The differentiation between trafficking and personal use in the brazilian criminal procedural system under the drug law

Abstract

The article analyzes the legal treatment of the distinction between drug trafficking and personal use within the Brazilian criminal procedure system, in light of Law No. 11,343/2006 and the case law of the Federal Supreme Court (STF). It examines how the absence of objective criteria in the legislation generates discretion and penal selectivity, resulting in the criminalization of socially vulnerable groups, especially Black and marginalized populations. The Drug Law delegates to police and judicial authorities the subjective interpretation of elements such as the quantity, location, and circumstances of the seizure, contributing to racial disparities and violating principles such as legality, presumption of innocence, and proportionality. The research adopts a qualitative and bibliographic approach, based on legal doctrine, legislation, and judicial decisions. It concludes that the STF’s decision in RE 635.659, which set a provisional threshold of 40 gram2s or six female cannabis plants to distinguish use from trafficking, represents progress in limiting judicial discretion. However, it reinforces the need for legislative reform establishing objective criteria and promoting a rights-based hermeneutic capable of reducing punitive selectivity and ensuring greater coherence and fairness in the application of criminal law.