The “black box”of Brazilian prisons
Pre-trial detainees held for years on remand, lack of medical attention, untreated mentally ill prisoners mixed with the general population. The flaws that plague the Brazilian prison system are worsening and are hidden from public scrutiny. This happens because, although they are notorious for violating human rights, prisons are all but inaccessible to civil society. Even inspection bodies like the National Justice Council have difficulty getting in.
“Prisons clearly expose all the many shortcomings of the State. This partly explains why the authorities that are paid to inspect prison facilities do very little or, when they do make inspections, are unable to resolve the problem,” said Rafael Custódio, coordinator of the Justice program at Conectas. In an interview, he explains the dynamic behind prison visits and inspections, and talks about the importance of the National Mechanism to Combat and Prevent Torture, the system created by the federal government in August to help rectify the situation.
1. Is the Brazilian prison system a “black box”?
Until quite recently, we used to talk about the lack of transparency in the Judiciary, but the reform of 2005 that created the National Justice Council to a large extent changed that situation. But this did not happen in the prison system, which is still a black box of obscurity. Even though the National Prison Department has an ombuds office and is staffed by highly credible professionals, it cannot handle all the work. The states, which have 90% of Brazil’s prisoners under their responsibility, are still extremely resistant to accountability and to opening their structure to civil society. There are isolated examples of transparency, but nothing structural. Indeed, efforts are often made instead to block information and access to prison facilities.
It’s curious to see that, in the Judiciary, jurisprudence relaxed the requirements that regulated the participation of civil society in the constitutional debate through the use, for example of amicus curiae. We’d like to use this idea to regulate who can and who cannot get inside prisons. If the Supreme Court can relax the access to a debate of this magnitude, why can’t we do the same with access to prison facilities? Not least because, given the current situation, the public authorities have been unable to address this issue satisfactorily.
2. Who can enter prisons today?
The Constitution and the Prison Enforcement Law establish the right of prisoners to religious assistance. So based on this guarantee, religious organizations like the [Catholic Church’s] Pastoral Carcerária prisoner outreach group have almost institutionalized access to prison facilities. Additionally, free access is also granted to prison enforcement agents, i.e. judges, prosecutors and public defenders. They are assisted by community councils, which ideally should exist in every judicial district with a prison – which is not the case. Then there is the National Criminal and Prison Policy Council and the state-level prison councils, which help set guidelines and conduct the inspection of prisons. It is important to point out that while this prerogative of free access is official, it is not always possible to exercise it. Efforts are made to shield the system, and even people with the right to enter cannot always get in.
Once inside, the civil society representative or public agent should have free access to anywhere in the prison, without exception. They may talk to the prisoners without constraint and record what they see using photographic and video equipment. The inspection does not mean entering and visiting certain places. It presumes an effective understanding of the reality inside the facility.
3. Do NGOs and the press have access too?
Unfortunately, prison wardens have a lot of power. When faced with the choice of embarrassing a warden or preventing access by the press or a human rights NGO, the state prison administration prefers to protect the wardens. They are appointed politicians of the state government, so they have very close ties to senior levels of government. Very often, even when you have authorization, when you arrive for the visit you are denied entry by the warden. He’s almost like a sheriff. The situation is this: the right is already restrictive enough, and even when it does apply, it is also subject to political conjecture.
4. What actions can be taken based on the visits?
Inside a prison facility, you don’t encounter one or two violations. You find a whole host, to say the least. The problem is so enormous, so profound and involves so many factors that sometimes it’s difficult to follow through on all the violations you identify. There are pre-trial detainees who have been waiting for years for a trial, sick prisoners getting no medical attention, drug addicts in withdrawal receiving no care, mentally ill prisoners mixed with the general population. Prisons clearly expose all the many shortcomings of the State. This partly explains why the authorities that are paid to inspect the facilities do very little or, when they do make inspections, are unable to resolve the problem.
5. What about the councils? What can they do?
The community councils are institutionally very weak. They are created and extinguished by the prison enforcement judge, so they need to be constantly weighing up the costs of their initiatives to avoid reprisals. After the visits have been made, the council members need to draft inspection reports and submit them to the judicial district’s prison enforcement judge and to the prosecutor. It then automatically becomes an administrative process and the judge and prosecutor will, in theory, try to resolve the problems. The council, therefore, presents the illegalities to the public authorities. But more important than this, as far as I am concerned, is the power to visit a prison facility unannounced. You can see this in the eyes of the guards and the wardens of the prisons. The system is so accustomed to not being inspected that an unexpected visit by the members of the council generates an incredible surprise. The wardens start to worry that an inspector could turn up today or tomorrow and this in itself is enormously important to curb violations.
6. In August, President Rousseff approved the National Mechanism to Combat and Prevent Torture. What has changed?
The first point that needs to be highlighted is the normative strength of the mechanism, since it is derived from an international protocol that Brazil signed voluntarily. This gives it a lot of clout, because the country made a commitment to the international community, to which will it be accountable. In second place, we know that the federal government is the entity with the most capacity for articulation given its financial and political strength – which adds a good deal of legitimacy to the new law. Additionally, the mechanism focuses on a specific objective, the prevention of torture, which facilitates and strengthens the inspection work.
We now need to regulate the physical, material and budgetary structure of the mechanism and detail more thoroughly the method for selecting the members. We were told that after the law was signed, a decree would be published within a few weeks, but this has not happened yet. In the real world, the situation is the same as it was one, five or ten years ago
7. Why is there still so much resistance by the states to create local mechanisms?
There are some examples of state-level mechanisms being successfully implemented. In Rio de Janeiro, for example, some interesting work is being done. In Espírito Santo, the law has been approved, but the mechanism has not yet been installed due to political pressure. São Paulo, meanwhile, is perhaps the state that is most resistant to any initiative of this kind. The mechanism is seen as an intrusion – which explains why the dialogue has advanced so little in recent years. The Public Defender’s Office has even drafted a preliminary bill, prepared with significant participation from civil society. After nearly two years of unfruitful meetings with the São Paulo State Justice Department, the organizations abandoned the working group and now plan to negotiate an initiative directly in the State Legislative Assembly. The national mechanism is unlikely to work with the necessary speed and efficiency, and São Paulo has almost 210,000 of Brazil’s 550,000 prisoners. It seems clear that some form of state-level body is needed. The arguments against the mechanism are not convincing, since the costs of maintaining the body are very low. All we see is a lack of willingness by the state to open its prisons to civil society.
