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Paper short abstract

Brazil’s 2006 Drug Law removed prison for drug use but increased penalties for trafficking. Lacking clear criteria, it expanded police and judicial discretion, fueling mass incarceration and racialized distinctions between “users,” “dependents,” and traffickers.

Paper long abstract

Until 2006, Brazilian law made no distinction between those who used drugs and those who trafficked them: both were subject to imprisonment. With the enactment of the 2006 Drug Law, drug users were exempted from imprisonment, while penalties for drug trafficking were significantly increased, with the minimum sentence raised from three to five years of imprisonment. A substantial body of research has shown that, by failing to establish clear and objective criteria to distinguish users from traffickers, the law created broad police and judicial discretion. In practice, this has led to a sharp increase in incarceration for drug trafficking, disproportionately affecting young, black, and poor individuals. In one of my studies conducted in forensic psychiatric hospitals in Brazil (CNJ, 2024) — hybrid institutions intended to confine the so-called “criminally insane” — we found that, over the past decade, these institutions have increasingly received people diagnosed with disorders related to drug use. In my current research, which analyzes judicial decisions concerning individuals confined in forensic psychiatric hospitals in the state of São Paulo, I identify a racialized differentiation between two figures: the “user,” decriminalized under the 2006 Drug Law, and the “dependent.” The latter, framed as a “social problem,” is only partially decriminalized: although exempted from criminal punishment, they are subjected to a security measure in a forensic psychiatric hospital, a penal-psychiatric institution that imposes a minimum, but no maximum, period of confinement, which may continue as long as psychiatric evaluations deem the individual to pose a “danger to society.”