Legislative decoy
Understand why the longer sentences approved by the Senate are just as bad as lowering the age of criminal responsibility
The Senate has approved by 43 votes to 13 the bill (Senate Bill 333/2015) that lengthens sentences for adolescents in the youth detention system. The vote was pushed through hastily on Tuesday, July 14, but the final text was only published on the afternoon of Friday, July 17.
Negotiated between the government and the opposition, the proposal was presented as a supposedly milder alternative to the bill to lower the age of criminal responsibility (Constitutional Amendment 171/1993), which was approved in the first round of voting in the Lower House of Congress.
Senate Bill 333 was introduced just over a month ago by Senator José Serra, of the opposition PSDB party, and was amended by Senator José Pimentel, of the ruling PT party. As a result of the approval, it will now proceed to the Lower House.
The bill passed by the Senate raises the maximum detention time for adolescents from three to ten years in cases of willful murder (with intent to kill) and offenses defined by law as “heinous crimes”, meaning they are committed with violence or serious threat (such as rape or armed robbery). After the age of 18, detained adolescents must be transferred to a separate unit or wing. The construction of these facilities may be contracted through a “simplified” bidding process that is not required to follow Brazil’s strict procurement regulations.
The text also states that adolescents may not “receive more severe treatment than adults”, but does not clarify how this will be applied. Nor does it mention the fact that, in the adult system, prisoners have the right to have their sentences commuted – in the youth detention system, this requires a decision by the judge based on an analysis by a technical team. This review takes into account factors such as participation in educational activities, but also the seriousness of the offense.
According to experts, this is another legal anomaly of the bill, because it means that every six months the justice system will once again decide on the merit of the offense. Since the adolescents under review are already detained in a special facility on account of the seriousness of their crimes, early release is highly improbable. They can improve their behavior all they want and participate in all the scheduled educational and professionals activities, but they are unlikely to receive a positive assessment because this will always be associated with the seriousness of their offense – which will never change.
Rafael Custódio, coordinator of the Justice program at Conectas, explains why longer sentences can be just as harmful to young people as lowering the age of criminal responsibility.
What are the problems of bills like this one?
There are many. The first is the lack of public debate. Senate Bill 333 was introduced just over a month ago in an alleged attempt to offer an alternative to the bill lowering the age of criminal responsibility. But the issue is too important to be voted in this way. No experts were consulted, no studies were conducted on its impact and nor were there any discussions between the senators themselves, since the text was not submitted to any of the commissions.
The second is the false idea that longer sentences can reduce crime. It is a decoy. We have witnessed over the past 25 years the failure of the heinous crimes law, which made it difficult for prisoners to have their sentences commuted but did nothing to curb crime. Why would anything be different with adolescents? Finally, proposals like Senate Bill 333 have a lot in common with the one to reduce the age of criminal responsibility, as they both create the false illusion that the country’s social problems can be solved through criminal law, criminalizing a youth that has long been abandoned by the State. You can’t fix this by tweaking the legislation. The law is flawed at its core, in its fundamental misconception that young people are the perpetrators and not the victims of violence.
What will the impact of this law be for adolescents who serve detention sentences?
The impact of detention always needs to be put into perspective. An eight-year sentence for a 40-year-old adult has a relatively smaller impact than a six-year sentence for a 12-year-old adolescent. Upon his release, the youngster will have spent his entire adolescence in detention, with profound consequences on his development. This is one of the cruelest aspects of the Senate Bill. This is a crucial stage in a person’s development, a time when their values are shaped. We have to ask ourselves about the type of references they will have in an environment as violent and hostile as Brazil’s youth detention centers. This is unacceptable from a legal standpoint, but primarily from a human perspective.
What does the Child and Adolescent Act say about this?
In the month that the Child and Adolescent Act turns 25 years old, we are witnessing a deliberate attack on its provisions. The Act clearly establishes the principle of brevity in cases of confinement. Detention should be for the least amount of time possible and respect the specific circumstances of adolescence. They want to modify the Act before even applying it. They are giving up on youth. It is an affront, an assault on one of the most important and advanced pieces of Brazilian legislation.
