A ineficiência do modelo brasileiro de repressão e prevenção aos crimes de tráfico de drogas ilícitas sob a ótica da análise econômica do direito

Abstract

This dissertation proposes that Brazilian criminal anti-drug policy has failed in its intent to curb consumption and inhibit the practice of new crimes. From the point of view of the economic analysis of law, the eventual benefits of this policy do not outweigh its financial, social and personal costs. It is structured in four chapters. In the first one, the history of drug regulation, foreign and Brazilian, and drug repression was discussed. It was verified that humanity has lived with the use of drugs – for medicinal, cultural and recreational purposes – since the beginning of time, with criminalization being a recent process, based not only on the protection of public health, but also on morals and good manners. The next chapter analyzed the bases of the economic analysis of law, with an exposition of its foundations and its species, notably on the application of economic analysis to criminal law and the crime of drug trafficking. In the third chapter, the economic analysis of law was carried out in relation to the policy of prevention of drug use and repression of trafficking crimes. The current model of Brazilian criminal policy causes negative externalities that foster hyperincarceration, strengthen criminal organizations, stigmatize users and disproportionately punish vulnerable social groups. The weighing of diverse factors – such as the impact of certain drugs on health, the costs of criminalization (costs of incarceration, personal costs, effectiveness of repression, etc.) – has proven the inefficiency of Brazilian model of drug prevention and repression. Scientific studies have shown that licit drugs cause the same damage (or even more) than illicit drugs. Finally, the fourth chapter makes a critical analysis of some of the institutes foreseen in Law 11.343/2006, such as the criminalization of drug possession for personal use and the absence of objective criteria to differentiate between users, dealers and big dealers. It proposes a new drug policy, based on harm reduction and on the positive experience of other countries that have adopted the decriminalization of drugs for personal use and the legalization of cannabis (medicinal and recreational).