globo argued in an editorial yesterday. Often these convictions are based on small amounts of drugs and on the testimony of a single police officer, notes the editorial. The effect is unfairly focused on poorer strata of society. The piece calls for the court to establish a threshold to separate personal consumption from trafficking.

Folha also has an editorial in the same vein, noting that the case will not represent a paradigm shift in the region, where other countries have already stopped punishing drug users. But the piece urges the Court to establish definitions of the amounts that would characterize a drug consumer from trafficker, thus rectifying the effects of the drug law.

But one judge, Mauro Aurélio Mello said that the decision in this case does not aim to establish the quantities of drugs that distinguish users from traffickers, rather that must depend on judges criteria in a case by case basis, reports O Globo.

Another judge, Luís Roberto Barroso, emphasized the potential impact of the decision on the country’s drug policy. While “first world” countries are more preoccupied with consumers, Brazil must focus on the negative impact of trafficking on poor communities he said. He also voiced concern about the high rate of incarceration for persons convicted of possession of small amounts of illicit drugs, though they don’t represent a danger to society.

A potential alternative to fixed quantities defining the difference would be to establish a technical profile of users, reports Folha de S. Paulo.

Regardless of whether the court establishes parameters to differentiate users from traffickers, Folha’s editorial notes that the decision will also signal a shift in national paradigms. A decision to decriminalize possession would affirm that the State does not have the authority to regulate what a person does in privacy and would lay groundwork for the debate on drug legalization to move forward, argues the piece, which voices frustration with the prohibition and drug war paradigm. “Billions of dollars are spent on repression and hundreds of thousands of people are subjected to incarceration just to more or less maintain the consumption levels.”

News Briefs

• Updates out of Uruguay suggest the long-awaited sale of recreational marijuana will now begin in 2016, a little over two years after the groundbreaking legislation was passed, reports Talking Drugs. Uruguay’s Drug Czar, Milton Romani, spoke last week in Buenos Aires, that unfounded concerns President Tabaré Vázquez would veto legislation legalizing cannabis were simply not true, and that the model for cultivating and dispensing marijuana for recreational use should come into force if not by Christmas 2015, then soon after. The piece reviews a report from last year that outlines some of the concerns of the Uruguayan Association of Chemists and Pharmacists regarding marijuana sales, including the belief that community pharmacies should only provide services and goods that improve health (not recreation). It also suggests that the new policy puts pharmacies at increased risk of violence from illegal drug traffickers seeking to recoup sales.

• In another example of the contrast between Asian drug hardliners and Latin American proponents of changing the drug paradigm (see May 4th’s and May 1st’s posts), Colombia’s Foreign Minister María Ángela Holguín announced that her country’s request to China to not impose the death penalty or life-sentences on Colombians detained on trafficking charges met deaf ears, reports EFE.

• Colombia had a day in which there was no event related to the ongoing armed conflict, political violence or organized crime, according to the Centro de Recursos para el Análisis de Conflictos, which said it was the first time since November of 2012 that this was the case, reports EFE.

• Retired Venezuelan General Raul Baduel was granted parole after he completed six of a nearly 8-year sentence on corruption charges, making, making him the second prominent opposition leader to be freed in little more than 24 hours, reports the Associated Press. The two surprise releases could signal a greater leniency on the part of President Nicolas Maduro's socialist administration, which has come under sharp fire from the U.S. over the imprisonment of some 50 anti-government activists on what human rights groups say are trumped-up charges meant to silence dissent.

• Brazilian President Dilma Rousseff reiterated yesterday that she would not consider quitting despite calls for her impeachment from opponents in Congress as the economy sinks and her popularity hits record lows, reports Reuters. “I would never consider quitting,” Rousseff said. "The coup-mongering culture exists, but there are no conditions for that to happen.”

• The political turmoil roiling Brazil ranks among the worst since democracy was re-established in the 1980’s reports the New York Times. “As the revelations of corruption continue to come out, the country is showing deep signs of shock and outrage, with some of the same political figures accused of wrongdoing trying to use the upheaval to their advantage.” The piece notes that the uncertainty is only heightened by an opposition that seems to be “nearly as adrift” as Rousseff herself. But for other observers, the “political upheaval is a sign that Brazil’s democratic institutions are actually growing stronger, especially in a system long defined by the impunity enjoyed by powerful figures.”

• A Prensa Libre poll shows that the CICIG (International Commission Against Impunity in Guatemala) tops the ranking of Guatemalan’s trusted institutions – with 87 percent of acceptance, followed by evangelical and Catholic churches, with 64 percent. The presidency is at the bottom of the ranking, with 11 percent.

• Ecuador has launched the world’s first national virtual currency – dinero eléctrico. Authorities say the mobile money scheme is a way to offer financial services to those in remote areas where banks are scarce and to help jump-start small businesses. Skeptics, however, fear the system opens up a backdoor for the cash-strapped administration to shed the restrictions of its dollarized economy and, just perhaps, “print” its own digital currency, reports the Miami Herald.

• Bolivia is ready to reestablish ties with the U.S. and exchange ambassadors announced President Evo Morales. He cited improved relations between the U.S. and Cuba and Iran and said the top US diplomat in Bolivia, business attache Peter Brennan, had been informed about the country’s wish to work with him on restoring normal ambassadorial-level ties, reports AFP. The US and Bolivia have not had ambassadors in their respective capitals since 2008 when Morales kicked out the last US ambassador accusing him of allegedly plotting with local conservative opposition seeking to oust him. 

• There is growing anger about the way coverage of the murder of Mexican photojournalist Ruben Espinosa and social activist Nadia Vera has ignored and belittled the other three victims of the massacre – or even implied that some of them were to blame, reports The Guardian. Millions of messages have been posted on social media in an impromptu campaign insisting that women’s lives matter.

• Chile’s Supreme Court on Wednesday ratified a decision to grant probation to a former police officer imprisoned for the 1985 killings of three Communist activists who had their throats slit during the country's military dictatorship, reports the Associated Press.

• U.S. immigration authorities deported 229 Honduran immigrants – most of them men – yesterday, reports EFE.

• U.S. District Court Judge Thomas Griesa sanctioned Argentina yesterday, ruling that he will consider Argentine government assets in the U.S. as commercial property in a long-running dispute over the country’s debt. The decision will make it easier for hedge fund NML Capital and other creditors to try to seize Argentine assets if they decide to go after them, reports theAssociated Press.

• Ecuadorean President Rafael Correa warned that an opposition strike called for today could generate violence, and predicted it would “fail,” reports AFP.

• Police officers from Rio's elite Battalion of Special Police Operations (BOPE) arrested two alleged drug traffickers on Tuesday. Ricardo Chaves de Castro Lima, alias Fu da Mineira, and Cláudio José de Souza Fontarigo, 45, also known as Claudinho, reports Folha de S. Paulo. Castro Lima is considered one of the main leaders of the criminal organization Red Command (CV), while Souza de Fontarigo, his cousin, was thought to be one of Rio's main kidnappers in the 1990s.

• Forever young: Fidel Castro turns 89 today. In an interview yesterday with the Telemundo network, Kerry said he intends to stroll in Havana “meeting whoever I meet and listening to them and having, you know, whatever views come at me,” reports the Los Angeles Times.

• Columbia University’s Graduate School of Journalism announced the 2015 winners of the Maria Moors Cabot Prizes for outstanding reporting on the Americas. They are Lucas Mendes, GloboNews, Brazil; Raúl Peñaranda, Página Siete, Bolivia; Simon Romero, The New York Times, United States; Mark Stevenson, The Associated Press, United States. The Maria Moors Cabot Special Citation is awarded to Ernesto Londoño, The New York Times, United States.