One in Five: the crisis in Brazil's prisons and criminal justice

by Flavia Alves
Contact

The number of prisoners and pre-trial detainees in Brazil is rising rapidly and there is widespread

agreement that the current criminal justice and penal system is dysfunctional. In November 2009, the

National Council of Justice announced that out of the cases it has reviewed so far, one in five pre-trial

detainees have been imprisoned irregularly, which suggest that the nationwide problem is extremely

serious. The Brazilian criminal justice and penal system has been the subject of numerous expert

reports denouncing its failings, and there have also been ad hoc attempts to deal with different

aspects of its problems. The system also appears to violate Brazil’s own laws and constitutional

provisions for the protection of human rights. While formally committing itself to extensive

protection of the rights of its citizens, the Brazilian Government claims that hostility to the concept

amongst its own officials and a large section of the public is one of the key impediments to criminal

justice reform.

The first section of this report provides a summary overview of numerous recent reports and studies

by UN monitoring bodies as well as international and national human rights organisations into the

violations of rights that are being perpetrated by and in the Brazilian penal system. The overall trend

within the Brazilian criminal justice system is to sentence more defendants to prison than are being

released, which has overwhelmed the capacity of the already overcrowded penal system – this looks

set to continue. A huge backlog of cases has built up leading to increasing delays in the court system,

and over 80 per cent of prisoners cannot afford a lawyer. Many people are imprisoned irregularly,

spend years in pre-trial detention or remain in prison after the expiry of their sentence due to

bureaucratic incompetence or systemic failings. Severe overcrowding, poor sanitary conditions, gang

violence and riots blight the prison system, where ill-treatment, including beatings and torture, are

commonplace. Although the government has announced several reforms to tackle the problems

identified, in practical terms little has changed over the last decade. This suggests that the failings are

deep-rooted and systemic, so need to be addressed in a holistic way.

The second section of this report describes the formal protection of human rights in the Brazilian

criminal justice system, but also explains why these guarantees remain largely on paper. An

understanding of why the Brazilian state appears to violate so many of the human rights that its own

laws and Constitution guarantee requires some description of the historical political context in which

the relationship between them developed. This took on a critical importance during the transition

from dictatorship to democracy and its legacy continues to strongly influence Brazilian society and

politics, with many Brazilians associating the transition to democracy with the large increase in violent

crime that has occurred in the country.

The third section focuses on the institutions constitutionally mandated to protect human rights

within the Brazilian criminal justice system. While Brazil’s current Constitution and many of its laws

provide extensive protection, the institutions charged with upholding these rights often fail to do

so. This may be because many of these corporatist institutions remain largely unreformed from the

dictatorship era and have sought to shield themselves from democratic scrutiny and control.

The final section describes some of the local initiatives that have been undertaken to bring justice

closer to the people in Brazil. An effective reform strategy must deal with the issue of criminal justice

6 One in Five: The crisis in Brazil’s prisons and criminal justice system february 2010

reform comprehensively. The problems regarding access to justice in pre-trial detention cannot be

treated in isolation from the context of the crisis in the Brazilian criminal justice system, and the

broader problem of tackling crime in society. Focusing on trying to fix one specific area, through new

laws or the creation of new institutions, could make the current situation worse by adding fresh layers

of bureaucracy and confusion to an already dysfunctional system. This report argues that more effort

needs to be put into making the existing parts of the system work better together and encouraging

the development of incremental, community-led and home-grown reform.

Defensoria Pública is the body constitutionally-mandated to provide free legal assistance to those

who need it, and the International Bar Association’s Human Rights Institute strongly endorses the

repeated calls that have been made for this to be strengthened. There are also a variety of other

groups attempting to develop responses to the current crisis within their criminal justice system.

Supporting their creative ingenuity to ‘find a way around the obstacles that exist’ (jeitinho brasileiro)

should be an essential part of the reform process.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Flavia Alves
Contact
more
less

Flavia Alves on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.