Do Adults Have a Privacy Right to Use Drugs? Brazil’s Supreme Court Decides

by Glenn Greenwald

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. That’s 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 Portugal’s 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 it’s 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 nation’s constitution (one’s “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, Brazil’s 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.

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