Reasons Why Brazil’s Criminal Justice System is in Despair

Brazil is one of the most terrorizing countries globally and the rapid growth of incarceration
proves it right. While many elements are of importance in the debate of the causes of mass
incarceration in Brazil, the most prominent issues are gender and racially-based discrimination
in the judiciary system. The mass incarceration is linked to the drug law reforms in 2006.
Washington Office On Latin America (WOLA) and Instituto Terra, Trabalho e Cidadania (ITTC),
which translates to Earth, Labor and Citizenship Institute are the two relevant organizations that
will be recurring throughout this article. WOLA is known for paving the lives for many Latin
American citizens and has defended human rights for people in Latin American countries since
1974. ITTC has sought justice for female defendants since 1997. This article gives insight into
the most eminent reasons why Brazil’s criminal justice system is in despair.

Drug Laws Causing Overpopulated Prisons

In 2006, a new drug law was initiated in Brazil to combat the increase in drug transportation and
usage with the intent to decriminalize possession for personal use, but the implementation of
the new law had an inverse effect, increasing the number of people in prison.
https://presrepublica.jusbrasil.com.br/legislacao/95503/lei-de-toxicos-lei-11343-06. However,
authorities' inability to distinguish whether drugs are used for personal use or with the intent to
distribute it causes overpopulation in prisons. In Brazil, both offenses are treated the same,
causing injustice for thousands of individuals that are associated with lower-income
backgrounds and people of color. Not to mention, Natives and Afro-Brazilians are also the most
vulnerable to mass incarceration.

In nearly 40% of the cases examined by WOLA, based solely on skepticism, judges eliminate
the opportunity of a shorter sentence by postulating that the defendant affiliates him or herself
with an organized crime. According to WOLA, “selectivity of operation in Brazil’s penal system is
clearly notable.” This “selectivity” is primarily aimed at those from a lower-income background
and people of color. https://www.wola.org/sites/default/files/downloadable/Drug
%20Policy/2011/TNIWOLA-Systems_Overload-def.pdf. All being valid reasons why Brazil’s
criminal justice system is in despair.

During an interview with Coletta Youngers, an expert on drug policy reform in Latin America at
WOLA, notes there are obvious contributing factors to mass incarceration: poverty and lack of
economic opportunities. These factors drive many people in Brazil to become involved in
criminal activity, such as drug-related crimes and gang violence which are reasons why Brazil’s
criminal justice system is in despair. Youngers’ states that “prisons serve as a recruitment tool
or as schools for crime.” Gang activity and violence are intertwined in an endless cycle that
consists of a perpetual recruitment within prison systems directly contributing to how drugs are
distributed inside prisons and why individuals are more likely to become repeat offenders once
they’re released.

Most individuals entering prison for drug-related crimes are “small scale dealers.”
https://www.wola.org/sites/default/files/downloadable/Drug%20Policy/2011/TNIWOLA-
Systems_Overload-def.pdf. Small scale dealers are often referred to as ‘street dealers’ and they
often don’t know who their bosses are because “they’re at the lowest rungs of the drug trade
ladder,” said Youngers. Once released, job opportunities for male/female inmates become more
challenging due to a criminal record, especially for those suffering from poverty.

A combination of a lack of formal education and job experience increases their vulnerability.
Once women are released, they’re met with the same challenges, which lead them to fall victim
to drug-related crimes because they’re approached by dealers that aim to create vulnerable
situations for their victims. However, according to Youngers, to combat this issue, the criminal
industrial complex isn’t the answer, it’s community support. By adequately investing funds into
the community assists drug offenders with guaranteed safe housing, job opportunities and
proper education to establish a stable life.

Outside Factors Influencing Women’s Sentencing

The overall growth for women in prison is growing at a much more alarming rate than men. In
the last two decades, 57.1% of the 40% increase in the prison population is constituted by
women, which is remarkably high, considering the general population increase is 19.1%.
https://www.wola.org/wp-content/uploads/2020/07/Imprisoned-at-Home.pdf. Cátia Kim and
Marcela Amaral, attend to the needs of migrant women and women facing criminal charges in
Brazil for ITTC. During an interview with Kim and Amaral, they spoke about how the judiciary
system treats women during criminal hearings and what is necessary to reduce mass
incarceration. Additionally, Youngers and Kim both stated that if drugs become legal in some
form, crime and violence would be significantly reduced. However, Kim and Amaral noted that
women constitute most of Brazil’s prison population for individuals imprisoned for drug offenses.
In the last decade, the overall female prison population has grown by 161% which is one of the
reasons why Brazil’s criminal justice system is in despair.
https://www.hrw.org/news/2017/03/06/brazils-illegal-treatment-women-prison.
Women are even more likely to receive an unjustified sentence due to authorities incapability of
differentiating between drugs being used for personal use or with the intent to sell. However, the
major contributing factor responsible for female incarceration is the decision-making of judges.
According to Kim, these judges are usually men. In Brazil, judges don’t base cases off on the
quantity of the drug or the situation, but rather, the person involved because they view the crime
as morally unacceptable for a woman. The misrepresentation of women by judges happens so
often that it has become part of Brazil’s judiciary culture and promotes a sense of thinly
disguised misogyny.

Ironically, harsh sentencing due to women’s societal views isn’t properly understood when
considering pregnancy, child attendance, etera. The long-term imprisonment only reflects the
primary reasons behind a judge’s decision on women involved in drug-related crimes. Those
are the same reasons preventing women from continuing their role in society as mothers,
daughters and wives.

What Needs To Be Done to Improve The System

Prison alternatives are existent in Brazil, such as assigning house arrest, community service,
restitution or fines. However, the most beneficial, not only for mothers but also for men, is house
arrest. According to Kim there are three regimes in Brazil; a closed, semi-open and open
regime. The goal is an open regime because it allows an offender to live at home, search for a
job and simply go about their daily life. The only requirement is that they attend court one to
every three months to prove to a judge they are still residing within the state.

Alternatives to prison offer a sense of a second chance and hope for offenders and their family
members. Suppose these alternatives also mandate addressing and reforming the policies that
reinforce racial/gender inequality, more resources for community-based support, eliminating
excessively lengthy sentences and deducting hurdles that make it more difficult for individuals
with a criminal record to evolve. In that case, the Brazilian criminal justice system will see a
brighter, more promising future.

-Montana Moore

Photo: Flickr
Notes from Interview with Coletta Youngers:

- Founded in 1974. Worked with a focus on women for over 20 years.

- “-Prisons serve as a recruitment tool or as schools for crime”
- A much higher number of inmates in Brazilian prisons are for drug-related crimes and
transportation, but they deal small quantities of drugs primarily locally.
- “they’re at the lowest rungs of the drug trade ladder”
- In the case of women for the prison population, it tends to range from 40 to up to 80% of
the prison population in Brazil.
- largely because of drug laws that are putting them at are putting these women
behind bars.
- Did multiple reports on the increase in prison population with Brazil being one of the
primarily focused countries.
- Report with solid data “Addicted to Punishment”
- This report talks about the expansion of drug laws across the region and how
more and more crimes were created.
- “We need to reimagine what justice looks like and re-imaging communities where you
can actually grow as a person and not have your past continuously held against you.”
- The government decriminalized possession of drugs and made it an administrative
offense
- Still a crime but no prison sentence
- No threshold for a certain amount of drugs on a person
- Federal and state laws
- State deal with most drug related crimes
- Violence related to drugs is still illegal
- Reducing violence is not going to eliminate violence because there's all different kinds of
criminal activity that gangs can get involved in, but it would take away one source, one
important source of violence.

Notes from Interview with Cátia Kim and Marcela Amaral:

- ITTC was founded in 1997

- No specific criteria for specific legal action for EX: a milligram of marijuana
- They have documents where they discuss prison alternatives and mass incarceration
- Three types of regime: closed, semi-open and closed regime
- Open regime is what allows for house arrest and the best for all the people involved in
criminal activity
- One network is from our organizations and collectives and groups that helps forming
personal the persons people
- Current president didn’t allow for pardons which has always been a tradition in Brazil
- Drug policies are imported from the United States human rights
- Modification for new drug law created in 2006 was supposed to decrease mass
incarceration
- Used to define drug trafficking
- Judges treat women more harshly than men from their experience and research
- Judges considered one women as a mule but it didn’t reflect in her sentence
- Have to take into consideration the overworked public defenders because private
attorneys cost more than most people can afford in those situations