Annual Report 2018
Law
THE PRISON SYSTEM AND BRAZILIAN
COURTS: THE JUDICIARY'S REACTION
TO A HISTORICAL CRISIS
The analysis of decisions by 10 State Appellate Courts and the Brazilian
Federal Supreme Court in the period from 2006 to 2017 found
that the cases mapped do not reflect the reality of violence and abuses
committed within the penitentiaries. There is a chasm between the main
issues and problems of the prison system and the ones that reach
the Judiciary. Also lacking are discussions regarding criteria
for awarding damages, which leads to random (and different) amounts
being awarded to similar cases.
OBJECTIVE
The goal was to analyze the reaction by Brazilian appellate courts to the violations of
Human Rights in the country's prison system and to verify whether, in assuming a more
active role in constructing solutions to the historical prison crisis, the Judiciary has pre-
sented responses that are appropriate to these problems.
RESEARCH METHOD
•
1.
The study entailed the following steps:
2.
3.
Search for decisions about the main legal questions referring to the prison system,
from 2006 to 2017, of 10 State Appellate Courts and of the Federal Supreme Court.
The state courts were selected to obtain regional diversity; their size (by population)
was also taken into account. The following states were chosen: Sergipe, Rondônia,
Amazonas and Roraima (small size); Bahia, Santa Catarina, Federal District (included
as a state) and Pará (medium size), and Sao Paulo and Rio de Janeiro (large size).
Mapping of the main legal theses present in the decisions selected, according to the
following themes: i) institutional violence; ii) inadequate facilities; and iii) rights and
guarantees of inmates. The definition of the themes took into consideration the quan-
titative impact of each theme in the total amount of cases mapped and the novelty
of the jurisprudence set forth in the selected cases.
Analysis of the cases and identification of the solutions presented by the judges in
quantitative terms, along with evaluation and comparison of the positive and nega-
tive aspects of these solutions.
Only decisions by appellate panels were considered, meaning no cases decided by a single
judge at the appellate level or verdicts by first-level courts without appeal were considered.
11,039 decisions were consulted: 1,900 from the Supreme Court and 9,139 from 10 State
Appellate Courts surveyed. Of these, 501 Supreme Court decisions and 2,061 state court
decisions were considered relevant, for a total of 2,562 decisions examined in detail.
RESULTS
•
•
The most common and relevant questions involving the prison system addressed by the
courts were poor conditions (especially in collective suits), death and torture (theme of
institutional violence); determination of the possibility of serving sentences in inadequate
facilities (theme of inadequate facilities); and visitation privileges, occasional home re-
lease and remuneration for labor (theme of inmate rights and guarantees).
The state appellate courts diverged among themselves on specific themes (creating re-
gional jurisprudence), or even within the same court (by different panels of judges).
The Prosecutor's Office appeared in two instances: at the same time as they were (i) the
leading plaintiffs in collective actions aimed at improving the prison system as it related
to minimum human dignity - such as lack of food, inhuman conditions and torture (in 89%
of the suits involving collective rights, the decision ordered the respective government
body to comply with Human Rights obligations and 85% of said cases were proposed by
the Prosecutor's Office); and (ii) the prosecutors in individual cases, where they did not
present nor defend the same understanding of "human dignity" and "resocialization".
CONTRIBUTIONS OF THE STUDY
•
The cases drawn from the State Appellate Courts do not reflect the reality of the violence
that occurs within the prison system. The number of decisions involving degrading condi-
tions, torture and death from 2006 to 2016 (208 from state appellate courts and 18 from
the Supreme Court) indicates that a huge gap exists between what happens behind the
prison walls and what reaches the Judiciary.
The examination of the decisions in individual suits (as opposed to collective suits) in the
three thematic categories (degrading conditions, torture and mistreatment, and deaths)
indicated the prevalence in quantitative terms of actions for civil liability of the govern-
ment (compensation for moral damages and survivor benefits). The predominant posi-
tion of the state courts, as well as of the Supreme Court, is to recognize the objective
(strict) liability of the government for damages caused by degrading conditions, torture
and death of inmates.
But in nearly all the decisions examined, there was no discussion of guidelines and crite-
ria for setting the awards and survivor benefits, resulting in discrepancies between State
Appellate Courts and even between different panels within the same court.
APPLICATIONS OF THE RESULTS AND POSSIBLE EXTENSIONS OF THE STUDY
In light of the results obtained based on the 10 State Appellate Courts selected, a fol-
low-up study including other Brazilian states would be useful.
•
•
It is important to identify the reasons for so little uniformity among the decisions in cases
involving the national prison system.
The disconnect between the responses of the Judiciary and the gravity of the cases
brought to justice suggests the need for the prioritization of an agenda for remedial
action involving not only the state governments, but also judges, prosecutors, public
attorneys, public defenders, and civil society.
The increased presence of cases involving the theme "prison system" in the Federal
Supreme Court in recent years and the development of new understandings, including
through binding precedents, have not been sufficient in reversing the widespread vio-
lation of the rights of inmates. The next steps to remedy this situation should consider
complementary paths to those already followed by the judicial branch.
AUTHORS:
Michael Freitas Mohallem, Rogerio Sganzerla and Tamara Moreira Melo.
RESEARCHERS:
Ana Heymann Arruti, Gabriel Desterro e Silva Pereira, Luiza Lucas Bruxellas, Lucas
Meireles, Maryanna de Souza Moraes and Rebeca Maria Borges Abrunhosa.
ORGANIZATION:
Center for Justice and Society (CJUS) of the Rio de Janeiro School of Law of Fundação
Getulio Vargas (Direito Rio).
SUPPORT:
Porticus Latin America.
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Annual Report 2018
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RESEARCHView entire presentation