The vote on the decriminalization of marijuana by the newest minister of the STF (Federal Supreme Court), Cristiano Zanin, nominated by Lula, received applause from the Bolsonarist crowd. It has been rightly said that Brazil is not for beginners.
Zanin voted unhappily against the decriminalization of personal cannabis possession. He thus differed from five of his peers in the STF who have already spoken out. More precisely, he denied that art. 28 of the Drug Law (11.343/2006).
The article stipulates that “anyone who keeps, has in storage, transports or brings drugs for personal consumption without authorization or in disagreement with legal or regulatory determinations will be subject to the following penalties”:
– warning about the effects of drugs;
– provision of services to the community;
– educational measure of attendance at an educational program or course.
Fernanda Mena in good time clarified the usual confusion of terms in this matter. It is one thing to decriminalize (use remains a crime, but without imprisonment); another is to decriminalize it (it ceases to be a crime, but may have administrative sanctions); another, yet, to legalize (consumption permitted, regulated by law).
Article 28 theoretically ruled out the hypothesis of incarceration for possession and personal use. But no: its 2nd paragraph leaves it up to judges to define, in each case, when it comes to individual consumption or trafficking.
In practice, the 2006 amendment was worse than the sonnet. Magistrates began to imprison black and poor users as criminals.
Arrests of alleged drug traffickers exploded, as Mena noted: “In 2005, (…) 14% of prisoners in the Brazilian prison system were accused or convicted of drug trafficking. In June 2022, this percentage was almost 30%” .
A quantitative criterion was lacking to limit the arbitrariness of the judges. Several countries adopt it, with values ranging from 5 grams (Mexico) to 100 grams (Spain).
Zanin is being beaten like a village dog for his decision, in particular from progressives who voted for the PT, some short-sighted to the point of supporting as something republican Lula appointing his personal lawyer to the STF.
It is naive to assume that being on the left excludes embracing conservative guidelines, such as being against abortion and drugs. Or, even, it implies maintaining coherence in the environmental issue and not feeding monsters like Belo Monte, devastating livestock and fossil fuels.
Libertarian supporters of marijuana decriminalization, however, have omitted a significant element of Zanin’s vote: the novice minister proposed that art. 28 now contains, lo and behold, a quantitative limit of 25 grams.
That is to say, it at least indicates a way out of the most pernicious effect of the Drug Law. It mobilizes mistaken reasons against admitting unconstitutionality, in fact, but not because it is in favor of generalized incarceration.
Zanin alleges that eliminating art. 28 as unconstitutional would remove the only objective parameters to differentiate user from dealer. Bad argument, as the quantitative concerns the typification of the crime of trafficking, not the deontological question: is the criminalization of personal drug use reconcilable with the fundamental rights to individual freedom and the inviolability of private life?
To make matters worse, the minister demonstrated ignorance by stating that decriminalization would contribute to worsening health problems related to addiction. Millions of people smoke marijuana legally in 23 US states without medical advice, and there is no evidence of an explosive increase in use, let alone a public health emergency.
This the minister does not want to see. Nor the Bolsonarists who now applaud him.
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