The need to seize drugs for the configuration of the crime of trafficking: a critical analysis of brazilian jurisprudence

Abstract

This article aims to analyze the need to seize drugs for the configuration of the crime of trafficking. Despite being an old discussion, there is a lot of divergence in Brazilian doctrine and jurisprudence – even within the Superior Courts. This issue is of paramount importance for Brazilian society as every year a huge amount of public funds is allocated to combat trafficking. Despite the state effort to seek to solve this problem, the only result obtained has been the massive incarceration of people belonging to socially vulnerable groups, mainly black and poor people. According to data from the National Penitentiary Department (DEPEN), in 2019, about 28% of incarcerations in Brazil were related to drug trafficking. The numbers are impressive to the extent that they reveal that the criminal and procedural legislation on the subject works much more as a reason to arrest than a solution to the problem. For the preparation of this article, the hypothesis was established about the need to seize drugs for the configuration of the crime of trafficking. The methodology used in the preparation of this article was bibliographical and documental research. A bibliographical review was chosen, making a counterpoint between the existing positions in doctrine and jurisprudence. The final conclusion is essential to apprehend the drug to configure the crime of trafficking, in view of the legal determination of the requirement for a report verifying the nature and quantity of the drug to configure the materiality of the crime.