Behind Brazil’s Arrest First, Ask Later Policy

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More than 40 percent of inmates residing in Brazilian prisons are in pretrial detention, but their lives can be ruined even if they are never found guilty of any crime.

Francisco* was on the sofa watching television and enjoying his first day of vacation when the police broke down his door and entered his house shouting, with weapons at the ready. Not knowing what was happening, Francisco — who had a job as a trash collector — did not react by telling the police he was an employee in the formal sector.

From previous experience (he spent six months in a preventive detention center, before later being released) he knew that it would be worse to argue with the officers. His 15-year-old daughter was in the bathroom, but his wife and their youngest daughter, a 5-year-old, were not in the house, located on the southern coast of Brazil’s São Paulo state.

This article originally appeared in Agencia Publica and was translated, edited, and reprinted with permission. See Portuguese original here.

Francisco was taken in handcuffs to the police station of the homicide unit in São Paulo city. Only then did he find out that a kidnapping victim had said he recognized Francisco’s arm tattoo in a photo album of possible perpetrators. From the police’s album of former inmates, the victim chose Francisco as bearing the most physical resemblance to his aggressor. 


The tattoo on Francisco’s arm was used as evidence to tie him to a kidnapping. 

Despite physical evidence and testimonies proving he was working during the time in which the victim said he had been held captive in another city, Francisco spent two months in a São Paulo preventive detention center. Francisco said the cell was “incredibly small,” and held roughly 50 inmates at any given time.

When Francisco left the detention center, he couldn’t get his old job back. “They told me it was because the company was being sold and they had to lay off some people,” Francisco said. He said his youngest daughter cries whenever she sees a police car in the street, because she is afraid they will take him away again. His wife worked double in order to support the household while he looked for other work. But, Francisco stated “it is very difficult” to find another job since he still has not been officially cleared of criminal charges.

Francisco’s story gives a human face to the scandalous number of preventive detentions in Brazil. Several human rights organizations have condemned the abuse of preventive detention in Brazil — most recently Human Rights Watch in their 2015 World Report, which highlighted the bottleneck in Brazilian prisons as well as reports of torture, cruel treatment, and poor infrastructure in the country’s facilities.

In September 2014, the United Nations Working Group on Arbitrary Detention published a report on endemic overcrowding within Brazil’s prisons, severe lack of access to the judicial system, and the policy of imprisonment as a rule, rather than an exception, even in cases of minor or non-violent crimes.

SEE ALSO: Brazil News and Profiles

A “Map of Prisons” put together by the human rights organization CONECTAS shows that Brazil’s incarceration rate rose 317 percent between 1992 and 2013, going from 74 to 301 inmates per 100,000.

Brazil has the fourth largest prison population in the world, trailing only the United States, China, and Russia.

In June 2013, according to the latest prison statistics from Brazil’s Ministry of Justice, there were over 581,000 people in Brazilian prison facilities — nearly double the maximum capacity of 351,000 — and 41 percent of those inmates were in preventive detention. Brazil has the fourth largest prison population in the world, trailing only the United States, China, and Russia.

In the northeastern state of Amazonas, more than 70 percent of inmates are in pretrial detention; in São Paulo, that number is 36 percent, according to the Ministry of Justice.

But according to Bruno Shimizu, a public defender at the Prison Institute in São Paulo, the number of pretrial detainees is even higher, because authorities only count those who have not yet begun trial, and do not include detainees who are in the middle of judicial proceedings.

A joint investigation by the National Penitentiary Department (DEPEN) and the Institute for Applied Economic Research (IPEA) found that, in 37.2 percent of pretrial detention cases, inmates are either not given prison sentences or their sentences are shorter than their length in preventive detention.

Pretrial Detention: For the Greater Good?

“Brazil is internationally recognized as a country that has an exceedingly high number of pretrial detainees. According to the constitution, preventive detention is a rare exception, but in practice it is a rule. It serves as a form of punishment as well as a form of social containment,” said Patrick Cacicedo, a public defender and coordinator at the Prison Institute.

Cacicedo explained that preventive detention, by law, should serve to guarantee that the judicial process moves along at a normal pace.

“Under constitutional law, pretrial detention must only be used if there is concrete evidence that the suspect will slow down the judicial proceedings in some way, if they are a flight risk, if they committed a crime against the national economy, or in order to guarantee public order.”

The “public order” stipulation is what sends the most people to pretrial detention. “Nobody knows what ‘public order’ really means. It is a vague term. When the authorities do not have a concrete motive to send someone to pretrial detention — and they almost never do — the majority of the time they use that clause,” Cacicedo said.

According to a 2012 study by the Institute of Land, Work, and Citizenship (ITTC), many times the initial communication between a defense lawyer and a suspect can be months after he or she was sent to prison.

A More Lenient Law, Yet Higher Numbers of Inmates

A 2011 law attempted to cut down on the rate of pretrial detention. The law prohibited pretrial detention for cases in which convictions would not result in jail time. The law also established alternative punishments to prison sentences. Yet, according to public defenders, this law has locked up more suspects than it has released.

“We discovered that a number of suspects were given pretrial detention because they couldn’t afford to pay the bail.”

“Bail became a much bigger factor under the new law. For someone to not receive preventive detention, they had to pay a certain amount of money. We discovered that a number of suspects were given pretrial detention because they couldn’t afford to pay the bail,” Cacicedo explained.

“The new law increased the number of bailable offenses, and therefore the use of bail. But those who cannot afford bail end up in jail. I’ve seen this many times in criminal trials,” said Marcelo Semer, the former president of the Association of Judges for Democracy.

SEE ALSO: Coverage of Prisons

Other strategies to reduce pretrial detention have also failed. “Electronic bracelets were thought to be a way to reduce incarceration rates, but today, they are used as simply another form of punishment by keeping tabs on those who by law should be free of state monitoring,” lawyer Gabriela Ferraz of the ITTC explained.

Cacicedo noted that São Paulo’s Public Defender’s Office was invited to participate in a discussion on the use of electronic bracelets at a public meeting of the Legislative Assembly, where he noticed something odd about the audience.

“The audience was full of well-dressed people. When the time came for questions, everyone who raised their hand was a representative of a company that sold electronic bracelets and they were all eager to bid for a government contract.”

What the State Gave Back

Dona Rosa* arrived at the “Mothers of Prisoners” center — which was founded by the rapper Andreia M.F. in the city of Praia Grande in São Paulo state — with several documents in hand. The medical records she was carrying described the problems her grandson had suffered from since he left a preventive detention center more than five years ago.


Dona Rosa, whose grandson spent two years in pretrial detention


Dona Rosa said that when her grandson was 18, he was taken away by police during a raid on a barber shop, along with a few small-time drug traffickers. He spent two years in the holding facility.

“When he left that place, he wasn’t the same. I felt that he was becoming more distant with me, you know? When I would go to talk with him he wouldn’t even acknowledge that I was there, he would send me away.”

When he left the detention center, he didn’t acknowledge anyone, Dona Rosa said. He didn’t want to work and the few times he opened his mouth it was to say that he was suffering, that he was close to dying, or in order to fight with her.

“He never suffered from any type of mental illness, but now the doctor says he has schizophrenia. He wrecked my whole house, he even threw me out of it. I sell shrimp on the beach and he doesn’t even let me enter the house to cook. I sleep in a small room on the side of the house, but I don’t know how I will manage.

“Once he was sent to be hospitalized, but they sent him back a month later. He doesn’t like taking the medications, he doesn’t want to do the treatments. Now he hangs out on the streets with other boys, where the police are. You see, this is the type of boy the state gave back to me.” 

*The names of some interviewees in this article were changed in order to preserve their anonymity.

**This article was edited, translated, and reprinted with permission from Agencia Publica. See the Portuguese original here.

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