Luciana Genro, lawyer and PSOL leadership
The fallacy of privatizing prisons tries to impose itself in Brazil, transforming the sentencing of thousands of young, black and poor people into something profitable for a handful of white corporate men.
Anyone who has visited a prison will never forget it. It’s a traumatic experience. For lawyers who live daily with the inhuman treatment received by the prison population, it was not surprising that in 2012, then Justice Minister José Eduardo Cardoso claimed that he would rather die than be arrested . That considering the convicted politicians do not stay in jails like the prison of Manaus. White-collar crimes are in another sphere.
But the massacre in the Anísio Jobim Penitentiary Complex was not the first and will not be the last in a Brazilian prison. In 2010 a rebellion in Pedrinhas, in Maranhão, left 18 dead. In 2004, 30 people were killed in the rebellion of the House of Custody of Benfica, in Rio de Janeiro. Two years before it was the turn of the Urso Branco Prison, in Rondônia, to witness the deaths of 27 inmates. Not to mention the carnage in Carandiru in 1992 when 111 prisoners were murdered by state agents. In all these cases, there was a momentary national commotion and everything continued as it was, preserving a prison system that is the perfect habitat for barbarism. The “rule of law”, so vindicated by the exaggerations of the Lava Jato operation, has not existed for a long time in prisons. And few stand up against this unconstitutional state of affairs. The Supreme Court (STF) is conniving with this tragedy.
In 2015 PSOL entered with the first great judicial action of structural intervention on the Brazilian penitentiary system . The STF eventually recognized the “unconstitutional state of affairs” in the penitentiary system from this Claim of Non-compliance with Fundamental Precept (ADPF) filed by PSOL. We also call for the adoption of various measures to remedy serious violations of fundamental principles of the Constitution stemming from the conduct of public authorities . Although it has formally recognized the “unconstitutional state of affairs”, the STF did not comply with the main measures requested by PSOL, which could ease the situation in the prisons.
Private prisons are not the solution.
The new component of Manaus affair is that the fact happened in a penitentiary managed by private initiative. The company Umanizzare – Gestão Prisional Privada has been controlling COMPAJ since 2014, with the aim of “humanizing” the treatment of prisoners! Is that so?
In 2015, the group received R $ 199.9 million from the government of Amazonas. The following year, the figure jumped to R $ 326.3 million. All of this while managing a prison with 454 vacancies and 1,224 inmates, 170% above its capacity. Without any control of the state, the conditions for the massacre developed without the monitoring of any public policy. It is not surprising that corruption and electoral donation schemes also set that stage .
The fallacy of privatizing prisons tries to impose itself in Brazil, turning the sentencing of thousands of young, black and poor people into something profitable for a handful of white corporate men.
The solution to the Brazilian prison system is not in the hands of the private sector, concerned only with profiting from the management of incarcerated lives. The exit is an investment in the improvement of the conditions of prisons, in the hiring and valuation of penitentiary agents and in public policies that offer the inmates worthy conditions of work, study and resocialization. Unfortunately the reality is different. As Judge Sidinei José Brzuska put it: “If we were to compare the health system with the prison system, we could say that prisons are hospitals where patients are not treated or cured.”
What we see is exactly the opposite: a penitentiary system with 372,000 vacancies and 622,000 inmates and public investments falling at an alarming rate. In two years, the federal government reduced by 85% the transfers to the states for the construction of new prisons. The National Penitentiary Fund, which finances the construction of new units, has shrunk from R $ 111.5 million in 2014 to R $ 12.6 million in 2015. Last year, the amount was only R $ 17 million.
The criminal process also needs to evolve and the judiciary has a good share of responsibility for overcrowding in Brazilian prisons. About 40% of detainees are provisional prisoners, who have not even been tried in the first instance. A distortion that forever changes the lives of thousands of people, thrust into the lap of criminal factions into true medieval dungeons.
Drug policy needs to change
But the crux of the problem is even more profound and complex: the “drug war” model, which is actually a war on the poor and an instrument of empowerment of criminal factions working in and out of prisons, co-opting young people for crime , making them soldiers of a lost war.
Decriminalization is the only way to liquidate factional power, reduce the number of prisoners and address the drug problem in an open and democratic way, prioritizing the issue of public health. This is not a conclusion of leftist political strands. While the current Justice Minister is playing magically by saying that he will “wipe out marijuana from the continent,”  liberal economist Milton Friedman is one who has joined in advocating decriminalization:
“Drugs are a tragedy for addicts. But criminalizing its use turns this tragedy into a disaster for society, for users and non-users. Our experience with drug prohibition repeats our experience with banning alcoholic beverages. (…) If drugs had been decriminalized 17 years ago, “crack” would never have been invented (it was invented because the high cost of illegal drugs made it profitable to offer a cheaper version) and today there would be far fewer addicts. The lives of thousands, perhaps hundreds of thousands of innocent victims would have been spared, not just in the United States. The ghettos of our great cities would not be a land of anyone infested with drugs and crime. Fewer people would be in prisons and fewer prisons would have been built. ”
Unfortunately, as Brenno Tardeli recalls, “one should not address the sad present and discouraging future in the person of Alexandre de Moraes or his boss, Michel Temer. Drug war is a long-standing issue in the country, and the governments of PT, PSDB, and even the military generals have always capitalized on it and on the tempting punitivism. Dilma, on her last day in charge, denied pardon for women accused of small traffickers and, in her first term, dismissed the head of the National Secretariat for Drug Policy because he favored legalization. Lula who had just passed to the speech of human rights in the procedural field felt the breath of the inquisition after him and Fernando Henrique, today starring in the documentary “Quebrando Tabu”, did exactly nothing to break the taboo while he was in the Planalto Palace.
The anti-drug law, sanctioned by Lula (nº 11.343 / 06) advanced in some points, but ended up promoting discrimination by not providing objective criteria to differentiate the trafficker from the user, as well as to characterize the association for trafficking . It is an open criminal law, that is, there is a nebulous differentiation between users and traffickers. Its text generates a criminal policy with no correspondence between the desired results and the results obtained, because it fails in the promise to reduce the crime rates derived from the traffic.
For the user there is no prison sentence, but the question is who will have the “privilege” to be treated as a drug user. In determining whether the drug is intended for personal consumption “the judge shall consider the nature and quantity of the substance seized, the place and conditions under which the action was taken, the social and personal circumstances, the conduct and the background Agent “(Article 28, paragraph 2).
Here, of course, there is no objective criterion. If the person caught in possession of the drug has the appearance of a trafficker, he or she may be indicted by the Police or denounced by the MP as a trafficker. That is, if you are in a favela, or are visibly poor and / or black, even if you are with a small amount of drug, you may respond by traffic. However, if you look like a middle-class young man or woman, the most likely – even if the amount of drug is not so small – is that he or she is considered a user. The mere reading of paragraph 2 of article 28 is enough to show that this discrimination is authorized by the law itself.
It was the minister of the STF Luís Roberto Barroso himself who said that when analyzing the cases that come to the Supreme Court on drug trafficking, he found that “a lot of the prisoners are poor people who were classified as traffickers because they carry non-significant amounts of marijuana. And my worst finding is that young people, blacks and poor people enter prisons because they own not-so-significant amounts of marijuana and leave prisons scattered in crime, “said the minister.
The problem is not restricted to the differentiation between the user or the trafficker, but also the individual who will be considered in association with trafficking or not. Article 35, which characterizes the association for trafficking, determines the punishment of imprisonment from 3 to 10 years, which adds to the sentence of article 33, which characterizes trafficking. Thus, if the individual is considered a member of an association for trafficking their penalty will be increased significantly. Such characterization is also not objective. It is undeniable that the law eventually facilitated a class selection in the enclosure.
While the system has massively imprisoned black and poor young people, the judge of the Court of Manaus, Luis Carlos Valois Coelho, is irresponsibly accused,  for the simple fact of doing his work in earnest, trying to guarantee in fact the existence of the Rule of Law in Brazil for everyone, not only for politicians and contractors accused of corruption. Irresponsibility can cost many more lives. We can not shut up.
  In summary, PSOL’s requests were: a) Determine to all judges and courts that, in each case of ordering or maintaining provisional arrest, they expressly justify the reasons that preclude the application of alternative precautionary measures to deprivation of liberty, Provided for in art. 319 of the Code of Criminal Procedure. (B) Recognize the immediate applicability of arts. 9.3 of the Covenant on Civil and Political Rights and Article 7.5 of the Inter-American Convention on Human Rights, requiring all judges and tribunals to hold custody hearings within a maximum period of 90 days in order to enable the inmate to appear before the authority Within a maximum period of 24 hours from the moment of the arrest. (C) Determine to Brazilian judges and courts that they begin to consider in a fundamental way the dramatic factual framework of the Brazilian penitentiary system at the moment of the granting of criminal precautions, in the application of the sentence and during the process Of penal execution. (D) Recognize that since punishment is systematically carried out under conditions that are much more severe than those permitted under the legal system, preserving, as far as possible, the proportionality and humanity of the sanction requires Brazilian judges to apply, whenever Imprisonment. E) Affirm that the criminal enforcement judgment has the power-duty to soften the temporal requirements for the enjoyment of benefits and rights of the prisoner, such as regime progression, conditional release and conditional suspension of sentence, when it is shown that Conditions for effective punishment are significantly more severe than those foreseen in the legal order and imposed by the conviction, in order to preserve, as far as possible, the proportionality and humanity of the sanction.f) Recognize that the criminal prosecution judgment has The power-duty to take time out of the sentence to be served, when it is evident that the conditions of effective execution of the sentence were significantly more severe than those provided for in the legal system and imposed by the conviction, in order to preserve, to the extent If applicable, the proportionality and humanity of the sanction. G) Determine to the National Council of Justice that it coordinate one or more prisons, so as to enable the prompt review of all ongoing criminal enforcement proceedings in the country involving the application of sentence Deprivation of liberty, in order to adapt them to the measures “e” and “f” above. H) Impose the immediate decontingration of funds in the National Penitentiary Fund – FUNPEN, and see the Federal Government to carry out new contingencies, until Recognize the overcoming of the unconstitutional state of affairs of the Brazilian prison system.
 I have already approached this issue in a 2014 article: https://lucianagenro.com.br/2014/03/guerra-as-drogas/