Brazil’s 40-Gram Marijuana Rule Left Trafficking Charges Rising

Brazil’s Supreme Court stripped criminal penalties from personal cannabis possession on June 26, 2024, and set 40 grams as the usual user line. Trafficking stayed a crime. Two years later the user file shrank, the trafficking file hit a record, and the prison count rose.

The ruling still stands, and it never opened a legal shop. What it changed was the label police write on a small bag, plus a quantity that officers can still talk past.

Personal Possession Lost Its Criminal Charge

The case is RE 635.659, Theme 506, and it sat on the docket from 2015 until a 6-5 majority finished it. Justice Gilmar Mendes wrote the lead opinion for an 11-member court. The holding is narrower than the word decriminalize suggests in English headlines, and it applies only to cannabis sativa.

Personal possession remains banned. Police still seize the plant. A user can be warned and sent to a class. The court took the criminal sting out of that file so it would not stain a record or feed a trafficking count by default.

WHAT THE JUNE 2024 RULING DID

• The charge: Acquiring, storing, carrying, or transporting cannabis for personal use is no longer a criminal offense.
• The ban: The same conduct stays illegal, and the drug is still seized.
• The sanctions: A judge may order a warning about the drug’s effects and attendance at an educational program, in a proceeding with no criminal fallout.
• The line: A person with up to 40 grams, or six female plants, is presumed a user until Congress writes a different number.
• The hole: That presumption is relative, so a trafficking arrest can still be made below the line when sale is in the facts.

Those five holdings are the court’s own five-point thesis on personal cannabis, left in force until lawmakers act. Sale, transport for sale, and every other narcotic stay under the 2006 federal drug law. On February 14, 2025, the full court rejected clarification appeals from São Paulo’s public defender and prosecutors and kept the thesis intact.

Forty Grams Is a Presumption Police Can Pierce

The number is the part everyone remembers, and it is the part that does the least work on its own. Mendes and the majority used 40 grams, or six female plants, as a default so a street stop would not turn into a trafficking case by vibe. Until Congress sets another figure, that is the working rule.

It is not a pass. Officers may still book trafficking below 40 grams when the rest of the stop looks like a sale. The court listed the usual tells: how the drug is packed, the mix of substances, a scale, sales notes, and a phone full of customer or dealer contacts. A judge can also look at a larger weight and still call the person a user if the file points that way.

Federal deputy Erika Hilton, posting as the court closed the quantity debate, said the point of a hard line was to protect users from racism in precincts and courtrooms, and that six plants at home would undercut street sales rather than feed them. The louder public reading ran the other way. Forty grams, recast as a few dozen joints, sounded to critics like a dealer’s pouch, which is why the number, not the holding on criminal records, became the fight.

Can Police Still Charge Trafficking Below 40 Grams?

Yes. The 40-gram line is a relative presumption, and officers may still make a trafficking arrest below that weight when they find signs of sale such as a scale, sales notes, mixed drugs, or a phone full of customer contacts. Special criminal courts handle the user file until the National Council of Justice writes a non-criminal script.

That residual discretion is the old 2006 problem in a new wrapper. The statute already told judges to weigh amount, place, and personal circumstances. Police and prosecutors still used trafficking when they wanted a cell. The court tried to put a floor under that habit. The floor moves when an officer writes up a scale.

Trafficking Charges Climbed While Possession Files Dropped

The Fórum Brasileiro de Segurança Pública, in its 2026 yearbook of 2025 police records, is blunt about the split. Possession and use reports fell to a series low. Trafficking reports jumped to a series high. The yearbook treats 2024, the year of the ruling, as the break in both series, and it does not treat the two moves as a simple win for users.

DRUG FILES LOGGED BY STATE POLICE

The forum’s published change from 2024 to 2025 is 18.5% more trafficking and 18.3% fewer possession-and-use reports. Possession had peaked in 2023, then dropped 38.8% by 2025, the slide starting in the year of Theme 506. Trafficking had been roughly flat from 2023 to 2024, then leapt. The forum’s own infographic records 207,058 trafficking occurrences in 2025.

The rise was national, and it was steepest in the Southeast, up 25.5% to 96,987 files. Minas Gerais logged 33,873 trafficking cases, up 41.7%. São Paulo logged 45,507, up 20.3%. Possession and use fell in most states over the same stretch.

TWO READS OF THE 2025 SPIKE

• Police refile: The forum says a nationwide drop in possession files, timed to the ruling, fits officers moving the same stops into trafficking.
• Cocaine supply: The same analysis gives weight to a second push in 2025, when global cocaine output hit records and Brazilian retail expanded with it.
• Joint read: Those two accounts are treated as complementary, so the court may have lowered the possession floor while the wholesale market lifted trafficking on its own.

A refile is the bitter version of the ruling. If a 20-gram stop that once sat in the user pile now goes in as trafficking because a scale is in the backpack, the 40-gram line did not retire the charge. It changed the caption on the form.

A Mutirão That Left Most Sentences Standing

The court also told the National Council of Justice to reopen old files in which people had been processed or convicted under articles 28 or 33 of the drug law with up to 40 grams of cannabis, or six female plants. The first Pena Justa mutirão of 2025, run with 33 courts between June 30 and July 30, put that order to work.

Judges looked at 29,725 such cases from the previous eight years. In 62.5% of them the original charge was trafficking, not the user offense. Results published on November 19, 2025, show how little of that pile moved.

CANNABIS FILES IN THE 2025 MUTIRÃO

• Kept as written: 54.9% of the files, 16,327 cases, stayed condemned as they were.
• Altered: 3,813 convictions were revised.
• Sent back: 7,434 files went to the defense and prosecutors for a new round, with 2,151 still waiting on a judge.
• Where it moved: 83% of the punishment reviews sat in Santa Catarina, São Paulo, and Minas Gerais.

The council’s own write-up of that national review of 29,725 cannabis cases said the courts had likely now touched the recent, relevant judgments on the theme. The larger mutirão reviewed about 86,000 files of several kinds, altered or cleaned 44,561, and produced about 9,000 releases or sentence revisions in total. On the cannabis slice, more than half the old convictions survived first contact with the new rule.

That keep-rate is easier to understand once the relative presumption is in view. A file charged as trafficking, even with a small weight, can stay a trafficking file if the original judge saw a sale. The mutirão was not a mass pardon. It was a filter, and most of the filter did not open.

The Prison Population Kept Growing

The 2006 law was sold as a way to keep users out of cells and still hit dealers. SENAPPEN series compiled in later research show how that split failed in practice. People held for trafficking rose from 47,472 in 2006 to 219,393 in 2021. The total prison population rose from 401,236 in 2006 to 909,067 on December 31, 2024, a SISDEPEN count that includes house arrest. Physical prisons that year had 494,379 places and were at 135.6% of capacity.

The yearbook from the Fórum Brasileiro de Segurança Pública puts the later figure at 964,668 people deprived of liberty at the end of 2025, with a shortfall of 281,213 places. That is a different year-end census from a different report, not a restatement of the 2024 SISDEPEN total, and both point the same way. The headcount after Theme 506 is higher, not lower.

Small personal amounts were never the whole machine. Pretrial holds, privileged-trafficking disputes, and faction cases still fill the blocks. Taking the criminal label off a user bag was never going to empty those wings if the same bag can be rewritten as a sale, and if the people already inside on article 33 mostly stay there after review.

The Override Still Waiting in the Chamber

Congress did not wait for the court. Senator Rodrigo Pacheco, then president of the Senate, filed PEC 45/2023 on September 14, 2023, after the justices had already started voting. The text would write into article 5 of the Constitution a command that possession and carrying of illicit drugs is a crime, in any quantity, while still telling the law to keep users out of prison and in treatment.

Pacheco told the floor the amendment would criminalize the carrying of a banned substance and still bar jail for the user, because a dependent should not be locked up for that condition. Senate rapporteur Efraim Filho said Brazilian society did not want decriminalization. Senator Jaques Wagner, voting no, said filling the prisons would not solve the drug problem.

FROM THE 2006 LAW TO THE STALLED AMENDMENT

1. August 23, 2006: The drug law is signed, with article 28 for personal use and article 33 for trafficking.
2. August 20, 2015: RE 635.659 reaches the Supreme Court.
3. April 16, 2024: The Senate passes PEC 45/2023 in two turns, 53-9 and then 52-9.
4. June 25, 2024: The Chamber creates a special commission for the amendment.
5. June 26, 2024: The Supreme Court finishes Theme 506 and sets the 40-gram line.
6. February 14, 2025: The court rejects the São Paulo clarification appeals.
7. June 30 to July 30, 2025: Courts run the first Pena Justa mutirão on the cannabis files.

A constitutional amendment needs 308 deputies in each of two Chamber turns. The constitutional amendment on drug possession still shows as awaiting that special commission. On the Senate’s public board, 23,021 votes against the idea outran 21,463 in favor as of September 24, 2026. The commission was created the day before the court spoke. It has not been seated, and the 40-gram rule is still the one in force.

Frequently Asked Questions

Did Brazil Legalize Marijuana in 2024?

No. There is no licensed adult-use shop, and a joint in public can still be seized. The court only removed criminal penalties for personal cannabis, so the user file is not supposed to create a criminal record, while sale remains a crime.

How Many Grams of Marijuana Count as Personal Use in Brazil?

The working line is 40 grams of cannabis sativa or six female plants, and Congress can replace both figures by statute. A judge may also treat a larger stash as personal use if the rest of the evidence points to consumption rather than sale.

Can Someone Still Be Charged With Trafficking for Less Than 40 Grams?

Yes. Mixed drugs, a scale, sales notes, the way bags are packed, or a phone with customer contacts can support a trafficking arrest below the line, which is why most of the files in the 2025 review had already been charged as trafficking under article 33.

Does the Supreme Court Ruling Cover Cocaine or Other Drugs?

No. The thesis is limited to cannabis sativa. Cocaine, crack, and other controlled substances stay under the old article 28 and article 33 system, including criminal treatment for personal possession of those drugs.

What Penalties Remain for Personal Marijuana Possession?

A judge in a non-criminal proceeding can order a warning about the drug’s effects and attendance at an educational program. Community service, the third sanction listed in article 28 of the 2006 law, no longer applies to personal cannabis.

Disclaimer: This article is news reporting and analysis of court rulings, police data, and pending legislation in Brazil. It is informational only and does not constitute legal advice, nor does it tell any reader how to possess, grow, or transport cannabis under Brazilian law. Anyone facing a charge, a seizure, or a question about medical authorization should consult a licensed Brazilian criminal lawyer or a qualified local attorney before acting. Figures, case statuses, and the text of PEC 45/2023 reflect the official sources cited here and can change if Congress legislates, if the National Council of Justice issues new rules, or if later crime reports are revised.