Pretrial Detention and its (ab)use in Brazil: pathways to overcome prison overcrowding and a rule of law issue (original) (raw)
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Prisons in Brazil are unconstitutional, says the Federal Supreme Court. Now What?
Diálogos dos Direitos Humanos, 2022
In 2015, the Federal Supreme Court of Brazil (Supremo Tribunal Federal - STF) granted a provisional measure during the proceedings of Claim of Non-Compliance with a Fundamental Precept n. 347/DF (Arguição de Descumprimento de Preceito Fundamental - ADPF 347/DF) acknowledging the so-called “unconstitutional state of affairs’’ of the prison system in the country. In this precedent, the Justices recognized the existence of repeated violations of human rights within those facilities. However, it refrained from establishing a clear definition of this “state of affairs” and from giving a decisive and final decision on the matter. Years later, the proceedings are still ongoing while no consistent changes regarding the operation of detention centers have occurred. This article discusses three topics on this issue: the first section analyses the broad context of the Prison System in Brazil and the elements that characterize its humanitarian crisis that led STF to acknowledge its “unconstitutional state of affairs’’. Section two, then, discusses the meaning of this concept, its origins in Colombian Jurisprudence, and how the Brazilian Supreme Court applied the concept without clearly defining or adapting it to Brazilian reality. The last section discusses some of the consequences from STF’s precedent and the positive and negative perspectives for the future of this topic in Brazil.
Brazilian prisons in times of mass incarceration: Ambivalent transformations
The Howard Journal of Crime and Justice, 2022
Most of the scholarship on the 'punitive turn' has claimed that there have been two main trends in punishment since the 1970s: the rise of incarceration rates (quantitative dimension) and the worsening of prison This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited.
Few notes on Brazilian penal system: live or let die
To address the ever more pressing and harmful development of the prison industry we present in this newsletter Daniel Achutti, Raffaella Pallamolla and Fabricio Pontin's article about the increasing prison population in Brazil, soon to outnumber one of the world leaders in that regard, the USA. They paint a picture of the postcolonial judiciary system, with prisons dominated by the young, black, and poor population accused of drug and property crimes. The authors agitate for the need to “adopt a position of arduous defender of human rights; recognizing the slaver-authoritarian heritage of the Brazilian system of law, while trying to overcome it.”
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Mass incarceration is a phenomenon that emerged in the USA in the 1970s. Since then, this pattern of imprisonment has taken shape in all other continents. Nowadays, many 'core countries' have been able to neutralize it and, in some cases, even reverse it. This, however, is not the case in Latin America. In this region, the increase of imprisonment rates has remained intense even in times of economic growth, in contrast to the main theories on punishment developed in the Global North. Drawing on primary and secondary data, I analyse the Brazilian case and indicate three necessary steps to understand contemporary imprisonment in the country. This article is structured in three main sections. I argue first that Brazilian criminologists have asked the wrong question: rather than asking why we have high imprisonment rates now, we should first understand why we had imprisonment rates comparable to Nordic countries up to the 1980s. I then argue we should stop uncritically reproducing northern theories and understand the local conditions of possibility for mass incarceration in times of social inclusion. I finally claim we should change the focus on the players: rather than pointing out to the Executive and Legislative dimensions, we ought to better understand internal struggles in the criminal justice system, considering in particular the pivotal role of judges in the Brazilian mass incarceration.
2012
A Coleção de Artigos Direito GV (Working Papers) divulga textos em elaboração para debate, pois acredita que a discussão pública de produtos parciais e inacabados, ainda durante o processo de pesquisa e escrita, contribui para aumentar a qualidade do trabalho acadêmico. A discussão nesta fase cria a oportunidade para a crítica e eventual alteração da abordagem adotada, além de permitir a incorporação de dados e teorias das quais o autor não teve notícia. Considerando-se que, cada vez mais, o trabalho de pesquisa é coletivo diante da amplitude da bibliografia, da proliferação de fontes de informação e da complexidade dos temas, o debate torna-se condição necessária para a alta qualidade de um trabalho acadêmico. O desenvolvimento e a consolidação de uma rede de interlocutores nacionais e internacionais é imprescindível para evitar a repetição de fórmulas de pesquisa e o confinamento do pesquisador a apenas um conjunto de teorias e fontes. Por isso, a publicação na Internet destes trabalhos é importante para facilitar o acesso público ao trabalho da Direito GV, contribuindo para ampliar o círculo de interlocutores de nossos professores e pesquisadores. Convidamos todos os interessados a lerem os textos aqui publicados e a enviarem seus comentários aos autores. Lembramos a todos que, por se tratarem de textos inacabados, é proibido citá-los, exceto com a autorização expressa do autor.
Pretrial Detention, Human Rights, and Judicial Reform in Latin America
Fordham International Law Journal, 2002
This Article seeks to address important questions raised by pretrial detention and judicial reform in Latin America. It analyzes the potential impact of criminal procedure reforms on pretrial detention rates. It also discusses whether more general 'rule of law' reforms promoted by international donor organizations like the World Bank can affect the abuses associated with prolonged pretrial detention-whether, in other words, the circle may be squared between economic development and human rights. In addition, this Article describes the adoption of central elements of an American-style adversarial system in Latin America and its prospects for influencing judicial reform. It argues that while human rights advocacy and formal criminal procedure reforms constitute an integral part of combating prolonged pretrial detention, they must be accompanied by meaningful structural reforms that promote the independence of the judiciary, the adaptation of reforms to each country's unique political, social, and cultural history, the establishment of effective provisions for pretrial release such as bail statutes, and the adoption of lending policies by donor organizations that encompass criminal as well as civil law reform. Part I describes the problem of prolonged pretrial detention and its link to other human rights abuses in Latin American prisons. It also describes the causes of extraordinarily high pretrial detention rates, including the absence of effective provisions for pretrial release and the slow, archaic procedures of civil law inquisitorial criminal justice systems. Part II outlines the international human rights norms governing the detention of accused persons. It also summarizes legal challenges to excessive pretrial detention in Latin America as well as in other regions. Part III discusses the criminal procedure reforms adopted in several Latin American countries. It focuses on how the reforms affect not only pretrial detention but also the country's criminal justice system as a whole. This Part then discusses the more general judicial reform policies of international donor organizations and their potential impact on human rights abuses like prolonged pretrial detention. Part IV describes several strategies for reducing pretrial detention in the future. It underscores the need to establish effective mechanisms for pretrial release such as bail statutes. It also discusses the need to alter the behavior of key actors in the criminal justice system, especially judges, prosecutors, and defense attorneys, and to adapt reforms to the particular political and social climate within the target countries. Finally, it underscores the role leading international donor organizations can play by linking ongoing judicial reform projects with human rights abuses like pretrial detention.
2018
This document addresses the main causes for deprivation of liberty of women in Brazil; general information regarding the female incarcerated population; the human rights violations experienced by women in the prison system; the last developments in law and practice on the issue which result from the mobilization of civil society actors; and, finally, the main challenges within the country. Given the expertise of the organizations, the document focuses on the justice system, answering the questions posed in the Working Group ́s questionnaire.
This essay aims at analyzing the main aspects related to a prison system's lawsuit judged by the Brazilian Supreme Court in which the " Un-constitutional State of Affairs " adjudication technique was firstly examined. Challenging the base arguments that were presented in the ADPF 347, Justice Rapporteur Marco Aurélio, the article's purpose is points out that there was not an institutional failure of both Legislative and Executive branches of government in order to justify a structural intervention for overcoming alleged barriers. A parallel with Colombian Supreme Court adjudi-cation practices will be drawn in accordance with the legal transplants theory to understand how Brazil would achieve its reach just importing a structural injunction model that even in Colombia did not work in prisons.
ADPF 347 AND THE “UNCONSTITUTIONAL STATE OF AFFAIRS” OF BRAZIL’S PRISON SYSTEM
This essay aims at analyzing the main aspects related to a prison system's lawsuit judged by the Brazilian Supreme Court in which the " Un-constitutional State of Affairs " adjudication technique was firstly examined. Challenging the base arguments that were presented in the ADPF 347, Justice Rapporteur Marco Aurélio, the article's purpose is points out that there was not an institutional failure of both Legislative and Executive branches of government in order to justify a structural intervention for overcoming alleged barriers. A parallel with Colombian Supreme Court adjudi-cation practices will be drawn in accordance with the legal transplants theory to understand how Brazil would achieve its reach just importing a structural injunction model that even in Colombia did not work in prisons.