A look inside the prison System

Judge who banned abusive body searches from prisons in Santa Catarina criticizes mass incarceration and calls for minimal criminal law Judge who banned abusive body searches from prisons in Santa Catarina criticizes mass incarceration and calls for minimal criminal law

Judge João Marcos Buch, of the Criminal Enforcement Court of Joinville, in the state of Santa Catarina, swims against the tide. While violations against prisoners and their relatives only get worse in Brazil, particularly on account of the oppressive searches that people have to endure on visitation days, Buch is fighting to revoke an appeals court ruling that overturned, at the request of the State Public Prosecutor’s Office, an ordinance he issued May that bans these humiliating procedures from taking place. The ban was in place for five months in Santa Catarina, without any riots occurring and without any increase in the number of weapons, mobile phones or drugs seized at the state’s prison facilities.

The judge, who has worked in the field of criminal law for 19 years, argues that the oppressive search is currently one of the worst violations committed by Brazil. “It involves not only the 550,000 people who are imprisoned in the country today, but also their relatives and the prison guards, who in general also feel extremely uncomfortable.” He refutes opposing arguments with a simple fact: the procedure is not efficient and, as inspections have shown, it does not prevent the entry of prohibited items into prisons. “These items are much more likely to get inside prisons as a result of corruption than visiting relatives.”

A partial survey conducted by the Criminal Justice Network in São Paulo’s prisons supports this claim: between February and April this year, for example, of the 12,866 visits made to the Pre-Trial Detention Center of Taubaté, only three people were found to be carrying drugs and one was caught with a mobile phone chip, representing 0.03% of the visitors. According to data from the São Paulo Prison Administration Department, 1,222 mobile phones were confiscated in the state’s prison facilities in the first quarter of 2013. Of these, only 104 were found on visitors.

According to Judge Buch, the most important contribution of his ordinance has been to demonstrate that the system does not collapse without the oppressive searches. “On the contrary, it starts to function more smoothly. Even the guards realized that the security dynamic did not change and that their workload was eased.” The Santa Catarina state government, he explained, adopted electronic equipment such as x-ray machines and hand-held metal detectors to substitute the procedure. “It is also planning to buy a body scanner, although this must be done carefully, considering all the health effects.”

Minimal criminal law

The humiliating searches, says Buch, are part of a broader problem, rooted in a criminal law “that is segregationist and violative in and of itself, and that increases the gap between those who do not go to prison and those who do – the poorest sections of the population”. “The authorities, the Judiciary, the public officials, they all solemnly ignore the science of criminology, which has long explained the phenomenon of violence and shown that it cannot be combated with prison sentences,” he said.

The judge explained, based on his own experience, that between 80% and 90% of the prisoners he has known would not need to be held in secure prisons if they had other opportunities. “Prison was not necessary for most of them. It would have been more effective to send them all home so they wouldn’t be contaminated by the system. And the other 10% could be handled by the State in a much more effective manner.”

Over the past 10 years, the number of people in prison in Brazil has doubled and the country now has the world’s fourth largest prison population, after the United States, China and Russia. “Has this reduced violence? Perhaps the opposite is true. Recidivism is very high, which means the system makes people more violent. Brazilian criminal law is irrational and does not achieve what it officially proposes – to promote social pacification through punishment.”

Drug Law
The strategy of mass incarceration mentioned by Buch has been stepped up in recent years, particularly as a result of the war on drugs. Between 2005 and 2010, the number of people convicted of drug trafficking has more than tripled in Brazil. The increase has been 220%, according to data from the National Prison Department (Depen). Research has shown that most of the convicts share the same profile: young, black, male, first-time offenders.  This system that does not differentiate between users and dealers and, as a general rule, penalizes residents from poor neighborhoods, runs the risk of being intensified due to initiatives such as the new Drug Law (Bill No. 37/2013, formerly Bill No. 7663/2010).

“The law already has very strict sentences that do not distinguish between major traffickers who bring in hundreds of kilos of cocaine from Bolivia from those who sell a rock of crack on the street corner. This is counterproductive and has not resulted in a reduction of consumption – indeed, the exact opposite has occurred. I’m in favor of drug prohibition, but not in the criminal sphere. The problem needs to be addressed from a public heath perspective,” he said.

According to Buch, the criminal approach to the so-called “war on drugs” has transformed the prison system into a “holocaust”. “Public officials need to be aware, and realize the human tragedy that is occurring at the hands of the State. If we don’t do something now, there’ll be a price to pay later.”

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