Indefinite Detention, Deadly Conditions: How Brazil's Notorious Criminal Justice System Violates the International Covenant on Civil and Political Rights

i. introductionIn 2016, Brazil held the Summer Olympic Games.1 Undoubtedly, since emerging as the host, Brazil has made endless efforts to show the international stage that its country can maintain the event's glamor and glory.2 Unfortunately, behind the massive stadiums and venues, lie some of the most miserable penitentiary facilities in the world.3 Windowless cells usually shared by twenty-five men, forced to sleep on the floor, infested with disease and smells of urine, are far from the glamorous images the rest of the world will get to see.4Brazil features the fourth-largest prison population in the world.5 Although Brazil is home to more than two hundred million people,6 its incarceration rate is growing faster than its overall population.7 Today, more than six hundred thousand inmates occupy cell space designed for approximately three hundred fifty thousand.8 It is estimated that if incarceration levels remain the same as those presented over the last two decades,9 in 2022 Brazil will surpass one million inmates.10For the past twenty years, Brazil's prisons have been plagued with chronic human rights violations.11 Particularly, Brazil's lack of custody hearings has greatly promoted torture and ill-treatment of detainees by prison officials, and has caused overcrowding in facilities.12 In a prison system that is inherently elitist, only those pertaining to the lowest social classes suffer.13 The system provides better-conditioned cells to detainees with a university diploma or public connections, while the majority of the population, who are black, poor, and uneducated are packed into tiny cells with unwarrantable hygiene conditions.14 Unfortunately, the Brazilian public continues to support the mass incarceration and cruel treatment of these prisoners.15 Not to mention, politicians' careers are determined by their stance on criminal punishment.16 Showing no mercy for those deemed dangerous is a prerequisite in elections.17This Comment asserts that Brazil's denial of custody hearings violates two major provisions in international law. Part II of this Comment introduces a brief history of Brazil's prison system, its criminal procedure code, and its Constitution.18 This part also presents Article 9(3) and Article 7 of the ICCPR. Part III argues that the discretionary language in Brazil's criminal procedure code regarding custody hearings, is violating Article 9 of the ICCPR.19 Additionally, it argues that depriving Brazilian citizens of a custody hearing, leads to an alarming rate of torture by government officials, a violation of Article 7 of the ICCPR. As a result, Brazil's overcrowded prison facilities cause physical and mental pain to prisoners, also a violation of Article 7.20Part IV recommends that Brazil quickly enact a law that unequivocally grants all detainees a custody hearing within twenty-four hours of arrest.21 Most importantly, Brazil must ensure that all states nationwide adhere to this strict procedural rule. Part IV also recommends that Brazil renovate its prison facilities to provide sanitary conditions, such as access to beds, clean water, food, and medical services. Lastly, it recommends that an independent judiciary body, such as the Inter-American Court of Human Rights, sanction Brazil and hold it accountable for the inhumane treatment of detainees by prison officials. Part V concludes that Brazil's prison reform will only be resolved by changing the public's perspective on criminal punishment and by electing politicians that will improve prison conditions nationwide.22II. BACKGROUNDA.A HISTORY OF PUNISHMENT: BRAZIL'S VIEW ON INCARCERATIONBrazil's history with its penitentiary system began in the 1830's.23 It did not take long before states across Brazil lost motivation for prison reform and were simply using its detention facilities to fix the behavior of noncompliant slaves.24 Nonetheless, after the abolition of slavery,25 the country tried to make an effort to reform its prison system. …