Pretrial prisoners: Brazil’s forgotten inmates

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...