By: Sam Aman, Research Associate at the Council on Hemispheric Affairs
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Brazil’s congress is currently reviewing a proposed constitutional amendment that would reduce the age of criminal responsibility from 18 to 16. First introduced 22 years ago, the bill is just now gaining momentum in the Brazilian legislature, passing the first stage of approval in March. Heralded by some as a possible solution to the country’s rising crime rates, the amendment has nonetheless generated serious contention among Brazil’s already polarized political elites. As deliberations continue, opponents and international observers fear that such a law may only exacerbate the complex problem of juvenile criminality in one of the world’s most dynamic and unequal societies.
Background and Legislative Timeline
The current Penal Code of Brazil sets the age of criminal responsibility—the age at which one can be tried as an adult—at 18 years. In 1990, the country enacted the Estatuto da Criança e do Adolescente (Child and Adolescent Statue; ECA), which outlined special disciplinary measures for minors convicted of a crime and was celebrated for its holistic approach to protecting and rehabilitating children. The statute prescribes measures such as warnings and legal obligations to pay damages, along with mandatory community service. In cases of repeat offenders of violent crimes or in the event of disciplinary noncompliance, the ECA sanctions internment of up to three years in an “educational institution”, a juvenile detention center focusing on assisted rehabilitation and continuing education.[i]
In 1993, Benedito Domingos, an Evangelical Christian congressman of the right-wing Progressive Party, introduced a bill laced with Biblical allusions proposing the reduction of the age of criminal responsibility to 16 years. The Proposta de Emenda à Constituição (Proposal of Constitutional Amendment; PEC) 171 retains the provisions outlined in the ECA but calls for their application only to those age 15 or younger.[ii]
Domingos justified PEC 171 by claiming that in 1940, when the age of criminal responsibility was set at 18 years, young people possessed an “inferior mental development” compared to that of today’s youth.[iii] The proposal failed to pass the necessary congressional hurdles and spent the next 22 years effectively dormant in Brazil’s lower house.
Now, the debate has once again taken center stage, as the most conservative congress the country has seen in the last 50 years provides an unprecedented opportunity for the bill to be passed.[iv]
In March, PEC 171 overcame its first legal obstacle, gaining approval from the Chamber of Deputies’ Committee on Constitution, Justice, and Citizenship (CCJ), which analyzes only the constitutionality of proposed legislation. Deputy Luiz Couto of the ruling Partido dos Trabalhadores (Workers’ Party; PT) spearheaded the opposition to the bill, claiming that it presents an infringement on individual rights. But on March 31, in a 42-17 vote, the Committee concluded for the first time since PEC 171’s inception that the proposed amendment does not violate the Constitution.[v]
On April 8, the bill embarked on the next stage of the legislative process, entering a round of deliberation by a special committee made up of 27 federal deputies. Eduardo Cunha of the Partido do Movimento Democrático Brasileiro (Brazilian Democratic Movement Party; PMDB), an Evangelical ultra-conservative who has served as President of the Chamber of Deputies since February, openly supports PEC 171 and named fellow conservative Deputy André Moura as president of the special committee.[vi]
The committee will have up to 40 plenary sessions to decide whether to approve the bill for voting in the lower house or to once again shelve the initiative, with a final decision expected by the end of June.[vii] Much to the dismay of President Dilma Rousseff, who has offered unfaltering condemnation of PEC 171, a congressional survey conducted in April of the 27 committee members found 21 in favor of lowering the age of criminal responsibility. [viii] Fourteen supported the measure only in cases of what are referred to in Brazil as “heinous crimes”—homicide, rape, kidnapping, etc.—and seven supported it for any sort of crime.[ix]
In the likely event that the special committee approves the bill, it will head to the floor of the Chamber of Deputies for two rounds of plenary session voting, where it needs at least 308 votes—3/5 of the Chamber—in each round in order to proceed to the Senate. There, PEC 171 will be reviewed by the upper house’s own CCJ, which will need to once again evaluate the constitutionality of the proposal. If deemed admissible, it will proceed to two rounds of plenary session voting, where it will need at least 49 votes—3/5 of the Senate—without any changes to the wording of the bill.[x] Constitutional amendments in Brazil do not require ratification by the President, meaning that if PEC 171 succeeds in passing through Congress—a feat looking more probable than ever given the current makeup of the legislature—the country’s marginalized impoverished youths will indeed be introduced to a languishing prison system before even reaching adulthood.
The unprecedented progress made recently by what was, for the last 22 years, a moribund piece of legislation, is indicative of the current political situation in Brazil. The country’s economic downturn and ongoing corruption scandals have created an increasingly hostile environment for President Rousseff, whose approval ratings fell this March to a record low of 13 percent.[xi] Protests calling for her impeachment have brought hundreds of thousands to the streets of Brazil’s largest cities, and public dissatisfaction with the ruling PT is at an all-time high.[xii]
The Petrolão scandal, implicating the state-owned oil company Petrobras and mainly ruling coalition members in a multibillion-dollar kickback scheme, has outraged a population already intimately acquainted with political graft. Rousseff’s narrow victory in the 2014 presidential election was tempered by her party’s significant loss of ground in the concurrent congressional elections. Indeed, her second term was destined to be trying from the start, but it is unlikely that Rousseff could have been prepared for the onslaught of legislative opportunism that has developed since.
Lower house President Eduardo Cunha and his equally right-leaning senatorial counterpart Renan Calheiros—also of the PMDB—have capitalized on the public outrage to push socially conservative measures like PEC 171 through the legislature. Though both have been implicated in cases of embezzlement and tax evasion, they have managed to deflect attention away from this by positioning themselves increasingly firmly against Rousseff and her party.[xiii]
In March, Cunha revived PEC 457, a proposed amendment first introduced in 2005, which raises the compulsory retirement age of federal justices from 70 to 75 years. The timing is far from coincidental, as five of Brazil’s Supreme Court justices were, under the original law, set to retire during Rousseff’s second term. PEC 457, commonly referred to as the amendment of the bengala (“walking cane” in Portuguese), conveniently places the task of replacing the five justices in the hands of Rousseff’s successor. The amendment passed on May 7, and with it, Cunha effectively impeded the President from leaving her mark on the Supreme Court.[xiv]
In the political cat-and-mouse game developing between Brazil’s legislative and executive branches, the ordeals plaguing Rousseff’s administration seem to be tipping the scales rapidly in favor of the cat. The country’s conservative Congress sees in the President’s dismal public image an opportunity to impose measures that, until now, have garnered little support.
In the case of PEC 171, its proponents find themselves conveniently abetted by a recent surge in criminality, with Brazil now registering its highest levels of firearm-related deaths in decades.[xv] Cities, particularly in the poorer northeast of the country, are experiencing a palpable decline in citizen security, and the public’s growing desperation has provided the political impetus for any legislation seen as combative to violence.
A number of high-profile homicides involving adolescent perpetrators have added to Brazilians’ unprecedented support for lowering the age of criminal responsibility. Commonly cited is the 2014 case of Yorrally Dias Ferreira, 14, who was fatally shot by her ex-boyfriend two days short of his 18th birthday. Ferreira’s killer filmed her bleeding body and spread the footage on the Internet, shocking the country and igniting social media networks. In April of the previous year, university student Victor Deppman was killed during a mugging in São Paulo. His killer turned 18 three days later.[xvi]
Public outrage ensued after both of the highly publicized cases. In accordance with the ECA, the killers of Ferreira and Deppman were sentenced to a maximum of three years’ internment in a “socio-educational” juvenile detention center. Had they committed their crimes a week later, they would face up to 30 years in prison, the maximum sentence permitted under Brazilian statutory law.[xvii]
Prominent figures from the Right, most notably polemic journalist Rachel Sheherazade, have begun to intensify their rhetoric regarding criminal responsibility, capitalizing on these and other cases to arouse popular support for PEC 171. On March 30, a day before the bill was approved by the CCJ of the Chamber of Deputies, Sheherazade published a blog post titled “Enough with Impunity!”, echoing a maxim all too familiar to the Brazilian public. In the post, she cited Rousseff’s PT and its “accomplices” as principal obstacles in the struggle for greater accountability.[xviii] Two days later, Sheherazade celebrated the bill’s approval with another publication. Under the title “Ten Reasons”, the post consisted solely of a list of ten Brazilians killed by adolescents.[xix]
This and similar appeals to the public seem to be working. A survey published by polling institute Datafolha on April 24 revealed that 87 percent of Brazilians support lowering the age of criminal responsibility.[xx] With record crime rates rattling the population and corruption scandals generating public indignation over the pervasive cycle of impunity in the country, conservative lawmakers now find themselves in a prime position to bring PEC 171 to fruition.
But the decades-old proposal now serves far more strongly as a political tool for the Right to assert legislative dominance over Rousseff’s troubled administration. Any real reduction in crime that the measure might bring about is sure to be marginal at best. PEC 171 is little more than a reactionary response to growing public perceptions of lawlessness, an over-simplified solution to an extremely complex problem. Given the structure of Brazilian society and the current state of its prison system, this “for the good of the people” amendment, if passed, will be anything but.
Implications and Alternatives
The fervor with which PEC 171’s proponents defend the bill, touting it as a major tool in the fight against crime, is interesting when one takes into account the actual incidence of juvenile criminality. The United Nations Children’s Fund (UNICEF) estimates that, of the over 56,000 homicides reported in Brazil in 2012, fewer than one percent were committed by adolescents between 16 and 18 years of age.[xxi]
Even in the face of such statistics, conservative pundits continue to portray the country’s slum-dwelling teenagers as perpetrators, grasping at straws in the form of high-profile cases though the reality could hardly be more different. Quite the contrary, children are among the greatest victims of homicide in Brazil, disproportionately more so than adults. UNICEF estimates that for adolescents in the country who die of exogenous factors, murder is the cause of death in 36.5 percent of cases, while the same statistic for the general population is 4.8 percent.[xxii]
And still, Sheherazade, Cunha, Calheiros, and the like choose to focus on harshening punishments for underage offenders instead of tackling the socio-institutional factors that place them in a position of depravity and vulnerability. For poor, black youths living in sprawling favelas in the peripheries of Brazil’s major cities, a lack of opportunities and the palpably repressive force of institutionalized racism leave little room for dreams and ambitions.
A languishing public education system and dismally low rates of infrastructure investment in these urban slums have far-reaching implications. Neglect from the federal and municipal governments only adds to the social exclusion inherent in belonging to such a community. The resulting marginalization of these populations is visible even in the evolution of language: the word marginal in Portuguese has now come to use as a pejorative term referring, primarily, to young, black favela residents.[xxiii] Its prevalence as a noun—Sheherazade famously used the term during a news broadcast in 2014—is indicative of a tendency within Brazilian society to relegate these individuals to a sub-human status.
PEC 171, then, can be understood within this paradigm as merely another mechanism of suppression, veiled under the guise of “tackling impunity.” In practice, the law will do little more than precipitate the insertion of underprivileged youths into the human rights disaster that is Brazil’s prison system.
Boasting the world’s fourth highest number of incarcerated citizens (behind only the U.S., China, and Russia), Brazil currently finds itself in a dire situation of overcrowding due to a shortage of prison cells. The country’s 550,000 prisoners occupy a system of penitentiaries with a capacity for only 300,000, and cells filled with six times as many inmates as they were made to hold are not an uncommon sight. In 2012, there were 367 doctors available to provide care to the half a million detainees, and the 32,000 female prisoners in the country had just 15 gynecologists at their disposal.[xxiv]
Reports of torture at the hands of prison guards and mass murders within jail walls are commonplace, and countless organizations, both domestic and international, have denounced the routine human rights abuses characteristic of Brazil’s prison system. The U.S. Department of State, in its 2013 Brazil Human Rights Report, noted that petty offenders are often held with convicted murderers and drug traffickers in unsanitary cells, where HIV and tuberculosis prevalence rates are considerably higher than those of the general population.[xxv]
Equally concerning is the rate of recidivism among the country’s incarcerated population, with Brazil’s National Justice Council estimating that some 70 percent of inmates relapse after being released.[xxvi] In a system teeming with gang activity, with little priority given to rehabilitation, prisons effectively become training grounds for delinquency. Throwing adolescents into such an environment, then, will merely facilitate the transformation of juvenile delinquents into hardened criminals. Under current Brazilian law, underage offenders are instead interned in “socio-educational” detention centers, a provision that, to date, has proven far more effective.
Fundação CASA, an institution linked to the São Paulo state government, operates the network of 148 socio-educational centers in Brazil’s most populous state, home to nearly 50 percent of the country’s adolescent detainees. In an interview with COHA, Berenice Giannella, president of Fundação CASA, described the foundation’s methodology and shed light on how the detention centers maintain such a low rate of recidivism—around 13 percent compared to the federal prison system’s 70 percent.[xxvii]
“The socio-educational measures have an effectively pedagogical nature,” she explained, and indeed, the contrasts between Fundação CASA’s approach and that of Brazil’s penitentiaries are stark. “In our units, the adolescents attend classes, they enroll in professional education courses, they participate in sports.” Giannella stressed that internment in these centers, a measure referred to by the foundation as “privation of liberty”, is carefully devised so as not to entail a privation of dignity. “We work with small units,” she continued, ”the majority of our units hold between 60 and 70 adolescents, which is very different from the prisons.” The detainees “receive treatment from psychologists and social workers,” and, in contrast to the federal prison system’s dismal ratios in this regard, Fundação CASA “maintains one psychologist and one social worker for every twenty children.”[xxviii]
The foundation’s success in the rehabilitation of youths is reflective of its mission. “Our principal aim,” Giannella explained, “is the reintegration of the adolescent into society.” But with PEC 171 gaining traction in the legislature, the teens benefitting from Fundação CASA and similar organizations’ holistic approach to remediation are at risk of being left to languish in Brazil’s overcrowded prisons, deprived of both their liberty and their dignity.
“The fact is that reducing the age of criminal responsibility is not going to resolve the problem of insecurity,” said Giannella. “[Adolescents] will be easily corruptible inside our prisons,” where she argues “the chances of recovery are minimal.” Indeed, the proposal could serve to exacerbate the problem of juvenile criminality. In their efforts to circumvent the new law, “criminals who often use teenagers, primarily for drug trafficking, will begin to use younger and younger boys.”
For Giannella, the solution lies not in harshening punishments for Brazil’s young lawbreakers, but in fixing Brazil itself. “Many [of our detainees] have never had access to adequate healthcare,” she explained. “We need to improve heavily on the issue of access to social goods—try to create a more just society before punishing our youths, remembering that young people are the greatest victims of homicide in Brazil.”
Brazil’s myriad social issues are a formidable beast, indeed, and one that will take generations of conscious effort to tame. For those seeking an immediate fix to the problem of impunity, Giannella stresses that an overhaul of the country’s justice system is the most prudent answer. Despite Brazil’s astronomically high incarcerated population, the country’s police forces display very low clearance rates, with only 15 percent of crimes in states like Rio de Janeiro and Minas Gerais actually being resolved.[xxix] According to Giannella, this contributes to “the sense of impunity that people have, or this sense that committing crimes is worth it.”
“If we had more efficient police investigations,” she explained, “meaning the perpetrator would be apprehended upon the first act, this would not generate such a sense of impunity, and it would certainly discourage people from committing crimes.” In a country where violent crime is a daily reality, and stories of successful convictions are the exception rather than the rule, public indignation is understandable. But Giannella believes this indignation is being displaced, as it is undoubtedly easier for politicians to focus on doling out harsher punishments than on reforming the justice system. She maintains that with comprehensive reform “there would be a far better perception within society in relation to the issue of security,” whereas any improvement generated by PEC 171 in this regard is likely to be short-lived.
Decades after its inception, PEC 171 now finds itself in an unprecedented position within Brazil’s legislature. Deep partisan divides have generated intense contention among the country’s political elites, with a scramble for legitimacy in the Left and increasingly pointed opportunistic rhetoric from the Right. The resulting instability has served as a legislative catalyst for the opposition’s agenda, and with PEC 171 making its way through Congress, the political arm wrestle in Brasília now carries implications for the most invisible of Brazil’s invisibles.
In a country where racial divisions are palpable, where public services are public only in name, where three centuries of slavery were never followed by a civil rights movement, and where poverty is all but a death sentence, PEC 171 cannot be taken at face value. Brazil is choosing to actively ignore the complex social issues afflicting its at-risk youths and instead sweep them under the proverbial rug, further encumbering an already overburdened penal system and depriving adolescent wrongdoers of any chance at rehabilitation. Whether the bill will, in fact, pass into law remains to be seen, but for the country’s marginalized underclass, and all those who believe in the universal right to dignity, the prospects look bleak.
By: Sam Aman, Research Associate at the Council on Hemispheric Affairs
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Featured Photo: Pedrinhas Prison, Brazil. Photo from: Mario Tama//Getty Images
[xxviii] Phone interview with Berenice Giannella. May 25, 2015.