From prohibition to harm reduction? An analysis of the adoption of the Dutch harm reduction approach in Brazilian drug laws and practice

Background: Brazilian drugs law and policy used to focus on prohibition of drug use. In 2006, inspired by the Dutch harm reduction approach, Brazil adopted Law 11.343/06, a new drugs law focused at harm reduction. Dutch harm reduction is characterized by a distinction between users and traffickers of drugs, and by a distinction between drug markets (soft drugs and hard drugs). Notwithstanding the new drugs law, some Brazilian scholars claim that Brazil still favors prohibitionism towards drug use. The current study investigates the extent to which the Dutch harm reduction approach is reflected in Brazilian law and practice. Methods: First, a documentary analysis of the Brazilian law and policy documents is performed to see whether they incorporate the distinctions between actors and markets. Second, a case law analysis of 102 judicial decisions delivered by the Rio de Janeiro courts of appeal was conducted to investigate to what extent judges refer to aspects of the harm reduction approach. Results: Findings of this study indicate that law and policy documents now indeed separate users from traffickers, but soft drugs are not separated from hard drugs. Moreover, where the distinction between users and traffickers in the Dutch law is solely based on the quantity of seized drugs, the Brazilian judge has large discretionary powers to decide whether the suspect is a user or a trafficker. Conclusion: The Brazilian legal system has partially incorporated the Dutch harm reduction approach. The law distinguishes users from traffickers, but does not prescribe criteria to make the distinction. The lack of objective criteria by Brazilian law and policy reflects in subjective and inconsistent decisions delivered by the courts, which impairs an approach of harm reduction towards drug users.