A significant slice of the political squabbling in Brazil this year surrounds a concept known in legalese as “imprisonment in the second instance.” Put simply, it concerns the stage of criminal proceedings at which defendants may begin to serve their jail sentences.
The Brazilian Constitution has an entrenched clause which states that “no one shall be considered guilty before the issuing of a final and unappealable penal sentence.” This means that for a prison sentence to be carried out, defendants should first, in theory, exhaust all their available appeals routes. In practice, this is often not the case.
Brazil’s conviction process has four main stages, commonly referred to by legal scholars as “instances.” First defendants receive a sentence from a trial court, then they contest said conviction at an appellate court, then the Superior Court of Justice (STJ), and finally, the Federal Supreme Court. The legal and political brouhaha of 2019 concerned whether defendants could go to jail after a “second instance” conviction—in other words, after they had their sentence upheld by an appellate court. This plea was overturned by the Supreme Court in November, a ruling which allowed former president Luiz Inácio Lula da Silva to be released from prison.
But while the Constitution states defendants cannot go to jail before they use up all of their available appeals, a look at some statistics on Brazil’s prison population throws up some contradictions. According to a National Council of Justice survey from 2018, over 64 percent of inmates in Brazilian prisons have not been issued a final and unappealable sentence.
And over 40 percent haven’t received any sentence whatsoever.
Inmates fallen through the cracks
In large part, these pretrial inmates, kept behind bars for extended periods of time without trial, are young, poor, black, and with low levels of education. This is representative of Brazil’s prison population as a whole. Over 60 percent of the country’s inmates are black or mixed race, while almost 75 percent never even began secondary schooling—a reliable indicator of low income.
They are largely accused of drug trafficking or robbery—two crimes that account for over 50 percent of Brazil’s prison population. As they are adjudged to pose a risk to society, they are put in jail on preventive detention, being forced to remain incarcerated until their trial date.
Being largely low-income individuals, they have no financial means to pay lawyers, thus falling through the cracks into indefinite imprisonment.
It is worth recalling that this phenomenon is not restricted to Brazil; in fact, countries across the Americas have similar problems, with the largest pretrial prison population in the world belonging to the U.S.
A vicious cycle
Along with the human rights violation represented by holding someone in prison for an indeterminate amount of time, without sentencing, this excessive pretrial detention exasperates an already pressing problem in Brazil’s prison system: the overcrowding of jails.
Research from G1 and the Brazilian Public Security Forum shows that Brazil’s prisons have enough space for 415,960 inmates. However, the country’s incarcerated population is over 700,000. In some states, such as Pernambuco, Roraima, and Amazonas, overcrowding exceeds 150 percent—meaning there are more than two and a half times as many prisoners than the states’ jails can hold.
As expected, penitentiaries bursting at the seams lead to abject conditions for the country’s inmates. Speaking to The Brazilian Report‘s Explaining Brazil podcast, co-founder of the Igarapé Institute Robert Muggah described the country’s prisons as “extremely unhygienic.”
“Brazilian inmates are 30 times more likely to contract tuberculosis, 10 times more likely to be infected by HIV/Aids, four times more likely to be killed as a result of homicide, so these are really challenging conditions,” he explained.
Former Justice Minister José Eduardo Cardozo famously said he would “rather die than spend a night in a Brazilian prison.”
These poor conditions create a perfect recruitment opportunity for organized crime gangs, who operate from within Brazil’s penitentiaries. These crime factions began as a form of prisoners’ union, advocating for improvements for inmates subjected to sub-human living standards.
Speaking to news website Olhar Jurídico, criminal executions judge Geraldo Fidelis explained that there is a pressing need to separate pretrial detainees from convicted criminals. “[Pretrial detainees] go into the penitentiaries and get out in a month (…) already owing favors to organized crime factions.”