SPECIAL NEEDS OFFENDERS IN THE BRAZILIANCORRECTIONAL SYSTEM ―FOCUSING ON INCARCERATED WOMEN
Duciran Farena

I. PRISION IN BRAZILʼS LEGAL SYSTEM ― FRAMEWORKThe Brazilian Constitution ensures gender equality in all circumstances, the protection of theelderly and the needy,and sets the age of criminal responsibility at 18 years old (below this age,minors
are not subject to the criminal justice system, but only to a set of protective measures, of which themost serious is the confinement in Juvenile Reeducations Centres for up to three years).
The Brazilian Constitution ensures to all offenders the right to corporal and moral integrity, due
process of law, and the right not to be subjected to torture or other inhuman or degrading treatment(article 5). It also assures that every violation of rights can be subjected to the review of the Judiciary,
and assures full and free legal assistance to the needy. Convicts must serve their sentences in separate
facilities,according to their situation (sentenced inmates or pre-trial,first offender or re-offender),thenature of the offence, age and sex (article 5, XLVIII).
The right to counsel and access to justice extend to the procedures for the deprivation of freedom,which in Brazil,is subject to judicial authority,and is carried on by a specific court called the “Penal
Execution”Court (For lack of a better translation, “Penal Execution”Court should be understood asa special court in charge of measures related to the deprivation and restriction of freedom).
Article 8, paragraph “e”of the Inter-American Convention on Human Rights assures that thedefence of all inalienable rights is “
to be assisted by counsel provided by the state,paid or not as thedomestic law provides, if the accused does not defend himself personally or engage his own counsel
within the time period established by law.”
The Brazilian Law recognizes the human rights of the imprisoned and incorporates the 1955 United
Nations Standard M inimum Rules for the Treatment of Prisoners. The focus is not retribution, but
embodies the purposes of rehabilitation and reintegration into society. The administration of punishment should be conducted so that the prisoner becomes able to reenter society. This reentryis preparedthroughout the progression of the prison regime, from incarceration to parole. Alternatives todetention are provided by law,such as bail,communityservice and probation. The law also establishes
the separate housing of incarcerated men and women, and requires that those in custody before final
sentence must be held apart from sentenced inmates. The classification of inmates is based on the law
by technical bodies, but has little effect in practice, given the overcrowded situation of Brazilian
prisons.
Under the Law n. 7210/84,convicts are entitled not only to respect for their physical integrity anddignity, but also to paid work, education, healthcare, social security, etc. The law ensures even thebasic requirements of the cell units, like floor space, sleeping accommodation, sanitary conditions,among others. An example of the humanizing effort of the law is the protection of the right to intimate
visits for both sexes (art.41)in which the spouse or companion of the inmate can visit the inmate atpredetermined times. Recently this right has been extended to same-sex relationships,although there
are still difficulties in putting this into practice. Another example is social security protection given
to families whose primary provider has been incarcerated. However,the extent of this benefit is small,for it is limited to those who had formal employment at the time of sentencing. In most cases, theFederal Prosecutor, State of Paraiba, Federal Public Prosecution Office, Brazil.

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family of the detainee has to resort to general social programmes for the poor.
This set of rules, unfortunately, has not been enough to ensure the humanization of the Brazilian
correctional system, still marked by inhumane treatment, overcrowding, and lack of legal assistance,
healthcare,labor and education. A significant proportion of inmates are illiterate or semi-literate andnot able to understand their rights. The rights of prisoners, including progression, are violated,
contributing to overpopulation and recurrent episodes of prison violence, as seen in Carandiru (1991),
Urso Branco Penitentiary (2002)and the Pedrinhas Penitentiary (2013).

II. SPECIAL NEEDS OFFENDERS IN THE BRAZILIAN CORRECTIONALSYSTEM ― FOCUSING ON INCARCERATED WOMENThe United Nations Rules for the Treatment of Women Prisoners and Non-custodial M easures for
Women Offenders (the Bangkok Rules)state that family visits will be encouraged and facilitated by all
reasonable means:
Women prisonersʼcontact with their families, including their children, and their childrenʼsguardians and legal representatives shall be encouraged and facilitated by all reasonable means.
Where possible, measures shall be taken to counterbalance disadvantages faced by womendetained in institutions located far from their homes.
Addressing the problem of incarcerated mothers, the Brazilian Constitution provides that ”
imprisoned mothers shall be ensured conditions that［they］can stay with their children during the periodof breastfeeding”(art.5, G). On the other hand, the Law 7210/84 ensures that mothers who havenewborns will receive special assistance. It provides, therefore, medical assistance to the women,“especially in the prenatal and postpartum,assistance extensive to the newborn”(art.14, 3). Womenʼsprisons must have“nurseries where inmates can take care of their children,including nurse them［untilat］least six months old.”
Womenʼ
s penitentiaries must be endowed with a section to house pregnant and parturient womenand their dependent children for six (6) months and less than seven (7) years, for the purpose ofwatching helpless children whose guardians have been incarcerated.
Under the Brazilian Penal Law, there is no specific provision for alternative measures to detain
women. In theory,all defendants and convicted persons are entitled to the same alternatives provided
for in the Penal Procedures Code:custody as a last resort,plea bargaining and suspension of prosecution for minor offences, substitution of the punishment for community service, etc.
Despite the legal provisions,few female prisons in Brazil meet the requirements of the law. Female
inmates in Brazil suffer from the same general problems of the correctional system, in particular
overcrowding and lack of medical and legal assistance. When there is a nursery,the mother and her
newborn can only remain there for the first few days after birth in view of the need to make room forother mothers. She then has to return with her child to an unsanitary cell and uncertain conditions.

III. CHARACTERISTICS OF THE OFFENCES COMMITTED BY SPECIAL NEEDSOFFENDERS, FOCUSING ON INCARCERATED WOMEN
According to INFOPEN (Brazilʼs National Penitentiary Information System) data (2012), Brazil
currently has approximately 549,577 incarcerated persons,of which about 36,000 are women. It is the
fourth largest prison population in the world,second only to the United States,Russia and China. The
country has a rate of about 228 prisoners for every 100,000 inhabitants. The majority of the population
are held (both convicted and defendants)for state crimes (543,158 men and 35,367 women).
One of the characteristics of the Federal Justice System is the large number of inmates held forinternational drug trafficking (5,803 men and 994 women ― including Brazilians and foreigners). Drugtrafficking and crimes against property count for the majority of the sentences and pre-trial detentions.
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sive responses to crime led to the excessive use of custody and to the proportion of 42/43% of theinmates held in custody.
The Brazilian prison realityreflects the countryʼ
s social inequality,and the vast majorityofinmatescome from the lower levels of the population. Persons detained for economic crimes,despite extensive
punitive legislation,are rare. The shortcomings of the legal system allow numerous opportunities forwhite-collar criminals to evade justice, leaving the system with traditional targets, crimes related toprotection of property, murder and especially drug trafficking.
Anti-drug laws enacted in the end of the last century providing for stricter penalties for drugtrafficking resulted in an explosive increase in the Brazilian prison population ― among these, inparticular,the female prison population. Studies carried on in some womenʼ
s penitentiaries indicatedthat 80% of women are incarcerated for crimes related to drug trafficking, basically for complicity
with companions or husbands. In many cases they are arrested on drug trafficking charges for trying
to smuggle drugs to their husbands in prison.
Another feature of the Brazilian prison reality that affects women is the fact that almost 50% ofprisoners are defendants in custody. Although the law also ensures their rights,few pre-trial prisoners
have effective access to these. It is not rare to have cases in which prisoners remain detained for up
to four or five years waiting for hearings or trials in minor offences, even when only convicts of themost serious crimes serve that time in the heaviest closed regime.
The Brazilian criminal system does not provide special treatment for women in criminal proceedings (before the definitive judgement). Circumstances such as background history, criminal records,
social behaviour,having children or family to care for,can be taken into account in sentencing by themagistrate. Regardless of gender, sentences of up to four years can be replaced by restrictions orcommunity service, if the crime does not involve violence or serious threat, like when a gun is used.
Being more than 70 years old at the time ofthe sentence is a mandatoryfactor for reduction ofjail time.
There is a National Health Prison System Plan, which provides for specific measures to ensure
adequate and differential treatment for womenʼs health. Unfortunately,this plan suffers resistance of
the States that contain most of the prison population.
M inors under protective measures that involve confinement (in cases like drug trafficking,assault,
robbery and murder)have the rights to education,sports,job training,ensured by law. However,mostof the Juvenile Reeducation Centers across the country are no different from an adult prison.
Frequently, the only educational services available are a few classes.
The convicts suffering from diseases or disabilities can,in general,when they have better economic
conditions,hire good lawyers and are allowed to remain under house arrest,given that prisons are notadapted for the disabled and cannot treat serious medical conditions. Although it is not common to findinmates in wheelchairs or seriously ill patients in Brazilian prisons, it is more common to find themamong pretrial detainees.
During the penal procedure, persons diagnosed as mentally ill, i.e., unable to understand theconsequences of their actions, they cannot be sentenced to criminal punishment, and they are sent tomental hospitals or clinics for treatment. If the psychotic disorder appears in prison,the inmate will
have the problem of the lack of access to healthcare and to the Penal Executions Court,which has thepower to send the inmate for specialized treatment.

IV. MAIN PROBLEM S FACING SPECIAL NEEDS OFFENDERS AND FEMALE
INMATESA. Lack of Legal AssistanceThis problem particularly affects women. Statistics in certain prisons show that half to 80% of theinmates did not appeal their cases,which is quite unusual in a legal system where appeals are risk-free(there are no costs,a court cannot increase a sentence,and the appeals improve defendantsʼchances to226

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benefit from the countryʼ
s generous statutes of limitations).
This indicates not only the background of poverty, but also the lack of effectiveness of theperformance of the public defenders who attend to those who cannot afford their own lawyers. If theservice is poor during the criminal procedures, the situation gets worse during the correctional
procedures (as explained before, these procedures are subject to judicial review) when the counselsʼ
actions are virtually reduced to petitions.
B. Excessive Use of Pre-Trial Detention
Excessive use of pre-trial detention by judges,even in cases where the law,following the principle
of prison as the “last resort”, provides alternative measures. This situation is worse when the
defendant is poor and has poor legal advice.
C. Arbitrary Denial of Rights
As a result of the lack of legal assistance, rights of prisoners are often completely bowled over.
Unjustified denial of intimate visits,a humanizing benefit provided by law,is common. There can be
no unjustified refusal of this right except in cases of disciplinary offences. In many cases,the inmate
has to petition the judge to secure this right, but why the ban was imposed is never investigated.
D. Right of Defence in Disciplinary Offences
The law guarantees the right of defence in the accusation of disciplinary offences,but this right israrely guaranteed. Often the inmate is not even informed why he or she is being punished. Collective
punishment,though forbidden by law,is often applied,like in cases of prison riots and when weapons
are found with no culprit in sight. The sanctions have consequences on the progression of the prison
regime and can prevent the inmate from obtaining benefits.
E. Invasive Strip Searches
Here the gender difference is manifested with all its intensity in the prison system, affecting thefemale visitors,who are forced to undress completely in inappropriate environments and are subjected
to strip searches, including body cavity searches, under the justification of security needs. The strip
searches are also made in women who return to prison after leaving. The fact that they are conductedby female staff does not reduce the humiliation and exposure. Even children visitors are subject tothese measures,discouraging the inmateʼ
s family from visiting,and thus violating the inmateʼ
s right toreceive visits.
F. Overloaded Penal Execution Courts Result in Slow Processing of Requests
Progression and concession of benefits,and even concession of freedom are delayed,thus contributing to the overcrowding of the jails.
G. Overcrowded M ale and Female Institutions Result in the Violation of Rights to Education,
M edical and Psychological Care and Work
Although all these violations can be addressed through lawsuits,in which maybe requested even theinterdiction of the jails that do not have appropriate conditions,this kind of litigation is rarely used or
faces resistance from judges who dismiss them on formal, or technical, grounds.
H. Lack of Support for Reentry of the Inmates into Society
The legal provisions for assistance, including job opportunities and community support, not havematerialized.
I. Insufficient Recruitment of Prison Staff, Often Unprepared to Achieve the Goals of Rehabilitation and Focused Only on Repression
The surge of criminal groups operating inside the prison system ultimately has exacerbated thistrend and even led to spurious agreements between the prison staff and criminal groups. There areprisons where criminal organizations have effective control and from there coordinate criminal actions
outside the prison walls. Disputes over control of prisons by criminal organizations result in frequentmassacres,such as that of Pedrinhas Correctional Centre. In womenʼ
s institutes,the situation is not as
catastrophic,but there is a high incidence of suicides,and idleness leads many women to illegal actions

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such as smuggling drugs into the prison.
J. Prisons in General are Poorly Administered with No Professional Management
Corruption is widespread,as is impunity. Overall,the direction is given to militaryor police officers
whose only concern is to prevent riots that can provoke bad repercussions. Daily violence,even if in
the form of homicides, is more tolerable than rebellions or massacres. The focus of the action ends
up being repression, even against legitimate claims.

V. POSSIBLE SOLUTIONSThe Brazilian Prisons Law is one ofthe most advanced in the world,but the Brazilian prison system
is among the worst. It is hard to find another segment of Brazilian life in which the gap between law
and reality is greater. Considering the inhumane conditions of the Brazilian prison system,there areno easy solutions to these problems. Unlike the common sense argument that the correctional system
in Brazil only needs more financial investment,the enforcement of existing legislation depends mainlyon the change of attitude of those involved in the judicial system. We need to change the punitive
mentality that prevails in the judiciary and the legislative branch in order to reduce the extensive useof custody. By law, judges are responsible for the situation of the prisoners, but they tend to see theprison system as something external to their functions. Training in alternative measures to detention,and providing the necessary resources to expand personnel and infrastructure of the Penal Execution
Courts,often relegated to the background in the judiciary budget,are other measures whose adoption
is urgent.
Legal changes are also urgent,such as expanding prosecutorial discretion and offering tax benefits
for companies who participate in the reintegration of prisoners into society. It is still important tocreate procedures and mechanisms to ensure rapid punishment of prison officials involved in abuses
against prisoners and corruption,as well as providing a correctional administration that is organized,
professional and transparent.
Last but not least, it is important to ensure the performance and effectiveness of Human Rights
Organizations, like the Committee for Prevention of Torture, and to support unannounced visits toinstitutions, which can help the situation of the offenders,in particular those who have special needs,
like women, the elderly and the disabled.

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