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

by Flavia Alves

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.

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Written by:

Flavia Alves

Flavia Alves on:

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