METACONTINGENCIES DESCRIBED IN LAW 11343 OF 2006 OF THE BRAZILIAN ANTIDRUG SYSTEM ABSTRACT:
The objective of this study was to identify the metacontingencies described in Law 11.343/2006, which addressed drug use prevention, health promotion, the social reintegration of users, and suppression of drug trafficking in Brazil. For the analysis of the Law, its articles were categorized to identify behavioral control contingencies that were either complete or incomplete. A contingency was considered complete if it specified all of the antecedents, responses, and consequences planned to change behaviors related to drug use and trafficking, and incomplete if it specified only part of these. The identified contingencies address the following themes: 1 - Context selecting the other contingencies; 2 - Contingencies of health care, prevention, and social reintegration; 3 - Contingencies for suppressing drug trafficking and production; and 4 - Contingencies for judging individuals and seizing assets derived from trafficking. A majority of complete contingencies were identified regarding the addressed themes. However, imprecise criteria were also identified for distinguishing between drug dealers and users, as well as for recording incidents. Additionally, there was an absence of positive reinforcement contingencies for behaviors alternative to trafficking, and the intervention proposals focused on total abstinence and punishment based on the temporary removal of traffickers and users from social interaction without addressing other environmental conditions that determine trafficking or use. The analysis reveals social control strategies based on coercive control as an educational practice. The inefficiencies of these strategies and the need for new regulations to be implemented and evaluated are discussed.
Keywords:
Behavior analysis; metacontingencies; public policies
RESUMO:
O objetivo do trabalho foi identificar as metacontingências descritas na Lei 11.343/2006, que trata da prevenção ao uso, promoção de saúde, reinserção social do usuário e repressão ao tráfico de drogas no Brasil. Para análise da Lei, seus artigos foram categorizados, a fim de identificar contingências de controle comportamental classificadas como completas ou incompletas, conforme especificassem todos ou apenas parte dos antecedentes, respostas e consequências planejadas para alterar comportamentos relacionados ao uso e tráfico de drogas. As contingências identificadas tratam dos seguintes temas: 1 - Contexto selecionador das demais contingências, 2 - Contingências de atenção à saúde, prevenção e reinserção social; 3 - Contingências de repressão ao tráfico e produção de drogas e 4 - Contingências para julgamento de pessoas e apreensão de bens oriundos do tráfico. Dentre os resultados, foi identificada uma maioria de contingências completas acerca dos temas tratados. Foram também identificados critérios imprecisos para distinção entre traficantes e usuários e para o registro das ocorrências; ausência de contingências de reforçamento positivo para comportamentos alternativos aos de tráfico; propostas de intervenção focadas na abstinência total e penalização a partir do afastamento temporário de traficantes e usuários do convívio social, sem que sejam corrigidas outras condições ambientais que determinam o tráfico ou o uso. A análise revela estratégias de controle social pautadas no controle coercitivo como prática educativa. Discutem-se as ineficiências dessas estratégias e a necessidade de que novas regulamentações sejam implementadas e avaliadas.
Palavras-chave:
Análise do comportamento; metacontingências; políticas Públicas
RESUMEN:
El objetivo de este estudio fue identificar las metacontingencias descritas en la Ley 11.343/2006, que trata sobre la prevención del consumo de drogas, la promoción de la salud, la reinserción social de los usuarios y la represión del tráfico de drogas en Brasil. Para el análisis de la Ley, se categorizaron sus artículos con el fin de identificar las contingencias de control de conducta clasificadas como completas o incompletas, según especificaran todos o solo parte de los antecedentes, respuestas y consecuencias previstas para cambiar conductas relacionadas con el uso y tráfico de drogas. Las contingencias identificadas versan sobre los siguientes temas: 1 - Contexto de selección de las demás contingencias, 2-Contingencias de atención a la salud, prevención y reinserción social; 3- Contingencias para la represión del tráfico y la producción de estupefacientes y 4- Contingencias para juzgar a las personas y aprehender los bienes provenientes del tráfico. Entre los resultados, se identificaron una mayoría de contingencias completas respecto a los temas abordados. También se identificaron criterios imprecisos para distinguir entre comerciantes y usuarios y para registrar las ocurrencias; ausencia de contingencias de refuerzo positivo para conductas alternativas a la trata; propuestas de intervención centradas en la abstinencia total y la penalización basada en la sustracción temporal de los traficantes y usuarios de la vida social, sin corregir otras condiciones ambientales que condicionan el tráfico o el uso. El análisis revela estrategias de control social basadas en el control aversivo como práctica educativa. Se discuten las ineficiencias de estas estrategias y la necesidad de implementar y evaluar nuevas regulaciones.
Palabras clave:
Análisis de la conducta; metacontingencias; políticas públicas
Introduction
Behavior Analysis is a psychological theory that studies behavior, particularly operant behavior. According to Skinner (1953), operant behavior is that which is modified by the consequences it produces, becoming more likely under conditions associated with the release of those consequences. From this perspective, changes in behavior depend on changes in the relationships established between a response and the environmental conditions that precede or follow it. These relationships are technically called reinforcement contingencies.
Reinforcement contingencies can be positive or negative. In the former, behavior is strengthened by increasing relevant events in the environment. In the latter, behavior is weakened by removing aversive events. Without these consequences, the behavior weakens or cannot be established. In cases where the behavior is punished, emotional and escape responses interfere with its occurrence.
In the social field, the organization of reinforcement contingencies is understood as a cultural planning strategy that establishes control practices over behaviors of interest for the survival of the group. According to behavior analysts, public policies based on laws, regulations, judicial decisions, and executive and local orders are part of this planning (Seekins & Fawcett, 1986). These policies organize conditions that encourage or inhibit behaviors. Some behaviors are strengthened by immediate consequences but also produce harmful consequences for the individual or group, such as drug use.
For the analysis of social control practices of this and other behaviors, the concept of metacontingencies has been used by behavior analysts (Glenn et al., 2016), being defined as relationships between intertwined contingencies that affect the behavior of different individuals, resulting in a common aggregate product selected by the cultural environment. This concept has been applied to the study of Brazilian laws. For example, Todorov (1987) evaluated the contingencies described in the drafting of the 1988 Brazilian Constitution, Todorov et al. (2004) evaluated the contingencies proposed in the Statute of the Child and Adolescent (ECA), and Prudêncio (2006) evaluated the ECA’s control over legal practices in criminal offenses committed by adolescents.
These investigations revealed that laws often fail to precisely describe behavioral contingencies, leaving the interpretation of articles to the discretion of judges (Todorov et al., 2004). Poorly descriptive criteria for the elements of contingencies were also identified, which makes it difficult for the responsible authorities to enforce the law. For example, in Prudêncio (2006), the ECA article most frequently violated in judicial proceedings was the one stipulating the precedence of children and adolescents in public services. However, it did not define deadlines or consequences for the lack of precedence.
In this context, Law No. 11.343 (2006), which establishes the National Anti-Drug System (National System of Public Policies on Drugs, or SISNAD), can be interpreted in terms of metacontingencies. It proposes intertwined contingencies to control the actions of various social actors, such as civilians, police officers, physicians, and judges. These contingencies are organized to reduce the socioeconomic harm caused by drug use and trafficking. However, the planned contingencies may not be met, which compromises the achievement of the aggregate product, making the identification of conditions affecting the legislation’s effectiveness relevant.
According to Razaboni Junior et al. (2017), the lack of objective criteria in everyday legal practice to distinguish between the behavior of users and drug dealers is one condition preventing the implementation of the contingencies foreseen in the law. This can lead to the arrest of individuals for drug trafficking who obtained drugs for personal use. Consequently, access to health services and social reintegration is hindered. The Federal Council of Psychology [CFP] (2013) states that public policies based on prohibitionist conceptions that criminalize drug use would also lead to the marginalization and moral condemnation of users. This encourages legal negligence and, consequently, the misjudgment of users as traffickers.
Nascimento (2006) argues that policies that pathologize drug use should also be criticized because they assume personal fragilities determine use while leaving the social contingencies responsible for this behavior unchanged. As Holland (1978) discusses, these contingencies should be reorganized to avoid blaming and marginalizing individuals, which in Brazil has been directed at the Black and poor populations (Leite & Feitosa, 2021). This has resulted in a public health problem and over-incarceration (CFP, 2013).
Recognizing the importance of formulating public policies that organize social practices, this study analyzed Law No. 11.343 (2006), updated by Law No. 13.840 (2019), to identify planned contingencies for controlling behaviors related to drug use and trafficking. Law No. 11.343 is a significant milestone in cultural planning because it establishes the National System of Public Policies on Drugs (SISNAD), prescribes measures for preventing use and caring for users, and establishes rules for suppressing the production and illicit trafficking of drugs. It also defines crimes and provides other measures (Law No. 11.343, 2006). However, the formulation of the law is not free from ideologies and political-economic interests from its conception. For example, the law does not address the use of alcohol and tobacco, despite the enormous damage these substances cause to society (Houvessou, 2019). Similarly, recreational drug use is recognized and, to some extent, tolerated in different cultures, though it is not legally recognized.
This analysis evaluates Law No. 11.343, highlighting the coherence or contradictions between its objectives and the contingencies planned to achieve them. Following the method of Todorov et al. (2004), the investigation identifies the different terms of the contingencies described in the legislation (antecedents, behaviors, and consequences). Then, it verifies whether these descriptions are complete, as incomplete descriptions could alter control over individuals’ behavior. The precision of the application criteria for the law and the description of contingencies for alternative behaviors were also evaluated because they could affect the desired aggregate outcome.
Method
Object of study. The research focused on Law No. 11.343 (2006), which establishes the National Anti-Drug System (SISNAD) (Brasil, 2006), with updates from Law No. 13.840 (2019).
The law is divided into six titles, each of which is subdivided into chapters that, in turn, present different sections. In total, there are 75 articles selected for analysis.
Analysis procedure. The 75 articles of Law No. 11.343 were analyzed to identify the law’s general principles and objectives, as well as the antecedent conditions, behaviors, and planned consequences for controlling the actions of legislators, judges, police officers, health professionals, and drug dealers involved in controlling drug use, providing assistance to users, producing drugs, and distributing them in Brazil.
The articles were organized into categories according to whether they described one or more elements of a behavior control contingency.
This investigation replicates the method used by Todorov et al. (2004, 2021) to identify the terms of the contingencies described in the law (antecedents, behaviors, and consequences). Then, it assesses whether the contingencies are complete or incomplete and the precision of the criteria for applying the law. Finally, it describes contingencies for alternative behaviors not included in the legislation. The articles were categorized according to the following criteria:
Antecedents: Articles describing situations for the occurrence of behaviors by judges, police officers, health professionals, users, or dealers, or for these behaviors to receive a given consequence (such as rights, vetoes, or permissions).
Behaviors: Articles describing behaviors for preventing drug abuse, providing healthcare, and socially reintegrating drug addicts; judging the possessor or the behavior of the dealer; and taking actions and measures to suppress drug trafficking and production.
Consequences: Articles describing consequences for the behavior of users and dealers, as well as individuals involved in the initiation and trial of criminal proceedings, or in the assistance and social reintegration of users.
The elements of a contingency could be identified from reading the same article or different articles of Law 11.346 (2006), updated by Law No. 13.840 (2019). As a result of the initial grouping, the list of contingencies described was subsequently organized into four themes:
Context selecting the other contingencies: Establish an antecedent condition that validates the other contingencies. For example, this could involve revoking previous laws, addressing the definition of drugs, or discussing the principles and enforcement of SISNAD and the objectives of the law.
Contingencies of health care, prevention, and social reintegration: Planned to control the behavior of users and individuals who maintain practices related to healthcare, social reintegration of addicts, and prevention of drug abuse.
Contingencies for suppressing drug trafficking and production: Planned to control the behavior of dealers and individuals involved in the characterization and trial of the crime of trafficking, as well as those implicated in distributing illicit drugs.
Contingencies for judging individuals and seizing assets derived from trafficking: Planned to control the behavior of the authorities who define the procedure to be adopted after the detention of individuals for the possession of illicit drugs. These contingencies are also involved in the process of alienation and auction of assets derived from trafficking.
The contingencies described in the last three themes were classified as either complete or incomplete. Complete contingencies were those in which all three terms (antecedents, behaviors, and consequences) were identified, while incomplete contingencies were those in which only one or two terms were identified. We also assessed whether the criteria for applying the legislation would be objective and measurable or susceptible to subjective interpretation by the agent interacting with the law. Furthermore, we evaluated whether the consequences described for the behaviors of interest could be identified from the analysis of one or more articles and whether different consequences were foreseen for behaviors incompatible with those specified in the law. We discussed these implications.
Results and discussion
An analysis of the 75 articles comprising Law 11.343 (2006) identified a total of 137 reinforcement contingencies, with 11 articles being part of more than one described contingency. Articles predating the law were also mentioned seven times, in addition to nine other prior laws being cited. This suggests that people unfamiliar with the cited texts may have difficulty understanding the legislation. The composition of the analyzed contingencies corroborates this assertion, as it required researchers to consult articles often written at distant points in the SISNAD text. This hinders the rapid identification of the conditions planned for controlling the behaviors of interest. The analysis revealed, on the other hand, that 129 of the identified contingencies were complete, while only eight were incomplete, as shown in Table 1. The predominance of complete contingencies (94.2%) suggests a lower probability of ambiguous interpretations of the legislation, which could, in theory, facilitate compliance.
When considering the themes referred to in Law 11.343 (2006), it is noted that the first seven articles belong to the theme Context selecting the other contingencies, and deal with the definition of drugs within the national territory, namely: “[...] substances or products capable of causing dependence, as specified by law or listed in lists periodically updated by the Executive Branch of the Union” (Law 11.343, 2006, Art. 1). Nine articles on the objectives and guidelines of the law are also included. These articles promote behaviors such as “[...] social inclusion of the citizen [...],” “[...] construction and socialization of knowledge about drugs in the country [...],” “[...] social participation, dissemination of information and guidance, social reintegration,” (Law 11.343, 2006, art. 4°), “[...] respect for the fundamental rights of the human person [...],” and “[...] promotion of shared responsibility between the State and Society" (Law 11.343, 2006, art. 4°). The execution of these activities is decentralized and takes place in the federal, municipal, and state spheres.
An analysis of the objectives and guidelines of the SISNAD reveals the intertwining of contingencies foreseen between federal, state, and municipal bodies, as well as individuals and legal entities, to guarantee activities related to the suppression of drug trafficking and production, healthcare, prevention, and social reintegration, in a manner appropriate to local specificities. Contradicting this provision, Decree No. 9.926 (2019, art. 2°) alters the composition of the National Anti-Drug Council (CONAD), the body currently responsible for approving, reformulating, coordinating, and “[...] requesting analyses and studies from the Advisory Group and the Bipartite Commission [...]”. The new composition includes representatives from federal ministries and state bodies linked to controlling drug use and suppressing trafficking and production. Notably, members of civil society, health professionals, and researchers appointed by their respective councils or representative bodies are excluded from monitoring and updating national drug policy. This restructuring suggests a willingness to reduce civil society’s representation in the body’s decision-making process, which hinders the consideration of data and analyses produced by experts to address the issue. Additionally, the CONAD presidency will be appointed by the President of the Republic, which could benefit groups aligned with the government’s interests rather than those based on scientific knowledge of drug-related issues (Cruz et al., 2020). Popular participation was expanded in 2023 with Decree No. 11,480 of April 6, 2023. Article 3 establishes the number of civil society representatives at ten, who are elected through a participatory process organized by the Executive Secretariat of CONAD. However, this did not include representatives from civil society or professional councils, such as the Federal Councils of Psychology, Social Assistance, Medicine, and the Brazilian Bar Association (Brasil, 2023).
Planned contingencies for controlling drug use behavior: the issue of health care, prevention, and social reintegration
As shown in Table 1, a large number of contingencies (46 contingencies, or 33.7% of the total analyzed) were specified to ensure the health and social reintegration of users and to judge drug possession for personal use.
Of the 58 planned contingencies for controlling judicial decisions, all are complete. The law specifies the following consequences for user behavior: a warning about the effects of drugs, community service, and attending an educational program or course (Law No. 11,343, 2006, Art. 28). Consequences for consumption differ from those foreseen for trafficking or production, the latter of which include prison sentences and fines.
However, the application of these consequences depends on the judicial decision. According to the second paragraph of the same article, the judge must consider the personality and social conduct of the agent, as well as the quantity and type of drug seized, to determine whether it was intended for personal use or trafficking (Law No. 11.343, 2006). These criteria are imprecise because the quantity or quality of the seized substance that distinguishes between trafficking and personal use is undefined, as are the social conduct or personality characteristics of suspects that lead to convictions. Thus, the defendants carrying the same quantity of drugs could receive different judgments resulting from subjective judicial interpretations of the seizure context. This analysis confirms Portella’s (2017) findings regarding the lack of clarity in the criteria applied to judgments of possessors, which interferes with maintaining the contingencies planned for the recovery and social reintegration of users.
According to Portella (2017), since many drug seizures occur in peripheral areas with low-income and low-educational-attainment residents, interventions that facilitate access to positive reinforcers or reduce social inequalities are important because they encourage behaviors that are alternatives to drug use. Legislation defines such activities as those “[...] aimed at reducing vulnerability and risk factors and promoting and strengthening protective factors [...]”, “[...] that aim to improve the quality of life and reduce the risks and harms associated with drug use” (Law No. 11.343, 2006, Art. 20) and “[...] directed towards their integration or reintegration into social networks” (Law No. 11.343, 2006, Art. 18). The law provides positive consequences to maintain such activities, including tax incentives and other resources from the federal government for individuals, legal entities, public bodies, private establishments, and nonprofit institutions. The planned contingencies aim to encourage prevention programs, social reintegration, and alternative behaviors to substance use. However, they do not specify the behaviors to be established or the variables to be manipulated by these programs.
The legislation also does not describe methods for monitoring the programs that may be maintained in partnership with various institutions, including religious institutions, which use recovery methods that are not necessarily based on scientific knowledge. While this proposal aligns with the principle of decentralizing assistance from federal, state, and municipal governments, it raises questions about whether a single criterion should be used to evaluate the implemented programs. These programs must promote total abstinence for users while respecting human rights guidelines. In this case, it is noted that incentives for maintaining the programs may be eliminated regardless of the gradual progress achieved. This limits the effectiveness of harm reduction policies and substitution therapies that have historically benefited this population by reducing the risk of disease transmission and overdose (Gomes & Vechia, 2018).
To further ensure care for users, 21 complete contingencies were described in the SISNAD, which address treatment proposals offered on an outpatient or voluntary and involuntary inpatient basis. Physicians are responsible for developing an Individual Care Plan and making outpatient referrals, which are offered as a consequence of the user’s behavior in seeking care. If outpatient treatment is ineffective and a medical evaluation of drug use patterns and types of drugs has been conducted, the legislation stipulates that the user may request, in writing, voluntary hospitalization and receive a referral for hospitalization as a consequence of alternative behavior to drug use.
In cases of involuntary hospitalization, the contingencies describe the physician’s behavior, who may request hospitalization for a maximum of three months, which may be interrupted at any time by family members or by the physician. However, no objective criteria are described that serve as antecedents for the medical decision, such as the type or number of previous ineffective treatments, so the decision must be based on the physician's own clinical evaluation criteria. There are also no consequences for physicians who refer patients for involuntary hospitalization before exhausting other treatment possibilities. One objective criterion that can be recognized is the length of hospitalization, which must necessarily be short. This is an important aspect to prevent the abandonment of the dependent by family members and caregivers, who are often physically, emotionally, and financially exhausted from living with the user.
Once involuntary hospitalizations become accepted as a community practice, it is important to be aware
of potential human rights violations. The antecedent conditions that determine the medical decision for compulsory hospitalization must be described, as the clinician’s behavior must be based on the proven impossibility of therapeutic alternatives within the healthcare system. It is argued here that the current legislation’s prohibition on funding harm reduction projects may restrict available treatment options. One must question whether compulsory hospitalization could be interpreted as a form of social retaliation against users (Holland, 1978), affecting minority and marginalized groups in society. This tendency to blame the victim is repeated in 2023, with Decree No. 11.392 (2023) approving the creation of a Department of Support for Therapeutic Communities, conceived as spaces that propose the free provision of reception for people with disorders resulting from the use, abuse or dependence on psychoactive substances, in a temporary residential setting and on an exclusively voluntary (spontaneous) basis, for a period between three and 12 months. According to the National Inspection Report on Therapeutic Communities, practices that contravene the Psychiatric Reform Law 10.216 (2001) were identified in these communities, which assume an asylum-like character, violate religious freedom, and propose the use of force and the internment of adolescents or adults without a discharge date. These problems led the Presidency of the CFP to denounce the situation as “[...] one of the greatest violations of human rights today, carried out systematically” (Conselho Federal de Psicologia [CFP], 2018).
The six incomplete contingencies regarding the topic Planned Contingencies for Controlling Drug Use Behavior (Table 1) ultimately address measures to be taken in the event of bankruptcy of companies dealing with medicines. These companies must inform the health authority and the Public Prosecutor’s Office of their situation so that the substances can be collected. However, the consequences of not complying with this measure are not mentioned. This incomplete description of contingencies may hinder business owners from maintaining expected behaviors, favoring the circulation of drugs and the use of medications without proper medical prescriptions.
Contingencies planned for controlling drug trafficking behavior: the issue of suppressing the sale and production of drugs
Regarding this topic, Table 1 presents a smaller number of contingencies (24% of the total analyzed) for controlling the behavior of drug dealers and police officers, civil servants, judges, and government representatives in the prosecution and trial of this crime.
For the behaviors of trafficking, drug production, possession of machinery for production, financing, and collaboration as an informant in activities related to trafficking, the consequences foreseen are penalties of restriction of liberty plus fines, with sentences ranging from six months to 15 years, according to Article 31 of the legislation. The lowest penalty is for offering drugs for use without profit, while higher penalties are applied if such behaviors aim to profit from the production and sale of substances. Therefore, greater aversive consequences are applied to the behaviors of dealers.
To control judges’ behavior in applying different penalties, the following antecedents were identified: “I - the nature and origin of the seized substance or product, and the circumstances of the act demonstrate the transnational nature of the crime [...]”, “VI - its practice involves or aims to affect a child or adolescent or someone who, for any reason, has diminished or suppressed capacity for understanding or determination [...]” and “VII - the agent finances or pays for the commission of the crime” (Law No. 11.343, 2006, Art. 40). For behaviors that fall under the aforementioned conditions, penalties may be increased by between one-sixth and two-thirds. It is noted, therefore, that the legislation precisely describes the antecedent conditions, behaviors, and consequences of different magnitudes to be applied to the trafficker’s behavior, which could favor the law’s control over judicial decisions. As mentioned earlier, the penalties foreseen would, however, be applied after an initial trial of the person as a trafficker or user, which would be difficult due to the lack of precise conditions for such a distinction.
Two incomplete contingencies were identified as part of the theme Contingencies Planned for Controlling Drug Trafficking Behavior. The first concerns data on drug trafficking suppression that should be integrated into the executive branch's information system; however, the behavior and conditions necessary for recording this data are not specified, nor are the consequences for complying or not complying with the established requirements. The data suggest the possibility of a database with missing information about the actions of the responsible bodies. The second incomplete contingency refers to the measures to be taken in case of bankruptcy of companies dealing with medicines. As mentioned earlier, no consequences were cited if the bankruptcy is not reported to the responsible bodies, which could facilitate the circulation of drugs originating from large corporations within the country.
In general, the contingencies described to curb drug trafficking behavior are coercive, with no description of positive contingencies planned for the social reintegration of drug dealers. According to Razaboni Junior et al. (2017), however, the law in question has not been effective in combating trafficking, which suggests the need to discuss other solutions to the problem and to monitor the results of policies implemented in different countries, based on the collection and wide dissemination of data.
Contingencies planned for controlling the behavior of authorities: the issue of judging individuals and seizing assets derived from trafficking
Finally, the contingencies categorized as part of the theme Contingencies planned for controlling the behavior of authorities describe the judicial process from the moment the agent of the foreseen conduct is referred to the public body until the judge's final decision.
An inspection of the data listed in Table 1 reveals that most of the contingencies described in the legislation are related to this topic (42.3%) and describe conditions for controlling the behavior of police authorities, employees of the Public Prosecutor’s Office, judges, and defendants, totaling 58 contingencies described, all in a complete manner. An exception would be observed in the case of Article 42, which deals with the determination of penalties by the judge, because, although it can be interpreted as an antecedent stimulus of a complete contingency, it may present problems in interpreting the criteria for classifying the conduct as possession of drugs for consumption or trafficking, evaluating the defendant’s personality, or determining the nature and quantity of the substance seized. (Law No. 11.343, 2006, art. 59).
In this case, it should be considered that the judge’s initial decision regarding the possessor’s behavior entails the application of aversive consequences of varying magnitudes. Once someone is convicted of drug possession for personal use, Article 48 stipulates that the individual, the user, will not be arrested in flagrante delicto and will respond to the proceedings while at liberty. However, this does not apply to cases of suspected trafficking, where the defendant is detained. In cases of suspected trafficking, the police authority must inform the judge of the seizure conditions based on appropriate documentation (arrest report, expert examinations, etc.), compiled in the proceedings within 30 days if the individual is detained or 90 days if the individual is released (a measure foreseen for users). When justified by the police authority, these deadlines may be doubled. Once these deadlines have passed, the police authority must inform the judge of the incident and report whether further investigations are necessary. If not, the judge will file charges, list five witnesses, request further evidence, and, if deemed necessary, employ witness protection measures.
The judge’s notification will then serve as an antecedent condition for the accused to present their defense and list witnesses within 10 days. Otherwise, the judge will appoint a defense attorney. A hearing will then be scheduled. During the trial, both the public prosecutor and the defendant’s attorney will each have 20 minutes to speak (extendable by another 10 minutes at the judge’s discretion). After the interrogation, the judge will deliver the sentence immediately or within 10 days. The document emphasizes the importance of consistent police officer testimonies for them to constitute valid evidence, though it does not describe consequences for officers who provide contradictory testimonies.
In general, assets originating from drug trafficking and production activities are seized. Once their illicit origin is confirmed, these assets are auctioned off to private individuals. If vehicles are seized, the traffic authorities are notified, and any prior fines or charges on the vehicles are disregarded. With authorization, the judicial police may request to use seized vehicles for activities combating drug trafficking and production. Seized weapons are destroyed, and there is no contingency plan for noncompliance with this rule. Seized international currency is converted into national currency and deposited into an account at Caixa Econômica Federal (CEF). These funds are used for activities related to healthcare, the social reintegration of users and dependents, drug use prevention, and the suppression of drug trafficking and production. Thus, we see an intertwining of contingencies related to suppressing drug trafficking and assisting users/addicts, such that this collection contributes to achieving the desired aggregate product.
Final considerations
The objective of this study was to analyze Law 11.343 (2006), which addresses drug use and trafficking in Brazil, to identify contingencies planned to prevent economic and social harm resulting from drug use, as well as conditions hindering the achievement of this objective.
Based on the analysis, distinct contingencies were planned to control drug trafficking and use behaviors, though they do not guarantee adequate conditions for judging these offenses initially. Not only are the criteria for judging these offenses imprecise, but the conditions for controlling the records of these actions are also not specified. This hinders criminal decisions and prevents the recognition of procedural flaws that may violate the legislation’s principles.
Regarding the behavior of drug dealers, the contingencies planned in the legislation are essentially coercive control measures, with no recognized proposals for social reintegration through the promotion of behaviors that are alternatives to drug trafficking. Although these contingencies are intended to prevent and treat drug use, difficulties in maintaining recovery programs have been noted, as tax incentives depend on total abstinence. Thus, the legislation proposes eliminating the target behavior as the central focus of interventions, contradicting the constructivist model offered by behavior analysis, which suggests that gradually shaping an alternative repertoire based on positive reinforcement would be central to successful interventions (Rocha et al., 2020).
The absence of civil representation in legislative planning highlights the risk of centralizing political decisions, which can perpetuate traditional coercive practices as a model of intervention. According to behavioral-analytic literature, coercive control is a widely used social control strategy that only temporarily reduces the probability of the behavior while producing undesirable effects such as depression, inflexibility, self-destruction, aggression, and counter-control (Sidman, 1989). Regarding counter-control, Sidman (1989) presents it as a way to escape coercion by weakening the controllers’ power. In trafficking, this can include illicit agreements with authorities for selling and transporting products (De Ávila & Gomes, 2022), which destabilizes the metacontingencies planned to suppress distribution.
For behavioral analysis, it should be noted that all behavior is maintained because it produces relevant consequences. This includes behaviors considered inappropriate, such as drug trafficking, which is perpetuated by its employability and remuneration. The same is true for drug use, which produces reinforcing consequences such as socialization, pleasure, and relief. Therefore, intervention strategies should not focus on repressing these behaviors, but rather on creating conditions that produce the same consequences through desirable responses. In this sense, incarceration would be questioned as an isolation-based recovery strategy because it only temporarily removes users and traffickers from the environment that determined their behaviors without modifying it. Countries that have achieved positive outcomes with incarceration and internment have been accompanied by profound changes in other social practices. Meanwhile, proposals to legalize marijuana use similarly to alcohol have led to a decline in opioid overdoses in the United States and Europe but an increase in crime in Uruguay (Mallet & Silveira, 2019). Thus, the fight for experts to participate in drafting and updating legislation represents an initiative to change the current scenario in which drug trafficking crimes account for 24.74% of criminal convictions. This corresponds to approximately 200,000 people, mostly Black individuals from impoverished regions, who are held in an expanding prison system (Conselho Nacional de Justiça [CNJ], 2018). Meanwhile, the problems of drug abuse and trafficking remain unresolved.
References
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Decreto nº 9.926, de 19 de julho de 2019. (2019, 22 de julho). Dispõe sobre o Conselho Nacional de Políticas sobre Drogas. Diário Oficial da União, edição 139, seção 1, p. 2. http://www.in.gov.br/web/dou/-/decreto-n-9926-de-19-de-julho-de-2019-201622995
» http://www.in.gov.br/web/dou/-/decreto-n-9926-de-19-de-julho-de-2019-201622995 -
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