RIO DE JANEIRO — Brazil’s Supreme Court on Tuesday moved toward decriminalizing possession of marijuana for personal use, which would make Brazil one of the last countries in Latin America to do so and could reduce its massive prison population.
José Antonio Dias Toffoli said Tuesday that he is in favor of decriminalization, joining five other justices who voted that way since deliberations began in 2015. That establishes a majority on the 11-person court. The last two justices to vote must do so before the ruling is final, and they were expected to do so soon.
The justices must also determine the maximum quantity of marijuana that would be characterized as being for personal use and when the ruling will enter into effect. How long it will take them to do so remains unclear.
Justice Rosa Weber said in August that consideration of more than 7,700 similar cases before lower courts had been suspended in anticipation of a Supreme Court decision.
In casting his vote last Thursday over the course of hours, Toffoli portrayed his position as a middle ground between supporting and opposing decriminalization. At the start of Tuesday’s session, he clarified that his vote should be interpreted as being in favor.
“There are already six votes, including mine, for decriminalization. But I cannot avoid making this alert: This does not solve the problem” of drug trafficking, he said.
All the justices who have voted in favor said decriminalization should be restricted to possession of marijuana in amounts suitable for personal use. Selling drugs will remain illegal.
In 2006, Brazil’s Congress approved a law that sought to punish individuals caught carrying small amounts of drugs, including marijuana, with alternative penalties such as community service. Experts say the law was too vague and didn’t establish a specific quantity to help law enforcement and judges differentiate personal use from drug trafficking.
Police continued to arrest people carrying small quantities of drugs on trafficking charges and Brazil’s prison population continued to swell.
“The majority of pre-trial detainees and those convicted of drug trafficking in Brazil are first-time offenders, who carried small amounts of illicit substance with them, caught in routine police operations, unarmed and with no evidence of any relationship with organized crime,” said Ilona Szabó, president of Igarapé Institute, a think tank focusing on public security.
Congress has responded to the top court’s ongoing deliberations by separately advancing a proposal to tighten drug legislation, which would complicate the legal picture surrounding marijuana possession.
In April, the Senate approved a constitutional amendment criminalizing possession of any quantity of illicit substance. The lower house’s constitutional committee approved the proposal on June 12, and it will need to pass through at least one other committee before going to a floor vote.
If lawmakers pass such a measure, the legislation would take precedence over the top court’s ruling but still could be challenged on constitutional grounds.
Last year, a Brazilian court authorized some patients to grow cannabis for medical treatment after the health regulator in 2019 approved guidelines for the sale of medicinal products derived from cannabis. But Brazil is one of a few countries in Latin America that hasn’t decriminalized the possession of small quantities of drugs for personal consumption.
The Supreme Court’s ruling has long been sought by activists and legal scholars in a country where the prison population has become the third largest in the world. Critics of current legislation say users caught with even small amounts of drugs are regularly convicted on trafficking charges and locked up in overcrowded jails, where they are forced to join prison gangs.
“Today, trafficking is the main vector for imprisonment in Brazil,” said Cristiano Maronna, director of JUSTA, a civil society group focusing on the justice system.
Brazil ranks behind U.S. and China in countries with the highest prison populations, according to the World Prison Brief, a database tracking such figures.
Some 852,000 individuals were deprived of liberty in Brazil as of December 2023, according to official data. Of those, nearly 25% were arrested for possession of drugs or trafficking. Brazilian jails are overcrowded, and Black citizens are disproportionately represented, accounting for more than two-thirds of the prison population.
A recent study by Insper, a Brazilian research and education institute, determined that Black individuals found by police with drugs were slightly more likely to be indicted as traffickers than white people. The authors analyzed over 3.5 million records from Sao Paulo’s public security secretariat from 2010 to 2020.
As in other countries in the region, like Argentina, Colombia and Mexico, medicinal use of cannabis in Brazil is allowed, though in a highly restricted manner.
Uruguay has fully legalized the use of marijuana, and in some U.S. states recreational use for adults is legal. In Colombia, possession has been decriminalized for a decade, but a law to regulate the recreational use of marijuana so that it can be sold legally failed to pass in the Senate in August. Colombians can carry small amounts of marijuana, but selling it for recreational purposes is not legal.
The same goes for Ecuador and Peru. Both distribution and possession remain illegal in Venezuela.
Argentina’s Supreme Court ruled in 2009 it was unconstitutional to penalize an adult for consuming marijuana if it didn’t harm others. But the law has not been changed and users are still arrested, although most cases are thrown out by judges.
Uruguay became the first country to legalize marijuana for recreational use in 2013 although it was only implemented in 2017. Uruguay’s whole industry, from production to distribution, is under state control and registered users can buy up to 40 grams of marijuana per month through pharmacies.
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Sá Pessoa reported from Sao Paulo. Associated Press journalists Daniel Politi, Regina Garcia Cano and Manuel Rueda contributed to this report.