Drug trafficking in the legal precedents of the Superior Court of Justice: a critical analysis

Abstract

An analysis of the Superior Court of Justice legal precedents about drug trafficking can contribute to the rationalization of criminal procedures responsible for 28% of Brazil’s prison population. In arrests for drug trafficking sting operations, the interchangeability of the action of selling charged in the indictment, for the typical actions of having in deposit, storing, transporting or bringing drugs with them, besides being an artifice to circumvent Precedent 145/STF, disregards differences in the subjective type of the interchanged actions, because these actions contain the special subjective element of the purpose of personal consumption (art. 28), or commercialization (art. 33) of the Drug Law. Moreover, by rejecting principle of insignificance because drug trafficking is considered a formal crime, to which charges are brought by the mere activity, it creates an incompatibility with the importance given to drug quantity in the differentiation between drug trafficking and personal consumption, which indicates that drug trafficking is not a formal crime, but rather requires an outcome. Furthermore, denying privileged trafficking (art. 33, § 4^th) based on investigations or ongoing criminal procedures is contradictory with the legal precedent of the Precedent 444/STJ, which prohibits increase or prevents reduction of prison time in sentencing, with equal practical significance. Lastly, criminology reveals the failure of punitive drug policy: Dan Werb’s research indicates an increase in drug purity and quantity, as well as a price reduction for the drug user in international markets between 1990 and 2010, despite the billions of dollars invested in prohibition policy and the unbearable destruction of young black men’s lives on poor urban areas.