Brazil Supreme Court Decriminalizes Cannabis After 9-Year Deliberation

Update: The Brazil Supreme Court voted June 26 to decriminalize the possession of up to 40 grams of cannabis for personal consumption.

Brazil, a country with the third highest prison population in the world, could be moving forward with decriminalizing cannabis. However, there is friction between the legislative and judicial branches on this potential reform.

The country’s Supreme Court justices voted June 25 to allow its citizens to legally possess “personal” amounts of cannabis for consumption after deliberating on the matter since 2015, Reuters reported.

“The position is clear that no user of any drug can be considered a criminal,” said Justice Dias Toffoli, the sixth judge on the 11-member court to vote for decriminalization, Reuters reported.

Should Brazil decriminalize cannabis, it would join the majority of its Latin American neighbors, multiple news sources reported.

The justices still need to determine the possession limit for what the decriminalized amount of cannabis would be—a pivotal decision to differentiate personal possession from drug trafficking. The Associated Press reported that a decision is expected as soon as June 26.

This comes at a time when Brazil is the seventh most populous country in the world with more than 215 million people but has the world’s third largest prison population at roughly 840,000, trailing only the U.S. (1.8 million) and China (1.7 million), according to the World Prison Brief. In addition, Brazil has the 15th highest prison rate in the world at 390 inmates per 100,000 people.

Roughly 28% of Brazil’s prisoners are behind bars for drug trafficking—more than any other crime—according to human rights group Conectas.

While Brazilian authorities lock up those who possess drugs with the intent to sell, the country’s judges are supposed to take a more lenient approach to sentencing those who possess cannabis for personal consumption under a 2006 law passed by Brazil’s National Congress.

Although cannabis possession is still technically criminalized under that law, the legislation moved toward a “de-penalized” approach involving community service or attendance at an education drug program for violators, according to the bill. However, the law did not define possession limits for personal amounts of cannabis, meaning the country’s drug war continued.

According to a May 2024 article from The Brazilian Report citing a survey by the Brazilian Jurimetrics Association, more educated people were less likely to be criminalized for cannabis possession. Specifically, the survey showed that in São Paulo, Brazil’s most populous city of roughly 12 million people, those with post-graduate degrees are only considered “drug dealers” if they possess more than 49 grams of cannabis on average. Meanwhile, an illiterate person is viewed as a drug dealer if he or she possesses 32 grams of cannabis on average.

Under the 2006 law, “To determine whether the drug was intended for personal consumption, the judge will take into account the nature and quantity of the substance seized, the place and conditions in which the action took place, the social and personal circumstances, as well as the conduct and agent’s background.”

Although Brazil’s Supreme Court gained a majority to decriminalize cannabis after deliberating on the matter for nearly nine years, Brazil’s Congress could override the decision, which remains a possibility via a Senate-passed constitutional amendment that would criminalize possession of any amount of an illicit substance, the AP reported. The amendment is advancing through the committee process in Brazil’s lower house.

Brazil Senate President Rodrigo Pacheco told reporters in Brasilia, the capital, that the Supreme Court’s decision on cannabis decriminalization was an overstep of judicial authority, the AP reported.

“There is an appropriate path for this discussion to move forward, and that is the legislative process,” he said.

Should Brazil’s Congress pass the amendment to criminalize any amount of cannabis, the Supreme Court holds the power to rule the amendment unconstitutional.