What changes will arise from the Brazilian Supreme Court's ruling on personal marijuana use
The ruling could impact millions of people, especially in overcrowded prisons
Originally published on Global Voices
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In a historic decision in June 2024, Brazil’s Supreme Court (STF), the highest court in the country, approved the decriminalization of marijuana possession for personal use, marking a significant step in national drug policy.
The ruling redefines the legal approach to the consumption of cannabis sativa derivatives by setting clear guidelines to distinguish between trafficking and personal use. Under this new interpretation, possessing small amounts of the substance for personal consumption will no longer be considered a crime, a decision that could potentially impact millions of Brazilians.
According to the new court understanding, possession of up to 40 grams (about 1.4 ounces) or six female plants of marijuana is now considered personal use, separating drug users from drug dealers.
Law 11.343, from 2006, which established the National Drug Policy System and was signed during President Luiz Inácio Lula da Silva‘s first term, had already acknowledged the distinction between users and traffickers or dealers. However, without specific criteria, the decision in each case was left to law enforcement officers or the judiciary. Crimes related to drug trafficking have also led to significant growth in Brazil's prison population.
Gabriella Arima, a lawyer with the Legal Network for Drug Policy Reform (Rede Reforma), explained to Global Voices:
O que era para proteger o usuário teve o efeito contrário. Juízes e delegados decidiam se o sujeito seria enquadrado e processado como usuário ou traficante baseados em elementos subjetivos, como natureza e quantidade da substância em posse, local e condições em que se desenvolveu a ação, e condições sociais e pessoais, como antecedentes criminais. Isso permitia que moralismos e preconceitos pessoais influenciassem as decisões, em vez de critérios científicos e técnicos.
What was meant to protect users had the opposite effect. Judges and police officers decided whether someone would be treated and prosecuted as a user or dealer based on subjective factors, such as the type and amount of the substance, the location and conditions in which the action took place, and personal and social background, including criminal records. This allowed personal biases and moral judgments to influence decisions, instead of scientific and technical criteria.
According to Arima, the new ruling provides more objective guidelines to determine if the substance is for personal use, which she views as a positive change.
A 2015 survey conducted by Fiocruz (Oswaldo Cruz Foundation, one of the main science research centers in Latin America) and the Brazilian Institute of Geography and Statistics (IBGE), released in 2019, revealed that 7.7 percent of the population between 12 and 65 years old had consumed marijuana. However, 2023 data from the Datafolha research institute indicates that 1 in 5 Brazilians reported having used the substance at some point in their lives.
Organizations like NGOs Conectas and Rede Reforma celebrated the decriminalization as a crucial step towards reducing overcrowding in prisons and violence related to drug trafficking, which disproportionately affects Black people and poorer regions.
Still, experts interviewed by Global Voices pointed out that the decision did not address the entire complexity of the issue and highlighted the need to end the so-called war on drugs, a prohibitionist policy seen as ineffective.
Myro Rolim, a social educator working on harm reduction with drug users, director of the Brazilian Multidisciplinary Association for Drug Studies (ABRAMD), and member of the Brazilian Network for Harm Reduction and Human Rights (REDUC), is cautious about the changes on the ground. He says:
The [STF decision] came too late, [for something that] caused permanent damage to Brazil’s social fabric. I see the reality on the streets, where there is a lack of investment in education for autonomy, and prohibition is still the rule.
Protester calls for marijuana legalization in Brazil during a march in São Paulo. Photo: Paulo Pinto/Agência Brasil, used with permission.
Decriminalization vs. Legalization
STF ministers emphasized that the ruling does not legalize marijuana use. In practice, consumption is still illegal, but decriminalizing it means the punishment is administrative, not criminal. This means that if someone is caught with up to 40 grams of marijuana, they could be stopped by the police, but not arrested.
A study by the Institute for Applied Economic Research (Ipea) points out that decriminalizing cannabis could have an impact between 1 percent and 2.4 percent on Brazil’s prison population, potentially saving the system between BRL 262 million and BRL 591 million Brazilian annually (between USD 46.6 million and USD 105 million).
Brazil has one of the largest prison populations globally in absolute numbers, surpassed only by China and the United States. Over 850,000 people are incarcerated, with an estimated quarter of them imprisoned for drug trafficking offenses. About 19,000 are detained for possessing up to 100 grams of marijuana, and more than 8,500 for possessing only 25 grams, according to 2023 and 2024 data.
In Brazil, the punishment for marijuana users was turned into law in 1976. A UOL news outlet story notes that marijuana likely arrived in the country as early as 1549, and was classified as a product “of interest to the colony” for decades before being criminalized in 1830 by the Rio de Janeiro City Chamber, which “punished enslaved people and others” with three days of detention or a lashing. Nationwide prohibition only came in 1938.
Supreme Court President Luís Roberto Barroso highlighted that the new ruling can be applied retroactively when it benefits the defendant, meaning that individuals currently imprisoned for possessing small amounts of marijuana could request a review of their sentences.
In August, a ruling by the Superior Court of Justice (STJ) applied the new precedent and acquitted a person imprisoned for possessing 23 grams of marijuana.
Protester holds sign: ‘Marijuana is a matter of health’. Photo: Fernando Frazão/Agência Brasil, used with permission.
Drug education
Even after the STF decision, experts say that Brazil still lacks comprehensive education about psychoactive substances.
While this decision certainly marks progress, they say Brazil still needs to regulate the production and distribution of cannabis, create support programs for users, and develop educational initiatives that are not based on stigma. Rolim says:
É inerente à sociedade o desejo de experimentar com a mente, mas é essencial educar sobre quem pode não estar apto para isso, os riscos envolvidos, as melhores formas de consumo e onde buscar assistência. A educação sobre o uso de drogas não deve ser direcionada apenas aos jovens, mas deve abranger toda a sociedade, incluindo profissionais de segurança, comunidades e trabalhadores da saúde.
The desire to experiment with the mind is innate to society, but it’s essential to educate about who may not be suited for it, the risks involved, the best ways to consume, and where to seek help. Education on drug use should not be aimed only at young people but should cover all of society, including law enforcement, communities, and healthcare workers.
Recent changes in drug policies in countries like Uruguay challenge prohibition-based approaches. Some countries, such as Portugal, promote alternatives focused on public health and human rights, while others, like Australia, experiment with the therapeutic use of classic psychedelics.
“There’s a conservative narrative that says marijuana is a gateway drug. I believe that the discussion about marijuana use has, in fact, been the gateway to a better understanding of the use of psychoactive substances for individual and collective health and well-being,” says Gabriella Arima.
Recent research indicates that psychedelics can be effective in treating conditions such as depression, post-traumatic stress disorder (PTSD), generalized anxiety, and substance dependence.
With authorization from the Brazilian health regulatory agency (Anvisa), Brazil has since 2014 allowed the import of CBD-based medicines extracted from the cannabis plant to treat conditions like seizures, although these treatments are still costly and inaccessible for most people.
In December 2019, the country took a further step by authorizing, also through Anvisa, the production and importation of cannabis-based products for medicinal use, setting guidelines for marketing, prescribing, distribution, monitoring, and supervision, which made it easier to find these medicines in pharmacies.