While many have reported on Brazil's devastating prison conditions, a startling fact is that overcrowding, a main contributor to prison violence, is not being tackled head-on. Brazil's incarceration rate is alarming with as many as 3,000 new prisoners each month.
Even more shocking is that almost 50 percent of those sitting in Brazilian prisons have never been tried and some will wait for years to see a judge.
A report [pdf] released last week by the International Bar Association highlights the failures of the country's criminal justice system to provide fair and timely trials and access to lawyers for the thousands of people sitting in pre-trial detention who have never been convicted of any crime.
With the fourth highest prison population in the world, many Brazilians spend years in pre-trial detention or remain in prison after the expiry of their sentence due to bureaucratic incompetence or systemic failings. Severe overcrowding, poor sanitary conditions, gang violence and torture are commonplace. Some prisons hold more than three times the number of inmates they were designed to accommodate. Cells equipped with four bunk beds are packed with 20 to 25 people who are often forced to sleep in shifts. Extreme heat and the stench of urine permeate the cells.
While some efforts are being made to understand the scope of the problem, much more needs to be done. Over the last several months, the National Council on Justice (CNJ), a supervisory body of the judiciary, has been moving from state to state to review the case files of people in detention. Already, the CNJ has ordered the release of over 16,400 prisoners, almost 20 percent of the 84,000 cases it has screened.
In other words, nearly one in five people in Brazil's prisons should not be there.
With as much as 80 percent of the prison population unable to afford lawyers, these numbers paint a damning picture of the Brazilian state's ability to uphold the rights of its own citizens. The low number of public defenders in the country is grossly inadequate to deal with all those who require legal assistance. This widespread lack of legal representation raises further concerns about the fairness of many of the trials being conducted.
Essential reforms are urgently needed. Judges must make use of provisions in the law that allow for alternatives to pre-trial detention. Defense lawyers must be present from the time of arrest to ensure the rights of suspects are respected. This will require a significant increase in government resources to support the country's fledgling public defender system. State bodies mandated to inspect places of detention must be made to do their jobs and held accountable when problems are found.
Some officials argue they have few options but to incarcerate more people. Rates of violent crime in Brazil are staggering and the public almost unanimously endorses a "tough on crime" approach. Politicians' careers often hang on their ability to convince constituents that criminals will be shown no mercy and that draconian policies will ensure the public's safety.
Yet even as the country's prison population has nearly tripled in the last decade, crime rates have remained largely stable.
While no one would argue that Brazil's crime problem must not be controlled, tough on crime approaches have largely failed. On the contrary, Brazilian prisons are known to be recruiting grounds for criminal gangs. In many prisons new inmates must choose a gang affiliation at the door or one will be chosen for them. Rather than reducing crime, Brazil's prisons are adept at creating criminals.
Instead, the state should be working to keep people out of prisons and promote alternatives to pre-trial detention as well as non-custodial sentences for those convicted. The International Bar Association report should be a wake up call for change. Civil society must hold the government accountable for needed reforms and ensure that the government upholds the human rights of all its citizens. Only then will Brazil's justice system be effective as a guarantor of public safety.