Behind Bars in Brazil
II. An Overview of the Penal System
With some 170,000 inmates spread among some 512 prisons, thousands of police lockups, and numerous other facilities, 18 Brazil administers one of the ten largest penal systems in the world.19 Its rate of incarceration--that is, its prisoner-to-population ratio--is relatively moderate, however. At roughly 108 inmates per 100,000 inhabitants, Brazil incarcerates fewer people per capita than many other countries in the region, and far fewer than the United States.20
National Legal Standards
The Brazilian constitution contains explicit guarantees for the protection of the inmate population, among them the injunction that "[p]risoners' physical and moral integrity shall be respected."21 Certain state constitutions have similar provisions. The constitution of the state of São Paulo provides, for example, that "state prison legislation will guarantee respect for the United Nations Standard Minimum Rules for the Treatment of Prisoners [and] the [right to] defense in cases of disciplinary infractions."22
The most detailed statement of Brazil's prison rules-or at least of its aspirations for the prison system-can be found in the Law of the Execution ofSentences (Lei de Execução Penal, hereinafter the "national prison law"). Adopted in 1984, the national prison law is an extremely modern piece of legislation; it evidences a healthy respect for prisoners' human rights and contains numerous provisions mandating individualized treatment, protecting inmates' substantive and procedural rights, and guaranteeing them medical, legal, educational, social, religious and material assistance. Viewed as a whole, the focus of the law is not punishment but instead the "resocialization of the convicted person."23 Besides its concern for humanizing the prison system, it also invites judges to rely on alternative sanctions to prisons such as fines, community service, and suspended sentences.
An even more obviously aspirational document is the Minimum Rules of the Treatment of Prisoners in Brazil (Regras Mínimas para o Tratamento do Preso no Brasil), which dates from 1994.24 Consisting of sixty-five articles, the rules cover such topics as classification, food, medical care, discipline, prisoners' contact with the outside world, education, work, and voting rights. They are largely modeled after the U.N. Standard Minimum Rules and are officially described as an "essential guide for all those who work in prison administration."25
Brazil's inmate population is distributed among several categories of facilities, including penitenciaries and prisons (penitenciárias and presídios), jails (cadeias públicas and cadeiões), houses of detention (casas de detenção), and police precinct lockups (distritos policiais or delegacias).26 The national prison lawmandates that various categories of facilities be identifiable by specific characteristics and hold specific kinds of prisoners. In practice, however, these categories are much more malleable and interchangeable than the law suggests.
In theory, a prisoner's route through the penal system should follow a predictable course: Upon arrest, the criminal suspect should be brought to a police lockup for booking and initial detention. Within a few days, if he is not released, he should be transferred to a jail or house of detention to await trial and sentencing. If convicted, he should be transferred to a facility specifically for convicted prisoners. He might spend his first weeks or months after conviction in an observation center, where a corps of trained personnel study his behavior and attitudes-interviewing him, giving him personality and "criminological" exams, and obtaining a host of information about him-in order to select the prison or other penal facility that is best equipped to reform his criminal tendencies.
Under the national prison law, facilities for convicted prisoners fall into three basic categories: closed facilities, i.e., prisons; semi-open facilities, which include agricultural and industrial colonies; and open facilities, i.e., half-way houses. A convicted prisoner would be transferred to one of these facilities in accordance with his length of sentence, type of crime, perceived dangerousness, and other characteristics. If he begins his sentence in a prison, however, he should normally be transferred to a less restrictive type of facility before he serves out his term, allowing him to become accustomed to greater freedom-and, ideally, to gain useful skills-prior to his release into society.
As this report will describe, the reality in Brazil is far removed from the law's prescriptions. To begin with, the country's penal system lacks the physical infrastructure needed to ensure compliance with the law. In many states, for example, half-way houses simply do not exist; elsewhere, they lack sufficient capacity to cope with inmate numbers.27 Agricultural colonies are similarly rare. In fact, as will be described at greater length below, there are not even nearly enough prison spaces to handle the number of incoming inmates, forcing many convicted prisoners to remain for years in police lockups.
Brazil's penal facilities are spread all around the country but are more concentrated in and around urban areas and in heavily populated regions. São Paulo, Brazil's most populous state (which encompasses the city of São Paulo, its largest city), has by far the largest inmate population. Indeed, São Paulo aloneholds some 40 percent of the country's prisoners, a larger inmate population than found in most Latin American countries.28 Other states with significant inmate populations include, in descending order of magnitude, Rio de Janeiro, Minas Gerais, Rio Grande do Sul, Paraná, and Paraíba.
Eight of Brazil's twenty-six states, in contrast, each confine fewer than a thousand prisoners. Included among them are several states with the lowest rates of incarceration; in other words, their small prison populations not only reflect their small number of inhabitants but also that they imprison a relatively small proportion of people. Alagoas, for example, had an incarceration rate of 17.8 prisoners per 100,000 population in 1995-the lowest rate in Brazil-so that it confined only 478 people, even though it ranks in the middle among Brazilian states in terms of total population.29
Brazil does not, in fact, have one penal system but many. Like the United States and other federal countries, though unlike most Latin American countries, Brazil's prisons, jails and police lockups are administered by its state governments.30 That is, each of the twenty-six state governments, as well as the government of the Federal District, manages a separate set of penal facilities with a distinct organizational structure, independent policies and, in some instances, asupplementary prison law.31 The independence that states enjoy in setting penal policy is reflected in the wide variation among states in such diverse matters as their levels of prison overcrowding, monthly costs per inmate, and guards' salaries.32
The structure of state penal systems does not follow a rigid model. Most commonly, the state executive branch, which is headed by the state governor, manages the prison system via its secretariat of justice, while its secretariat of public security, the organ in charge of the police, is generally in control of police lockups. (Facilities nominally called jails (cadeias públicas or cadeiões), may fall under either secretariat.33) There are many exceptions to this general rule, however. In the state of São Paulo, most notably, the prison system has its own secretariat, as recommended in the national prison law.34 In Amazonas state, in contrast, both prisons and police lockups were until recently under the control of the Secretariat of Public Security.
The role of judges
Under the national prison law, judicial responsibilities with regard to prisoners do not end at sentencing. To the contrary, judges have a central obligation to conduct prisoners through the various stages of the penal system. Among their duties are evaluating and ruling upon inmates' requests for transfer to less restrictive prison settings (e.g, from closed to semi-open facilities) or simply to other prisons; authorizing furloughs, early releases, and suspended sentences; and converting one type of sentence to another.35
As with their executive branch structures, states enjoy a degree of freedom in establishing their systems of judicial supervision of prisoners, resulting in some variation from state to state. Many states have established a specialized post called the judge of penal execution (juiz da vara de execução penal or juiz da vara de execuções criminais) to focus specifically on prisoners, either full-time or as a part of his workload. São Paulo, with its enormous inmate population, has a substantial number of these judges. In areas without such specialized positions, the judge who sentenced the prisoner remains responsible for handling his case during his time in prison. Pretrial detainees are normally supervised by the judge presiding over their criminal cases, but at least one state, São Paulo, has established the post of the judicial police monitor (juiz corregedor da polícia) to supervise prisoners held in facilities under the control of the public security secretariat.
The federal role
State authority over prisons does not mean that the federal government is entirely absent from the field. Within the Ministry of Justice are two federal agencies concerned with prison policy, the Penitentiary Department (Departamento Penitenciário) and the National Council on Criminal and Penitentiary Policy (Conselho Nacional de Política Criminal e Penitenciária). These two groups, which until recently shared a common president, have different areas of interest: the former is primarily charged with practical matters such as the funding of new prison construction, while the latter focuses on guiding policy at the intellectual level.
One important contribution of the National Council is the research and publication of the national prison census. Based on surveys collected from state prison authorities, the census contains useful information and statistics on prisoners, prison staff, incarceration costs, and the state of the prison infrastructure in Brazil. It is updated every two years. The most recent one was released to the press in early 1998 but otherwise has not yet been made public. The NationalCouncil also recommends draft legislation on prison and related issues to remedy problems such as overcrowding.
Monitoring of Treatment and Conditions
The Standard Minimum Rules emphasize the need for independent and objective monitoring of penal facilities.36 A great many prison abuses occur because prisons are closed institutions subject to little outside scrutiny. Such abuses are much less likely when officials know that outsiders will be inspecting their facilities and that abuses will be denounced. Regular access to penal facilities by outside monitors-from judges to national and international human rights groups to legislative commissions-can thus play an immensely positive role in preventing or minimizing human rights abuses.
Monitoring under the national prison law
The national prison law signals recognition of this point by establishing various mechanisms for the outside monitoring of penal facilities. In all, six groups are assigned prison monitoring functions under the law: the judges of penal execution, the National Council on Criminal and Penitentiary Policy, the Penitentiary Department, public prosecutors (Ministério Público), local prison councils (Conselho Penitenciário), and local community councils (Conselho da Comunidade).37 Three among these-judges, prosecutors, and local community councils-are supposed to inspect the penal facilities within their jurisdiction on a monthly basis, while the remaining bodies have more loosely defined monitoring duties.
Despite the apparent profusion of responsible authorities, many of the penal facilities we visited had not received a visit from any of these groups in months, or even years.38 In facilities that had received the occasional visit, werarely found prisoners who could remember seeing or speaking with an outside monitor. To a large extent, the lack of effective monitoring, particularly on the part of judges and prosecutors, is due to their insufficient numbers. In all of Minas Gerais-a state with over 12,000 prisoners-there are only two courts of penal execution: the principal one, in the capital, has only one judge and three prosecutors.39
In part, the failure of outside monitoring mechanisms reflects other unachieved aspirations of the national prison law. For example, the local community councils envisioned under the law-conceived as a meaningful method of encouraging community contact and involvement with prisoners-mostly do not exist.40 The National Council occasionally conducts prison inspections-it made approximately eight such inspections in 1997 and at least fifteen in 1998, as of thiswriting41-as do the other monitoring bodies, but given the large number of penal facilities in the country, these visits have a negligible impact.
Judges appear to be the most effective of these monitoring mechanisms. For one thing, they enjoy significantly greater power than the other bodies to put a stop to abuses, being specifically authorized to "interdict, in all or in part, any penal establishment that is functioning under inadequate conditions or infringing the provisions of [the national prison law]."42 Although some judges are all too indifferent to the plight of inmates under their supervision, others have been commendably active in trying to improve prison conditions.
A positive example of such judicial activism is a magistrate in Porto Alegre, Rio Grande do Sul, who has issued orders to limit prison overcrowding, grant conjugal visits to women prisoners (visits that male prisoners had long been granted), and protect the physical integrity of threatened inmates (one such measure was to separate prisoners convicted of rape, who are often attacked and even killed by other prisoners, from the rest of the inmate population).43 A judge in Brasília, similarly, received national media attention in 1997 for daring to release prisoners from inhumanly crowded police lockups.44 He later told Human Rights Watch thathis efforts to improve the lot of prisoners were poorly received, both publicly and privately, and that he was scorned as the "bandits' best friend."45
Yet judicial efforts to improve detention conditions are not always effective. A Rio de Janeiro judge, for example, once ordered the state government to empty out an overcrowded police lockup holding thirty-four prisoners in three jail cells. The judge threatened to impose a daily fine of $11,600 reais (about U.S. $10,600) if the state did not comply with his order within fifteen days. Responding to the ruling, Rio de Janeiro's governor, Marcello Alencar, stated that the judgment would be ignored: "Legal standards are one thing, reality is another. To comply with [the national prison law] the police would be unable to arrest anybody. Let's be realistic."46
Prison conditions are also monitored by certain state and federal legislative bodies, including official human rights commissions. At the federal level, the human rights commission of the legislative assembly has inspected a number of prisons in the states of Mato Grosso, Goiás, Espírito Santo, Paraíba, Rio de Janeiro and Rio Grande do Norte in the last few years, incorporating a critical analysis of the country's prison situation into its annual report.47 Among state bodies, the work of the legislative human rights commission of Rio Grande do Sul is particularly notable; its annual report contains an extensive chapter on prison conditions with numerous reform recommendations.48
The frequency of prison riots, escapes, hostage-taking incidents, and other violent occurrences in recent years, encouraging the public perception of a prisons crisis, has inspired ad hoc legislative investigations of the problem. Theseinvestigations have resulted in several critical reports, such as the 1992 legislative report on the Carandiru prison massacre, the 1993 report of the Parliamentary Commission of Investigation of the National Prison System, the 1996 report of the Parliamentary Commission of Investigation of the Prisons of the State of São Paulo, and the 1997 report of a parliamentary commission of investigation in Minas Gerais.49 Some of these reports have had an important impact in improving abusive situations.
A very small number of jurisdictions have established ombudsmen to monitor and report on the treatment of inmates held in prisons or police lockups. These include the ombudsman for police in the stateof São Paulo and the state prison ombudsman in Pernambuco. The São Paulo police ombudsman, in particular, has proven to be a vigorous and effective advocate, dedicated to eliminating impunity for police abuses.
The primary outside organization involved in prison monitoring is the Catholic Prison Ministry of the National Conference of Bishops of Brazil (CNBB). With priests and other volunteers based all over the country, the Prison Ministry provides religious assistance to inmates while also monitoring conditions and treatment. Representatives of the Prison Ministry, because they have gained inmates' trust, often serve as negotiators during prison rebellions.
Although the national prison law guarantees inmates the right to religious assistance, the Prison Ministry is not always granted full prison access. Various state prison and police authorities have denied the ministry entry to all or some of their penal facilities or to specific areas of facilities, such as punishment cells. In São Paulo, for example, where the Secretariat of Public Security has given the ministry full authorization to visit all jails and police lockups under its power, the prison authorities have been less open. At times, the ministry has been denied access to prisoners in punishment cells, in its view because the authorities are"afraid we will find proof of torture and go public with it."50 (Indeed, the Prison Ministry has long served as a key source of information on prison conditions in Brazil, relied upon by the Inter-American Commission on Human Rights and numerous legislative bodies, among others.)
Culminating its prison reform efforts, in 1997 the Prison Ministry organized a "fraternal campaign" aimed at awakening the public conscience to the plight of Brazilian inmates, collaborating with public officials to remedy conditions, and encouraging the use of alternative sanctions.51 An important aspect of this campaign was its focus on the critical problem of public indifference to prison abuses.
Another important monitoring body is the Bar Association of Brazil (Ordem dos Advogados do Brasil). Besides organizing the provision of pro bono legal assistance to prisoners, often in the form of intensive group visits (mutirão) by lawyers, the association has been active in drawing attention to prison abuses. The association was among the first to report on the Carandiru prison massacre, for example, using its power and prestige to advocate for a full and impartial investigation of the event. More recently, it called for the prosecution of the police officers who killed eight inmates at Roger prison in João Pessoa, Paraíba.52
Finally, Brazil has many local human rights groups that monitor prison conditions, although their success in obtaining access to prisons is mixed.
The Inter-American Commission on Human Rights, a branch of the Organization of American States that is charged with promoting and protecting human rights in the region, has monitored prison conditions in Brazil for nearly three decades. It accepted its first complaint regarding the country's prisons in 1970 and has, since that time, adjudicated a number of prominent cases involving the abuse of inmates, including the forty-second precinct case in 1989 and the 1992 Carandiru case (see discussion below).
In addition to its adjudicative function, the commission occasionally makes on-site visits to countries in order to obtain first-hand information on alleged abuses. For many years, Brazil refused to allow the commission to conduct such a visit within its territory, despite repeated requests.53 Based on information received from the Prison Ministry and other sources, the commission nonetheless continued to report on prison abuses. In 1995, in a welcome display of openness, the Brazilian government finally agreed to host an on-site visit, which took place in December of that year. The results of the visit were published in a 1997 report that included a chapter on conditions of detention.54
The Inmate Population
As is true everywhere, the inmate population in Brazil is largely young, poor, male, and uneducated. Prison surveys indicate that over half of all inmates are under age thirty; 95 percent are poor, 95 percent are male, and two-thirds have less than an eighth-grade education (some 12 percent of them are illiterate).55 Because of their poverty and marginal social backgrounds, they and their families have scant political power, which translates into little ability to garner the necessary political support to put an end to prison abuses.
Inmates' most common crime is robbery, with some 35 percent of inmates being held on or convicted of robbery charges; other common crimes are theft, homicide, and drug trafficking.56 Of the states for which information on race is available, it appears that the racial makeup of the prison population does not differ very significantly from that of the country as a whole, except that blacks are overrepresented: roughly half of all prisoners are white, while 17 percent are blackand 30 percent are of mixed origins (mulato).57 Only about a thousand foreigners are held, including prisoners from Bolivia, Nigeria, Uruguay, South Africa, and Argentina.
19 Only eleven countries-the United States, China, Russia, Brazil, India, Iran, Mexico, Rwanda, South Africa, Thailand and Ukraine-are known to confine over 100,000 prisoners. (The first three countries on this list, in fact, each incarcerate more than a million people.) It is difficult, however, to obtain precise and accurate information on prisoner numbers in certain countries; Cuba is one example.20 The incarceration rates in Chile, Colombia, Mexico, Venezuela and the United States as of 1997 were, respectively, 173, 110, 108, 113 and 645 inmates per 100,000 inhabitants.
21 Constitution of Brazil, art. 5, sec. XLIX (translation by Human Rights Watch). Echoing these concerns, the Brazilian Penal Code states that prisoners "retain all rights, except those that are not included because of the loss of liberty," and that the authorities are under "the obligation to respect [prisoners'] physical and moral integrity." Penal Code, art. 38 (translation by Human Rights Watch).
23 Mirabete, Execução Penal, p. 34 (translation by Human Rights Watch). In its first article, the law articulates the goal of facilitating "the harmonious social integration" of prisoners. Lei do Execução Penal, art. 1 (translation by Human Rights Watch).
25 Ministry of Justice, Conselho Nacional de Política Criminal e Penitenciária, Regras mínimas para o tratamento do preso no Brasil (Brasília: Conselho Nacional de Política Criminal e Penitenciária, 1995), p. 9 (quoting Minister of Justice Nelson Azevedo Jobim) (translation by Human Rights Watch).
26 Not all of these types of facilities are enumerated in Brazil's national prison law, but they are all nonetheless fairly common. Other less common penal facilities that are mentioned in the prison law include the agricultural or industrial colony (colônia agrícola ou industrial), the observation center (centro de observação); the half-way house (casa doalbergado), and the custodial and psychiatric hospital (hospital de custódia e tratamento psiquiátrica).
30 The vast majority of countries in the Western Hemisphere-including Bolivia, Chile, Colombia, Peru, and Venezuela-have centralized prison systems under the authority of the Ministry of Justice or, less commonly, the Ministry of the Interior. Argentina, Brazil, Canada, Mexico, and the United States are notable exceptions to the prevailing model.
The Brazilian and U.S. penal systems are not precisely parallel in structure, however. Brazil relies upon a national criminal code, so that every state applies the same substantive criminal law, whereas each state in the United States has its own criminal code. Besides the broad spectrum of state crimes, the United States has also criminalized certain activities under its federal law; it thus maintains a federal prison system, in addition to the separate prison systems of each of the fifty states, to hold prisoners convicted of these crimes.
31 The Brazilian constitution allows states to adopt their own supplementary prison legislation, but very few states have done so. Constitution of Brazil, art. 24, sec. 2. Minas Gerais, which adopted a state prison law in 1994, is one of the exceptions. Lei Estadual n. 11.404, de 25 de janeiro de 1994. We were informed by prison authorities in Paraíba that a similar law was passed in that state in 1988, but they were unable to provide us a copy of it. Human Rights Watch interview, Adalberto Targino, Secretário da Cidadania e Justiça, João Pessoa, Paraíba, December 9, 1997. In the state of Rio Grande do Sul, in southern Brazil, a set of administrative regulations governing the prisons was issued in 1992. Regimento da Disciplina Prisional do Estado do Rio Grande do Sul, December 12, 1992.
33 According to the national prison law, jails are supposed to be run by state prison authorities for the detention of prisoners awaiting trial. Lei de Execução Penal, art. 102. Yet state public security secretariats also commonly describe certain facilities under their jurisdiction as jails, particularly the larger ones. In the state of São Paulo, for example, most of the penal facilities located outside of the capital, which are administered by the public security secretariat, are called jails. Yet for the sake of simplicity, except where greater specificity is required, this report will generally refer to facilities under the control of the state prison system as prisons, and facilities under the control of the state public security secretariat as police lockups.
38 The Women's Penitentiary in São Paulo-which, with its nearly 400 inmates, is the largest women's facility in the country-presents a good example of the problem. We noted from the visitors' logbooks that no judicial inspections had occurred between September 1992 and January 1997, while there were three such visits in 1997. During roughly the same period, between October 1991 and May 1996, not a single prosecutor hadvisited, and there was no indication of visits from other monitoring bodies. (In addition to the logbooks, the director verbally confirmed these dates with us.) Human Rights Watch interview, Penitenciária Feminina, São Paulo, November 25, 1997.
39 Comissão Parlamentar de Inquérito para, no prazo de 120 dias, Apurar Diversas Denúncias que Envolvem o Sistema Penitenciário do Estado, Relatório Final (Belo Horizonte, Minas Gerais: Assembléia Legislativa do Estado de Minas Gerais, 1997), p. 29 (hereinafter "Minas Gerais 1997 CPI report").
[T]he Community Council is not showing the results that legislators hoped for . . . . In almost all of the districts, they do not even exist. According to the Judge of Penal Execution in Belo Horizonte, that council does not function because "in a city the size of Belo Horizonte, it would require a great deal of effort, in the first place, as we're dealing with an area that no one, with rare exceptions, is interested in . . . Our society discriminates against convicts . . . . "
Minas Gerais 1997 CPI report, p. 35.
41 The council reportedly announced that in April through June 1998 it would be inspecting all of Brazil's prisons. "Ministério vê injustiça," Folha de S. Paulo, March 17, 1998. Because of resource constraints, these plans were scaled back considerably. Prisons in three states-Amazonas, Amapá, and Roraima-were visited as part of the national tour of inspection, while earlier in the year the council visited seven prisons in the state of Pará. All four of these states have small inmate populations (in fact, Roraima had only 203 prisoners in the whole state as of May 1998). The council released a report based on these inspections in July 1997.
42 Lei de Execução Penal, art. 66, para. VIII (translation by Human Rights Watch). Judges do on occasion exercise their power to close down facilities. A couple of the worst São Paulo jails were closed, as were two wings of the Boa Vista public jail in the state of Roraima.
48 Comissão de Cidadania e Direitos Humanos, Assembléia Legislativa, Rio Grande do Sul, Relatório Azul: Garantias e Violações dos Direitos Humanos no Rio Grande do Sul, 1996 (Porto Alegre, Rio Grande do Sul: Assembléia Legislativa, 1997), pp. 154, 183-218, 382-84.
49 Relatorio Final da Comissão Parlamentar de Inquerito Constituida com a Finalidade de Apurar os Fatos Ocorridos no Pavilhão 9 da Casa de Detenção de São Paulo, no dia 2 de outubro de 1992; "Relatório da Comissão Parlamentar de Inquérito - CPI sobre o Sistema Penitenciário Nacional," in Revista do Conselho Nacional de Política Criminal e Penitenciária, Vol. 1, No. 4, July/Dec. 1994, p. 11; Deputado Wagner Lino, Relatório Final da Comissão Parlamentar de Inquérito sobre os Establecimentos Prisonais do Estado de São Paulo (São Paulo: Assembléia Legislativa do Estado de São Paulo, 1996); Minas Gerais 1997 CPI report.
57 "Perfil dos presos no Brasil," Folha de S. Paulo, March 20, 1998 (based on 1997 Prison Census); see also ILANUD, "Sistema penitenciário: mudanças de perfil dos anos 50 aos 90," Revista do ILANUD, No. 6 (1997), pp. 12-14 (noting that, according to 1991 census figures, blacks made up 3.6 percent of the resident population of São Paulo but 16 percent of the prison population).