Signed by Lula, Christmas pardon forgives debts and permits restoration of political rights

Among the restrictions are convictions for racism and crimes against women and the public administration

President Luiz Inácio Lula da Silva signed the decree granting a Christmas pardon to convicted people in prison or those subject to security measures. Published on Friday, December 22, in the Official Federal Gazette, the decree authorizes the first Christmas pardon of Lula’s third term in office.

The pardon is a prerogative of the President of the Republic that is conferred, but also limited, by the Constitution. Pardons are not permitted, for example, for people convicted of crimes of terrorism, torture, drug trafficking and similar acts considered heinous crimes.

The decree is applicable to people convicted for non-violent crimes. The restrictions limit the scope of the pardon on humanitarian grounds and resulting from violations of the prison system, preventing its effectiveness for cases traditionally covered by pardons. Furthermore, there was no significant progress with respect to crimes for which most of the prison population in Brazil are convicted.

Unlike the temporary release scheme, which is for specific commemorative dates, such as Christmas, Easter and Mother’s Day, the Christmas pardon is a definitive pardon of sentences for people who are eligible to file a legal case to apply for the benefit.

Carolina Diniz, coordinator of the program to Combat Institutional Violence at Conectas, stressed the importance for the justice system to be swift in applying the rules of the decree, by tackling practices that traditionally water down its impact, such as subjective assessments and the use of delay tactics. “The decree determines that denial is justified and that prison administrations should forward lists of people who could benefit, which is proactive. It also names the Public Defender’s Office, the Brazilian Bar Association (OAB), Prison Councils and other bodies as responsible for the request,” she explained.

The decree, drafted by the Ministry of Justice and Public Security and submitted for analysis by the National Council for Criminal and Prison Policy, enables pardons that have traditionally been granted to prisoners in poor state of health, such as those who are blind, paraplegic and quadriplegic. The granting of humanitarian pardons, however, was also restricted to non-violent crimes.

Over the years, important progress has been made in the use of the pardon, such as the application of rules for people convicted of small-scale drug trafficking – no longer considered a heinous crime by the Supreme Court – and for imprisoned mothers, people convicted of non-violent property crimes and women in general. These advances were maintained in the current decree.

Women with children under 18 or children with serious chronic illnesses or disabilities may also benefit, under specific conditions depending on whether the sentences are longer or shorter than 8 years. People with permanent disabilities prior to the offenses, serious permanent or chronic illnesses and severe autism spectrum disorder were also included.

Depending on the length of time served, people sentenced to less than 12 years in prison and people over 60 years of age can also apply for the pardon.

This year, people sentenced to the payment of a fine were also benefited, provided it did not exceed R$20,000, the minimum amount for filing tax enforcement cases with the National Treasury, and they cannot afford to pay the debt. This provision is not restricted to non-violent crimes and can benefit a significant number of vulnerable people, who, in addition to financial debt, still have their political rights suspended and have difficulty securing civil documents.

Who was excluded from the Christmas pardon?
People convicted of crimes against the Democratic State under the Rule of Law (such as the insurgent acts of January 8), torture, heinous crimes, environmental crimes, crimes established in the Child and Adolescent Act, violence against women, drug trafficking, heads of criminal gangs, prisoners subject to the so-called Special Disciplinary System or who are held in maximum security prisons, and people who have signed plea bargains.

Previous government
During the four years of the administration of former president Jair Bolsonaro, the Christmas pardons were granted for public security officers and military personnel convicted of “negligent excess” and who had served at least one sixth of their sentence, or half that time for first-time offenders. The pardon in his last year in office was also given to security agents convicted of acts committed more than thirty years ago and not considered heinous crimes – an article considered to be specifically tailored for the police officers who participated in the Carandiru massacre, in 1992. Only in 1994 was premeditated murder considered a heinous crime.

That pardon was described by Gabriel Sampaio, director of litigation and advocacy at Conectas, as an incentive to encourage the illegal use of force and the enormous rates of police lethality, thereby having a negative impact primarily on the lives of black youth from the poor urban outskirts, who are the main victims of State violence in Brazil. “This pardon returns to the pathway of being an instrument of criminal and prison policy, and, as such, restores the possibility for us to advance on more agendas in this area not yet addressed in this decree.

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