Supreme Court orders federal government to draw up plan to improve prison system

The court recognized the widespread violation of fundamental rights in Brazilian prisons and calls for action within six months

Penitenciária Industrial de Blumenau, que faz parte do Complexo Penitenciário do Médio Vale do Itajaí - Blumenau- 27/01/2016. Foto: Jaqueline Noceti/Secom Penitenciária Industrial de Blumenau, que faz parte do Complexo Penitenciário do Médio Vale do Itajaí - Blumenau- 27/01/2016. Foto: Jaqueline Noceti/Secom

The Supreme Court recognized on Wednesday, October 4, the unconstitutional state of affairs in the Brazilian prison system and ordered the federal government to draw up an action plan within six months to solve the problem of widespread fundamental rights violations in the country’s prisons. 

The ruling was given as part of ADPF-347, a legal case filed in 2015 by the political party PSOL (Socialism and Liberty Party). The case was inspired by a 1997 precedent from the Constitutional Court of Colombia and calls for the recognition of an “unconstitutional state of affairs” in the prison system and for measures to halt widespread human rights violations in prisons and to protect the dignity and the right to health of incarcerated people.

According to the ruling by the Constitutional Court of Colombia, this type of declaration is appropriate in exceptional circumstances when there are serious human rights violations and, at the same time, institutional deadlocks that prevent or limit action by the branches of government. 

Plan against violations in prisons

According to the Supreme Court ruling, the federal plan should contain guidelines to reduce overcrowding, the number of pre-trial detainees and the length of time prisoners remain in high security conditions, and also ensure that they do not remain in prison longer than their sentence. It should also propose measures to improve the sanitation, hygiene and security of the facilities. Justice Luís Roberto Barroso, president of the Court, suggested that the document be prepared with the assistance of the National Justice Council, which could plan the measures involving the role of the Judicial Branch. The plan is for the measures to also include the inspection and monitoring of the prison system.

Based on the federal plan, state governments should also draft, within six months, their own plans aimed at resolving the so-called unconstitutional state of affairs in their prisons. In both cases, the time frame for implementing the measures will be three years.

Understand the background of the case

The injunctions requested by the petitioners were judged in September 2015 and partially accepted by the Court. The ruling in this judgment recognized the existence of an “unconstitutional state of affairs” and ordered, among other things, the implementation of pre-trial custody hearings within 24 hours from the arrest and the unblocking of funds from Funpen (National Prison Fund).

In its request for amicus curiae status in the case, in 2017, Conectas listed several examples of how the most basic fundamental rights are violated in prisons. According to the organization, overcrowding is widespread, torture is frequent, conditions are unhealthy, there is no access to water or adequate food and there is no health care, educational or employment opportunities and no legal counsel. 

The organization also endorsed the argument of the petitioners by demonstrating the inaction of the other branches of government in the face of the ongoing crisis in the prison system. 

In 2020, after the outbreak of the Covid-19 pandemic, the Supreme Court was called on to hear at least two other preliminary injunction requests that demanded, among other things, decarceration measures for people in the risk groups and actions to contain the spread of the virus in prisons. Both were denied. 

The case was heard by a virtual session of the Court on May 28, 2021 and, in his oral statement, the lawyer Gabriel Sampaio, director of litigation and advocacy at Conectas, said the situations described in 2015 have worsened since then, particularly with regard to black people. He pointed out that the overrepresentation of this population in the prison system, which has risen from an unacceptable 61% to 67%, unmistakably illustrates the use of criminal legislation as an instrument of restraint, repression and extermination of black bodies.

Sampaio also drew attention to the dismantling of the national system and the state-level mechanisms to combat and prevent torture, indicating Brazil’s failure to comply with international commitments and standards. He stressed another key aspect of ADPF-347, which is the importance of pre-trial custody hearings for reporting cases of torture and mistreatment and for limiting incarceration policies.

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