10 measures for the prison system
Proposals for structural measures in Brazilian prison policy
The brutal death of 56 people at the Anísio Jobim Prison Complex in Manaus (state of Amazonas) and of at least 33 more at the Agricultural Penitentiary of Monte Cristo in Boa Vista (state of Roraima) once again exposed the failure of the Brazilian prison system and has prompted the country to debate possible solutions for this gigantic problem.
On the morning of Friday, January 6, the Minister of Justice Alexandre de Moraes presented his new plan to streamline and modernize the prison system, which is part of the federal government’s National Public Security Plan. Although the minister described the measures as “a new philosophy”, they mostly repeat old solutions and do not tackle the structural problems that led to the failure of the system.
Unless the State seriously addresses its policy of mass incarceration, prisons will remain one of the main focuses of violations in the country.
As a result of this situation, and to contribute to the debate, Conectas presents 10 urgent measures for the prison system that summarize proposals that the organization has been working on to make the system more humane. See below:
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1. Drastically reduce incarceration rates
The collapse of the Brazilian prison system is not a recent phenomenon – it is a structural problem resulting from a misguided criminal policy enforced by a model of policing inherited from the dictatorship that is incapable of handling complex public security challenges. Focusing on criminal law to stop problems of a social nature is ineffective and counterproductive. The incarceration rate in Brazil currently stands at 307 people per 100,000 inhabitants – more than twice the global average (144 per 100,000 inhabitants). Among the world’s most populous countries, Brazil has the sixth highest incarceration rate. We have the world’s fourth largest prison population, but we certainly do not figure among the safest. The strategy of detaining more people has not been capable of reducing crime. On the contrary: the flawed system has helped reproduce violence and human rights violations. We need to reduce the number of people entering the prison system and increase the number leaving. One of the key strategies in achieving this is to invest in a policy of alternatives to prison sentences. This could be done, for example, by substituting 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 53% of the Brazilian prison population, and do the same for non-violent crimes. Another important measure would be to implement comprehensive reforms of public security policy, so the police intelligence services can focus on more serious crimes and so the whole police service can be demilitarized.
2) Social control of the prison system
The flaws that plague the Brazilian prison system are worsening and are hidden from public scrutiny. This occurs because, although they are notorious for violating human rights, prisons are all but inaccessible to civil society. This black box that surrounds the system does not only prevent the identification and implementation of solutions for the country’s main prison problems, it also helps perpetuate practices such as torture. The creation of the National Mechanism to Combat and Prevent Torture was an important first step to crack this shield, but there is still a lot more to be done. In order to establish the social control of the prison system, Brazil’s state governments first need to create their own mechanisms to combat and prevent torture (today, only Rio de Janeiro and Pernambuco have such a mechanism in place). These mechanisms must be independent and their members selected by public consultation, in accordance with the standards established in the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified by Brazil in 2007. This process should be accompanied by the creation of a federal law regulating unannounced inspections of detention facilities by human rights protection organizations with the use of audiovisual devices – provided they respect the privacy of the people involved. It is also essential to 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. In addition to this, it is necessary to create and strengthen the internal affairs units and ombuds offices of the prison system, which must be external, in accordance with a resolution of the National Criminal and Prison Policy Council. Finally, abusive searches of the relatives of prisoners on visitation days urgently need to be banned. This would assure the right to visitation, which is so important for prisoners, and enable information on what is going on inside the facilities to circulate.
3) Put a stop to the abusive use of pre-trial detention and expand custody hearings
One of the most important signs of the failure of the Brazilian prison system is the number of pre-trial detainees: nearly 40% of the 622,000 people in prison in Brazil have never been tried. 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, which currently has a shortfall of 250,000 places. A law that permits alternative sentences to pre-trial detention was approved in 2011 (Law 12,403), but is enforcement has proven challenging. This situation is compounded by the limited use of custody hearings, which are still absent in much of the country and therefore far from fulfilling their primary two-fold objective – to reduce illegal detention, thereby decongesting the prison system, and to curb the practice of torture during police contact. To address this problem, we recommend pressing the Judicial Branch and the Public Prosecutor’s Offices to effectively enforce the Law of Precautionary Measures, which establishes a range and alternative sentences to pre-trial detention. This should be accompanied by incentives for the CNJ (National Justice Council) to monitor the abusive application of pre-trial detention. It is also essential to approve Bill 554/2011 that creates custody hearings, establishing a time frame of 24 hours for suspects to see a judge in person –not by videoconference – in the presence of their lawyer, to analyze the need for imprisonment.
4) Access to Justice
The sharp increase in the number of people behind bars in Brazil (around 575% between 1990 and 2014) 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 17,300 judges, 12,600 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. To increase access to justice, we recommend strengthening the federal and state-level Public Defender’s Offices and assuring their financial independence. As part of this process, it is essential to increase the number of public defenders, prioritizing their placement in prison facilities and police lockups, and support staff (social workers, psychologists, sociologists). Another measure that would improve the ability of prisoners to keep track of their criminal cases and prison sentences is the installation of an electronic system inside the prison facilities. These self-service terminals should be located in places that are accessible to the prisoners and allow them to print a progress report on their cases.
5) Reduce the impact of the Drug Law on the prison system
The Drug Law of 2006 (Law 11,343) is currently one of the main drivers of mass incarceration in Brazil. Since it first started being enforced, the number of people imprisoned based in this law has increased 348%. According to data from 2014 from the Ministry of Justice, 64% of women and 25% of men in prison are there for drug-related 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. This has occurred because, in practice, police officers and police commissioners arbitrarily decide who is a dealer and who is a user – a decision that is routinely validated by the judiciary. Brazil’s anti-drug law serves as a means of criminalizing poverty and it fuels the combative mentality of the war on drugs instead of addressing the topic from a public health perspective. In this regard, Conectas supports the application of alternative sentences for small-time dealers (addicts who sell drugs to support their habit or on account of their social vulnerability) and the formulation of a new drug policy that is less abusive, less incarceratory and less selective.
6) Dignified treatment of imprisoned women
Approximately 85% of female prisoners in Brazil are jailed for crimes related to their social vulnerability, namely property crimes and drug crimes. Besides having profound consequences on the overall fabric of the family, the imprisonment of women is frequently associated with serious violations of the right to motherhood. There are just 37 gynecologists available to treat 37,000 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. Female prisoners are also particularly affected by the shortage of material items in prisons. In some facilities in São Paulo, for example, there is no regular distribution of sanitary towels. As far as Conectas is concerned, it is essential to take the specifics of gender into account in prison facilities and in the treatment of prisoners. The exercise of motherhood and spending time with family ought to be guaranteed with dignity for mothers and their children. Material assistance should be adequate, instead of in short supply like it is now.
7) Place more value on education and employment
Access to education in Brazilian prisons is dismal, despite the fact that it is recognized as one of the main tools to combat recidivism (which currently stands at around 25%). In São Paulo, the state that holds 35% of the country’s prisoners, just 7% attend classes. The lack of provision of education contrasts with the potential demand: 75% of inmates have never completed their primary schooling. In Brazil, the rate of engagement by prisoners in educational activities is just 11%. The same situation is seen in access to employment. According to data from 2014 from the Ministry of Justice, just 25% of Brazilian prisoners perform some form of internal or external employment. Besides conflicting with the guarantees provided by the National Prison Law (Law 7,210/1984) and by international treaties signed by Brazil, the lack of structured policies in these two areas threatens the capacity to reintegrate prisoners into society – which should be the purpose of the prison system. To remedy this situation, a structured policy is needed that values education and employment within the prison system. Public policies to encourage and in particular to provide education and employment should be introduced, at all times avoiding exploitation and degrading work.
8) Public policies for ex-prisoners
Although they are essential for interrupting the cycle of violence and imprisonment, public policies for the reintegration of ex-prisoners are still limited. Federal and state programs such as Pró Jovem (Pro Youth), Pró Egresso (Pro Ex-Prisoner) and Começar de Novo (Start Over) have proven to be insufficient to overcome the stigma of a prison record. Another serious problem is the difficulty that many ex-prisoners have paying the fines set by the courts when they are convicted. On account of their economic vulnerability, they are unable to update their documentation – making it even harder for them to find a job and fully reintegrate into society. As a result of this, Conectas recommends a significant increase in funding for public policies for ex-prisoners, to help them re-enter the job market and to provide them and their families with adequate psychosocial treatment. This is why it is necessary to approve Senate Bill 153/2014 that establishes an employment quota of 5% for ex-prisoners and detainees in semi-open or open facilities in contracts signed between the government and companies for the performance of construction work and the provision of services. It is also urgent to abolish the fines on ex-prisoners after they have served their sentences.
9) Realization of the right to health
Access to healthcare is a serious problem in the Brazilian prison system. Currently, health services are administered by the state government departments responsible for prison administration, and not by the SUS (Brazil’s public healthcare system). According to data from the Ministry of Justice, in December 2014 there was just one general practitioner for every 3,000 prisoners. Only 37% of prisons have a health clinic. To remedy this situation, Conectas recommends enforcing the constitutional right to access to health, by transferring the administration of healthcare in prisons to the SUS public system and providing material assistance to prisoners in sufficient quantity and quality – under the terms of the National Health Policy in the Prison System, which establishes the National Policy of Comprehensive Healthcare for Detainees in the Prison System (PNAISP) within the SUS system.
10) Independent Forensic Medicine Centers
Another alarming issue is the lack of independence of Brazil’s criminal forensic bodies, which are currently linked to state public security departments – a clear conflict of interests that can result in a biased approach by pathologists, 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. Conectas recommends, therefore, the independence of Forensic Medicine Centers from the state public security departments, thereby guaranteeing autonomy for pathologists to conduct the necessary examinations. There is already a Constitutional Amendment Proposal (Amendment 325/2009) for this purpose. The proposal is pending in the Lower House of Congress.
