Luís Roberto Barroso
Brazilian supreme court judge and professor of law
at Rio de Janeiro State University
Wednesday 15 November 2017 13.10 GMT
The war raging in Rocinha, Latin America’s largest favela, has already been lost. Rooted in a dispute between gangs for control of drug trafficking, it has disrupted the daily life of the community in Rio de Janeiro since mid-September. With the sound of shots coming from all sides, schools and shops are constantly forced to close. Recently, a stray bullet killed a Spanish tourist. The war is not the only thing being lost.
For decades, Brazil has had the same drug policy approach. Police, weapons and numerous arrests. It does not take an expert to conclude the obvious: the strategy has failed. Drug trafficking and consumption have only increased. Einstein is credited with a saying – though apparently it is not his – that applies well to the case: insanity is doing the same thing over and over again and expecting different results.
“The insanity of Brazil’s drug policy is striking’: Luís Roberto Barroso. Photograph: Apu Gomes/AFP/Getty Images
In a case still before the Brazilian supreme court, I voted for decriminalising the possession of marijuana for private consumption. The case has been suspended and no date has been set for its resumption. I also proposed to open a broad debate on the legalisation of marijuana, to begin with – and then, if successful, cocaine. The subject is extremely delicate, and the outcome hinges on a decision from the legislature.
Drugs are an issue that has a profound impact on the criminal justice system, and it is legitimate for the supreme court to participate in the public debate. So here are the reasons for my views.
First, drugs are bad and it is therefore the role of the state and society to discourage consumption, treat dependents and repress trafficking. The rationale behind legalisation is rooted in the belief that it will help in achieving these goals.
Second, the war on drugs has failed. Since the 1970s, under the influence and leadership of the US, the world has tackled this problem with the use of police forces, armies, and armaments. The tragic reality is that 40 years, billions of dollars, hundreds of thousands of prisoners and thousands of deaths later, things are worse. At least in countries like Brazil.
Third, as the American economist Milton Friedman argued, the only result of criminalisation is ensuring the trafficker’s monopoly.
With these points in mind, what would legalisation achieve?
In most countries in North America and Europe, the greatest concern of the authorities is users and the impact drugs have on their lives and on society. These are all important considerations. In Brazil, however, the principal focus must be ending the dominance drug dealers exercise over poor communities. Gangs have become the main political and economic power in thousands of modest neighbourhoods in Brazil. This scenario prevents a family of honest and hard-working people from educating their children away from the influence of criminal factions, who intimidate, co-opt and exercise an unfair advantage over any lawful activity. Crucially, this power of trafficking comes from illegality.
Another benefit of legalisation would be to prevent the mass incarceration of impoverished young people with no criminal record who are arrested for trafficking because they are caught in possession of negligible amounts of marijuana. A third of detainees in Brazil are imprisoned for drug trafficking. Once arrested, young prisoners will have to join one of the factions that control the penitentiaries – and on that day, they become dangerous.
Moreover, each place in prison costs 40,000 reais (£9,174) to create and 2,000 reais a month to maintain. Worse still, within a day of one man being arrested, another is recruited from the reserve army that exists in poor communities.
The insanity of this policy is striking: it destroys lives, generates worse outcomes for society, is expensive, and has no impact on drug trafficking. Only superstition, prejudice or ignorance could make someone think this is effective.
For these reasons, I believe we should consider alternative means of combating drugs, not least better planning, expert engagement and greater attention to the experiences of other countries. We should consider the possibility of dealing with marijuana as we deal with cigarettes: a licit product, regulated, sold in certain places, taxed, and subject to age and advertisement restrictions, warning notices and campaigns discouraging consumption. In the past two decades, cigarette consumption in Brazil has more than halved; fighting in the light of day, with ideas and information, has brought better results.
We cannot be certain that a progressive and cautious policy of decriminalisation and legalisation will be successful. What we can affirm is that the existing policy of criminalisation has failed. We must take chances; otherwise, we risk simply accepting a terrible situation. As the Brazilian navigator Amyr Klink said: “The worst shipwreck is not setting off at all.”
