The Ministry of Justice took the lead. It called for, backed and announced the results of research that show that there are too many people behind bars in Brazil for drug trafficking. That Brazil's Ministry of Justice would subsequently recommended a review of drug legislation in light of the data and in support of human rights, would seem to indicate that things are changing, or at least that change is in the air for drug policy in the nation.
New data on the relation between the drug trade and Brazilian law was presented the 5th of August at a meeting in Viva Rio, from a study entitled “Tráfico e Constituição, um estudo sobre a atuação da Justiça Criminal do Rio de Janeiro e do Distrito Federal no crime de drogas” or (The drug trade and the Constitution, a study of the Rio de Janeiro and Federal District Criminal Justice). The study was a joint project of the Federal University of Rio de Janeiro, UFRJ, and the University of Brasília UnB that ran from March 2008 and July 2009, supported by the United Nations Development Program, UNDP.
There are approximately 70 thousand people incarcerated in Brazil for drug trafficking, the second largest contingent behind bars in the nation's corrections system, second only to aggravated robbery that put 79 thousand people in prison. Most of these traffickers are first time offenders, most were arrested when alone in possession of small quantities of drugs, and have no ties to organized crime. Nevertheless, they are sentenced to imprisonment and swell the numbers of detainees in a system already overcrowded.
The study has become an important marker in the nation's drug policy scenario as the war on drugs, a paradigm of repression sustained by the United Nations when it called in1988 for the global eradication of drugs in 10 years, begins to suffer setbacks. A number of studies have since pointed to what has been called the failure of the project to eradicate drugs, and new approaches have emerged to face the drug challenge, among them decriminalization of drug use, legalization and an emphasis on harm reduction.
Luciana Boiteux (right), UFRJ and UnB study coordinator and a member of the Deparment of Law at the UFRJ, believes there is a need for solutions in drug policy that are more realistic, more humane and less based on penal justice. “When we think of controlling drugs we think it is done through the penal system – repression, police and courts of law,” said Boiteux. In her view however, the penal system is “inhuman, irrational and inefficient”, in her view alternative sentencing would be appropriate for petty drug traffickers.
Boiteux calls for a revision of drug policy to stem the growing prison population swollen with drug offenders. In her view the 2006 law that drops prison sentencing for drug users in Brazil does not provide objective means to distinguish between users or traffickers, neither between petty, average and large scale drug traffickers. Another weak point in the 2006 law, according to Boiteaux, is that of categorizing trafficking as a crime hediondo (or 'heinous' crime, a category that includes murder, rape, terrorism and torture, among other offenses).
Still according to Boiteaux, most of those incarcerated for drug trafficking are offenders caught selling small quantities of drugs, among them drug users who sell drugs to finance their drug habits.
In Brazil “judges believe they are determining how offenders are entering the justice system, but this is really done firstly by the police. Judges tend to accept the choice made by police officers, (whether for example, an offender is charged with drug use or trafficking) and that determines whether a case goes to special courts or to the criminal system,” said Boiteaux. According to Boiteaux, Brazil's drug policy could be described as a “moderate prohibitionism”.
The study covered 750 cases processed between October 7th 2006 and 31st of May 2008. 66.4% of those sentenced for drug trafficking in Rio de Janeiro were first time offenders, 91.9% were caught red handed, 60.8% were alone when arrested, and 65.4% were not sentenced for racketeering. A mere 15% were sentenced for trafficking and racketeering. “In Rio, police arrests on drug charges are circumstantial, they are not based on investigation. The justice system is processing drug offenders as isolated individuals,” said Boiteaux.
Drug policy, in her view ought to be more humanistic with an emphasis on harm reduction, health care and prevention. “We need to understand each drug specifically. Penal law should be a last resort. It is a public health issue,” said Boiteux.
Pedro Abramovay, Secretary for Legal Affairs of the Ministry of Justice highlighted the importance of having an open debate that includes civil society. “The topic is steeped in prejudices, it has become ideological in the worst sense of the word. It is irrational that dangerous substances are legal while other less dangerous drugs are illegal. When the topic is treated irrationally it takes away from democracy, it becomes an impediment to making up one's mind or the minds of others,” said Abramovay. In his view the notion of a world free of drugs is doomed to failure.
Abramovay further stated that the Ministry of Justice has entered into technical cooperation with the UNDP through the Pensando Direito project (that translates roughly as Thinking the Law) to foster research into making laws that work. “The Ministry of Justice wants debate on drug police to leave the sphere of prejudices and enter into a field of debate and democracy, so that society can make real choices instead of being tied up by taboos, so that we may develop rational public policy,” said Abramovay.
Rubem Cesar Fernandes, Executive Director of the civil society organization Viva Rio said that repressive drug policy has been inept and responsible for unexpected secondary effects such as the strenghening of organized crime.
"Drug cartels went through a morphological transformation," said Fernandes, "they became decentralized, grew through small criminal networks and in the manner of metastasis spread to countries that had no prior experience with the problem, such as Argentina." Fernandes believes that the time has come for the search for alternative solutions to what he describes as a 'schizoid situation' in the nation, where a measure of freedom for drug use coexists with repression on drug production.
Congressman Paulo Teixieira (PT-SP) said the study brings home important points for discussion among the general public as well as data for new legislation. For Teixeira, there are three key points: the crime of trafficking must be changed to allow for alternative sentencing, (taking into account attenuating factors such as whether it is a first offense, type of drug being used, and aggravating factors such as use of a gun); investments must be made in harm reduction, (such as drug substitution to break connections with traffickers), and drugs should be treated according to their specificities, distinguishing, for example, cannabis from other drugs.
Psycologist Luiz Paulo Guanabara, Executive Director of the NGO Psicotropicus, called for the end of the war on drugs, and further pointed out that the National Anti-Drugs Office (Senad) currently headed by a general from the armed forces, ought to be emancipated from the area of National Security. “If the goal were to have a peaceful society, the Senad would be headed by a civilian, a person with a humanistic perspective that would make it possible to correct the error of criminalizing certain drugs”, said Guanabara.
The President of the Drug Policy Alliance, from the United States, Ethan Nadelmann (right), said that anti-drug laws are recent constructs, based not on justice but on lack of information and prejudices.
In Nadelmann's view, Brazil is among the leaders for global change on drug policy. He stated that Europe already sees drug policy as a public health issue and that there are similar trends in the United States, despite its traditional prohibitionist stance. He pointed out that in California users may buy cannabis legally in coffee shops.