New Drug Law Project: Echoes from the Dictatorship

New Drug Law Project: Echoes from the Dictatorship

Luiz Paulo Guanabara
Updated, edited, and revised version of "New Drug Law: limited advances" A Pointless War: Drugs and Violence in Brazil, Drugs & Conflict 11, Transnational Institute, November 2004

Abstract

Drug consumption in Brazil is concentrated on two illegal plants: cannabis and coca. All products derived from these two plants are also prohibited. As in the rest of the world, a taboo around illicit drugs prevails, and diverse psychoactive substances are lumped together in this category. In the 70s, when the use of these products in Brazil became more visible, 'drugs' meant cannabis, cocaine, opiates, hallucinogens, and some pharmaceuticals, like amphetamine. Following the beginning of the dictatorship in 1964, the Narcotics Law (6368) was passed in 1976. It substituted the previous legislation, which was less repressive.

This law served international interests on the subject, mainly those of the United States. When a US congressional committee came to Latin America to discuss the "drug problem" with local authorities in 1973, they set up a working group divided into four areas: prevention, treatment, rehabilitation, and control and repression. The Narcotics Law is divided exactly along these same lines, based on the ideas of this commission, and developed during an exceptional political state, a military dictatorship.

With the new law in effect, police seizures began to increase, and so did supply and demand. As the criterion for making certain drugs illegal under Brazilian law is their capacity for causing dependence, in the end the only difference between legal and illegal drugs is that the latter are illegal.

On 11 March 2004, Congress approved Law Project 7134/02, which is now going through the Senate, where it will probably pass without major modifications. It's the same old law with a new makeup. As it does not go far enough in addressing legalization of production and sales of drugs, and users decriminalization, after its final approval, Brazil will continue to struggle with increases in violence generated by trafficking, and users will remain the favorite targets of corrupt police.

Introduction

Any discussion of drug policy in Brazil must begin with a definition of the drugs under discussion. As in the rest of the world, here there is a taboo around illicit drugs, and diverse psychoactive substances tend to be lumped together in this category. One of the dogmas in this line of thinking is that all these drugs are harmful to health in the same way. No benefits can be derived from them. And usually people are not aware that the plants from which the raw material for these drugs are taken are also prohibited. In the 70s, when the phenomenon of the use of these products in Brazil became more visible, 'drugs' meant cannabis, cocaine, opiates, hallucinogens, and some pharmaceutical substances, such as amphetamines.

Following the beginning of the dictatorship in 1964, the Narcotics Law (6.368/76) was passed in 1976. It substituted the previous legislation, which was less repressive. In Article 12, this law established a minimum of three years in prison and a maximum of 15 years for those found guilty of drug trafficking. Article 16 set a sentence of six months to two years in prison for users of illegal drugs caught with or using the drugs. The law served international interests on this subject, mainly those of the United States. When a US congressional committee came to Latin America to discuss the drug problem with local authorities in 1973, they set up a working group divided into four areas: prevention, treatment, rehabilitation, and control and repression. The Narcotics Law is divided exactly along these same lines, based on the ideas of this commission, and developed during an exceptional political state, in the middle of a military dictatorship.

While the state's repressive forces persecuted leftist subversives, the police persecuted a new gamut of drug criminals, defined in the 1976 Narcotics Law.

With the new law in effect, police seizures of drugs began to increase, and at the same time, so did supply and demand. But what drugs were these? We should not forget that the criterion for making certain drugs illegal under Brazilian law is their capacity for causing dependence. In the end, the only difference between legal and illegal drugs is that the latter are illegal. After all, the biggest public health problems associated with drug use in the country are related to alcoholic beverages and cigarettes. All drug laws that do not take this into consideration tend to be unrealistic.

Two Plants

We can affirm that drug consumption in Brazil is concentrated on two illegal plants: cannabis and coca. All products derived from these two plants end up being indirectly prohibited, including coca tea, clothes made from hemp, and medicines from cannabinoids. Discrimination, irrationality, and a lack of economic vision keep the country from using hemp for industrial uses. In relation to the medicinal use of cannabis, we can say that the lack of resources in Brazil is more a political and ideological question than a scientific one; many countries in the world use cannabinoids for therapeutic ends, even the United States.

When the user goes to buy 'drugs' in the streets and favelas (urban shantytowns) of Brazil today, what he or she will find for sale is mainly marijuana and cocaine. In cities other than Rio de Janeiro, they are also likely to find that crack is available, but this substance is also a sub-product of coca. Crack is not sold in Rio because of a decision by those who control local drug sales, who do not want their workers using it. This information comes from outreach workers and drug users.

Synthetic drugs are consumed by a small group, in general middle and upper classes. The economic dynamic of supply of these products is different from that in the poor regions and communities: its sellers are also from middle and upper classes and, usually they are part of groups and urban tribes that go to raves and shows. There is little or no demand for heroin, and only occasionally does one hear of small seizures of this drug. And when some heroin seizure reaches the media, it generates news and articles that only serve to cause social unrest and terrorize the population. Same way they do with news related to any other illicit drug.

The fact that drug trafficking-related violence in Brazil is associated with the sale of two drugs leads us to conclude that a division of this market would imply a major weakening of the traffickers' power. If the country adopted a tolerant system like that in The Netherlands, wherein cannabis consumption is regulated, there would be just one illegal substance left in the hands of criminals: cocaine (and derivatives like crack). With this, we would also correct a distortion - the lack of differentiation between soft and hard drugs. We cannot forget that many drugs that are illegal today were perfectly legal in the past: until 1938, for example, cocaine could be sold in pharmacies. The authorities, however, still lack the vision and political will to try new ways of dealing with the 'drug problem'.

The New Drug Law Project

The bill to update the Narcotics Law was under discussion in Congress for more than ten years before it became the Anti-drugs Law (10.409), passed on 11 January 2002 by then-President Fernando Henrique Cardoso. When the President approved the law, he vetoed, totally or partially, 33 of its 59 articles - making it necessary to create a whole new law. On 20 January, nine days later, the government sent a bill to Congress proposing changes to the Anti-Drugs Law, the Law Project 7.134/02.

The objective of the new project is to strengthen measures against drug trafficking, that is, the emphasis continues to be repression - to where most of the drug resources will continue to go: to the demoralized, failed "crusade against drugs" and its quixotic juridical-police apparatus. The document maintains the current prohibitionist policy and provides measures so it can be iron handed enforced with parliamentary and judiciary support. In fact nothing really changes. The dictatorial, fascist essence is the same. As the current drug law, the new project does not make a clear distinction between drug user and dealer, and many pseudo-dealers will continue to be unjustly sentenced and sent to jail.

The minimum penalty for drug trafficking would go from three to five years in prison, a punishment that could become much harsher when adding related drug crimes penalties as defined in the new project. On the other hand, the bill proposes a differentiated system of treatment for drug consumers. They would no longer be sent to prison, but would instead be obliged to undergo educational measures and serve alternative sentences - such as community service or paying fines. However this procedure is already effective because the crime defined by Article 16 of the Narcotics Law is a misdemeanor, as established by the Law 10.259/01. It allows the so-called "transaction" predicted in the Law 9.099/95 - law of special criminal courts - in which confinement punishments are not applicable. As it already happens today, the violation would not result in a criminal record for the user, after the alternative sentence established in the "transaction" is served. So nothing changes here, users will not be sent to prison: the punishment for their crime is already ruled by other laws.

If a person is caught in possession of one or more of the drugs classified as illegal, the police officer will immediately communicate this to the competent judge and to the public prosecutor (Ministério Público). If this is not possible, the person will have to sign a contract that says he or she will appear in court at a future date. If lucky, the user may only get a warning from the judge in the court. The accused could go to prison, however, if he or she refuses to complete the alternative sentence as ordered by the judge. In this sense, prison sentences have not been eliminated completely, contrary to media announcements.

Nevertheless, the relationship between the user and the arresting police officer remains unclear. The person must still be brought to the police station to sign the contract, after which he or she should be set free. If the consumer has to deal with the police, however, corruption is likely to occur: the police often extort money in return for the immediate release of the detained individual so that he or she does not have to go to court, and family members or colleagues need not be informed that they were arrested for drug possession. Or, worst of all, what could become a real nightmare, the detained individual bribes the police so he or she does not have to sign Article 12 and be sent to jail right away as drug dealer without bail because the police has considered the quantity in his or her possession intended for sale. As said before, the difference between possession and commerce is much uncertain. Many in jail right now for drug trafficking are in fact users or drug dependents. This lack of distinction gap gives the police broad margin of maneuver to make money.

One of the crucial points in this bill - as in the current Narcotics Law - is this weak dividing line between user and trafficker. A trafficker is defined as someone who "imports, exports, hands over, prepares, produces, manufactures, acquires, sells, makes available for sale, offers, holds in deposit, transports, carries, keeps, prescribes, administers, provides for consumption, even if free of charge, without authorisation or in disagreement with the law, a product that is capable of causing physical or psychic dependencies". By including the expression "even if free of charge", the text practically eliminates the difference between users and traffickers, since drug consumption in Brazil is an activity that specially happens in groups - as with people who get together to drink alcohol.

It is worth considering the following question: how the judge determine whether the illegal substance was for personal consumption or for sale? The law does not establish quantities that differentiate consumption and trafficking. Other variables will be considered, such as the place and circumstances in which the arrest occurred, the social conditions of the person arrested, his or her personality and conduct, and whether or not they have a criminal record. Needless to say, these criteria can be very subjective. We believe this means that the outcome of drug law infractions in Brazil will reflect the same problem as the criminal justice system in general: in practice, only poor people go to prison - and mostly black people.

The text of the law project also says that the consumer must undergo compulsory treatment. This has the effect of mixing justice with therapy and does not distinguish users from those who are dependent on drugs. Debates focusing this issue have shown that the measure is ineffective insofar as drug addicts almost never benefit from forced treatment. The further drug users are kept away from the current justice system today, the better for them and for their families - and for society as a whole.

Some Historic Background of the Project

This new bill, under debate in congress since May 2002, was taken off the congressional agenda in April 2003. At that time, it received a negative report from the Ministry of Health, which said parts of it conflicted with government policies on alcohol and other drugs - such as upholding the illegality of drug consumption and impeding the use of illicit substances in therapeutic environments.

The Education and Justice Ministries, the National Human Rights Secretariat, and the National Anti-Drugs Secretariat introduced minor modifications in the original project that did not affect its imminently repressive character. Moreover, these organs opposed themselves to the questions raised by the Health Ministry.

In February 2004, Congressman Aloysio Nunes Ferreira (PSDB-SP) affirmed in a speech before Congress that daring steps were needed before he would consider the bill an adequate response to the phenomenon of drug consumption in the country: "I am of the opinion that simple drug consumption should not be treated under criminal law." He summarized the position of many professionals working on these issues, saying: "Repressive responses to consumption are a by-product of the strategy inspired by the criminal policies of the United States in the world. But the statistics on this problem show that, in recent decades, there has been an increase in drug consumption and in the power of traffickers, with all the consequences this entails, including police corruption. For these reasons, I am in favour of decriminalising drug use."

On 11 March 2004, Congress approved the Law Project 7.134/02, which at the time of writing is moving in the Senate, where it will probably pass without major modifications. Congressman Paulo Pimenta (PT-RS), who presented the bill before Congress, said "the good thing about this bill is the elimination of the possibility that users and addicts will be sent to prison". He made clear, however, that the user is not being decriminalised because "Brazil has signed international conventions that prohibit the elimination of this crime". Pimenta explained that the new document only modifies the types of sentences that can be applied to the user, so that prison sentences are not the main form of punishment. "In order to prevent the guilty party from getting out of the sentences established in the bill, we hereby establish the possibility of condemning the user under articles 330 of the criminal code in effect." In other words, if the user does not comply with alternative sentencing, new penal measures will apply, including prison sentences, as already mentioned above.

Although one member of Congress went so far as to say that this pseudo-decriminalisation of users was "practically making drugs legal", the new project is not very different from the military dictatorship-era Narcotics Law: the make-up has been touched up, but the emphasis on the justice system and police as the main way to deal with the criminalised plants and substances remains unaltered. On 21 February 2004 in the Opinion Session in the Rio daily O Globo, Rogério Rocco - a drug reform activist - stated: "The legislative branch has a few curious virtues, and one of these is to guarantee major changes in legal texts that, in fact, don't really change anything."

International Conventions

With regard to the question of whether Brazil has autonomy to decriminalise the user, it is true that the country has signed the United Nations' drug control conventions. One of the fundamental principles of the Brazilian Constitution, however, is respect for privacy, for individual freedom - a social sphere in which the state should not intervene. Punishment for drug users goes against a guiding principle of our criminal law system by punishing acts that do not effectively jeopardize someone else's judicial good, acts that belong to the private sphere. They are the so-called "crimes without victims", such as self-inflicted wounds, prostitution, and suicide, crimes that in general are not punished under criminal legislation in the world. Summing up, criminalising or penalising drug users is an affront to the Brazilian Constitution.

The International Treaties and Conventions signed by a State have to be enforced unless the signatory State revokes its previous commitment. In the case of illicit drugs for personal use, the Vienna Convention directly exempts the constitutional principles and basic concepts of the juridical system of each party. Thus, based on that exemption, Brazil could go ahead and decriminalize drug use without having to denounce the Convention.

Unfortunately, the new Drug Law Project is not founded on respect for human rights and civil liberties and supports vigilance over illicit drug users - that will be punished in one way or another if arrested for drug possession. That is, the authoritarianism and intolerance found in the current Narcotics Law continue to give support to the new project.

As Rocco also says in his article mentioned above, "As the bill does not go far enough in treating the legalisation of production and sales of drugs, after the final approval of this bill, Brazil will continue to struggle with increases in violence generated by trafficking, and users will remain the favorite targets of corrupt police."