Greenwald writes: "Multiple nations no longer treat personal drug usage as a
criminal problem but rather as one of public health. Many of them are
actively considering following Portugal's successful example of
decriminalizing all drugs."
Glenn Greenwald. (photo: Salon)
Do Adults Have a Privacy Right to Use Drugs? Brazil's Supreme Court Decides
By Glenn Greenwald, The Intercept
14 September 15
The past decade has witnessed a remarkable transformation in the global
debate over drug policy. As recently as the mid-2000s, drug legalization or
even decriminalization was a fringe idea, something almost no politician
would get near. Thats all changed. That the War on Drugs is a fundamental
failure is a widely accepted fact among experts and even policymakers.
Multiple nations no longer treat personal drug usage as a criminal problem
but rather as one of public health. Many of them are actively considering
following Portugals successful example of decriminalizing all drugs. The
global trend is clearly toward abandoning prohibitionist policies.
The rationale most commonly offered for decriminalization is the utilitarian
one, i.e. efficacy: that prosecuting and imprisoning drug users produces
more harm than good. Also frequently invoked is a claim about justice and
morality: that its morally wrong to criminally punish someone for what
amounts to a health problem (addiction).
By contrast, the Supreme Court of Brazil may be on the verge of adopting a
much different and more interesting anti-criminalization justification. The
Court is deciding whether the right of privacy, guaranteed by Article 5 of
the nations constitution (ones intimate and private life are
inviolable), bars the state from punishing adults who decide to consume
drugs. In other words, the Court seems prepared to accept the pure civil
libertarian argument against criminalizing drugs: namely, independent of
outcomes, the state has no legitimate authority to punish adult citizens for
the choices they make in their private sphere, provided that those choices
do not result in direct harm to others.
The specific case before the court involves a defendant from São Paulo,
Brazils largest city, who was arrested and convicted for possessing three
grams of marijuana. Brazilian law already bars judges from imposing prison
sentences on individuals for the crime of drug possession (where the amounts
suggest it is for personal usage rather than trafficking). The amount he
had was deemed to be for personal usage, and he was convicted and sentenced
to two months community service. But his lawyers raised the constitutional
argument that punishing him for personal drug usage violates his
constitutional guarantee of privacy.
Thats the argument that is now before the 11-justice Brazilian Supreme
Court. Three weeks ago, the first of the judges, Gilmar Mendes, accepted the
argument and voted in favor of decriminalization. In his ruling, he argued
that treating drug users as criminals and imposing on them a criminal
stigma violates their individual rights as well as constituting a
wildly disproportionate reaction to private behavior that poses no direct
harm to anyone.
The case resumed this afternoon, with the second judge, Luiz Edson Fachin,
endorsing decriminalization but only for marijuana (in response, Justice
Mendes argued for broad applicability of decriminalization to all narcotics:
I see no rationale for maintaining criminalization for personal usage,
regardless of the quality of the drug in question). The third judge to rule
today, Luís Roberto Barroso, also endorsed decriminalization, announcing:
the war on drugs has failed. Justice Barroso argued that criminalization
has resulted in the imprisonment of vast numbers of people, including young
citizens, often destroying their lives, with no resulting benefit. The only
solution to drug trafficking is the end of criminalization, he argued,
adding that the nations notoriously awful prisons amount to a genocide of
Brazilian youth. (Credit to the excellent Brazilian legal news site
Justificando and accompanying Twitter feed for live-blogging the ruling.)
Even a pro-decriminalization ruling from the Brazilian court would likely
have limited legalistic impact. Dr. Rubens Casara, a criminal judge in Rio
de Janeiro state who presides over drug cases, told The Intercept that a
primary difference between Brazils Supreme Court and the U.S. Supreme Court
is that the decisions of the former resolve only the specific case before it
(and cases that have been frozen pending the decision), and otherwise lack
binding precedential effect. As a result, even if the Court rules in favor
of decriminalization, as Judge Casara expects, lower-court judges are free
to ignore that decision and continue to treat personal drug usage as
criminal.
Moreover, there are no standards for what quantities constitute personal
usage as opposed to trafficking, meaning that judges, and the government,
will continue to wield vast discretion over who can be treated as a
criminal. Beyond that, the court may act as a political rather than judicial
body and issue what Judge Casara called a timid ruling by, for instance,
confining decriminalization to marijuana (a distinction that has no
theoretical cogency how can a Constitutional privacy guarantee prohibit
punishment for marijuana usage but allow cocaine or heroin usage to be
punished? but may be legalistically justified since the specific case
before the court involves a marijuana conviction).
Still, said Casara, a pro-decriminalization decision from the Brazilian
Supreme Court is likely to be influential on how judges rule on such cases
in the future. More significantly, such a ruling on privacy grounds has the
potential to be debate-changing both inside Brazil and globally. Casara
explained that the crux of this particular argument about drug prohibition
is the proper limits of state power:
The principal thesis is that nobody can be punished for what they do if
their actions do not harm third parties. For example, under Brazilian law,
attempted suicide is not a crime. If someone tries to commit suicide and
does not die, it is not a crime. Why? Because it is understood as self-harm,
it is a problem that only concerns the individual. And this creates a
paradox. If a person tries to kill himself, its not a crime. If you smoke a
joint or use cocaine, or use crack or whatever, you are punished for that.
The idea is that drug usage, if there is a harm, is only self-injury, only
harms the individual and thus cannot be the object of state punishment. The
state must respect the individual liberty of whomever wants to use drugs.
That pro-privacy reasoning tracks the arguments made by, among others, the
ACLU in opposing drug criminalization. The civil liberties group has
stressed how inherently abusive is the police state needed to enforce
criminal laws banning personal drug usage:
When theres no victim, how are the police supposed to find out when the law
has been broken? The only way for police to fight victimless crime is to
proactively search out wrongdoing: insert themselves into peoples lives,
monitor their behavior, search their cars, etc. The enforcement of drug laws
thus relies disproportionately on surveillance, eavesdropping, and searches
of private places and effects. This (and misguided judges) is the reason
that the failed War on Drugs has generated so much bad law around privacy
and the Fourth Amendment in particular.
Back in 2009, I wrote a report on the 2000 decision of Portugal to
decriminalize all drugs, and, after conducting extensive research in that
country, documented what a resounding success that policy has been. What
struck me most about that remarkable decision was that Portugal is quite a
conservative country: heavily Catholic, anti-abortion, and otherwise averse
to out-of-the-mainstream social progress.
Judge Casara argues that Brazil, though quite progressive in some ways, is
also deeply conservative on these issues: I think that Brazilian society is
particularly authoritarian and prejudiced. In respect to drugs, there are
many prejudices, including marijuana.
In general, the society has shown
itself to be very resistant to decriminalization. Obviously, Congress can
decriminalize and it would be the best path. But I do not believe that in
this historical framework, and with the particularly conservative
Congressional make-up right now, that there is the slightest possibility
that this will happen. As Judge Barroso said today: This is a delicate
question, because the solution favored by the three of us
[pro-descriminalization judges] does not correspond to the majority of the
population. Its a decision contrary to the views of the majority, but it
protects the rights of criminal defendants.
A former president of Brazil, Fernando Henrique Cardoso, has become an
outspoken advocate of decriminalization. He was a member of the Global
Commission on Drugs, which concluded that the global war on drugs has
failed, with devastating consequences for individuals and societies around
the world. Indeed, virtually every harm cited by drug prohibitionists is
either exacerbated, or created in the first instance, by the criminalization
scheme itself (exactly as was true of alcohol prohibition; in 2011, I
debated George Bushs drug czar, John Walters, at Brown University on
exactly that proposition).
Brazil has suffered from massive societal problems from drug
criminalization, with horrifically over-crowded prisons, overwhelmed courts,
and tragically under-funded treatment facilities for the nations poor
addicts (which is what happens when a country spends huge resources on
arresting and prosecuting drug users). The fundamental, profound failure of
the Drug War can be seen in all of its manifestations in Brazil. A judicial
ruling that recognizes those harms, but more importantly announces that the
state has no right to treat adults as criminals for the private choices they
make about what substances to consume, could alleviate significant
criminalization-caused suffering not only in Brazil but around the world.
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Glenn Greenwald. (photo: Salon)
https://theintercept.com/2015/09/10/adults-privacy-right-use-drugs-brazils-s
upreme-court-decides/https://theintercept.com/2015/09/10/adults-privacy-righ
t-use-drugs-brazils-supreme-court-decides/
Do Adults Have a Privacy Right to Use Drugs? Brazil's Supreme Court Decides
By Glenn Greenwald, The Intercept
14 September 15
he past decade has witnessed a remarkable transformation in the global
debate over drug policy. As recently as the mid-2000s, drug legalization or
even decriminalization was a fringe idea, something almost no politician
would get near. Thats all changed. That the War on Drugs is a fundamental
failure is a widely accepted fact among experts and even policymakers.
Multiple nations no longer treat personal drug usage as a criminal problem
but rather as one of public health. Many of them are actively considering
following Portugals successful example of decriminalizing all drugs. The
global trend is clearly toward abandoning prohibitionist policies.
The rationale most commonly offered for decriminalization is the utilitarian
one, i.e. efficacy: that prosecuting and imprisoning drug users produces
more harm than good. Also frequently invoked is a claim about justice and
morality: that its morally wrong to criminally punish someone for what
amounts to a health problem (addiction).
By contrast, the Supreme Court of Brazil may be on the verge of adopting a
much different and more interesting anti-criminalization justification. The
Court is deciding whether the right of privacy, guaranteed by Article 5 of
the nations constitution (ones intimate and private life are
inviolable), bars the state from punishing adults who decide to consume
drugs. In other words, the Court seems prepared to accept the pure civil
libertarian argument against criminalizing drugs: namely, independent of
outcomes, the state has no legitimate authority to punish adult citizens for
the choices they make in their private sphere, provided that those choices
do not result in direct harm to others.
The specific case before the court involves a defendant from São Paulo,
Brazils largest city, who was arrested and convicted for possessing three
grams of marijuana. Brazilian law already bars judges from imposing prison
sentences on individuals for the crime of drug possession (where the amounts
suggest it is for personal usage rather than trafficking). The amount he
had was deemed to be for personal usage, and he was convicted and sentenced
to two months community service. But his lawyers raised the constitutional
argument that punishing him for personal drug usage violates his
constitutional guarantee of privacy.
Thats the argument that is now before the 11-justice Brazilian Supreme
Court. Three weeks ago, the first of the judges, Gilmar Mendes, accepted the
argument and voted in favor of decriminalization. In his ruling, he argued
that treating drug users as criminals and imposing on them a criminal
stigma violates their individual rights as well as constituting a
wildly disproportionate reaction to private behavior that poses no direct
harm to anyone.
The case resumed this afternoon, with the second judge, Luiz Edson Fachin,
endorsing decriminalization but only for marijuana (in response, Justice
Mendes argued for broad applicability of decriminalization to all narcotics:
I see no rationale for maintaining criminalization for personal usage,
regardless of the quality of the drug in question). The third judge to rule
today, Luís Roberto Barroso, also endorsed decriminalization, announcing:
the war on drugs has failed. Justice Barroso argued that criminalization
has resulted in the imprisonment of vast numbers of people, including young
citizens, often destroying their lives, with no resulting benefit. The only
solution to drug trafficking is the end of criminalization, he argued,
adding that the nations notoriously awful prisons amount to a genocide of
Brazilian youth. (Credit to the excellent Brazilian legal news site
Justificando and accompanying Twitter feed for live-blogging the ruling.)
Even a pro-decriminalization ruling from the Brazilian court would likely
have limited legalistic impact. Dr. Rubens Casara, a criminal judge in Rio
de Janeiro state who presides over drug cases, told The Intercept that a
primary difference between Brazils Supreme Court and the U.S. Supreme Court
is that the decisions of the former resolve only the specific case before it
(and cases that have been frozen pending the decision), and otherwise lack
binding precedential effect. As a result, even if the Court rules in favor
of decriminalization, as Judge Casara expects, lower-court judges are free
to ignore that decision and continue to treat personal drug usage as
criminal.
Moreover, there are no standards for what quantities constitute personal
usage as opposed to trafficking, meaning that judges, and the government,
will continue to wield vast discretion over who can be treated as a
criminal. Beyond that, the court may act as a political rather than judicial
body and issue what Judge Casara called a timid ruling by, for instance,
confining decriminalization to marijuana (a distinction that has no
theoretical cogency how can a Constitutional privacy guarantee prohibit
punishment for marijuana usage but allow cocaine or heroin usage to be
punished? but may be legalistically justified since the specific case
before the court involves a marijuana conviction).
Still, said Casara, a pro-decriminalization decision from the Brazilian
Supreme Court is likely to be influential on how judges rule on such cases
in the future. More significantly, such a ruling on privacy grounds has the
potential to be debate-changing both inside Brazil and globally. Casara
explained that the crux of this particular argument about drug prohibition
is the proper limits of state power:
The principal thesis is that nobody can be punished for what they do if
their actions do not harm third parties. For example, under Brazilian law,
attempted suicide is not a crime. If someone tries to commit suicide and
does not die, it is not a crime. Why? Because it is understood as self-harm,
it is a problem that only concerns the individual. And this creates a
paradox. If a person tries to kill himself, its not a crime. If you smoke a
joint or use cocaine, or use crack or whatever, you are punished for that.
The idea is that drug usage, if there is a harm, is only self-injury, only
harms the individual and thus cannot be the object of state punishment. The
state must respect the individual liberty of whomever wants to use drugs.
That pro-privacy reasoning tracks the arguments made by, among others, the
ACLU in opposing drug criminalization. The civil liberties group has
stressed how inherently abusive is the police state needed to enforce
criminal laws banning personal drug usage:
When theres no victim, how are the police supposed to find out when the law
has been broken? The only way for police to fight victimless crime is to
proactively search out wrongdoing: insert themselves into peoples lives,
monitor their behavior, search their cars, etc. The enforcement of drug laws
thus relies disproportionately on surveillance, eavesdropping, and searches
of private places and effects. This (and misguided judges) is the reason
that the failed War on Drugs has generated so much bad law around privacy
and the Fourth Amendment in particular.
Back in 2009, I wrote a report on the 2000 decision of Portugal to
decriminalize all drugs, and, after conducting extensive research in that
country, documented what a resounding success that policy has been. What
struck me most about that remarkable decision was that Portugal is quite a
conservative country: heavily Catholic, anti-abortion, and otherwise averse
to out-of-the-mainstream social progress.
Judge Casara argues that Brazil, though quite progressive in some ways, is
also deeply conservative on these issues: I think that Brazilian society is
particularly authoritarian and prejudiced. In respect to drugs, there are
many prejudices, including marijuana.
In general, the society has shown
itself to be very resistant to decriminalization. Obviously, Congress can
decriminalize and it would be the best path. But I do not believe that in
this historical framework, and with the particularly conservative
Congressional make-up right now, that there is the slightest possibility
that this will happen. As Judge Barroso said today: This is a delicate
question, because the solution favored by the three of us
[pro-descriminalization judges] does not correspond to the majority of the
population. Its a decision contrary to the views of the majority, but it
protects the rights of criminal defendants.
A former president of Brazil, Fernando Henrique Cardoso, has become an
outspoken advocate of decriminalization. He was a member of the Global
Commission on Drugs, which concluded that the global war on drugs has
failed, with devastating consequences for individuals and societies around
the world. Indeed, virtually every harm cited by drug prohibitionists is
either exacerbated, or created in the first instance, by the criminalization
scheme itself (exactly as was true of alcohol prohibition; in 2011, I
debated George Bushs drug czar, John Walters, at Brown University on
exactly that proposition).
Brazil has suffered from massive societal problems from drug
criminalization, with horrifically over-crowded prisons, overwhelmed courts,
and tragically under-funded treatment facilities for the nations poor
addicts (which is what happens when a country spends huge resources on
arresting and prosecuting drug users). The fundamental, profound failure of
the Drug War can be seen in all of its manifestations in Brazil. A judicial
ruling that recognizes those harms, but more importantly announces that the
state has no right to treat adults as criminals for the private choices they
make about what substances to consume, could alleviate significant
criminalization-caused suffering not only in Brazil but around the world.
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http://e-max.it/posizionamento-siti-web/socialize
