The Narco News Bulletin

After Two Years, Where are the Changes in Brazil?

The Slow Pace of Drug Policy Reform Under the Lula Administration

By Natalia Viana
Special to The Narco News Bulletin

March 4, 2005
This report appears on the internet at http://www.narconews.com/Issue36/article1217.html

Sao Paulo native Tomás Vieira, 25, celebrated one year out of prison in January. A civil engineer who studied at the University of Sao Paulo, one of the country's best, Tomás was locked up for a habit that he has had for more than five years. No, he is not a criminal. He is a marijuana user.

On a Friday night, October 10, 2003, the police picked up Tómas as he returned to his house. He had with him one hundred grams of marijuana, and was getting ready to smoke a joint and relax after a week of hard work. When taken to the police station, he tried to explain that the drug was for personal consumption, but the police commissioner didn't listen.

"I was in a cell with thirty other prisoners. I had no bed, blanket, sheets, or mattress, my family had to bring me anything like that. I had no latrine, toilet paper, toothbrush, none of those things."

Tomás could not shut his eyes for a week. Without a bed in the thirty-person cell, he had to sleep on the little free floor space he could find. He had to share the blanket his family brought him with another prisoner who didn't have one. He did it out of fear - fear that the other prisoners would discover he was just a middle-class stoner. "I was afraid they would rob me, or stab me, if I closed my eyes. I was very afraid of getting sick, because there was no type of hygiene; there were rats and cockroaches. The food wasn't good; I was drinking the yellowish water that dripped down the walls. And since there wasn't medical care, if you got sick it was very difficult."

According to laws enacted in 1990, drug trafficking is a crime with no bail. Anyone accused of being a dealer, as Tómas was, must remain in prison until the trial, which in Brazil can be at least three months. "I saw brutal things. I saw beatings; I heard a prisoner being tortured, electrocuted, and beaten. He screamed a lot. When the police entered the cell, they made everybody undress, bow their heads and stare at the floor. One of my cellmates hung himself right in front of me out of desperation."

To pass the time, Tómas read a lot and listened to music. He fell into a deep depression and went on medication - drugs prescribed by a psychiatrist - to get by. After this, was released on parole, but he still faced drug trafficking charges and could not leave the country. If he were convicted, he would have to spend at least three years behind bars. "He who smokes is not a criminal. If I smoke a lot, if smoking marijuana is really a problem for me, I need treatment, not for the State to lock me up with murderers, criminals, child molesters. I learned many terrible things in prison, I lived through many terrible things."

What the Law Says

Law 6368, passed in 1976 and still governing drug policy in Brazil, does not set a legal limit for drug possession. Even today, it is the cop who decides if the accused is a dealer or a user.

Wálter Fanganiello Maierovitch Photo D.R. 2003 Al Giordano

When facing a judge, says retired judge and Giovanni Falconi Institue president Wálter Maierovitch, the most common thing for a user caught with a small amount of drugs is to be set free in return for a fine and community service. But cases like that of Tómas, which Maierovitch considers "abusive," occur often. "The person is accused of being a narco-trafficker, and later, at trial, the sentencing judge determines that the drugs were for personal use. But what happened during all that time? The accused has surly already spent months in prison."

Maierovitch, who was the national drug czar in 1999 as head of the Brazilian drug control agency known as Senad (National Antidrug Secretariat) during the administration of President Fernando Henrique Cardoso, is a passionate defender the decriminalization of drug consumption. "Carrying drugs for personal use is not a criminal issue. It is not a case for the police, it is not an issue for the youth agencies - they should be concerned with the larger issues of drug trafficking," he says.

Fábio Mesquita, Doctor of Public Health and advisor to the Ministry of Public Health, reminds us that in this democratic country, drug users are still marginalized by public authorities. "The country won a series of democratic rights, and that counts for all Brazilians, except for the drug users, who still have their homes raided without warrants. Mothers lose custody of their children merely for consuming drugs."

Harm Reduction

As this trend grew, initiatives began to appear at the end of the 1980s to reduce the social and health-related harms associated with drugs. The first official program was developed in the city of Santos, under then-Mayor Telma de Souza (from President Lula de Silva's Workers' Party, or PT in its Portuguese initials). The government began distributing disposable syringes to intravenous drug users. It was a scandal. The Public Ministry (Brazil's justice department) initiated legal proceedings against the city government, accusing it of "encouraging drug use." Despite that, the strategy was a great success, primarily in the prevention of HIV and hepatitis C transmission. The project went on to be adopted in other regions, and since 1993 the Health Ministry has had a national needle exchange program in place. The problem was that the policies didn't go any farther. "It remained just a needle distribution program, and I am always arguing for the necessity of creating a national harm reduction policy."

Mesquita says that the PT, of which he is also a member, has always had a more humane position on recreational drug use. It is no coincidence that the first initiative passed in a PT-governed city. During the 2002 presidential campaign, Mequita worked on writing the party's platform on drugs. "What was Lula's proposal? To take drug control out of the hands of the military and under the control of the Ministry of Justice, where it would be run preferably by a civilian. He also proposed that the National Antidrug Secretariat change its name to the National Secretariat of Public Drug Policy; for it to have a multilateral focus, in dialog with civil society and putting the humanitarian question front and center."

Once in Power...

The only real action Lula's government has taken has been the expansion of the drug treatment centers that bring help to addicts. These have multiplied ten-fold since 2003, and today there are more than 600. "But the approach is still very conservative in those centers. For example, they demand that the drug user abstain completely from use to participate in the treatment. It is not a policy that embraces diversity, that welcomes the user who wants to keep using drugs but also wants to improve his quality of life and reenter society."

Dr. Fábio Mesquita Photo D.R. 2003 Al Giordano

And even this small advance faces conservative resistance in the Brazilian congress. Since June 2004, the bill has been held up in the Senate Justice Committee and has not set date for a vote, according to the committee's press office. Which is nothing new for an issue so divisive - the last new drug law, law 10,409, finally passed in 2002, took 10 years to be approved by Congress. And once approved, then-president Fernando Henrique Cardoso vetoed eighty percent of its text.

A New Law to... Shoot Down Planes

There has still been an important change in antidrug legislation passed during the Lula administration. The country's first ever left-wing government, passed Law 9,614, which allows for the shooting down of planes that invade Brazilian airspace, as a way to suppress international narco-trafficking. Maierovitch says that, even when he was drug czar, there was already great pressure to pass this law. "In all the meetings at the Organization of American States, at the United Nations, U.S. pressure would come saying that Brazil needed to pass this law, including threats of economic sanctions."

Maierovitch vehemently opposed the legislation, alleging it to be unconstitutional: the Constitution does not permit the death penalty. But the issue was forgotten, and only appeared back on the agenda in the middle of last year, when the law went into effect. According to the law, any aircraft that violates Brazilian airspace without identifying itself will receive warning shots. If there is still no response, it can be downed. "It is a stupid measure. In Colombia, you know what the narco-traffickers are doing? Kidnapping some industrialist, along with women and children, to be able to fly. Also, the U.S. Congress prohibited it forces in the region from sharing intelligence with countries with such legislation, and they have five air bases in the continent - in Aruba, Curazao, Manta and Iquitos. And so the 'war' companies, like DynCorp, are charging money for such information. For them, it's just more business."

The Decree that Never Came

Last November was a time of much anticipation for those who believe in some kind of drug law reform from Lula's government. A big report in the Rio de Janeiro newspaper O Globo, followed by another in La Folha de São Paulo, announced the creation of a national harm reduction policy through a decree that the president would soon sign. And there had already been a presidential decree dated 2002, which laid out the creation of a national program, but until then no real action had been taken to make that policy a reality.

Attorney General Márcio Thomaz Bastos receives proposals from Fábio Mesquita on January 30th, 2002, in Brasilia. D.R. Marcello, Jr., Agência Brasil

Mônica Gorgulho observed the chain reaction up close. Very well read in the press coverage on drugs, she says she was expecting a strong reaction to the proposal. But she says its revelation to the public was confusing, helping the negative repercussions to come. "To tell the truth, I read the reports, and I don't even think that I would have supported them, because they talked a lot about safe use centers - it seemed like they were going to be in public plazas, anywhere. In the end it was unclear that they would be only for dependent intravenous drug users. It seemed like we were trying to open up Dutch-style cafes."

Whether or not it was in bad faith, no one truly expected such an abrupt retreat from sectors of the government that had been debating the decree for a more than a year. Fábio Mesquita participated personally in the decree's writing, which Senad would later say was "barely" an idea, and nothing more. "It was very serious work" Mesquita recalls. "The minister of health put the decree together and sent it the Justice Ministry for consideration, where it received a favorable response. It then went on to the National Antidrug Secretariat, which further fine-tuned the decree, and both ministries (Health and Justice) accepted the changes and recommended that the president sign it."

In an internal document obtained exclusively by Narco News, dated December 29, 2003, Minister Costa defends the creation of a harm reduction policy in very progressive terms: "Based in the understanding and realistic approach to the question -- where it has been concluded that there will never be a world without alcohol and without drugs -- new alternatives should be sought to minimize the consequences of the use of those substances within a wide understanding of health. That means, concretely, respecting the choices of users of alcohol and other drugs, and promoting integrated care for the health and life of those people." Other documents obtained by Narco News reveal that the justice minister stated on November 17, 2003, "I have no objections to the direction of the previously cited decree." The drug czar added his own modifications and had given a favorable opinion by December 2003.

Why then did the government not adopt the proposals, and, worse, not sign the decree? To Fábio Mesquita, it seems that it is really Lula's cabinet that decides the government's drug policy. "It is there that drug policy is negociated, and there where all kinds of pressure arrives from the country's conservative forces - the evangelical groups have worked hard to prevent any advance, the press has played a conservative role - and certainly foreign organizations with little interest in Brazil becoming a model for progress must also be playing hardball."

The truth is that, after two years of the Lula administration, little has changed. Fábio Mesquita agrees with this notion: "The drug policy here is the same conservative policy we had under the Cardoso administration, a policy with the same general in charge, Paulo Uchoa. The drug control agency has the same name, and remains under military control, creating a climate of a drug war. No one understands war better than a general"

* * *

The Text of the Decree,
Obtained Exclusively by Narco News

The President of the Republic, using the powers conferred in Article 84, Section IV of the Constitution, decrees:

Article 1: The actions related to the reduction of harm to society and health as a consequence of the use of products, substances, or drugs that cause dependency, are regulated by this decree.

Article 2: The reduction of social and health-related harm, as a consequence of the use of products, substances, or drugs that cause dependency, is developed through health initiatives directed toward users or addicts who are unable or unwilling to interrupt such use, with the objective of reducing the associated risks, without necessarily interfering in supply or consumption.

Article 3: Actions for the reduction of social and health-related harm, as the consequence of products, substances, or drugs that cause dependency, comprise one or more of the measures for integrated health care, listed below, practiced with respect to the needs of the public and of the community:

1. Information, education, and guidance;


2. social assistance and healthcare;


3. availability of syringes, needles, and other products for the protection of health;


4. substitutive treatment when it is of an experimental nature, in the form of pilot programs under the responsibility of the Ministry of Health and/or the universities; and


5. implementation and maintenance of centers of prevention and health care, and immediate support of an experimental nature during the consumption of products, substances, or dugs that cause dependency, in the form of pilot programs under the responsibility of the Ministry of Health and/or the universities.

Article 4: The information, education, and guidance initiatives have as an objective the stimulus for the adoption of safer behavior in the consumption of products, substances, or drugs that cause dependency, and in the sexual practices of their consumers and sexual partners.

Section #1: Necessary content for information, education, and orientation initiatives:

1. Information on the possible risks and harm associated with the consumption of products, substances, or drugs that provoke dependency;


2. discouragement of sharing syringes, needles, and other instruments for the consumption of products, substances, or drugs that cause dependency;


3. guidance in the prevention of and behavior in the case of acute intoxication ("overdose");


4. prevention of infection by HIV, hepatitis, endocarditis, and other pathogens of similar transmission patterns;


5. guidance in the practice of safe sex;


6. the promotion of public and public-interest services in the area of health case; and


7. the promotion of the fundamental principles and guarantees assured in the Federal Constitution and in the universal rights declarations.

Section #2: Information, education, and guidance initiatives must necessarily be accompanied by the availability of materials aimed at minimizing the risks associated with the cited practices.

Article 5: The offer of social assistance and health care, through services to the community, aims to guarantee integrated assistance to the user or addict of products, substances, or drugs that cause addiction.

The necessary actions in the offer of social assistance and health care when needed by the user or addict:

1. Treatment for chemical dependency;


2. testing for HIV infection and treatment for HIV infection and AIDS;


3. vaccination, testing, and treatment for viral hepatitis;


4. testing and treatment for sexually transmitted diseases (STDs); and


5. guidance as to the exercise of the fundamental rights and guarantees in the Federal Constitution, and any others relevant to the maintenance of a dignified quality of life.

Article 6: The availability of syringes, needles, and other health-related materials consists of providing, in community institutions, disposable materials to users or addicts of products, substances, or drugs that cause despondency, with the aim of preventing transmittable diseases.

Section #1: The availability of syringes, needles, and other health-related materials follows the principle of universal access from the Single Health System, which should empower, through harm reduction activities, users or addicts of products, substances or drugs which cause physical or mental dependency.

Section #2: The sale or distribution of syringes, needles, and other health-related materials in pharmacies and drugstores requires a medical prescription.

Section #3: The availability of syringes, needles, and other health-related materials should be complimentarily provided by automatic vending or exchange machines, under the supervision of local health authorities.

Article 7: The substitutive treatments consist of the method of treatment of dependency, based on the usage of products, substances, or drugs consumed by the subject, whether a new lifetime user.

Article 8: The local centers for consumption of products, substances, or drugs that cause dependency will be created and maintained under the responsibility of the Single Health System, and should count with the supervision of a multidisciplinary team.

Article 9: Harm reduction activities should be developed in all spaces of public interest in which the consumption of products, substances, or drugs that cause dependency occurs or could occur, or where users congregate.

The measures in this decree are applicable within the limits of the penitentiary system, public jails, juvenile detention and educational facilities, psychiatric hospitals, addiction treatment and rehabilitation facilities, or any other institution, which maintains persons deprived or restricted of their liberty.

Article 10: Harm reduction activities should be developed in harmony with the promotion of human rights, taking into special account the diversity of the users or addicts of products, substances, or drugs that cause dependency.

Section #1: In all harm reduction activities, the identity and freedom of choice of the user or addicts, or of persons taken as such, over any procedure related to prevention, diagnostic, and treatment, should be respected.

Section #2: The hiring of personnel for the harm reduction work described in this decree should give priority to members of the community where the activities will be developed, taking into account primarily access to the target population, independently of the level of formal instruction, and should observe, in the realm of public administration, the norms of access to jobs or public office.

Article 11: This decree goes into effect on the date of its publication.