A política criminal – medicinal da canábis no Brasil : entre salvo-condutos e a criminalização

Abstract

The subject of the work is the Brazilian criminal drug policy and the liberation of cannabis crops for medicinal purposes in Brazil by the Judiciary. The objective of the research was to contextualize Brazilian drug policy and note the impact of anti-prohibitionist criticism on the process of granting safe-conduct orders for the cultivation of cannabis for medicinal purposes by the Judiciary in Brazil, between 2016 and 2020, in several states of the Federation. The tension between criminal drug policy, markedly prohibitionist, and a recent medical cannabis policy, built on jurisprudence, was highlighted. After surveying the history of drug prohibitionism in general, the focus was refined to see how the global prohibition of cannabis, imposed on the world by the USA from the beginning of the 20th century, developed, with great impacts and costs, not only economic, but in lives, especially in Latin America. The main anti-prohibitionist arguments raised against the war on drugs were exposed, starting from the criticism of criminal law, with the exposure of the narcissistic wounds of the criminal sciences, emphasizing the opposition between their declared functions and their true (real) functions. It was seen that the anti-prohibitionist critique ranges from philosophical assumptions to empirical findings about the results of this war: (1) racial prejudice, (2) damage to health, (3) foreign policy - wars, (4) increase in violence/criminality in general, (5) lies and hypocrisy, (6) loss of civil liberties, (7) corruption, impunity, abuse of authority, and (8) waste of financial resources. It was noted how the process of (re)discovery of the medicinal use of cannabis took place, with emphasis on the anti-prohibitionist movements, which, in the face of a context of immobility of the policy of access to herbal cannabis medicines through legislation, sought the protection of the Judiciary. Finally, the significant impact of the anti-prohibitionist critique was identified, enabling the overcoming of the prohibitionist arguments that were articulated in the cases. The critical arsenal of criminal law, a central point of the anti-prohibitionist perspective, prevailed, as of the 32 cases analyzed, only 04 were denied the safe-conduct for planting cannabis for medicinal purposes. It was affirmed, therefore, that the anti-prohibitionist criticism was a condition of possibility so that, within the war-on-drug criminal policy, with much bloodshed, especially of black and poor young people, a medical cannabis policy could emerge.