Drug Laws and Prisons in Brazil

Systems Overload: Drug Laws and Prisons in Latin America


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We continue to pack the prisons with people accused of drug crimes, without having an impact on drug trafficking”, says Luciana Boiteux, researcher for the Brazil chapter of the study Systems Overload: Drug Laws and Prisons in Latin America. “Most of the people imprisoned are small-scale drug dealers on a first time offense who come from Brazil’s poorest sectors of society. Long prison sentences reinforce the marginality and social exclusion experienced by Brazil’s poor”.

Within the space of just ten years (from 2000 to 2009), Brazil’s prison population doubled, rising from 233,000 people to more than 473,000, including those detained in police stations.i In 2005, the 32,880 people behind bars for drug crimes accounted for nearly 1 in 10 prisoners (9.1 percent). By 2009, there were more than 90,000 people locked up for drug crimes, representing nearly 1 in 5 prisoners (19.2 percent). Consult more statistics here.

The research shows that, contrary to general opinion, most convicted traffickers are not ‘by definition’ members of a ‘criminal organization’, nor do they necessarily work for one”, says researcher Boiteux. For example, in the case of Rio de Janeiro, the study reveals that most people imprisoned for drug trafficking (61.5 percent) are tried individually, having been detained alone; the rest having been detained in pairs. In addition, 66.4 percent are first time offenders found with relatively small amounts of drugs.ii

The increase in the number of people imprisoned for drug offenses is partly due to the 2006 approval of the current drug law (Law 11343/06). This law has brought about some positive changes; for example possession of drugs for personal consumption is no longer punished with prison sentences but rather with and instead educational sanctions. But the 2006 law also increased the minimum sentence for drug trafficking, from 3 to 5 years of prison, and allows the authorities wide discretion in deciding whether an accused person is considered a consumer or a trafficker. The absence of a legal distinction a priori between these two categories is detrimental to the defense of the accused. “Under this law, consumers of drugs can be confused with traffickers and end up in prison instead of receiving alternative sanctions as the Law suggests”, says Boiteux. “Therefore the law is still far from what Brazil really needs in order for it to achieve an effective, fair and proportionate system”. WOLA and TNI filmed a 5-minute personal account video of a prisoner recounting how he was given the sentence of a drug trafficker despite having said he was a consumer. The press has permission to use this video.

It is easier for the police to catch small-scale dealers who work in the street than traffickers who work at the wholesale levels of the drug trade. Thus, to the question of ‘why are only small-scale and (a few medium-scale) traffickers’ in prison in Rio de Janeiro it could be said that it is because of the selective intervention of the Brazilian criminal system that criminalizes poverty”, concludes Boiteux.

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i Source: Infopen. At: www.mj.gov.br.

ii Drug Trafficking and the Constitution Research Study. Brasilia: Ministry of Justice, 2009.
