Galileu Magazine: Why is Brazil still facing setbacks in the fight against drugs?

The following article, written by Marília Marasciulo, was originally published in Portuguese in Galileu magazine in December 2023.

Rio de Janeiro, October 18, 2023. While the world’s attention was focused on the bombing of the Al-Ahli Baptist Hospital in the Gaza Strip, the Complexo da Maré, in the north of the capital of Rio de Janeiro, was going through its sixth day of police operations. By then, one person had died, 17,000 students were out of school and more than 3,000 medical appointments had been suspended. The estimates come from the community organization Redes da Maré, which seeks to ensure the rights of the more than 140,000 residents of the complex’s 16 favelas – and show a small snapshot of the effects of a conflict that has been going on for almost half a century: the war on drugs.

“This week I was very indignant, because I saw how moved people are by a war that is happening in another country, and they ignore one that is happening here in their country,” said actor Raphael Vicente, who grew up in Maré, on his Instagram profile on the 19th. “This isn’t something that started last week, no. Every month you see news of children being killed in favelas by police operations,” he continued, in a video that has 8.7 million views. “‘Ah, Rapha, but there have to be police operations to clean up [drug] trafficking. If police operations really cleaned up drug trafficking, Maré would be the safest place in the world to live,” Vicente concludes.

The costs of treating the fight against drugs as a police matter are high – and burden the entire Brazilian population. According to calculations by economist Daniel Ricardo de Castro Cerqueira, a specialist in public security and coordinator of the Atlas of Violence, published by the Institute for Applied Economic Research (Ipea), homicides related to drug prohibition lead to a reduction of 4.2 months in life expectancy at birth for Brazilians. This corresponds to 1.1 million potential years of life lost.

In an article published by Ipea recently, Cerqueira also points out that the cost of economic well-being corresponds to around R$50.9 billion a year, or 0.77% of the Gross Domestic Product (GDP). And that’s without taking into account direct spending on drug-related repression, prosecution and criminal enforcement.

In practice, it’s as if each Brazilian paid an annual tax of R$269.50 to support this policy of repression. “Prohibitionism and, in particular, the war on drugs are the most efficient way of wasting public and social resources. In fact, the strategy of reducing the supply of drugs through repression is already doomed to failure,” writes Cerqueira in The Social Welfare Cost of Homicides Related to Drug Prohibition in Brazil. “It is past time for society, policy makers and academia to put aside their preconceived views and taboos and start seriously debating alternatives to the drug problem.”

He gives as an example the United States, where violence has been replaced by more intelligent educational actions, as well as harm reduction policies and the regulation and legalization of markets. A reality far removed from ours.

Double standard

In Brazil, such discussions still face resistance. In August, the Federal Supreme Court (STF) resumed the trial of Extraordinary Appeal (RE) 635659, which aims to determine whether Article 28 of the Drug Law (Law 11.343/2006), which prohibits possession for personal use, is constitutional. In the discussion, the court also seeks to establish objective criteria for defining what constitutes personal use.

Currently, the law does not distinguish between prohibited drugs, but determines that there is no prison sentence for those who sow, cultivate or harvest “plants intended for the preparation of a small quantity of a substance or product capable of causing physical or psychological dependence.” However, the law points out that in order to define whether the drug was intended for personal consumption, items such as the nature and quantity of the substance seized, the place and conditions in which the seizure or flagrante delicto took place, as well as the “social and personal circumstances”, conduct and background of the person carrying the drug, must be assessed.

“We can see that young people, especially blacks and browns, who are illiterate, are considered drug dealers with much smaller quantities of drugs (marijuana or cocaine) than those over 30, who are white and have a university degree,” said Justice Alexandre de Moraes in his vote in favor of decriminalizing the possession of marijuana for personal use.

He suggested setting the possession limit at a range between 25 and 60 grams of marijuana or six female plants to differentiate users from dealers. At the moment, the vote is 5-1 to consider that possession of marijuana for personal use is not a crime; and 6-0 to set a limit that differentiates users from dealers based on the quantity of the drug found. The vote was interrupted at the request of Minister André Mendonça, who now has 90 days to return the issue to the agenda.

The problem is that this has been causing a stir in various sectors – to the point where, on September 14, the president of the Senate, Rodrigo Pacheco (PSD-MG), presented a proposal to amend the Constitution (PEC) to criminalize the possession of illicit substances in any quantity.

All because part of society doesn’t seem to have understood that the Supreme Court is not legislating on the legalization of drugs, but rather assessing whether the 2006 law is in line with the 1988 Constitution. Establishing that carrying marijuana is not a crime does not mean that the substance will be freely traded.

“The 2006 legislation tried to adapt the anti-drug law of the dictatorship to concepts closer to constitutional principles, recognizing human dignity and the dignity of people who use drugs,” explains lawyer Gabriel Sampaio, coordinator of Strategic Litigation and the Program to Confront Institutional Violence of the NGO Conectas Human Rights.

“The point is that it has brought with it serious problems, especially in relation to the application of penalties.” This is because, while on the one hand the law recognizes that users are not subject to a custodial sentence, on the other it has kept people within the penal system. “This created an overload, which today is the main cause of overcrowding in the penitentiary system,” says Sampaio.

Tactical errors

The policy of war on drugs carries with it historical injustices. Embraced by the West mainly since the 1970s – when then US president Richard Nixon chose drugs as “public enemy number one” – the prohibition of psychoactive substances is at least two centuries old.

“For millennia, drugs have been used and rarely seen as a threat to society,” points out sociologist and anthropologist Edward MacRae, who has been researching drug policies since the 1980s and is currently an associate researcher at the Center for Drug Abuse Studies and Therapy at the Federal University of Bahia (UFBA).

From the 19th century onwards, however, with the formation of new states, mechanisms were created to control certain behaviours or cultures seen as undesirable, focusing on the substances most used by these marginalized groups.

Brazil was a pioneer. In 1830, Rio de Janeiro established the world’s first law banning the use of marijuana, nicknamed “pito de pango”. The plant arrived in the country via enslaved Africans, who used it in rituals and cultural celebrations, and the Portuguese, who saw economic potential in cannabis.

But it was banned with the aim of specifically suppressing African culture. “Everything that involved the black population was considered backward. If you think that there was criminalization of culture, such as samba, capoeira and religions, what about a substance used by these people?” observes sociologist Guilherme Borges, a researcher at the Center for Studies on Criminality and Violence (NECRIVI), linked to the Federal University of Goiás (UFG), and the Center for Interdisciplinary Studies on Psychoactive Drugs (NEIP).

Something similar happened abroad, especially in the USA. Prejudice against the Irish and Jews, immigrants labeled as heavy users of alcohol, can be linked to the country’s 13 years of Prohibition between 1920 and 1933; the dispute between England and the United States over influence in the East at the beginning of the 20th century served as the backdrop for the prohibition of opium; and the persecution in the 1960s of the anti-war hippie movement and the black population, associated with marijuana and heroin, respectively, was the driving force behind the war on drugs.

John Daniel Ehrlichman, Nixon’s former internal affairs adviser, acknowledged this. In 2016, journalist Dan Baum stated in a Harper’s Magazine article that, in 1994, Ehrlichman had explained to him “one of the great mysteries of modern American history”: how the US got involved in a policy that brought so much tragedy and so few positive results.

“The Nixon campaign in 1968, and then the Nixon administration in the White House, had two enemies: the anti-war left and the black population,” Ehrlichman said at the time. “Do you understand? We knew we couldn’t outlaw those who were against the war or blacks, but by associating hippies with marijuana and blacks with heroin, then criminalizing them harshly, we could break up these communities. We could arrest their leaders, search their homes, disrupt their meetings and slander them every night on the news. Did we know we were lying about drugs? Of course we knew.”

The main argument used to convince the population that drugs should be combated was that psychoactive substances made people more likely to commit crimes. “The idea was as follows: psychoactive drugs are an evil for society, we need to combat this evil by affecting supply, making those who consume and traffic illicit, and using coercive resources for control,” analyzes Daniel Cerqueira, from Ipea, in an interview with GALILEU.

“But let’s imagine that a very well-equipped police force actually manages to reduce the supply of drugs. If that happens, what would be the consequence? Since the demand side is inelastic [even if the price increases, people will still be willing to pay for the product], this would generate a small reduction in quantity, but a large increase in price. And what would this revenue be used for? Police corruption and arms purchases, because this is a market in which disagreements are not resolved through legal mechanisms, but through violence,” says the economist.

The effect turned out to be exactly the opposite of what was initially imagined: prohibitionism led to an increase in systemic drug-related violence. In addition, it created an even more attractive market for “entrepreneurs of contravention”, also overturning the thesis that barring access to drugs would be a way of minimizing damage to health by reducing the risk of more people becoming addicted.

“In the US, not only have they been unsuccessful, but they may have generated an incentive to create new alternative products [to traditional drugs],” says Cerqueira, who cites the current fentanyl epidemic as one of the possible consequences.

The synthetic opioid is 100 times more powerful than morphine and 50 times more powerful than heroin, both of which are derived from opium, a substance extracted from the poppy plant, and which has caused the deaths of thousands of people in the United States.

In Brazil, the arrival of synthetic cannabinoids, the so-called K-drugs, has caused concern: with a potency 100 times greater than ordinary marijuana, by April 2023 the São Paulo Municipal Health Department had recorded 216 poisonings from the laboratory-made cannabinoid – more than double the 98 recorded in the whole of 2022.

Another argument used by the US government to ban psychoactive substances was that this would be a way of limiting access to drugs and thereby reducing health risks. Which actually makes some sense. “One of the biggest and best documented risks for addiction is simply access. This means that the intention to create barriers through the war on drugs had a scientific basis,” acknowledges psychiatrist Anna Lembke, a professor at Stanford University in the USA and an addiction specialist.

“The problem is when you combine this effort with systemic racism. And then there’s no differentiation between those who are trafficking and people who are actually battling addiction and need help,” says the author of the books Nação dopamina (2022) and Nação tarja preta (2023), both published in Brazil by Vestígio.

Doctor of Public Health Francisco Inácio Pinkusfeld Monteiro Bastos, who researches epidemiology and prevention of drug abuse and HIV/AIDS at the Oswaldo Cruz Foundation (Fiocruz), disagrees. “This idea that health can determine the agenda is naive. It’s not that there isn’t scientific evidence [to point out the risk of substances], but it’s not taken into account,” he says.

Bastos cites the scale drawn up by British neuropsychopharmacologist David Nutt, published in The Lancet in 2007. At the time director of the council responsible for monitoring and advising the British government on drug-related issues, Nutt ranked 20 substances according to 16 parameters of harm to users and society.

The criteria included, for example, addiction potential, harm to physical and mental health, crime and costs to the economy. The most dangerous substance was alcohol – ahead of heroin, crack, methamphetamine and cocaine. Two years later, Nutt was removed from office.

Cut to 2023: in January, the World Health Organization (WHO) published a note in The Lancet Public Health declaring that there is no safe amount for alcohol consumption. The drink, however, is widely marketed in Western countries, and has an age limit as the main – if not only – barrier to access.

“The logic of criminalization is based on elements that are very far from what we could scientifically consider as factors that would prove the legitimacy of maintaining this type of legislation,” says the lawyer for the NGO Conectas.

Plan of attack

If today science and even the policymakers of the war on drugs recognize that it was born doomed to fail, why do we keep investing and betting on it? “Because for some people it worked,” answers Guilherme Borges.

Among them, according to the UFG sociologist, are individuals involved in drug trafficking and political groups that benefit from the moral and penalistic discourse. “The war on drugs is an excellent justification for imposing a repressive presence that doesn’t work to suppress drug production, but works to keep each class in its place,” says anthropologist Edward MacRae, from UFBA.

In the view of lawyer and businesswoman Patrícia Villela Marino, president of the Humanitas360 Institute and a medical cannabis activist, Brazilian society still has great moral and ideological difficulty in dealing with the issue. She also believes that there is a lack of political will to take the issue forward – and there are deliberate actions to generate misunderstandings and discredit the democratic institutions needed to deal with it.

“[The end of the war on drugs would be possible] if our Congress today were willing to look at scientific data and had a certain humility to understand that what was known ten years ago does not apply today; or that there are new technologies, new possibilities,” she concludes.

In May, Marino was sworn in as one of the 246 members of the Presidency’s Council for Economic, Social and Sustainable Development, known as Conselhão, where he will take part in a working group specifically focused on drug policy, to be set up by the end of 2023.

But the truth is that the debate should go beyond just decriminalizing or legalizing drugs – especially considering that legalization tends to lead to increased use of the substances. According to the UN World Drug Report 2023, around 296 million people used drugs in 2021, 23% more than ten years earlier.

In California, the US state that regulated the medical marijuana market in 2015 and released recreational use in 2018, the share of the population over the age of 12 that uses cannabis rose from 15.3% in 2014 to 20.1% in 2019, according to a report by the philanthropic institution California Public Health Foundation (CHCF).

This is why a review of the current war on drugs policy should involve a multidisciplinary agenda that would necessarily include education and health, in order to suppress demand and reduce possible damage.

“It’s about guaranteeing rights. Guaranteed access to housing, health, quality education, work that isn’t precarious and guaranteed information for people,” says writer Juliana Borges, advocacy coordinator for Iniciativa Negra, a civil society organization that works for human rights and drug policy reforms.

“Prohibition kills not only because of the war dynamics, but also because people don’t know what they’re using. By knowing what they are consuming, they would have more autonomy, including to think about the care they need to take,” concludes Borges, who in October was sworn in as an alternate councillor on the National Drug Policy Council (Conad).

For Francisco Bastos, from Fiocruz, the country is currently not acting either in primary prevention, which would be to intervene in the natural demand for substances, or in secondary prevention, dealing with the consequences of abuse and addiction. “How many media campaigns really enlighten the population [about the risks of drugs] and talk to children and adolescents?” he asks.

What’s more, health professionals in general don’t know how to treat patients who have used substances, and the patients, in turn, don’t want to see the professional because they think they’ll be reported to the police. “And if you overcome all the barriers, when you get to the clinic, there’s no protocol,” says the doctor.

Fighting with information

One of the most obvious examples of a successful non-prohibitionist prevention model is tobacco control – of which Brazil is a global example. Brazil was the second country in the world, after Turkey, to reach the highest level in the WHO’s cigarette prevention methodology. Since 1990, health professionals have been trained to offer treatment through the SUS in primary care.

In addition, legislation has required cigarette companies to display awareness messages on their packaging, banned smoking in enclosed spaces and restricted advertising and sponsorship of events.

Today, 9.3% of Brazilians say they smoke, according to a 2023 survey by the Surveillance System for Risk and Protective Factors for Chronic Diseases by Telephone Inquiry (Vigitel). In 2006, the year of the first edition of the survey, this percentage was 15.7%.

“This was an anti-drug policy that worked very well, but it was because it focused on reducing demand. It has to do with the success of, instead of fighting drugs with weapons, fighting them with education and information, and understanding that, even so, some people will want to take drugs,” says the Ipea economist.

Globally, Portugal has stood out in anti-drug policy precisely because it has replaced the logic of punishment and repression with educational measures and harm reduction. In 2001, the country decriminalized the possession of drugs for personal use. The strategy included a judicial definition of quantities.

According to Portuguese law, the crime of drug trafficking occurs when a person exceeds what is necessary for average individual consumption over 10 days. What the country’s supreme court then did was to define these measures: 15 grams of cocaine or heroin and 20 grams of marijuana.

Instead of being arrested, a user caught with drugs can voluntarily enter an addiction treatment program. If they don’t accept, they will be fined by social organizations for drug addicts, such as the Service for Intervention in Addictive Behaviors and Dependencies (SICAD).

The result of the policy is considered a success and, since 2001, no government – right or left – has tried to change the law. Data from the NGO Agencia Piaget for 2019 endorses this perception: overall drug use has not fallen in the country, but heroin and cocaine use has dropped from 1% to 0.3% of the population. HIV contamination among users has halved, and the prison population for drug-related reasons has fallen from 75% to 45%.

“Portugal has tackled the issue with legal and health interventions at every stage. So if a person is constantly committing crimes or can’t function properly, the Portuguese system doesn’t simply abandon them,” says psychiatrist Lembke.

In the opinion of Iniciativa Negra’s advocacy coordinator, it is possible to build an agenda for foster care and the promotion of rights in Brazil, even without necessarily changing the legislation. “The law lacks some regulations, which opens up the possibility of an interpretation that favors care. What we have seen is that there have been political choices and options along the lines of repression,” says Borges. In her opinion, the very revival of Conad, which was emptied during Jair Bolsonaro’s government, represents a positive step forward for the debate.

Even so, there is no magic formula – or model that can be replicated without taking into account the social aspects of each country. For the time being, Brazil seems to be far from reaching a consensus. However, one thing is certain: “the countries that haven’t addressed this problem have succumbed”, summarizes Patrícia Marino. And none of them won this war by shooting, hitting and bombing.