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University of Oxford Centre for Brazilian Studies

Working Paper Series

Working Paper CBS-31-02

Political and institutional challenges of reforming

the Brazilian prison system

By

Fiona Macaulay
Centre for Brazilian Studies

1
 POLITICAL AND INSTITUTIONAL
CHALLENGES OF REFORMING THE
BRAZILIAN PRISON SYSTEM

Fiona Macaulay
Research Fellow in the Politics of Human Rights,
Centre for Brazilian Studies and
Research Fellow in Brazilian Politics,
Institute of Latin American Studies, University of London

Working Paper Number

CBS-31-02

Abstract

This paper examines the political and institutional factors that have
shaped recent government prisons policy in Brazil and affected reforms of the
system. It begins by outlining the main problems experienced by the Brazilian
prison system such as appalling conditions of detention, relative
ineffectiveness in addressing rising levels of crime, and poor administration. It
then goes on to identify the political and institutional factors, particularly at
federal level, that have thus far blocked attempts at reform. Finally the paper
highlights a number of incipient reform efforts at state level and evaluates their
achievements and likelihood of sustained success.*

*
This paper is part of a larger project funded by the Ford Foundation, entitled ‘The political
and institutional dynamics of reforming the Brazilian criminal justice system’

2
Resumo

Este texto examina os fatores políticos e institucionais que influenciam

o governo brasileiro na sua política penitenciária, e que afetam a potencial
reforma do sistema. Um dos maiores problemas enfrentados pelo sistema
penitenciário brasileiro é o aumento drástico, na última década, da taxa de
encarceramento e o número absoluto de detentos nas penitenciárias e
delegacias, especialmente no Estado de São Paulo. Isto resultou em
condições de detenção que contrariam os compromissos internacionais e
domésticos assumidos pelo Brasil en relação aos direitos humanos, bem
como em perda de controle do Estado dentro das penitenciárias.
É impossível chegar a uma conclusão exata no que diz respeito à
relação entre a taxa de encarceramento e a criminalidade devido à
insuficiência dos dados oficiais quanto ao verdadeiro nível de vitimização e a
taxa de reincidência. Essencialmente, a população carcerária reflete
estratificação e discriminação sócio-econômica e racial. O ambiente nas
prisões é violento, caótico e não coerente com o objetivo declarado do
sistema, o seja a “harmônica integração social do condenado e do internado”.
Embora a transição à democracia e as mudanças no âmbito
internacional tenhan colocado questões relacionadas aos direitos humanos e
justiça na agenda politica, a reforma do sistema penitenciário tem sido
atrasada devido à fatores políticos e institucionais, especialmente a nível
federal. A formação histórica do federalismo fragmentado no Brasil resultou
em um sistema de justiça com elementos decentralizados os quais seriam
centralizados em outros sistemas federais, e vice-versa. O governo federal
sofre de um déficit de capacidade na área da justiça, particularmente quando
comparado à esfera econômica. Isto é evidente na politização contínua do
Ministério da Justiça e na falta de capacidade técnica das entidades federais
responsáveis por esta área. A nível estadual surgem obstáculos tais como a
competição inter-institucional e a falta de colaboração entre as secretárias
responsáveis pelos detentos, um sistema debilitado de inspeção e
monitoramento, como também a deficiência de funcionários e má
administração em certas presídios.
Contudo, devido a um grande interesse na questão penal, reforma tem
ocorrido em alguns lugares com o apoio do população em geral, das ONGs e
de alguns políticos. Os experimentos mais notáveis são as cadeias
administradas pela comunidade local, as quais registram uma taxa inferior de
reincidência, custos administrativos reduzidos e melhores condições de
detenção. O Estado de São Paulo está replicando este modelo e introduzindo
reformas administrativas integradas com o objetivo de separar categorias de
presos, isolar quadrilhas de crime organizado e decentralizar o sistema.
Para concluir, a falta de investimento – político e econômico – do governo
federa, tem impedido que as boas intenções sejam colocadas em prática em
uma maneira abrangente e efetiva.

3
‘The prisons are purgatory and the police cells are hell’1

The largest prison in Latin America, the São Paulo House of Detention,
is a mere four stops by metro from the heart of the city. As the train pulls into
the Carandiru station on the overhead tracks, the huge compound of nine
separate blocks that have housed over 9,000 detainees at a time, is clearly
visible.2 Outside the grey perimeter wall, a queue of women and children
forms in the early morning, many sleeping overnight on the pavement, waiting
for visiting hours. From every cell window there hang blankets airing, washing
drying, and long strings transporting messages and bartered goods – food,
cigarettes, drugs - from one side of the yard to another. Between the bars
protrude the arms and legs of men gossiping, trading, or in some cases
sleeping, tied onto the bars for lack of floor space in the cell. The daily
routines of this prison, like any other, are governed by unspoken rules and
rituals, codes of honour, harsh punishment and survival strategies, deftly
described by Draúzio Varella in Estação Carandiru, his best-selling account of
his ten years of experience as a volunteer doctor in the jail (Varella 1999).
Carandiru, a complex which houses both the House of Detention, and two
penitentiaries, one for men, one for women, has become synonymous with the
ills and challenges of Brazil’s criminal justice system, in part because of its
visibility and proximity to the population of Brazil’s economic and political
heartland, but also due to the violence associated with this warehouse of
human souls. On 2 October 1992 the House of Detention was the stage for
the bloodiest massacre committed by police since the return to democracy in
1985. After a fight broke out between prisoners in one of the blocks, with no
prior negotiation armed military police shock troops entered shouting ‘Death
has arrived’. When they withdrew three hours later, 111 prisoners were dead,
many shot in the back, at point blank range, many of them naked or prostrate,
having surrendered (Amnesty International 1993). It took nine years for the
commanding officer in charge of the operation to be brought to court and
found guilty of 102 of those murders.3 Eighty-five military police are still
awaiting trial.
When Mário Covas was elected governor of the state of São Paulo in
1994, one of his first, symbolic, gestures was to declare that the House of
Detention would be closed forever. However, deadlines have come and gone
and the prison continues to house around 7,500 inmates, due to the
accelerated expansion of the prison population, at a rate of 1,000 new

1
A comment made by the then secretary for prison administration in São Paulo state
(interview with João Benedicto de Azevedo Marques, April 1998).
2
This paper is based both on the still limited secondary literature on the Brazilian prison
system and reports generated by governmental and non-governmental bodies, and on my
personal observations. In my capacity as Brazil researcher for Amnesty International, I made
over thirty visits to police stations, jails, penitentiaries and juvenile institutions over a two year
period 1998-99. I also interviewed dozens of officials in both federal and state-level prison
administration between 1998-2001.
3
Colonel Ubiratan Guimarães, was found guilty in a jury trial in June 2001 and sentenced to
632 years in prison. He is currently free, awaiting the result of an appeal. He had escaped
prosecution partly as a result of the slowness of the state in putting together the prosecution
case, but also because he enjoyed parliamentary immunity from criminal prosecution between
1996 and 1998 during which time he served as a stand-in state deputy. He ran on the
candidate number 111, and continues to defend his actions on that day.

4
inmates a day in São Paulo state alone, far outstripping the supply of new
places. The authorities’ inability to demolish the House of Detention is
emblematic of the state’s incapacity to initiate radical change within the prison
system from both an administrative and civil liberties point of view.
This paper examines the political and institutional factors that have
affected attempted reform of the prison system in Brazil. It looks, on the one
hand, at the elements that have slowed or distorted reform efforts and, on the
other, at the conditions that have created a demand for reform and produced
some truly innovative responses to the challenges of administering prisons
and rehabilitating offenders. It begins with a profile of the Brazilian prison
system, its dimensions, organizational features and relationship with the
criminal justice system and with government anti-crime policy.

1. Police and thieves

Rising incarceration rates

Brazil has the largest absolute number of detainees in Latin America:

235,460 by June 2002.4 As the prison population has swollen, structural
problems within the penal system have become more accentuated resulting in
weekly riots, jailbreaks and violent incidents, especially in São Paulo state
which holds 43 per cent of all the nation’s prisoners (nearly 98,500)5, more
than the total prison populations of Argentina (over 43,000), Chile (over
31,000) and Venezuela (approximately 17,000). Only Mexico with nearly
155,000 detainees comes close to Brazil’s logistical challenge.6 As with most
other countries in the region and worldwide, over the past seven years Brazil’s
prison population has risen rapidly, seeing a 50 per cent rise in absolute
numbers from 148,760 in 1995, and a jump in the incarceration rate from 95.5
to 138 per 100,000 population. However, this is still some way behind Chile,
which has the highest incarceration rate (205) of the larger Latin American
nations.7
Brazil is a country of continental proportions with a federal system of
government. As the criminal justice system, including the prison system, is run
by the provincial governments of the 26 states and the Federal District of
Brasília, it is important to examine imprisonment patterns at a subnational

4
All data from Ministry of Justice, National Penitentiary Department (DEPEN) website
www.mj.gov.br/depen, June 2002 unless otherwise stated.
5
Brazil has not had political prisoners since the transition to democracy. This figure
encompasses both pre-trial, unsentenced and sentenced civilian prisoners, charged with
common crimes.
6
Figures are from the World Prison Brief, based at the website of the International Centre for
Prison Studies, Kings College London www.kcl.ac.uk/depsta/rel/icps, and from the US State
Department’s annual human rights reports available online at www.state.gov/g/drl/hrrpt
7
The trend towards increased rates of incarceration is a worldwide phenomenon. The UK rate
has jumped from 90 per 100,000 in 1992 to 132 in 2002, an increase of 146 per cent in only a
decade (source: www.hmprisonservice.gov.uk). Brazil figures at the higher end of the
European rates with around one third of the imprisonment levels of the USA (690), and the
the Russian Federation (670) and other countries of the former Soviet Union.

5
level.8 Incarceration rates have varied enormously from state to state in
Brazil. In 2000 this ranged from 30.3 per 100,000 population in the
northeastern state of Alagoas to 321 in the remote, northern Amazonian state
of Acre. Looking at a simple distribution of the rates of imprisonment across
the country, no clear patterns emerge to suggest causal relationships between
incarceration levels and regional levels of income, ‘modernisation’ and
development that might generate differences in the levels and types of crime
or in the performance of the criminal justice system.9 Aggregate data for the
country as a whole is skewed by the relatively high incarceration rate in São
Paulo state (265), three times that of Ceará and Minas Gerais, over twice that
of Pernambuco and well ahead of Rio de Janeiro’s rate of 144 and Rio
Grande do Sul’s of 146.10 In the absence of reliable data and criminological
studies it is impossible to determine whether the higher imprisonment rates in
São Paulo are due to higher crime levels, greater policing efficiency in
arresting criminals or the state judiciary’s ‘hardline’ stance, favouring custodial
sentences.
The prison population is currently housed in a total of 903 penal
facilities. The 43 penitentiaries, 25 secure psychiatric units, 23 prison factories
and farms, five observation centres for disruptive prisoners and 28 halfway
houses all fall under the responsibility of each state’s Secretary for Justice
and mainly hold convicted prisoners. 11 Around 34 per cent of Brazil’s
detainees (80,000 in number) are prisoners awaiting trial, a percentage that
compares favourably to other Latin American nations.12 Due to a deficit of 64,
986 places in the prison system, most of these are detained in the 479 public
jails and police lockups, the largest group of detention facilities. They fall
under the aegis of the state-level Secretary for Public Security in charge of the
uniformed military police and the civil police stations, where criminal suspects
are taken for questioning and charging. It is in these police lockups that pre-
trial prisoners get stuck, often for months, awaiting transfer to a remand
prison, and often ending up serving their entire sentence. By law they should
be in the police cells for no longer than a week. The Secretary for Public
Security also runs so-called ‘public jails’, small, local prisons that handle both
pre-trial and convicted prisoners.
Both types of police-run jails are in clear contravention of international
guidelines which insist that those who arrest a criminal suspect cannot then
be responsible for his or her long-term custody.13 As the police lockups were
never intended for long-term detention they frequently have the worst levels of
overcrowding and conditions of detention, condemned by several international

8
There are no federal prisons. Those convicted of crimes over which the federal authorities
have legal jurisdiction serve their time in state prisons, although the Papuda maximum
security prison in the Federal District functions as a de facto federal penitentiary. There are
also separate penal establishments for police officers.
9
There is also an enormous range in terms of the absolute numbers of prisoners in each
state, related to its size and population density. Four states have prison populations under
1,000, and 16 states hold between 1,000 and 5,000.
10
Ceará has a rate of 91 per 100,000, Minas Gerais 99, Pernambuco 113. Ministry of Justice,
DEPEN website www.mj.gov.br/depen.
11
Ministry of Justice op cit.
12
Honduras holds the record with 92 per cent pre-trial prisoners, Argentina has 75 per cent
and Venezuela 84 per cent (US State Department website op. cit.).
13
United Nations Standard Minimum Rules for the Treatment of Prisoners.

6
human rights organizations (Human Rights Watch 1998; Amnesty
International 1999; U.S Department of State 2001; United Nations 2001).
Police attention and resources are diverted away from core policing activities
whilst the lockup environment is propitious for abuse. Ill-trained police and
guards, faced with prisoners attempting riots and mass breakouts, often inflict
violent collective punishments and discipline on detainees in an attempt to
maintain control over a volatile situation. Distributing prisoners between two
separate, and indeed often competing or at least uncooperative, institutions
creates a problematic division of labour and responsibility as will be seen.
In addition, state police forces are often deployed in the operational
running of the prison system proper. All states use the uniformed military
police for the external security of the prison perimeters, although in May 2001
São Paulo state signalled its intention to replace 4,000 military police with
prison service personnel specially trained for this purpose.14 Two states at
least have brought in the military police to run the prisons when prison staff
could no longer maintain order due, variously, to corruption, overcrowding,
understaffing and rising inmate violence. In Espírito Santo state an
astonishing 63 per cent of detainees escaped in 1997. After military police
were brought in this was sharply reduced to 11.8 per cent in 1999 and to 2.2
per cent in 2001. The police have since been replaced with civilian prison
guards.15 The brigada militar has run the three largest prisons in Rio Grande
do Sul’s prisons since 1995.The Papuda maximum security prison in the
Federal District is the only one in Brazil run, quite anomalously, by the civil
police. The issue is not whether the police run prisons more or less efficiently
or with respect for human rights, for indeed their record seems often to be
better than that of civilian guards. It is rather that such deployment of police is
contrary to the spirit of international norms and diverts police away from their
core tasks of crime prevention and solving. However, replacing them with
competent civilian guards is easier said than done.

2. Does prison ‘work’?

The first question to ask of any prison system is what it is intended to

achieve, and what it actually accomplishes. The perceived role of
imprisonment has varied over time and place and encompassed punishment
of offenders, rehabilitation, treatment and training, containment, and
incapacitation. Only recently has incarceration been linked by policy makers to
crime reduction, although the causal relationship between is at best unproven,
and certainly vigorously contested. The Brazilian penal system is framed
exclusively, in common with ‘progressive’ penal precepts, to the ‘harmonious
social reintegration’ of the offender16 The first problem in attempting to assess
whether the Brazilian system ‘works’, that is, is successful in achieving either
increased citizen safety and security or the rehabilitation and personal
transformation of offenders, lies in the lack of data.

14
‘Alckmin vai substituir PMs por civis nas prisões’O Estado de São Paulo, 2 May 2001.
15
Ministry of Justice op cit.
16
Set out in the first article of the 1984 national Sentence Serving Law (Lei de Execução
Penal), essentially Brazil’s key piece of prison legislation.

7
Crime and punishment

Violent crime has increased markedly over the last decade. Police
figures indicate a 30 per cent increase in lethal crime (murders and robbery
resulting in death) in the state of São Paulo between 1995 and 2000. The
homicide rate has risen from 17.9 per 100,000 population in 1980 to 59.29 in
1998.17 This violent crime is not generalised, however, but concentrated in the
100 largest cities in Brazil, particularly in low-income neighbourhoods. A study
of homicides in São Paulo indicates that most violence is inter-personal, in
rows between neighbours, colleagues or family, not related to acquisitive
crime (Lima 2001). Nonetheless, people’s experience of crime, fuelled by
periodic ‘moral panics’ generated by high-profile incidents covered in the
media, has resulted in very high levels of anxiety about crime, capitalised on
at a election time by tough-talking politicians. It should be noted, however, that
populist demands for a ‘mão dura’ (hard line) against criminals do not
necessarily encompass long prison sentences. Indeed Brazil, like many other
countries, limits a ‘life’ sentence to 30 years. The common phrase ‘bandido
bom é bandido morto’ (‘the only good criminal is a dead criminal’) and the very
high levels of fatal police shootings of civilians in Rio de Janeiro and São
Paulo illustrates that the ‘problem’ is often taken care of by police long before
it reaches the courts or prison system. More legalistic (and legal) tough
responses have included calls for the age of criminal responsibility to be
lowered (it is currently 18). A 1990 law created a special category of ‘heinous
crimes’ (aimed at tackling drug dealing and kidnapping) under which offenders
are routinely imprisoned and dealt with much more harshly (no bail, regime
progression, parole or benefits). It is the last category that has been blamed
for filling Brazil’s prisons with drug users who have been charged with the
much more serious offence of dealing.
An accurate estimate of crime levels in Brazil is unfortunately
hampered by poor and inconsistent data. Despite Brazil’s commitment to
supplying data on crime and violence to international institution,18 this is not
backed up at federal level by funding for comprehensive victimization
studies.19 Most are limited to one city (Rio de Janeiro or São Paulo in all
cases) and are not comparable in methodological terms. The only national
survey is out of date.20 It was only in 2002 that the Ministry of Justice
managed to compile baseline police crime data, but without ironing out
problems in the classificatory schema. Although in 1995 Brazil set up an
integrated crime record system (INFOSEG) at a cost of U$8.5 million, Minas
Gerais state has refused to supply data and justice system operators at state
level distrust the system and do not use it (Lima 2002). There is also no
national database of convicted offenders.
17
www.conjunturacriminal.com.br
18
Brazil is supposed to contribute to the International Crime Victim Survey of the United
Nations International Crime and Justice Research Institute (UNICRI). ILANUD (United
Nations Latin American Institute for Crime Prevention and Offenders based in Costa Rica and
in Sao Paulo, Brazil) is currently carrying out another survey for the United Nations Crime
Trends database (coordinated by the Department for Crime Prevention and Criminal Justice
in Vienna) despite having been refused financial support by the Ministry of Justice
19
There is no equivalent of the UK British Crime Survey, or the US National Crime Survey
20
The last National Household Survey was carried out by the Brazilian Institute for
Geography and Statistics in 1988.

8
 In the face of such a data gap, homicide rates have become a – very
poor - proxy for crime rates. However, even these data are obtained from the
Ministry of Health, based on death certificates, not from police records, with all
the distortions and omissions that implies. Property crimes are, unsurprisingly,
underreported. Underreporting is due to multiple causes but chiefly to lack of
public faith in the criminal justice institutions. The poor, who are more
frequently victimized, often find themselves ignored or discriminated against
by police who are reluctant to record crimes committed within the more
marginalized social milieux, and for which they have few leads. As noted
above, police are frequently tempted to bypass official channels and mete out
their own form of summary justice.
Similarly, it is very difficult to determine how efficient the police are in
investigating those crimes which are reported to them (Soares 1996). One
study suggests only 8 per cent of homicides in Rio are investigated and result
in a court case. The Prosecution Service charges only 10 per cent of
murderers in Rio de Janeiro and in São Paulo the clear-up rate for murder is
between 20-30 per cent, whilst only 6.4 per cent of all crimes are estimated to
result in a police investigation (Lemgruber 2001). Clear-up rates are, in any
case, notoriously slippery categories, and easily manipulated by police

Prison population

The decision by police to investigate a crime is also conditioned by the

relative socio-economic position of victim and perpetrator (Glaeser and
Sacerdote 2000). Social stratification and differentiation on the basis of class
and racial identity, resulting from long-run historical processes such as slavery
(only abolished in 1888) colour the Brazilian police’s view of both victim and
suspect. Police make a far greater effort to clear up crimes committed against
upper and middle class, white citizens, than those suffered by the poor, black
and mixed race population.
A similar, inverted filter operates with respect to the criminal suspects
who fall into three broad categories. The first genus of offender, the
untouchables middle class white collar criminal, is most unlikely to be
prosecuted successfully, even if a police investigation is carried out, as they
can afford a good lawyer and have some economic and political clout. Should
a middle class criminal, exceptionally, be convicted and imprisoned, they
could enjoy, until very recently, much better prison conditions than their
fellows, as the law entitled those with a university degree to prisão especial.
The second offender type, the professional villain, is also unlikely to spend
much time behind bars. High levels of police corruption and involvement in
organized crime have turned the policing into a rent-seeking activity. The
professional criminal has become commodified, a source of tradable goods
(the drugs, stolen cars and cargo), as well as a source of income. Police
torture known offenders in order to extract confessions to a maximum number
of offences as a basis for financial negotiations with their lawyers. Charges
are then dropped or much reduced (Mingardi 1992). Detainees will also pay to
be released from custody, to avoid future torture sessions, or to be transferred
from the cramped confines of a severely overcrowded police cell to the
relative comfort of a prison cell (United Nations 2001; Amnesty International
2002).

9
 It is the third stratum of offenders -- the so-called ‘chicken thieves’, or
as Brazilians say, pretos, pobres e prostitutas (poor, blacks and prostitutes)21
-- that mainly populate Brazil’s prisons and police lockups. These offenders
are lucky to see a legal aid lawyer for five minutes before their trial, often after
waiting for months on remand. A number of studies have demonstrated the
existence of institutionalised racism in the Brazilian criminal justice system
(Adorno 1999). An analysis of police killings of civilians in Rio de Janeiro state
between 1993 and 1996 shows that blacks make up 8 per cent of the
population, 25 per cent of the accidental victims (often stray bullets in police
shootouts in favelas), 33 per cent of the convicted prison population, 27 per
cent of the wounded opponents, and 30 per cent of the dead opponents of
police ‘confrontations’ (often a euphemism for summary execution of criminal
suspects or undesirables) (Cano 1997). In São Paulo state blacks make up
25.5 per cent of the population but 43.7 per cent of the prison population
(Lima 2002).
In addition, police investigation methods are inadequate to say the
least, with very little use of techniques such as scene of crime preservation,
intelligence, databases and forensic evidence. In order to produce ‘results’ for
public consumption police resort to extraction of confessions under torture
(United Nations 2001), later used as the primary prosecution ‘evidence’ (Kant
de Lima 1989). Individuals are singled out on the basis of their racial and
class ‘markers’ rather than on the basis of established links to reported
incidents.
This triage of criminal suspects, selectivity in regard to the recording
and investigation of crime, and almost certainly substantial numbers of
wrongful or dubious convictions makes the prison population a highly distorted
reflection of those who may be responsible for the commission of crimes in
Brazil. The last official prison census, conducted in 1995 sheds very little light
on the crimes for which inmates are awaiting trial or convicted: 46 per cent are
listed as ‘without information’. Although incarceration rates have been rising
sharply over the last decade, in the absence of reliable baseline data on
victimization or the criminal profile of those in Brazil’s jails, it is unclear
whether this is due to real rises in crime rates, more efficient policing and
detection or simply the enforcement of the tens of thousands of pending arrest
warrants.

Rehabilitation and re-offending

Rehabilitation is a very distant goal, given the appalling conditions in

which the majority offenders are held, and the paucity of educational, training
and psychological support programs. Levels of overcrowding, particularly in
the police lockups, can be as high as 600 per cent, denying prisoners the
minimum standards of comfort, hygiene and dignity required by domestic and
international law. Medical care is minimal to non-existent, and educational and
occupational training programs a rarity. The system also generates very
serious human rights violations, such as the toleration of prisoner-on-prisoner
violence in facilities where the staff/inmate ratio is so low that the more

21
Prostitution is nowadays not much policed: the rising number of women prisoners is largely
due to involvement with drug trafficking, often via their male partners.

10
powerful prisoners essentially call the shots in the institution, whilst freely
conducting organised crime activities. The National Penitentiary Department
recorded 1,284 deaths in custody in only eight states during the first nine
months of 2001. Of these 182 resulted from prisoner-on-prisoner violence and
59 were killed in disturbances.22 February 2001 saw the largest prison riots in
Brazilian history, involving over 25,000 inmates and thousands of family
members taken hostage in nearly 30 prisons in São Paulo state, orchestrated
by a criminal gang, the PCC (First Command of the Capital) operating inside
the prisons. Prisoners’ frustration at conditions, overcrowding, abuses and
lack of legal aid and information frequently results in violent riots, breakouts
and protests. Prison guards, warders in police lockups and the police who
perform either internal or external guard duties or are brought in to quell riots,
also use routine and sometimes lethal violence against inmates.
What impact the prison system actually has on inmates is difficult to
measure. There are no reliable figures available on recidivism either by penal
facility, state or nationally, although the National Penitentiary Department has
stated its aim to reduce re-offending from an estimated 70 per cent to 50 per
cent by 2003 (Ministry of Justice 2002).23
Thus we see a prison system that itself generates serious criminal
activity, acts as an institution of discriminatory social control and discipline,
and is unable to fulfil its allotted task of crime reduction or offender
rehabilitation. Brazilian prisons are in the main ‘schools for crime’ rather than
institutions for repairing the social fabric. In order to understand why the
Brazilian prison system has become quite so dysfunctional and difficult to
reform in recent decades we must now consider the influence of the
institutional and political environment.

3. Political and institutional obstacles to reform

3.1 Macro-level factors

Fragmented federalism

Perhaps the most important single factor blocking attempts at reform is

the federal structure of government in Brazil. As the institutions and
operations of the criminal justice system – police, prosecution services, courts
and prisons – are the responsibility of the states, their national counterparts
have a restricted remit and are structurally much smaller than the state-level
institutions. This contrasts with other federal nations in which the federal
justice system is of relatively greater size and importance (compare USA,
Mexico and Argentina). Brazil is also exceptional in having legal codes,
legislation and procedures that are national in scope, with no variation from
state to state. Finally, Brazil’s court system is possibly unique in having no

22
Data cited in US Department of State (2002). It was also alleged that one prisoner a week
was killed in Rio de Janeiro state’s major prisons and that 30 homicides a year occur in
Carandiru’s House of Detention alone. This mortality level is borne out in Varella’s more
anecdotal account of the prison (Varella 1999)
23
Data on different penal facilities from the 1997 prison census in São Paulo state cites levels
of recidivism ranging from 27 to 75 per cent. Source: www.conjunturacriminal.com.br

11
system of binding precedent, that is, lower courts are not obliged to follow
rulings handed down by higher courts, even those of the Supreme Federal
Tribunal, Brazil’s quasi-constitutional court.(Arantes 1997) All of the foregoing
is reflective of what has been termed Brazil’s ‘incomplete federalism’. The
federal structure of government was adopted at the birth of the Republic in
1889, inspired by the US model. However, in practice it has been used more
to accommodate the claims of local powerful economic and political interests,
creating controllable fiefdoms which lessened the likelihood of challenges to
the central ruling elite. There was never any necessity therefore to spell out
clearly in constitutional terms the limits of state autonomy vis-à-vis central
government and the rights and responsibilities of both sides. Throughout the
twentieth century Brazil has oscillated between decentralization and increased
‘federalism’ during democratic periods, and marked centralization during
authoritarian governments (Vargas’s Estado Novo regime of 1937-45, and the
military regime of 1964-85). This has resulted in a criminal justice system with
both decentred and centralized elements, but not, as noted above, along the
more rationalised lines observed in other federal nations. What then are the
effects on penal reform of this fragmented federalism?

New principles and historic incapacity

The federal government is hamstrung by an institutional capacity

deficit. The Brazilian state has been characterised in many different ways, but
there is general agreement that it is relatively large and relatively effective in
certain areas. The developmentalist path pursued since the 1930s by
governments both authoritarian and democratic, military and civilian, put a
high premium on state-led economic growth. Thus, in the area of economic,
industrial and infrastructural policy the state spawned a considerable
‘insulated bureaucracy’, ((Nunes 1997) that is, institutions that were staffed by
career technocrats and immunised against the political influence and
clientelism that otherwise permeate the Brazilian patrimonial state.(Evans
1995; Roett 1999) These institutions were strong and relatively autonomous
until they began to suffer political ‘capture’ in the late 1970s and early 1980s
as the developmentalist model began to break down. The high rates of growth
sustained by Brazil over the decades 1930-1980 are testimony to the levels of
‘embedded autonomy’ of these economic institutions. (Evans 1995)
Brazil’s success in building central state capacity in the economic
arena contrasts sharply with its failure to do so in that of criminal justice. A
long view might suggest that allowing state governors and local landholders
(coronéis) control over the justice apparatus was part of the deal struck by the
national leaders in taking over the direction of economic development. Thus
the local courts and police were employed in controlling dissent, social
disorder and any organised challenges to economic privilege.(Leal 1977)
However, after the transition to democracy in 1985, the political and
institutional landscape has been reshaped by changes in the international
arena. The Brazilian government has ratified the key international conventions
and treaties on human rights, and gradually opened itself up to scrutiny by the
various Inter-American and United Nations human rights mechanisms
(Piovesan 1996; Pinheiro 2000). The 1988 Constitution contains wide-ranging
guarantees of civil liberties, framed within a recognition of the international

12
human rights regime.24 Thus the federal government can be held responsible
in international fora such as the Inter-American Court of Human Rights for
failure to prevent, investigate and punish human rights violations that occur
within individual state jurisdictions. For example, in 1998 the government
came to a ‘friendly settlement’ with the Inter-American Commission of Human
Rights and admitted responsibility for 18 prisoners who died of suffocation in a
police lock-up in São Paulo in 1989.25
Brazil has hemispheric and international ambitions, and has become a
very proactive player in international human rights arenas.26 It is therefore
extremely sensitive to international opinion and pressure on its human rights
record. The Fernando Henrique Cardoso government (1995-2002) produced a
number of important institutional innovations such as the 1996 National
Human Rights Plan and the 1997 National Secretariat for Human Rights. The
Plan suggests 15 diverse prison-related reforms ranging from data systems to
epidemiological studies and decentralization of the service. However, the
section on prisons suffers from the flaws common to the rest of the document:
it constitutes a wish list, rather than a detailed, strategic analysis, there is no
concrete timetable or any allocation of responsibility for implementation, and it
ignores the issue of state-federal government relations. As a result some of
the reforms have proceeded in a rather piecemeal manner, others not at all
and were insufficient to stem the growing crisis. Similarly, attempts to reduce
numbers flooding into the system, by reserving custodial sentences for the
more severe offences, have been hampered on the one hand by public
attitudes, but chiefly by the non-participation of other institutions. The Cardoso
government has consistently supported the use of non-custodial sentences
such as community service that are estimated to be ten times cheaper to
administer than prison terms.27 However, the very low numbers of such
sentences handed down by judges is blamed on the lack of infrastructure to
administer such a new scheme.28 In short, good intentions were not matched
by the necessary institutional capacity for implementation. The Cardoso
government essentially failed to reorganise the national executive branch
justice institutions to which we now turn.

Politicisation of the Ministry of Justice

The Ministry of Justice has the overall remit for government policy on
crime, law and order, and penal policy. The most historic of all ministries in
24
The legal guarantees for offenders include the 1984 Sentence Serving Law, and the 1995
Ministry of Justice guidelines, modelled closely on the United Nations Standard Minimum
Rules for the Treatment of Prisoners, known as the Tokyo rules.
25
55 prisoners had been crammed into a single airless cell in the 42nd police precinct in
Parque Sao Lucas. The government has also agreed to pay compensation to the families of
the victims.
26
It was very active in the 1993 UN Conference on Human Rights in Vienna, has sent troops
on UN peace-keeping missions, particularly to countries in the Portuguese speaking
community, and supported the establishment of the International Criminal Court
27
The 10:1 ratio is based on data from Rio Grande do Sul, a pioneer in non-custodial
sentences. Lemgruber (2000) notes that the individual states do not employ a standard
methodology for calculating the cost of imprisonment, therefore a national average is
impossible to determine.
28
As of April 2002 34 units for non-custodial sentences had been set up across the country.
The scheme was pioneered in Rio Grande do Sul state, on the initiative of local judges.

13
Brazil, its function has traditionally been essentially political, the office-holder
a ‘fixer’ for the President of the Republic. Since the return to democratic rule in
1985, the Ministry of Justice has had 17 incumbents, that is, one a year. The
very high turnover indicates how vulnerable this post is to the political winds of
change, and how little attention has been paid to the desirability of bringing to
it both technical capability and stability in terms of policy direction. Even
Cardoso’s government, headed by a social scientist with a more ‘structural’
analysis of Brazilian development, has had eight ministers in as many years.29
The appointments hint at Cardoso’s struggle to combine the modernizing role
envisaged for a revamped Ministry of Justice, with more traditional political
functions as he oscillated between political appointees and jurists. His first
and longest-serving30 Minister of Justice, Nelson Jobim, proactively pursued a
number of structural reforms, setting up national commissions to revise the
criminal code, criminal procedure code and law governing prison regimes and
sentence serving. These reforms were neglected under the next two
incumbents until revived by the fourth justice minister, José Carlos Dias, who
was forced to resign after nine months following internal ministry conflicts. His
successor did little of note whilst the final appointment of this government, a
leading jurist, once more set about resuscitating these flagging commissions.
The office of Minister of Justice has hardly been strengthened by this
sequence of appointments and switches in policy direction with the President
ultimately reluctant to disturb the status quo in the Ministry and enable it to
build the institutional capacity it needs for independent data collection and
analysis, and coherent policy-making. The reforms of the key legal codes and
of the judiciary have proceeded in fits and starts, the first in the hands of
technical committees appointed by the Ministry, the second in a number of
committees in congress.(Macaulay 2003) This delegation (or abdication) of
responsibility to either civilian experts or to the legislature underscores the
absence in the Ministry of a larger critique of the justice system and its
component parts which opens up potential for interest groups to capture
reform efforts. The first wave of judicial reform in the 1980s suffered capture
by the judiciary whilst police corporations successfully lobbied to veto police
reorganisation and, by extension, important aspects of the chain of arrest,
prosecution and imprisonment. The prison sector has no organised lobby (no
equivalent of the Prison Officers Association), but suffers chiefly from neglect.
The Ministry continues to function primarily as a means of managing state-
level political threats from the centre, rather than as an institution capable of
imposing minimal standards on the states’ criminal justice system. A
burgeoning literature analysing the conditions for success in decentralised
delivery of social services indicates that a strong central administration is
crucial to the performance of local institutions and agents, and this nationl-
level capacity and direction is precisely what is missing.(Tendler 1997; Angell,
Lowden et al. 2001)

Lack of technical capacity

29
This contrasts sharply with the stability of two successful and key social ministries: Raúl
Jungmann was Minister for Agrarian Reform and Paulo Renato Minister of Education for most
of the two Cardoso administrations.
30
He was in post for two years and three months.

14
 Those institutions in the Ministry of Justice responsible for prison
policies are visibly the victims of institutional neglect and indifference. Penal
policy is officially the responsibility of the National Council on Criminal and
Penal Policy (CNPCP), an advisory body whose instructions and guidelines
are then executed by the Prisons Department (DEPEN) which falls under the
aegis of the National Secretary of Justice31, the second in command in the
Ministry. An examination of the institutional remit and resources of the CNPCP
and DEPEN is revealing.
The CNPCP was set up in 1980 as the main national body with
responsibility for prisons and the serving of criminal sentences, and to ensure
the implementation of the wide-ranging Law on Sentence Serving. It meets
once a month and is composed of 13 unpaid council members, appointed by
the Minster of Justice for two years, with one third replaced every year. Until
recently the membership was dominated by elderly, retired legal experts, with
very little direct experience of prison management. Recently, however,
attempts have been made to widen its membership to include NGOs and
representatives of social welfare ministries. Set against its voluntary character
and infrequency of meetings, its legal remit is impossibly wide. It is charged
with, inter alia: putting forward guidelines for crime prevention, criminal justice
administration and the serving of sentences; contributing to national
development plans with goals and priorities for criminal and prison policy;
encouraging periodic evaluation of the criminal justice system; encouraging
criminological research; setting out a framework for criminal data gathering.
Only four stated tasks are directly linked to prison management: drawing up a
national program for prison staff training; establishing rules on prison
construction; inspecting and monitoring all penal establishments in the
country; notifying the relevant judge of violations of the law and applying to
have a prison closed down.
The confusion of roles and identities is evident. The CNPCP’s remit
across the criminal justice system strays into areas of self-regulation of the
courts, policing policy, academic research in the area of criminology (still in its
infancy in Brazilian universities), data gathering, prison architecture and
inspection. The Council has thus been made to substitute for the absence of
more specialised, dedicated institutions and thus has performed none of its
core tasks well, given constraints of time and personnel. In real terms, the
Council has concerned itself with primarily with carrying out a periodic prison
census, the publication of a journal (now discontinued), and the publication of
legal opinions on proposed legislation. Its capacity to inspect the 900 or more
penal establishments in Brazil is negligible.
Its ability to promote data gathering has also been problematic. The
last published prison census in Brazil was conducted in 1995 under the
Council’s auspices. Another was published in 1997 and then hurriedly
withdrawn as they alleged internal conflict with the executing body, DEPEN.
Now a rolling census based on information supplied from the individual states
is available on DEPEN’s website. Over the years it has been a struggle to
enforce a single reporting methodology on the states, particularly those with

31
This position has enjoyed a great deal more stability than that of minister, with only three
post holders since 1995 (Sandra Valle, Elizabeth Sussekind, and João Benedicto de Azevedo
Marques). For the last nine months of the Cardoso administration, all the key posts in the
Ministry of Justice were filled by paulistas, all lawyers or justice system reformers.

15
poor infrastructure and staff, worsened by confusion over the status of the
prisoners in police detention and the division of data therefore between two
state secretariats. Although the data are now relatively consistent, the data
supplied has not increased in range beyond numbers, status and nationality of
prisoners. For example, it had never occurred to either DEPEN or the CNPCP
to solicit data on deaths in custody from the states.32 Partial data are now
available and some states such as Rio Grande do Sul make that information
publicly available.
DEPEN, the executive body required to implement prison policy, has
suffered from several interrelated problems. Firstly it has little autonomy to
draw up policy independently: it is bound to the guidelines set down by the
Council. It has a core staff of ten, but this is nowhere near enough to deal with
a country of Brazil’s dimensions and oversee its central task of funding prison
building and maintenance, prison work contracts, and voluntary legal aid
projects.33 DEPEN’s own annual reports pointedly note the need for more staff
to deal with the ‘overload of tasks from analysing projects, legal and technical
documents, drawing up agreements, overseeing building works, preparing
accounts’ (Ministry of Justice 2001). The post of head of DEPEN was not
considered an important policy appointment. However, two recent
appointments towards the end of Cardoso’s presidency reflected the
increasing importance of prisons on the government’s agenda in response to
international and domestic outcry. Both Dr Nagashi Furukawa, a retired judge
and active prison reformer from São Paulo, and the current (June 2002)
incumbent Angelo Roncalli have hands-on prison administration experience
and took a much wider view of their remit. Nonetheless both continued to
struggle with under-funding and under-staffing.
DEPEN’s influence on the state prison administrations has been slight
as it has no autonomous policy direction and no capacity to produce national
guidelines or procedures. Monthly meeting are held with representatives of
the state secretariats for justice. However, as at national level, these are
political appointees, often lawyers but with no hands-on experience of prison
administration, which forms the bulk of their portfolio.34 The same goes for the
direct heads of the prison sub-departments. Their ignorance of the daily
operational challenges of running a prison, combined with a legalistic view of
the issue and a high turnover of personnel, means that reforms are rarely
deep or long-lasting, and frequently reactive or even ill-conceived.
In principle, despite its limited legal remit, DEPEN could exert
considerable leverage over the individual states as the holder of the very
considerable finances available in the Prison Funds (FUNPEN) to prison
construction. However, the Federal Government has, for several years,
illegally withheld these funds for fiscal purposes, thus depriving the states of
money they desperately needed to reduce overcrowding, and stripping

32
Interview with the head of DEPEN, November 1998.
33
DEPEN funds prison infrastructure and certain projects in prisons. However, the staffing
and day-to-day operational costs of prison administration are met by the local state
authorities, which explain in part the very poor quality and quantity of staff.
34
In July 2001 the Rio de Janeiro’s state secretariat for justice was suddenly divided in half,
with the new post handed to a political supporter of the governor as a springboard for his own
electoral ambitions. The remaining half, which dealt with the main portfolio item of prisons,
was left effectively orphaned.

16
DEPEN of its main purpose. The FUNPEN money is raised principally from
court fines and costs and lottery proceeds and is, in theory, ring-fenced, that
is, the government cannot spend it on any other purpose. However, over the
period 1995-2001 only 73 per cent of funds were disbursed: in the worst years
this amounted to only 14.9 per cent (1995) and 22 per cent (1999, not
coincidentally the year of the an abrupt devaluation following Cardoso’s re-
election). In 2002 the Treasury set DEPEN’s budget at R$127 million,
although R$242 million is sitting unspent in FUNPEN’s coffers. (Ministry of
Justice, 2002) In the Cardoso government, the ministers of planning and
economy have been king, resulting in budget allocations for social spending
going virtually unspent in some years.35 In May 2001 federal prosecutors in
São Paulo state, one of the worst hit, filed a suit against the federal
government in order to force payment of R$205.8 million of FUNPEN funds
that not been disbursed between 1994 and 2000, preventing the
implementation of some170 approved projects.36

3.2 Meso-level factors

Inter-institutional rivalries and vested interests

Some of the blame for the glacial pace of reform must be laid at the
door of the local institutions of the criminal justice system. Despite the fact
officials at all levels express their frustration at the current state of affairs, real
reform hinges on a combination of political will, resources, institutional
cooperation and strategic planning. The division of responsibility for prisoners
between two separate state secretariats (Justice and Public Security) is a first
complicating factor. Inter-institutional rivalries resulting in them not sharing
information, coordinating policies, or transferring inmate even though the state
aim of both federal and some state governments is to transfer all detainees
from police stations to purpose-built prisons under the aegis of the Secretary
for Justice. In only one state – Rio de Janeiro – has this been accomplished,
in a policy spearheaded by reformers in the Secretary for Public Security,
whose primary objective was to carry out a root and branch reform of the civil
police stations, now divested of their lockups.37 However, the policy did not go
unopposed by certain corrupt police officers who have perverse incentives for
maintaining the status quo.
In all but two states of the federation, the prison system as such (that
is, under the Secretary for Justice) holds more prisoners than do the police
lockups, overall on a ratio of around 3:1.38 However, Minas Gerais has the
third largest total prison population in the country (15,612 - 2000), yet in an
inversion of the nationwide pattern only 3,958 are in prisons, with over three
times as many – 13,876 - in police custody. Perversely, the prison system

35
The national budget is prepared by the executive and then proposed to Congress for
amendments and approval. Budget allocations represent ceilings, that is, spending the
allocation is not mandatory.
36
‘MP cobra verba para prisões’ JB Online 25 March 2001.
37
This is the Delegacia Legal scheme, instituted in 1999 by the then under-secretary for
public security, Luis Eduardo Soares.
38
The other state is Maranhão, an impoverished state in the North of the country, with 1,844
prisoners in police custody and 1,061 in prison

17
actually has spare capacity. Two factors are at play here. Firstly, the state
Secretary for Justice has consistently refused to accept more convicted
prisoners into ‘his’ prisons, arguing that he is sticking to the letter of the law in
preventing overcrowding.39 Secondly, this irregular prison population
represents not simply a burden on the civil police but also a source of income
that they are loath to lose. The ‘going-rate’ in Minas Gerais for a transfer into a
prison is US$1,250 (Amnesty International 2002). The horrendous conditions
of detention in which prisoners are kept in the police stations are thus
functional to this rent-seeking behaviour. Amnesty International reports on
overcrowding and torture of detainees in police stations in Belo Horizonte, in
particular the Theft and Robbery Department, over a fifteen year period have
brought about no measurable improvements in the system (Amnesty
International 2002). The reluctance of the state’s governors to impose reform
is due to the low political gains at stake as well as a fear of elements in the
state civil police linked to a death squad and organised crime, who have in the
past violently opposed government policy. Attempts by local prosecutors to
inspect the premises or close down notorious lockups have been met with
intimidation.

Systems of inspection

Improved external monitoring and inspection of the prison system

would undoubtedly speed and strengthen reform efforts. However, the existing
system is fragmented, ineffective and essentially reactive rather than pro-
active. The general practice is for these bodies during or after an incident,
such as a riot or violent episode, even though their mandate suggests that
these inspections should be conducted on a regular, even monthly, basis.
Reports are not made public or circulated in any coherent fashion, hindering
public monitoring or institutional learning.
There are a total of six different institutions empowered to inspect penal
establishment and ensure adherence to the law, four at state level and two at
federal level. These are, at state level, the prosecutor’s office (with a remit to
oversee the police), the judge in charge of sentence serving, the state level
Penitentiary Council and the internal affairs department of the prison
administration. All have a potential conflict of interest in respect to the
detainees. The first three will be involved in prisoners’ parole and transfer
hearings and this may impinge on the impartiality with which they treat
prisoners’ complaints. The internal affairs department by definition cannot be
considered independent... At federal level DEPEN and the CNPCP are also
empowered to inspect prisons but have no personnel or resources with which
to carry out this task. This duplication of efforts and agencies results in no-one
taking responsibility for prison conditions. As with the system of police
oversight, it has been a case of ‘reform by addition’, that is, when one
institution fails to function, its attributions are replicated in a new body.
However, there are now moves to pilot a system of prison inspection, based
on the UK model, that would be pro-active and preventive, conduct
inspections on a set timetable using a core team of professionals, generate

39
Minas Gerais has 12,102 convicted prisoners of which 8,222 are serving their sentences in
police cells.

18
publicly available reports and oversee the implementation of their reform
recommendations.40
The law also provides for civil society involvement in monitoring of
prison conditions in the form of Community Council (Conselho da
Comunidade) in any jurisdiction with a prison. However, many areas have no
Council (there are no data on how many do exist), they are depend on the
local judge for their appointments and receive no guidelines or institutional
support, for example training, advice on carrying out inspections or even on
how to prepare reports and where to send them.41 As a result they currently
have little impact on prison conditions or administration. However, as we shall
see below, civil society interest in prisons has been growing and the Councils
remain a resource yet to be properly mobilised.

3.3 Micro factors

Finally, at the level of the individual penal facility, the status quo is
maintained by poor administration and staffing. The problems begin with
recruitment and training. Educational requirements have generally been low
for prison guards, reflecting the low and status of the job. The short period of
training they undergo, in one of the country’s five penitentiary schools, is
entirely classroom based and theoretical. Thus it is unsurprising that when
new recruits get posted to their first prison, they undergo a process of
resocialisation and ‘retraining’ by their more experienced colleagues.42 Thus
the inputs of the formal training see little reflection in daily practice. For
example, all prison guards are required to take a human rights module, as
part of the government’s overall program of human rights promotion and
education. However, when these abstract ideas are no closely tied into
professional procedures and practices, they can even backfire. An attitudinal
survey of thousands of prison guards in Rio de Janeiro revealed that they had
come to resent and resist the term ‘human rights’, feeling that it protected the
prisoners at their expense.43 The prison service does not operate with fixed
procedures and benchmarks, for example on what constitutes ‘excessive use
of force’. As a result officers behave defensively, copying their peers, and
closing ranks when challenged. Without procedures and criteria, assessment
of officers is impossible, and formal discipline reserved for the most egregious
cases, for example, smuggling in drugs or guns, or extreme violence. Officers
also work 24 hours on and 72 off, allowing them to work in second and third
jobs, but leaving them stressed and tired on the job. High levels of alcohol and
drug abuse, understaffing, poor pay and conditions and minimal training all
contribute to either to staff violence against prisoners or tolerance of prisoner-
on prisoner abuse.44

40
This UK government funded project is being piloted in São Paulo, and is being run by the
International Centre for Prison Studies, of Kings College, London, and the Centre for
Comparative Criminology and Criminal Justice, University of Wales, Bangor
41
Interview with Tania Kolker, Rio de Janeiro Conselho da Comunidade.
42
Interview by Roy King with the director of the São Paulo penitentiary school, 1998.
43
The survey is being carried out by the Centre for Studies of Public Security and Citizenship
at the Candido Mendes University.
44
This analysis was offered by most of the prison governors I interviewed.

19
Prison governors face a similar situation, often bombarded by conflicting and
ad hoc administrative edicts but without a strategic plan for management.45
They are generally not ex-prison staff but often police officers, and receive
little specific training as managers, spending most of their time on
troubleshooting. However, recently in the realm of both prison and police
reform the emphasis has shifted from a discourse of human rights to a more
managerial, professionalising one which ‘disguises’ the human rights agenda
to make it more palatable. A project run by Penal Reform International in
Brazil aimed at getting prison managers to uphold the UN’s Standard
Minimum Rules talks of ‘policy, procedures and performance improvement.’
Of course, without explicitly stated procedures and managerial definitions of
good or bad administration, a more pro-active, preventive system of the
inspection cannot work.

4. Opportunities for reform

Despite the lamentable and chaotic conditions that still pertain in much
of the country’s prison system, some reform initiatives, particularly at local
level, are beginning to bear fruit, These are undoubtedly the results of nearly
two decades of work by concerned individuals within the criminal justice
system and by human rights organizations which have brought about a
gradual shift in public attitudes to offenders and the prison system.

Changing attitudes

The roots of the current crisis were already evident in the late 1980s,
with riots breaking out in a number of prisons (Amnesty International 1990)
and some police stations such as the notorious Theft and Robbery
department in Belo Horizonte so overcrowded that the prisoners organised a
so-called ‘lottery of death’: each one drew straws and the unlucky ones were
murdered by their cell mates to make room. The 1992 massacre in Carandiru
prompted outrage in some quarters but was, significantly defended by some
politicians and a significant sector of the public. However, in a decade (1985-
95) dominated by hyper-inflation and turmoil in the political-institutional arena,
very little attention was paid to the prison system per se. Crime was, however
rising, partly in response to the economic crisis, and human rights groups
concerned themselves primarily with the results of heavy-handed, repressive
policing tactics. It was not until the latter half of the 1990s that attention shifted
to the fate of those held in police custody or in the prison system. The
pioneers in raising public consciousness were undoubtedly the members of
the Catholic Church’s ‘Prison ministry’ (Pastoral Carcerária)46 which had some

45
Only the most progressive prisons (see below) had anything approaching a procedural
manual for staff, which includes definitions of misconduct. For example, a community prison
in Pernambuco, specified how cells searches were to be conducting, explicitly banning
common practices such as stripping the prisoners naked and destroying his possessions in
the course of the search.
46
Much of the Pastoral’s effectiveness must be attributed to the inspired leadership and
political savvy of Father Francisco ‘Chico’ Reardon, an Irish-American priest and naturalised
Brazilian, who died unexpectedly in 1999.

20
3,000 lay and religious volunteers around the country regularly visiting
prisons, offering practical and spiritual support and bearing witness to the
daily abuses suffered by prisoners. In 1997 the plight of detainees was taken
up by the National Council of Bishops as the theme of their Lenten campaign.
They also began increasingly to seek allies in the Bar Association, in young
and enthusiastic prosecutors and in the judiciary.47 Lobbying of international
organizations resulted in the visits and reports by the Inter-American Human
Rights Commission, Human Rights Watch, Amnesty International, the United
National High Commissioner for Human Rights and the UN Special
Rapporteur on Torture.
On a governmental level, interest came more from the legislative than
the executive branch. In 1994 a Parliamentary Committee of Inquiry into the
prison system was set up in the National Congress, followed by equivalents in
the state assemblies of São Paulo, Minas Gerais and Espírito Santo. Their
reports in turn prompted increasing media attention to the subject and it
appeared that public concern with the question of imprisonment was
beginning to shift. The debate was now framed more in terms of the public
cost of maintaining such a violent and chaotic system. This cost included the
spread of disease such as HIV, tuberculosis from inmates to the wider
community, the fear engendered by violent episodes and break-outs, and the
clear ineffectiveness of prisons in deterring or reforming offenders. The small
group of reformers began to win the debate with arguments about improved
management of the prison system, the reduction of escalating prisoner
numbers via greater use of non-custodial sentences. This final section of the
paper examines the kinds of reforms and innovations currently being
introduced and assesses their impact.

Non-state administration

Periodically the capacity of the Brazilian state to run the prison system
has been called into question. The private security industry is, after all,
booming in Brazil48 in response to the deficiencies of the police. Privatization
of the prison system has been periodically debated since the 1980s but
rejected until recently.49 However, in parallel to the state-run prison two
somewhat different alternative models of contracted-out prison administration
have emerged.
The first prison to be run for profit by a private security firm is the
Industrial Prison of Guarapuava, in the southern state of Paraná inaugurated
in November 1999. Purpose-built on the initiative of the then state Secretary
for Justice, this maximum-security jail houses 240 inmates. The administration
of the prison is contracted out to a consortium of two private security
companies, whose 150 guards are responsible for all internal aspects of the

47
Other human rights groups did visit places of detention intermittently, generally following
some violent episode. None, however, had the consistent presence of the Pastoral.
48
According to data from the Private Security Companies Union in 1985 the ratio of police to
private guards was 3:1. By 2000 this had reversed. Some 1, 200 private companies
employing 400,00 registered guards plus 600,000 unregistered guards, making the industry
worth U$4.5 billion in 2000.
49
Other suggestions have included the setting up of a federal prison system, either to hold
those who commit ‘federal’crimes, or to hold maximum security prisoners

21
prison from discipline to healthcare, whilst the state military police guards the
perimeter. This experiment, with its emphasis on the value of work and
education (a furniture factory operates on site) has attracted such favourable
impressions that a second is being built in Juazeiro do Norte, in the
northeastern state of Ceará, with promises of more elsewhere.50
However, this privatised, for-profit model was preceded by a much
more radical, not-for-profit form of community-run prisons. Since the 1970s a
network of Catholic community groups under the umbrella name of APAC
(Association for the Welfare and Protection of Prisoners) has been taking over
small, local jails and running them with apparently impressive results in terms
of rehabilitation and lowered costs. 51(Ottoboni 2001). Although the original
model is essentially faith-based, reliant on ‘saturating the prison environment
with religious programming and instruction’ (Johnson 2000), some affiliates in
this rather loose network take a more secular approach to rehabilitation,
stressing vocational training and prison industry. However, all facilities share
key core features. Firstly they are small, local jails with around 200 inmates,
which facilitates community involvement, prisoners’ sustained contact with
their families and manageability.52 The prison population is, significantly,
mixed, including not only remand and convicted prisoners, who are held in
separate wings, but also prisoners sentenced to closed, semi-open and open
regimes. Thus inmates ‘progress’ within the same facility, maintaining
relationships with their peers, staff and community, and getting around the
national shortage of places in ‘open’ and ‘semi-open’ facilities and lack of
police escorts for transfer. The order to transfer prisoners to a lighter regime,
which should be automatic on the basis of the proportion of sentence served,
remains in the gift of the local judge, negotiated with cash and influence
between judge, lawyer, and prison and police staff. This model bypasses
obstacles that are often the source of much discontentment among detainees
and a key factor in prison disturbances.
The chief influences on prisoners’ behaviour are other inmates, the
volunteer staff, and the local community and families. There is no police
presence in the jail and the use of prison guards is minimal.53 Most of the
internal security is carried out by trustee prisoners who progress on a ‘merit’
system. An elected ‘Sincerity and Solidarity Council’ takes day to day
decisions and exerts moral pressure on disruptive inmates. Family links are
encouraged via daily phone calls or letters, long weekend visiting hours and
‘family days.’54 Inmates with a dysfunctional family background are mentored
by local ‘adoptive parents’. Community input is channelled through the

50
The Minister of Justice announced in January 2002 that he would like to fund copies in in
the states of São Paulo, Rio de Janeiro, Rio Grande do Sul and Pará. However, no in-depth
studies have been commissioned on effectiveness or value for money of this model.
51
There are claimed to be 100 APAC run jails in the country
52
The United Nations recommended that prisons have no more than 500 inmates, as
authorities tend to lose control of large units.
53
Itaúna uses no guards, whilst Bragança Paulista employs two per shift. The governor of
Bragança, a civil police officer (as this was still a public jail under the aegis of the secretary for
public security) admitted in a conversation in 1999 that he had staffing problems ‘two are
drunkards, two are nuts and the other two are ok and have to keep an eye on the others.’
Clearly the community input here far outweighs that of the conventional prison staff.
54
The Caruaru prison ran father-child art workshops and escorted day trips to the zoo.

22
Centres for Social Rehabilitation onsite through which local organizations
provide work, education and training.
The results of this scheme have been impressive. The only available
empirical study of recidivism in two of these prisons indicates a rate of 16 per
cent in Humaitá and 36 per cent in Bragança Paulista, rates higher than those
claimed by the facilities55 but considerably lower than those estimated for the
country as a whole. These prisons are also estimated to cost around 40 per
cent less to run than a conventional prison. The administration receives a per
capita allowance for each inmate for food, building maintenance and so forth.
With savings made by purchasing locally cutting out the inflated costs of
middlemen and suppliers and using community services, the Bragança
Paulista jail saved enough money to build a new wing and install high-class
bathroom facilities.
Perhaps the most striking aspect of these ‘model’ community jails is
their invisibility within the prison system as a whole. There is no mention of
them in the planning and policy documents and statements that issue from the
Ministry of Justice. One Secretary of Justice in Pernambuco denied all
knowledge of the Caruaru facility even after it was publicly praised in an
Amnesty International document in 1999. There are no Brazilian studies of
these prisons, although foreign journalists and prison experts has beaten a
path to APAC’s door and praised its work. Only São Paulo state has
recognised the value of the format and is replicating the model. This lack of
‘ownership’ by the state of successful initiatives has prevented good reforms
being identified, analysed and replicated more widely. For example, the state
of São Paulo adopted a use of force policy following the Carandiru massacre
and for several managed to control prison riots without fatalities. This policy
was never adopted or disseminated nationally.(ILANUD 1997)

Integrated reform

Of the states with the largest prison populations, only São Paulo has
attempted integrated reform, whilst others persist in a state of unhealthy
equilibrium. Pernambuco has not resolved the number of prisoners in police
cells and Minas Gerais has resisted all efforts to move prisoners out of police
custody in prisons. Although Rio de Janeiro has transferred all of its prisoners
out of police stations into newly built jails, the relative absence of disturbances
is more the result of the free operation of criminal gangs in the jails, rather
than of positive administration.56
The reforms of the last three years in São Paulo stem from the
appointment in 1999, of the founder of Bragança Paulista public jail, local
judge Nagashi Furukawa, as a special adviser to the Secretary of Public
Security. Following a brief and frustrating spell as head of the National
Penitentiary Department, he returned to São Paulo as Secretary for Prison
Administration and embarked on an ambitious program of restructuring of the
prison system.
His reform programs combines element of rational managerialism,
adherence to UN guidelines on prison administration and human rights, as
55
Put at around a third of the tested results.
56
The view of two ex-heads of the Rio de Janeiro’s prison system, Julita Lemgruber and
Tanya Dahmer. Interviewed in July 2001.

23
well as an emphasis on community participation and partnerships. The first
priority has been to transfer prisoners out of police custody and the jurisdiction
of the Secretary for Public Security by building new pre-trial facilities, the so-
called Provisional Detention Centres each holding 768 prisoners. In order to
decrease the time spent on remand, preliminary court hearings will be held on
site to eliminate the need for police escort, which are time-consuming,
expensive and provide opportunities for escapes and police abuse. Not only
will pre-trial prisoners now be separated from convicted ones, but also the
new penitentiaries will separate the violent, career offender, from those more
susceptible to rehabilitation. Thus, on the one hand, new maximum security
units are being built to contain the gang members that orchestrated the
February 2001 disturbances which in themselves were an inevitable result of
the new administration upsetting the equilibrium by transferring them away
from the capital. Previous administrations had cut a deal like that in Rio de
Janeiro where the PCC and Comando Vermelho gangs have run the prisons
for much longer.57 On the other extreme, the decentralised community-based
APAC model is being replicated. The public jails are being transferred to the
aegis of the state prison administration and are being converted into ten
‘Resocialisation centres’ for 210 remand and convicted prisoners (housed in
separate units), as part of the ‘Citizens in Prison’ partnership scheme.
Carandiru is once more scheduled for closure, with eleven new penitentiaries
with 768 prisoners and two Progression Centres (to move from a closed to a
semi-open regime) in construction. This means that São Paulo state will have
provided over 45,000 new prison places in eight years, more than twice the
existing capacity (in 1994 the state has 21,902 places). Attempts are being
made to build up procedures and institutionalise mechanisms of inspection via
the programs of bilateral assistance mentioned above.
Perhaps one of the most important moves has been the setting up in
October 2000 of a horizontal network, the National Standing Forum of Prison
System Managers. Set up outside the aegis of the Ministry of Justice, the
forum is effectively both a lobby group, particularly in regards to the release of
federal funds, as well as a locus for sharing good practice, and drawing up
longer-term prison reform strategies. In a sense the states, prompted by São
Paulo, are leading where the federal government has failed to do so.

5. Conclusions

The first decade of the newly democratic government saw almost total
neglect of the prison system. However, the 1990s saw a surge in criminal
activity, resulting in sharp increases in arrests and prisoner numbers, which in
turn greatly intensified existing problems of overcrowding, understaffing and
mal-administration in the system. The last eight years of government have
brought the prison system higher up the political agenda as violence and
gross human rights violations attracted international and domestic pressure
for longer-lasting structural changes. It is only now, however, that the federal
government’s stated commitments, in both domestic and international arenas,

57
A senior administrator in the Sao Paulo prison service was removed in 1999 after the
prosecution service alleged his collusion with gang control of the major prisons

24
are being translated into the necessary fiscal resources. In the absence of
centralised policy orientation, initiative has been taken first by the state that
has borne the brunt of the prison crisis, and now by a horizontal policy
network. More recent reform initiatives illustrate that political will, combined
with a vision that goes beyond the electoral terms of office and embraces
structural change, can succeed in overcoming some of the diverse obstacles
noted above. Changing public attitudes as well as greater community
involvement in penal matters will undoubtedly reinforce this tendency. In this
matrix, increased central government capacity, to generate guidelines, policy,
procedures and, crucially, to fund reform, is currently the weak link in the
chain.

25
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