New rift at Brazil’s Supreme Court over drug decriminalization

Supreme Court Justice Dias Toffoli on Thursday cast a pivotal vote on the contentious issue of decriminalizing cannabis possession for personal use in Brazil, in a trial that has been dragging on since 2011.

The case originated from the Public Defender’s Office in São Paulo, which argued that a man convicted for possessing 3 grams of cannabis while already incarcerated for other offenses had his right to intimacy and privacy violated, and called for Article 28 of the current drug law to be declared unconstitutional.  

Enacted in 2006, the current legislation on the issue depenalized but did not decriminalize drug possession, imposing fines or community service instead of jail time. However, the law lacks clear criteria for distinguishing between users and dealers, leaving the decision to individual judges.

Legal scholars overwhelmingly agree that this subjective approach often results in decisions tainted by racial and class bias.

The initial votes from the Supreme Court justices resulted in a 5-3 split in favor of declaring Article 28 unconstitutional, just one vote short of decriminalizing cannabis possession for personal use.

However, Justice Dias Toffoli took a different stance. He voted to uphold the constitutionality of Article 28 but argued that drug users cannot be criminally punished.

The Supreme Court had previously formed a majority in favor of establishing objective criteria to distinguish users from dealers, though they remain divided on the specific quantities that would serve as this criteria. With two justices yet to vote, the trial is set to resume next week.

Separately, the Senate approved a bill in April to enshrine an ambiguous distinction between drug users and dealers in Brazil’s Constitution. The bill advanced in a House committee last week, with conservative lawmakers rushing to preempt the Supreme Court’s impending decision.

Justice Toffoli’s vote marks another chapter in the ongoing struggle between predominantly right-wing lawmakers and the Supreme Court over various issues, including parliamentary immunity, firearm regulations, same-sex marriage, social media regulation, and the arrest of Congressman Chiquinho Brazão — who was recently charged for the 2018 murder of Rio de Janeiro City Councilor Marielle Franco and her driver, Anderson Gomes.

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