Brazil's New Drug Law
The First Step Toward Decriminalizing the User and Ending Prison Overpopulation
By Karine Mueller
Special to The Narco News Bulletin
March 17, 2004
“For every crime, a sentence. For every sentence, a motive, a story of tears. Blood, lives, and glories, abandonment, misery, hate, suffering, contempt, disillusion, the passage of time. Mix this chemical well. Soon: you are a new prisoner… To the State you are just a number, or nothing. Pavilion 9, seven thousand men: Each one costs a hundred dollars a month.”
– Diary of a Prisoner
The text above refers to a song played by Racionais MCs, a Brazilian rap group. The lyric is a portrait of the reality of the prisoners in the overpopulated Carandiru House of Detention, closed in 2002, ten years after a massacre in that penitentiary’s “Pavilion 9,” that left 111 dead. Overpopulation has been the biggest problem of the national prison system. Census data published by the National Penitentiary Department (DEPEN, in its Portuguese initials) reveal that, in 1995, Brazil had 95.5 prisoners for every 100,000 citizens. Today it has 173.5 per 100,000: an increase in eight years of 81.7 percent. Eight years ago there were 148,000 prisoners. Today there are 300,000, fighting for space inside 1,430 prisons and local jails.
Behind these numbers there is a wrongheaded policy of combating criminals that gambles on tougher penalties as a tool to guarantee our safety. The number of prisoners released from chains is even larger than those that the criminal justice system is able to catch. The great majority, 98 percent, of the prisoners come from the ranks of the poor: 38 percent are under 25, and 67 percent didn’t complete eighth grade. Yet those who have money to pay a lawyer are not in prison and, often, go totally free.
It is estimated that among all the prisoners in the country, close to 12.5 percent were arrested with a small quantity of drugs (amounts within the volume of personal use) and are imprisoned by Law # 6368 of 1976 – defining drug trafficking – of Article 12, paragraph 2, section 3, of the criminal code, that treats the use of drugs as equal to trafficking them, with a penalty of three-to-fifteen years. That is to say, they were victims of the last, ambiguous, law passed that makes no distinction between the drug dealer and the addict.
A Light at the End of the Tunnel
The problem that has reached crisis proportions inside the prisons is also a problem of law. Poorly elaborated and applied, they put a “chicken thief” in the same cell as a murderer. The drug user is a trafficker. As a solution to repair this confusion, on March 11th the Brazilian Senate approved Law # 7134. It legislates the end of prison sentences for drug users and addicts. The new law also does away with the need to arrest someone caught with drugs and bringing them to the police station. He will simply receive a citation to present himself to a probation officer. If that is not possible, the violator will be called into court. The penalty ranges from a verbal warning to working in community service. Prison for the user will only be sentenced in cases in which the accused refuses to obey the lesser sentence assigned by the judge.
The legislation is supported by the presidential administration, but it is still subject to changes in the Senate before being approved. By distinguishing between the user and the dealer, it is hoped that drug use will now be treated as a public health concern and only trafficking will be a police matter.
In Practice, What Will Law # 7134 Change?
The new law will ensure that fewer people will be imprisoned for drug abuse, and a bigger budget for public health programs that combat violence. Within a year, the Brazilian government will spend 1,500 to 3,000 reais ($500 to $1,000 dollars) per prisoner to combat drug use inside the prison system. We still don’t know, definitively, whether the implementation of Law # 7,134 will bring the possibility that current prisoners can be released through habeas corpus motions. It is also possible, but not yet clear, that they will have a chance to appeal their sentences. There are 37,500 people, imprisoned under those circumstances, hoping for a chance to enter society again. At very least this change in the laws offers to save the lives of those 37,500 human beings, who are often subjected to prejudice and social exclusion, under the inhuman and precarious conditions in which the prisoners of this country live.
The new law prevents prison for the user but ends up requiring obligatory “drug treatment” for the addict. When he feels it necessary, a judge can suggest treatment that government health services will have to offer for free. The law also increases penalties for drug dealers, with sentences of five to fifteen years in prison, without parole. The judge will make the decision of who is a dealer and who is an addict. During the debate over the legislation, Congressman Paulo Pimenta said, “someone who is arrested with five joints of marijuana in front of his house should be treated differently than someone who is found with the same amount inside a school.” In the case of money launderers and financiers of drug trafficking, the new sentence will be from 8 to 20 years in prison.
The Congressmen Who Disagree with the Law
In spite of this advance in Brazilian law there are those who insist that the “War on Drugs” should continue making users into criminals. Congressman Alberto Fraga, of Congress’ Public Safety Committee, criticized the bill to the media, saying that only by arresting the consumer can the police find the dealer. He still confuses decriminalization with legalization, saying that the new law, “practically legalizes drugs.”
During the passage of the new law, Congressman Walter Rubinelli, representing the losers of the debate in the House, shouted: “This is a special day for drug dealers!” And Congressman Morani Torgan, who chairs the Congressional Investigation Committee (CPI, in its Portuguese initials), went even farther. Beyond his statements to the press, this legislator pledged that the bill will be amended.
Torgan, taking advantage of the fact that there is no firm deadline for changing the text of the law, vowed that by the time he gets done with it the law will be a “dead letter act,” or ineffective in its goals. (Note: only the Senate, now, can amend the wording of the law, and Torgan is a member of the House.)
A Wise Attitude
In spite of the bad vibes, the national Attorney General, Márcio Thomaz Bastos, who has always supported drug decriminalization, praised the passage of Law #7,134. The Attorney General is convinced that the bill is “an advance for the effective combat against narco-trafficking and drug use in the country.” He described the new law as wise, saying that the drug user shouldn’t suffer in prison any more.
The current Brazilian drug czar, General Paulo Roberto Uchôa, was present during the debate and said that the important thing about the bill is that it “distinguishes between addicts and dealers.”
What the Experts Say
In Brazil, changing laws is not so easy. It always generates a lot of argument and wrongheaded opinions. The new law is not the ideal solution to drug use. Expressions like “addict,” and “anti-drugs,” and “alternative sentencing,” and “criminal,” still dominate this debate. But the fact remains, convincingly: This is the first step ever made toward decriminalizing the drug user.
Judge Walter Maierovitch (retired), expert in drug policy, views Law # 7,134 as a “decriminalization of the user, but it could have gone much farther.” He says that “it would have been possible to enter modernity, like Portugal has done, where drug use is not even a crime anymore.” Maierovitch was Brazil’s first “drug czar” during the administration of former president Fernando Henrique Cardoso. His opinion is that the new law continues to stigmatize the user.
Health professionals also defend treatment as an alternative to prison. According to the government’s new policy of Harm Reduction, the addict is not a criminal and he needs help. Although the new law eliminates prison as a punishment, psychologist Sandra Batista, the president of the Latin American Harm Reduction Network (RELARD, in its Spanish initials) is not pleased with the new law. In her opinion, alternative sentencing still treats the drug user like a criminal.
“Drug use should not be a crime,” says the national Public Safety czar of the administration of Brazilian President Lula de la Silva. He is an anthropologist and former Public Safety Commissioner of Rio de Janeiro. His name is Luiz Eduardo Soares. To Soares, the debate should be brought into the public realm and cease to be a matter that only concerns the government.
The passage of this law remains a hook that by raising the flag on behalf of the Brazilian people, especially those who cannot afford a lawyer, especially the 37,500 unjustly imprisoned for possessing small amounts of drugs, is the latest step. The next task is to force the Congress, the judges, and the other relevant officials, to make sure that Law # 7,134 will be applied in a just and democratic manner: In sum, that it establish a balance between crime and punishment.
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