Judgment of Extraordinary Appeal 635.659/SP tries to resolve whether marijuana for personal consumption is a crime and whether it is possible to differentiate between user and dealer more effectively

The plenary of the Federal Supreme Court (STF) resumed in August the analysis on the decriminalization of cannabis sativa (scientific name for marijuana) for personal use. The debate takes place within the analysis of Extraordinary Appeal 635.659/SP, which challenged the constitutionality of Article 28 of Law 11.343/06 (Drug Act). The provision prohibits the acquisition, storage, transport, possession, planting, cultivation, or harvesting, for personal consumption, of any illicit drug or one capable of causing physical or mental dependence.

Although the aforementioned article refers to drugs in general, the justices’ analysis is restricted to the constitutionality of criminalization only in the case where the drug carried for personal use is cannabis sativa.

The trial was suspended by a request for review by Justice André Mendonça, after the vote of the newly sworn-in Justice Cristiano Zanin, the first – and so far, the only one – to vote against the decriminalization of marijuana possession for personal use. Currently, the majority of votes are in favor of decriminalizing – 5 votes in favor and 1 against[1].

The discussion in the Extraordinary Appeal 635.659/SP attempts to resolve two main issues:

• whether the possession of marijuana for personal use is a crime; and
• how to effectively differentiate between user and dealer.

Regarding the first question, the justices who voted in favor of decriminalization argue that classifying recreational drug use as a crime is a disproportionate act of the law, as it excessively limits freedom, the right to self-harm, and privacy. In addition, the crime of drug use generates a stigma, which hinders the economic and social reintegration of the user.

On the other hand, Justice Cristiano Zanin maintains that decriminalizing the personal use of drugs would go against the purpose of the law. Even recognizing that the existence of the criminal type leads to the mass imprisonment of people with low income and little schooling, the minister believes that its absence in the legal system would further aggravate the country’s social health problems.

Regarding the differentiation between user and dealer, all the justices who voted agree that there is a lack of objectivity in the legal description (art. 28, III, paragraph 2), since it leaves it to the discretion of the judge to differentiate the user from a dealer based on “nature”, “quantity of the substance seized, place and conditions in which the action took place, social and personal circumstances,  as well as the conduct and background of the agent”.

In practice, the criteria are extremely subjective and result in large discrepancies. People arrested with the same amount of drugs suffer different consequences, depending on how they are classified by the judge: users or dealers.

The solution, proposed and unanimously accepted by the justices who voted, is to establish an objective criterion, that is, a quantity in grams or plants, to define whether the individual should be considered a user or a trafficker. The suggestion so far is to carry portions between 25 and 100 grams or up to 6 female marijuana plants.

The decriminalization of possession of cannabis sativa for personal use, in addition to ending serious distortions and injustices in the application of the Drug Law, is an important step in the discussion of the decriminalization of the controlled drug trade, including cannabis for medicinal purposes. Currently, this type of use has been allowed through court decisions on an exceptional basis.

[1] Justices Gilmar Mendes, Luís Roberto Barroso, Edson Fachin, Alexandre de Moraes and Rosa Weber are in favor of decriminalizing. The only vote against, so far, is that of Justice Cristiano Zanin. The votes of André Mendonça, Carmen Lúcia, Dias Toffoli, Luiz Fux and Nunes Marques are still pending.