Constitucionalizar a criminalização das drogas : uma análise da PEC 45/2023 e de suas justificativas

Abstract

The present study, registered in the field of criminal law politics, aimed to analyze the justifications presented by parliamentarians for Constitutional Amendment Proposal – No. 45 of 2023, which seeks to amend Article 5 of the Federal Constitution of 1988 to make mandatory the criminalization of the possession and carrying of narcotics and related drugs without authorization or in violation of legal or regulatory determinations. This is a bibliographic and documentary research that gathered data from the justification text in the initial presentation of the proposal, the opinion of the Constitution, Justice, and Citizenship Committee, as well as the opinion of the Rapporteur in the Chamber of Deputies. The data obtained were analyzed in light of the theoretical accumulation already produced in the field, with a theoretical review of specialized literature, especially criminological, regarding drug control policies. Among the results, it was possible to observe the repetition of a series of justifications anchored in common-sense perceptions, without consistent data being presented to support the proposal. The entire argument put forward reinforces the continuation of the so-called "war on drugs" policy, which has already been demonstrated as ineffective by literature and related research. In the end, it was concluded that the PEC in question operates to delineate the field in defense of maintaining criminal policies based on punishment, of the "law and order" type, especially in response to the ruling by the Supreme Court, which recognized the presumption that an individual who acquires, keeps, stores, or transports up to 40 grams of Cannabis sativa is a user. In this sense, the PEC in question, beyond the debate on criminal policy, serves as a parliamentary strategy and maneuver that challenges the Supreme Court’s decision and can be understood as a mere "backlash effect" within the dynamics of disputes between the legislative and judicial branches, rather than a genuinely constitutional criminal policy capable of addressing the complex issue of drugs.