Prison crisis spurs rights reform in Brazil: HRW 

Detention centre

April 11, São Paulo: A pilot program in northeastern Brazil is reducing the number of people sent to pretrial detention, a major factor in prison overcrowding and gang recruitment, Human Rights Watch said today. The program in Maranhão state promptly brings detainees before judges for “custody hearings” to determine whether they should be held in pretrial detention or released on bail.

The prompt hearings are required under international law but are rarely provided in Brazil, where many prisoners wait months to see a judge. In nearly 50 percent of cases in the pilot program in the state with the worst prison violence in recent years, presiding judges found that pretrial detention was not warranted and ordered the detainee’s release. In cases in which judges made custody determinations based only on police reports, judges ordered detainees released in 10 percent of the cases, although international law requires a legal presumption in favor of release.

“Prisons are supposed to help contain violent crime, but in Maranhão they have instead promoted gang membership and violence, both within their walls and out on the streets,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “The pilot program is showing that respecting Brazil’s human rights obligation also has the potential to help curb this chronic problem throughout the country.”

In January 2015, Human Rights Watch visited Pedrinhas, the largest prison complex in Maranhão, and interviewed 25 inmates and 17 relatives of current or former inmates, as well as judges, prosecutors, public defenders, defense lawyers, former guards, local officials, and representatives of the Sociedade Maranhense de Direitos Humanos (Maranhão Human Rights Society), a nongovernmental group.  

Custody hearings prevent the unlawful arbitrary imprisonment of suspected nonviolent offenders while they await trial. The hearings allow judges to make informed decisions regarding whether a person has been lawfully detained and should be sent to pretrial detention.

Without the hearings, detainees waiting to see a judge for the first time may spend months in overcrowded prisons, under intense pressure to join gangs, Human Rights Watch found.

More than 90 inmates have been killed in Maranhão’s prisons in the past two years, most by members of rival gangs, according to data from the National Council of Justice and the Maranhão Human Rights Society. Gang members have mutilated their victims, carried out kidnappings and extortion inside prisons, and raped visitors, detainees and officials told Human Rights Watch.

Over the past decade, two gangs formed within Pedrinhas: the Primeiro Comando do Maranhão (Maranhão’s First Command, PCM), most of whose members are from the interior of the state, and Bonde dos 40 (Streetcar of the 40, a reference to 40-caliber handguns), most of whose members are from São Luis, the capital city. Initially created by inmates seeking to protect themselves from violence within the prisons, the gangs grew to control entire facilities within Pedrinhas.

They also extended their illegal activities outside the prison walls and now dominate entire neighborhoods of São Luis. During these years, violent crime rose precipitously in the state, with the homicide rate tripling between 2002 and 2012, according to the Mapa da Violencia 2014, an academic study based on Health Ministry data.

In January 2015, police detained 36 men at a party in São Luis, after anonymous callers told the police that it was organized by a prison gang, though partygoers and family members Human Rights Watch interviewed said they were not gang members. Yet upon arrival at Pedrinhas, the detainees asked to be held in cells with members of Bonde dos 40 because they live in neighborhoods dominated by that gang and were afraid they would be killed if they were incarcerated with members of PCM. This is clearly a recipe for gang recruitment, Human Rights Watch found, with consequences for the detainees long after their release.

The growth of the gangs has been due in large measure to the lack of security within prisons, which has been aggravated by overcrowding, local officials told Human Rights Watch. As of October 2014, more than 6,500 people were incarcerated in Maranhão facilities, which were built to hold 3,605 inmates, according to a state judiciary report.

Sixty percent of these inmates are pretrial detainees, the report says. They are routinely housed with convicted criminals, in violation of international standards.

The right of a detainee to be brought before a judge without delay is a fundamental right under international law, enshrined in treaties ratified by Brazil, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights. The right applies to all detainees without exception and is intended to bring the detention of a person in a criminal investigation under judicial control. The individual must be brought physically before the judge so the judge can inquire into the person’s treatment in custody.

Custody hearings are also critical to stem torture and mistreatment of detainees by police, a serious problem in Brazil. Judge Fernando Mendonça told Human Rights Watch that he found signs of mistreatment in three cases during custody hearings under the pilot program and referred them to the Prosecutor’s Office. Physical signs of mistreatment would have most likely disappeared if detainees had to wait for many months to see a judge.

A draft bill introduced in Brazil’s Congress in 2011 would require custody hearings throughout the country, but Congress has not acted. In February 2015, the state of São Paulo started its own custody hearings program in partnership with the National Council of Justice.

Brazil’s Congress needs to stop sitting on the custody hearings bill and make these hearings the law of the land,” Canineu said. “But states don’t need to wait for Brasilia to act. Maranhão has shown that custody hearings both respect human rights and produce promising results.”

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