Prisons :: The non-debate of the 2014 elections

Conectas presents 10 measures for the prison system, a topic overlooked by candidates Conectas presents 10 measures for the prison system, a topic overlooked by candidates

There is a topic that the election programs and debates have not been addressing adequately. A place that no candidate visits. Nearly 550,000 Brazilians who do not feature in the opinion polls. A substantive slice of Brazilian reality that, despite growing exponentially year by year, receives little attention from government programs. It is the prison system that, despite its notorious problems and violations, is still addressed simplistically in the elections for both Executive and Legislative positions.


“This topic is only visible when it is used to defend policies that are supposedly ‘tough on crime’, but that are ineffective, do not consider the complexity of the situation and disregard the failure of decades of incarceration,” said Lucia Nader, executive director of Conectas. “When dealing with the prison system, you need to consider the justice system and all the mechanisms that reproduce exclusion and violence. Ignoring it or treating it irresponsibly, like the candidates have been doing, is to ignore one of the most serious and complex challenges facing Brazil, with repercussions on the three branches and all levels of government,” added Rafael Custódio, coordinator of the organization’s Justice program.


The importance of the topic goes beyond the national debate. Last week, for example, Brazil had to respond in the UN Human Rights Council, in Geneva, to the findings in a report produced by the Working Group on Arbitrary Detention. According to the experts, the country uses prison as the rule, and not the exception – with disastrous impacts on the entire system, namely overcrowding and the high number of prisoners who have never been convicted of a crime.


Besides the federal and state executive branches, the topic also has a direct impact on the work of the legislative branch. Legislative proposals are pending in Congress that could either dismantle the mass incarceration policies that have been condemned by the United Nations or, instead, expand their scope and their negative impact on society. “We urgently need to get these topics and proposals back into the political debate and correct a strategy that has long proven to have failed,” said Custódio.


In view of this situation, Conectas has presented the leading candidates for the presidency and for the government of São Paulo 10 urgent measures for the prison system – a list of immediate commitments that updates and contextualizes proposals that Conectas works with on a daily basis.


What currently happens in Brazilian prisons


Running counter to common sense, Brazil imprisons too much, and badly. In December 2012, our prison population stood at 548,000 people – the fourth largest in the world, behind only the United States, China and Russia – according to official data from the Ministry of Justice’s Prison Information System (Infopen). The difference compared to these countries, where prison populations are in decline, is that the incarceration rate in Brazil, which calculates the number of prisoners per 100,000 inhabitants, continues to rise. Using this calculation, we are already in third place among the most populous countries.


The unsustainability of this policy of mass incarceration, operated by a police structure inherited from the military dictatorship, is aggravated by at least two main factors: the shortfall of prison places, which already exceeds 230,000, and the high number of pre-trial detainees, who currently represent 41.8% of the entire Brazilian prison population.  In general, these detainees are people with limited access to justice who have been charged with non-violent crimes and who could await trial outside prison – which would immediately improve their access to a defense and unburden the prison system.

Furthermore, the current Drug Law (of 2006) has a multiplying effect on these figures. Since it first started being enforced, the number of people imprisoned based in this law has increased 320%. Today, 42% of the women and 24% of the men in prison are there for drug crimes. Before its approval, these rates stood at 24.7% and 10.3%, respectively.


Unlike what the data might suggest, this increase does not demonstrate the efficiency of the law, but instead the increased criminalization of black youth from poor neighborhoods. “Most of the people who have been sentenced to prison since 2006, on account of the new law, had no prior criminal record and were arrested with small amounts of drugs,” explained Custódio.


This sharp increase in the number of people behind bars, however, has not been accompanied by an improvement in the channels of access to justice. According to a 2013 report from Anadep (National Association of Public Defenders) and Ipea (Applied Economic Research Institute), there is a shortage of public defenders in 72% of the country’s court districts. The imbalance between the different actors in the justice system is also alarming: Brazil currently has 11.800 judges, 9.900 public prosecutors and just 5,000 public defenders – an imbalance that poses a risk to the right to a defense. In the district of Barra Funda, in São Paulo, for example, each public defender is responsible for 2.500 criminal cases.


This situation is aggravated by the lack of any rule requiring suspects to appear before a judge immediately after the arrest – which would also prevent mistreatment and torture and raise the chances of suspects being released ahead of their trial. Such hearings before a judge are already provided for by the American Convention on Human Rights, of which Brazil is a signatory, but their creation in Brazil still requires the approval of a Senate Bill (554/2011).


The lack of control by the Judiciary over the process of detention and imprisonment is one of the reasons why the prison system is a 

black box hidden from public scrutiny. This occurs because, although they are notorious for violating human rights, prisons are all but inaccessible to civil society. Today, even bodies like the National Justice Council have difficulty getting in – a problem that can be attributed, primarily, to the political control exerted over prison wardens by the state prison administration departments.


The approval of a law creating the National Mechanism to Combat and Prevent Torture, in August 2013, was an important first step to crack this shield. The new mechanism, which fulfills a commitment signed by Brazil in the UN in 2007, will be formed by 11 experts with unrestricted access to all the country’s detention facilities. It is important to emphasize, however, that its effectiveness depends on state-level mechanisms being set up across the country. Currently, only 

de Janeiro has a functional Torture Prevention Mechanism.


It is hoped that the same independence will be adopted by Brazil’s criminal forensic bodies, which are currently linked to state public security departments – a clear conflict of interest that can result in a biased approach by the forensic experts, particularly in cases of mistreatment by the police. Giving them autonomy will not only lend more transparency to the work of the police, but it will also ensure compliance with the Istanbul Protocol, ratified by Brazil, which establishes standards for identifying and investigating crimes of torture.


Without these obstacles, it will be possible to diagnose the main flaws of the prison system with more precision. And the information currently available illustrates that there are a wide range of deep-rooted problems. One of the most serious is the poor health care in Brazilian prisons. According to data from the 

Ministry of Justice, in December 2012 there was just one general practitioner for every 1,500 prisoners.


The lack of structure affects detained women particularly badly – even their right to exercise motherhood adequately is often disrespected. Only 15 gynecologists are available to treat 31,000 female prisoners all over the country. And there are countless cases of infants taken from their mothers and sent to shelters without the mother being aware of the process. The same desolate situation is found in access to education, one of the main tools to combat recidivism (which currently stands at around 60%, according to Unicef). In São Paulo, the state that holds 35% of Brazil’s prisoners, just 5.7% attend 

classes. The lack of provision of education contrasts with the potential demand: 56% of inmates have not completed their primary schooling. In Brazil, the rate of engagement by prisoners in educational activities is just 8.6%.


Access to employment faces similar problems. Currently, only 20.4% of Brazilian prisoners perform some form of internal or external employment. And they also face difficulties finding a job once they are released from prison. Public policies for reintegrating ex-prisoners into the job market are limited and insufficient to overcome the stigma surrounding imprisonment. Many of them, given their financial situation, cannot pay the fines set by the courts and so cannot update their documentation – making the process of looking for employment even harder.


10 urgent measures for the prison system

To address this situation, there are at least 10 measures that can be adopted 


Click here to read (in Portuguese) the document in full. 

1. Drastically reduce incarceration rates


– Substitute prison sentences of up to eight years with alternative measures (currently only permitted for sentences of up to four years), which would represent an immediate reduction of nearly 25% of the Brazilian prison population, and do the same for non-violent crimes.

– Comprehensive reforms of the public security policy, so the police intelligence services can focus on more serious crimes; and the existing policing model, so the police can be demilitarized.


2. Social control of the prison system

– Implement the National Mechanism to Combat and Prevent Torture, as established in the protocol signed by Brazil in the UN, 

and create independent state-level mechanisms whose members are selected through public consultation, along the lines of the international treaties ratified by the country.

– Create a federal law that guarantees and supports the inspection of prison facilities by human rights protection organizations.


– Strengthen the role of the Community Councils – prison oversight agencies formed only by civil society representatives – so they can do their job of inspecting prison conditions.


– Create and strengthen prison system ombuds offices, which must be external and independent.


– Immediately end the abusive body searches of relatives who visit men’s and women’s prisons.


3. Put a stop to the abusive use of pre-trial detention and create ‘detention 


– Press the Judicial Branch and Public Prosecutor’s Offices to effectively enforce the Law of Precautionary Measures (Law 12,403/11), which establishes alternatives for pre-trial detention.


– Encourage the CNJ (National Justice Council) to monitor the abusive application 


pre-trial detention.


– Approve Senate Bill 554/2011 that creates detention hearings, establishing a time frame of 24 hours for suspects to see a judge, in the presence of their lawyer, to analyze the need for imprisonment. This measure would also serve to prevent any mistreatment and it is already provided for in the American Convention on Human Rights, which has been ratified by Brazil.


4. Access to Justice


– Strengthen the federal and state-level Public Defender’s Offices and assure their 

financial independence.

– Increase the number of public defenders and their support staff (social workers, psychologists, sociologists) so they can work on a priority basis in prison facilities and police stations.


– Set up an electronic system that allows detainees to keep track of their legal cases from inside the prison facilities.


5. Reduce the impact of the Drug Law on the prison system


– Formulate a new drug policy, altering legislation to decriminalize drug use.

– Apply alternative sentences for small-time dealers (addicts who sell drugs to support their habit or on account of their social vulnerability).

6. Dignified treatment of imprisoned women


– Guarantee the right to motherhood and to 

spend time with the family. Significant increase in the number of pediatricians to provide medical treatment for newborns in the company of their imprisoned mother.

– Adequate material assistance, including the distribution of hygiene items.

7. Realization of the right to education and the right to work

– Significant increase in the provision of education and employment as a means of social reintegration.

8. Public policies for ex-prisoners


– Implement measures to assist ex-prisoners to re-enter the job market and provide psychosocial treatment for them and their families.

– Establish quotas for ex-prisoners and detainees in semi-open or open facilities to work on construction projects and services contracted by government.


– Stop levying fines after sentences have 

been served, so ex-prisoners can more easily get their documentation in order.

9. Realization of the right to health


– Transfer the administration of health care in the prison system to SUS (Brazil’s public 

health care system) and provide material assistance to prisoners in sufficient quantity and quality.


10. Forensic Medicine Centers that operate independently from state public security departments

– Break the link between forensic medicine centers and the criminal forensic departments of the police, in observance of the Istanbul Protocol, which has been ratified by Brazil.

Criminal Justice Network

As a member of the Criminal Justice Network, which is formed by nine human rights organizations, Conectas has also signed the Agenda of Proposals to 

strengthen alternative sentences in Brazil. The document, which is being discussed with all the presidential candidates, illustrates the problems of policies of mass incarceration and identifies 13 ways to promote “a solid and permanent policy of alternative sentences”.


Click here to read (in Portuguese) the 10 urgent measures for the prison system in full. 

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