Brazil has a prison problem. Recent crises have brought renewed attention to mass incarceration, overcrowding, and the lawlessness and inhumanity of Brazil’s jails – issues that are often ignored, but hardly new.
Two separate prison riots on October 15 led to the deaths at least 18 inmates. The next day, in an apparently unrelated incident, some three dozen inmates escaped from a São Paulo prison after a riot caused a fire there.
This is shocking but not unprecedented in Brazil. In May 2006, up to 200 died during mass prison uprisings and related violence, both inside and outside of prisons.
A ‘human rights disaster’
Brazil has the fourth-largest prison population in the world. More than 600,000 men and women live in desperately overcrowded prisons where their most basic rights are not respected.
Cells are mouldy and windowless, and smell of urine and faeces; dozens of men compete for space to sleep on the floor. In some jails in São Paulo – the richest state in the country – incarcerated women use bread crumbs as tampons because the standard menstruation provisions are insufficient.
Believe it or not, Brazil has excellent legislation designed to protect prisoners. The 1984 Penal Execution Law describes in detail the rights of the country’s convicts, which include education, payment for labour, health services, physical safety, recreational and artistic activities, conjugal visits, and access to in-person meetings the prison director, if demanded.
Almost each and every one of these rights are entirely ignored.
In 2002 the Association for Prison Reform, an offspring of the Center for Studies on Public Security and Citizenship (where I am a co-founder and director), decided to legally challenge the horrifying prison conditions in the state of Rio de Janeiro.
To help prepare the case, we brought on Alvin Bronstein, now deceased, as a consultant. Bronstein had directed the National Prison Project of the American Civil Liberties Union for more than 20 years and had extensive experience in litigating for prisoner rights.
When Bronstein learned that the Penal Execution Law described, in great detail, the rights of prisoners in Brazil, he told me the lawsuit was going to be “a piece of cake”. He noted that, in United States, “we won the most difficult cases just by referencing the 8th Amendment”, which prohibits cruel and unusual punishment.
What Bronstein did not know is that Brazil, as the saying goes, is a place where “some laws stick, others don’t”. After nearly three years of litigation, a local judge ruled that the law was a programme, and the state should thus abide by it only when funding allows.
When a piece of federal legislation is interpreted as something that may or not be implemented based on the existence of funds, the rule of law is nonexistent.
The threat of corruption
Hugely overcrowded, under-guarded, and underfunded prisons bring another risk: corruption. The government’s absence opens the door for different gang leaders to seize power by providing “services” not provided by the state and impose their will by force.
This group, widely known as the PCC, provides much of what’s lacking inside the state’s prisons, from basic hygiene products, such as tampons and toilet paper, to transportation for family members visiting their incarcerated relatives.
When criminal gangs like the PCC or the Red Command (born in the prisons of Rio de Janeiro) end up having to divide the same space and share power, riots happen easily. And given overcrowding and limited oversight from security officials, loss of life during such violence is almost inevitable.
Indeed, most recent reports indicate that these two groups, previously working together in a years-long alliance, have broken their pact, making increased prison violence more likely.
The ‘failed’ war on drugs
The root cause of this calamitous prison situation is Brazil’s unfortunate adherence to some of the worst policies from the United States: mass incarceration as a result of a vicious drug war that disproportionately deprives poor, black young men and women of their freedom.
In the past 15 years, Brazil’s prison population has more than doubled; the number of prisoners serving drug-related sentences tripled from 2005 to 2012 alone. Today, 620,000 inmates occupy facilities built to house 370,000.
Misguided drug legislation enacted over that period, in particular the badly analysed 2006 Drug Law, has had a powerful impact on the prison population, growing it to levels seen in few other countries. In the long run, these policies have made prison conditions that were already inhumane enough to merit our lawsuit in 2002, even more degrading.
Brazil is a Latin American leader in mass incarceration related to prosecution of drug crimes, but it is hardly alone. A 2015 study by the Collective for the Study of Drugs and Rights found that in most of the Latin American countries examined, at least one in five prisoners were incarcerated for drug offences. In several places, including Brazil, Argentina, Uruguay, Mexico, and Colombia, that population increased at a faster rate than the general prison population.
As researcher Catalina Perez Correa wrote in a 2015 commentary about the findings:
Support for excessively harsh drug laws stems from very real concerns in Latin America -— the region with the world’s highest homicide rate —- that drug markets generate instability and violence. However, data from previous CEDD research shows that the incarcerated are mainly low-level drug offenders, whose arrests have little or no impact on the drug trade, as they are the easiest to replace.
Along with the upcoming presidential election in the United States, citizens in numerous states will also be voting on legalising either medical or recreational marijuana. The country that led the world, and Brazil, to a tragic war on drugs that has produced much more violence than drug use ever did or could is poised to lead the way in reversing this deadly policy.
Hopefully, Brazil will eventually follow suit.