Ten years ago this week, Brazil passed a law intended to distinguish dangerous drug traffickers from simple drug users. By replacing jail sentences for users of any illegal drug with penalties such as community service, and increasing penalties for drug trafficking, the new law aimed to reduce the number of people detained for drug possession and weaken criminal organizations that smuggle and sell drugs.

Makeshift “barracos,” or cubicles, inside Pavilion 7 at Presídio Juiz Antônio Luiz L. de Barros (PJALLB), in Recife.

© 2015 César Muñoz Acebes/Human Rights Watch

None of that happened. In 2005, 9 percent of those in prison were detained on drug charges -- now it’s 28 percent, and among women, 64 percent. The law, 11344/2006, has contributed to the last decade’s explosive rise of Brazil’s prison population. More than 620,000 inmates swelter in facilities built, in aggregate, for about 370,000.

Consider a young man I’ll call “Roberto,” who was held in the Curado prison complex in Recife when I visited last year.

Police had detained him in June 2013 for drug trafficking after finding 15 grams of marihuana, worth 50 reais (about USD15), hidden in some bushes next to a soccer field where Roberto was playing with friends. At trial, one police officer said the drugs were 2 or 3 meters from Roberto, but another one said it was more like 15 to 20 meters. The only evidence against him was the testimony of the other person accused of drug trafficking in the case: a child who said Roberto owned the drugs. Roberto’s mother told me he helped her out in the shoe store where she worked, and used some of the money he earned to buy marihuana to smoke, but that he was no trafficker.

Criminalizing drug use, production, and distribution fuels the growth of criminal organizations and fills prisons with people who should not be there.

Cesar Munoz

Senior Researcher, Brazil

Despite the slim case against him and the very small amount of drugs involved, the trial judge sentenced Roberto to four years and two months in prison for drug trafficking.

Under the 2006 law many users have simply been prosecuted as traffickers, made easier by the fact that the law does not set a minimum quantity of drugs to differentiate between users and traffickers.  The law has failed to weaken criminal organizations, and Brazil has had an increase in violent crime in the last decade. Studies by Luciana Boiteux, of Rio de Janeiro’s Federal University, and Maria Gorete Marques de Jesus, and Marcelo da Silveira Campos, both of São Paulo University, have found that the law is mostly being used to punish people like Roberto for holding small quantities of drugs, who are either users or small traffickers easily replaced by criminal organizations.

In prison, they can become recruits for the very criminal organizations the law intended to fight. Roberto’s mother told me that fellow inmates were pressuring him to join their gang.

The 2006 law was a step forward conceptually because it said people should not be sent to prison for using drugs, but it had very harmful unintended consequences. And it did not go far enough because it still considered drug use a crime.

Criminalizing drug use, production, and distribution fuels the growth of criminal organizations and fills prisons with people who should not be there. Brazil should decriminalize the possession of drugs for personal use and to look at ways other than criminalization to effectively regulate the distribution of drugs.