Brazilian Judiciary Discusses Alternative Sentencing

Over 600,000 people are in prison in Brazil, according to data from the Prison Studies Centre from June 2014. This makes it the country with the 4th largest prison population in the world, after the United States, China, and Russia. With about 202 million inhabitants, 301 people are incarcerated for every 100,000 Brazilians. And with an occupancy level of about 154%, the prisons in which they are held are very overcrowded.

The country’s prison population has grown exponentially in the last two decades. In 1995, 173,104 people were incarcerated, but in June 2014, 607,731 people were held in detention centers (in the prison system and police detention facilities): an increase of more than 350%.

The past decade demonstrates that increased incarceration produces no significant measurable effect on homicides. Over the last thirteen years, the national homicide rate remained virtually constant: 28.5 per 100,000 in 2002 and 27.0 in 2013 (the most recent data available). During that period, the incarceration rate continued to soar, from 122 per 100,000 inhabitants in 2002 to 301 in 2014. While no discernible reduction in homicides occurred, tens of thousands of families were destabilized and millions of Brazilian reais spent on incarceration.

Prisons impose enormous costs. On the imprisoned, on his or her family members who might depend on them for care and (financial) support, but also on the State. It is hard to calculate these costs exactly, but a number of studies in the United States have attempted to do so. However, it is important to note, first, that it is hard to make sound comparisons between countries because of methodological differences in the calculation of those costs, as well as because of a general absence of recent data. Moreover, the type of detention regime has an important impact on costs: logically, stricter security regimes are more expensive than lower-security settings. Lastly, richer countries have more money to spend on public institutions, including prisons, than poorer countries. This means that the monetary costs of the U.S. prison system do not necessarily reflect the situation in Latin America. However, it is fair to assume that the “collateral costs” of imprisonment are proportionately comparable.

This makes it relevant to note that in 2012, the Vera Institute calculated in The Price of Prisons that incarceration cost U.S. taxpayers about $39 billion per year—13.9% more than was reflected in the budgets of the 40 states that participated in the study. And the Pew Charitable Trusts found in 2010 that incarceration has a lasting negative economic impact on economic opportunity and mobility for inmates in the U.S., that those costs are largely borne by a person’s family and community, and that they reverberate across generations. Moreover, the Vera Institute’s The Human Toll of Jail provides an illustration of the impact of imprisonment, as well as the positive contributions that alternative sentencing can have.

Such studies are lacking in Brazil. However, the NGO Instituto Sou da Paz calculated the cost of pretrial detention in the city of Rio de Janeiro in 2013. It found that 7,734 people were in pretrial detention that year, for an average of 101 days, and that this cost the city approximately 45 million Brazilian reais, or almost 12.3 million U.S. dollars.

The human, social, and monetary costs make the current situation of mass incarceration unsustainable. Brazilian judicial authorities have recognized as much, and have taken some measures to start remedying this enormous problem. For instance, the National Judicial Council (CNJ) has mandated the organization of custody hearings, in which detainees are brought before a judge within 24 hours, who determines whether a person is sent to pretrial detention or whether other preventive measures (such as bail) will be applied. Data from the CNJ (that preliminary findings by the Stanford Human Rights Center, as well as Brazilian NGOs that monitor the impact of these hearings, seem to confirm) indicates that these hearings have reduced the application of pretrial detention.

However, more far-reaching measures are necessary to reverse the trend of mass incarceration in Brazil. In April of 2015, the National Judicial Council and the Ministry of Justice signed an agreement to promote alternative sentencing in the country, in which they committed to engaging in studies about alternative sentencing and to organizing workshops and events about these issues. An example of such an event is the National Forum on Alternative Sentencing, which the CNJ organized in Salvador da Bahia in February 2016. There, judges, prosecutors, and public defenders from all states discussed the current “culture of imprisonment,” and shared best practices in alternative sentencing, such as the creation of offices for pretrial services.

The participating officials approved the Declaration of Salvador, in which they expressed their intent to counter mass incarceration by only imposing prison sentences as an exceptional measure, as stated by the Brazilian Constitution, as well as to promote the application of restorative justice. They propose to do this by raising awareness, among

the public as well as among actors in the criminal justice system, of the importance of alternative sentencing, and of the positive results achieved by initiatives such as organizing custody hearings. Moreover, they implored the National Judicial Council to update and strengthen the national guidelines on alternative sentencing that were approved in 2009, and to incorporate the National Forum on Alternative Sentencing within the structure of the Council.

This might be a small step. But amidst legislative initiatives that favor harsher punishments, it is a welcome initiative that is worth supporting.

Follow Mirte Postema on Twitter at @MirtePostema

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