Brazilian prisons

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By MARCELO AITH*

The problem of Brazilian prison overcrowding is structural and systemic, and the Judiciary is one of the main responsible for mass incarceration in Brazil

The Plenary of the Federal Supreme Court (STF) resumed, on October 3rd, the trial of the Claim of non-compliance with Fundamental Precept (ADPF) No. 347/SP, filed by the Socialism and Freedom Party (PSOL), which it points to as the reason for ask for the unconstitutional state of affairs in Brazilian prisons.

PSOL's initial petition, accompanied by robust evidence, highlights that prisoners are subjected to overcrowded, filthy and unsanitary cells, with a proliferation of infectious diseases, in addition to extreme temperatures, lack of drinking water and basic hygiene products; further reports that inedible food is provided, often spoiled and expired; It also highlights the frequent homicides, beatings, torture and sexual violence against those in custody, carried out both by other inmates and by State agents.

The issue of prison overcrowding has been latent for some time in Brazil. According to information from the National Penitentiary Department (Depen), with data up to June 30, 2023, we have a population of 839.672 people with restricted freedom, of which 649.592 are in physical cells in overcrowded prisons, in sub-human conditions and 190.080 under house arrest . However, the total number of places in prisons, as of June 30, 2023, is 482.875. Therefore, there are approximately 35% more prisoners than the installed capacity to receive them.

What is the result of this terrifying scenario? Overcrowded prisons, subhuman conditions for inmates, lack of disciplinary control, constant rebellions with deaths, not to mention that prisons are dominated by criminal factions that dictate the rules internally.

The problem of Brazilian prison overcrowding is structural and systemic. Structural because it results from the chronic malfunction of the penitentiary system, given that in two decades the prisoner population increased from 232.775 (2000) to approximately 649.592 (June 2023), with the installed capacity not meeting needs. The problem is systemic, given that it permeates all Brazilian states, that is, it is not a specific or local issue, but is present in the penitentiary system as a whole.

Marcello Bortoloto points out that overcrowding is “the cause and effect of schizophrenic policies that produce incarceration and then seek ways to repair it, that proclaim zero tolerance and claim certainty of punishment, but promote neither freedom, legality, nor security” . For Marcello Bortoloto, overcrowding is not born from the growth of crime, but rather from the growth of criminalization.

Rodrigo Duque Estrada Roig highlights that “the imposition of any form of inhuman or degrading treatment – ​​such as incarceration in overcrowded conditions – is an act that transcends the simple deprivation of liberty, making imprisonment illegal”. He also highlights that “incarceration in conditions that violate human dignity would affect the State’s own intention to punish, making it lacking in legality”.

Far from looking for people to blame for this disastrous situation, we cannot fail to recognize that the Judiciary is one of the main responsible for mass incarceration in Brazil. This statement can be corroborated by the huge number of people provisionally arrested in the country. Data updated in June 2023, Brazil has 180.167 people provisionally imprisoned, that is, without a final criminal sentence, therefore, legally innocent.

Among the principles informing criminal execution we have the principle of numerus clausus (closed number), without a shadow of a doubt disrespected by public authorities in the three spheres of power. Explain.

the principle of numerus clausus, basically, determines that the number of prisoners must necessarily correspond to the number of places in the penitentiary system, that is, each new entry of a person into the prison system must necessarily correspond to at least one exit, so that the prisoner-vacancy ratio always remains stable. However, according to the data presented above, it is nowhere near adopted in Brazil.

In effect, the delegitimization of the Brazilian criminal system to impose deprivation of liberty on a person, given the unconstitutional state of affairs, is unequivocal. A hostile, selective, perverse and dehumanizing system. A true delinquent factory, whose sole purpose is to impose retribution on a person, by the way, absolutely disproportionate in the vast majority of cases, due to an injury caused by them to a legally protected asset.

Is there a way to mitigate this offense to the dignity of prisoners in the Brazilian penitentiary system, using current legislation and international experience with instruments that shorten the time in prison, or even allow for non-incarceration? I think so.

I highlight criminal alternatives extracted from the Brazilian normative framework, which, if properly used, could significantly help to reduce the prison population. They are: pardon and commutation of sentence; conditional suspension of sentence; application of pecuniary penalties instead of deprivation of liberty; application of sentences restricting rights instead of deprivation of liberty; remission of sentence and; conditional release.

An example of non-compliance with the current norm was presented in the Criminal Information Report – RELIPEN, from the National Secretariat for Penal Policies – SENAPPEN, which points out that there are 9.712 prisoners in a closed regime who have progressed and are awaiting transfer to the semi-open regime, with Binding Precedent no. 56/STF determines that no one can remain imprisoned under a more serious regime.

Furthermore, there are other mechanisms that can reduce overcrowding in Brazilian prisons: (a) conversion of semi-open and open regimes, which still remain in physical cells during night rest, through electronic monitoring; (b) review, every 90 days, on a mandatory basis, of provisional arrests; (c) Probation for prisoners convicted of crimes punishable by detention; (d) Freedom for prisoners with serious illnesses: a question of dignity; (e) Process of extrication of pregnant women and those with children under the age of twelve; and (f) Restorative justice for those without violence or serious threat to the person.

Obviously, these are mechanisms that can alleviate this state of affairs in Brazilian prisons, but they do not remotely resolve the current situation. To achieve the ideal, it demands a joint effort from everyone involved, the Judiciary, Executive, Legislative, Public Ministries, in addition to an intense awareness of society, that prison recovers almost no one, but significantly contributes to forming an army of delinquent.

The Supreme Court is moving towards definitively recognizing the unconstitutional state of affairs. I hope that the decision produces its regular effects, improving the inhumane, cruel, degrading situation in which people imprisoned in Brazil live.

*Marcelo Aith He is a lawyer, studying for a master's degree in Criminal Law at PUC-SP and president of the State Commission for Economic Criminal Law at Abracrim-SP.


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