Prisoners' rights

Prisoners’ Rights Prisoners’ Rights Maíra Rocha Machado The Oxford Handbook of Constitutional Law in Latin America Edited by Conrado Hübner Mendes, Roberto Gargarella, and Sebastián Guidi Print Publication Date: Jan 2022 Subject: Law, Constitutional and Administrative Law, Comparative Law Online Publication Date: Jan 2022 DOI: 10.1093/oxfordhb/9780198786900.013.48 Abstract and Keywords This chapter aims to identify how Constitutional texts refer to the prison population, con­ sidering both the content of rights and guarantees, as well as suspensions and exceptions established for persons deprived of freedom. It first presents the results of a survey of the laws contained in the current Constitutions of Brazil, Colombia, Mexico, and Peru, which are the four countries with the highest number of incarcerated persons in Latin America, surpassing a total of one million people. The focus on constitutional laws, however, does not allow for observation of the repertoire of prisoners’ rights that are a part of the infraconstitutional legislation of these countries, or provided for in instruments developed starting in the mid-twentieth century, within the scope of UN and the OAS. Therefore, this research is concerned with analyzing only the norms explicitly included in the constitu­ tional text of these countries. The third part of the text addresses the way Constitutional Courts, particularly in Brazil and Colombia, have been facing this issue in the context of the ‘state of unconstitutional affairs’ doctrine. Keywords: Prisoners’ rights, prison system, Brazil, Colombia, Mexico, Peru, constitution, constitutional law, state of unconstitutional affairs doctrine 39.1 Introduction The prison tragedy was at the centre of Brazilian public debate during the drafting of this chapter. During the first three weeks of 2017, at least 128 people deprived of freedom in the cities of Manaus (AM), Boa Vista (RR), and Natal (RN) were brutally murdered inside prison walls. The massacre was attributed to a settling of scores between rival gangs. The reaction of public authorities was shocking. At the federal level, the current, but nonelected President of Brazil, Michel Temer, referred to what happened in Manaus as a ‘ter­ rible accident’ and, the current Minister of the Federal Supreme Court Alexandre Moraes (who was Minister of Justice at the time of the incidents), limited himself to announcing the construction of new facilities.1 Page 1 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights Various groups and organizations manifested outrage and demanded that measures be taken. For those who follow and are aware of the prison problem in Brazil and in Latin America as a whole, such episodes are not surprising; they only serve to show the public how prison institutions and the lives of people who live there are managed.2 ‘Time bombs that may explode at any moment’— this is how Sergio García Ramírez, a Mexican lawyer and judge for the Inter-American Commission on Human Rights (IACHR) describes the situation in Latin-American prisons, characterized by ‘absolute mistreatment of prisoners [and] the irrationality of punishments that are inflicted inside those walls’.3 This is nothing new. The Peruvian historian Carlos Aguirre, in his study on LatinAmerican prisons, analyses the reception given to Prison Reform ideals during the first half of the nineteenth century, ‘a new standard of prisons’ which combined the architec­ tural design of a ‘highly regimented routine of work and instruction, a permanent system of vigilance over the prisoners, supposedly humanitarian treatment and the teaching of religion to prisoners’.4 (p. 694) Throughout this period, prisons were built in Rio de Janeiro, Santiago de Chile, Lima, Quito, and Buenos Aires, strongly inspired by models from the United States of America. Isolated to the great capitals of the continent, the building of prisons ‘was not followed by the deployment of changes similar to the rest of the prison system of each country’.5 Aguirre’s research reveals that the prison reform failed on the Latin-American continent due to both ‘administrative and managerial impediments’ and ‘the social-political struc­ ture of these nations’: Post-independence Latin-American societies were, in varying degrees, formed by exclusionary hierarchical structures, racist and authoritarian which, behind the façade of liberal and formal democracy, maintained oppressive forms of social domination and labour control which included slavery, peonage and servitude. Fundamental rights of citizenship were denied to great parts of the population. Moreover, in this context, ‘punishment was generally seen as a privilege and a duty in the hands of dominant groups, in their efforts to control turbulent, degenerated, racially infe­ rior groups incapable of being civilised, and which therefore did not deserve the protec­ tion of their civil and legal rights’.6 There are no reasons to believe that his scenario has changed since then. During the last few decades it was even strongly intensified by the dizzying increase of the prison popula­ tion all over the continent. Between 2000 and 2015, there was 80 per cent growth in the prison population recorded in Central America, and 145 per cent growth in the countries of South America.7 Data referring to prison density—the ratio between number of prison beds and people arrested—are equally alarming for the entire region, with most countries presenting ‘critical overpopulation’, that is, with density equal to or higher than 120 per cent.8 In a report published in 2011 on the human rights of people deprived of freedom in the Americas, the Inter-American Commission on Human Rights, considering the respect to prisoner rights as one of the greatest challenges OAS members documents in the re­ Page 2 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights port ‘the existence of serious structural shortcomings that gravely affect non-revocable human rights, such as the right to life and to human treatment’.9 Within this scenario, discussing prisoners’ rights in the context of Latin-American constitutional rights becomes a challenge. To many authors, the prison system we have created over the last two centuries exemplifies the abyss that exists between, on one side, the political and institutional practices and, on the other side, the profusion of interna­ tional laws, constitutional laws, ‘minimal rules’, ‘basic principles’, decrees and regula­ tions.10 The reflection proposed herein goes in another direction. Instead of reporting on this increasing distance between what is stated by law and a diagnosis of a systematic vi­ olation of rights in Latin-American prison institutions, we choose to observe legal treat­ ment, particularly constitutional treatment, of persons deprived of freedom.11 The aim of this research is to identify how Constitutional texts refer to this population, considering both the content of rights and guarantees, as well as suspensions and exceptions estab­ lished for persons deprived of freedom. (p. 695) To advance this matter, the next section presents the results of a survey of the laws con­ tained in the current Constitutions of Brazil, Colombia, Mexico, and Peru, which are the four countries with the highest number of incarcerated persons in Latin America, sur­ passing a total of one million people.12 The focus on constitutional laws, however, does not allow for observation of the repertoire of prisoners’ rights that are a part of the infraconstitutional legislation of these countries, or provided for in instruments developed starting in the mid-twentieth century, within the scope of UN and the OAS. Therefore, this research is concerned with analysing only the norms explicitly included in the constitu­ tional text of these countries. As will be seen, the legal framework analysed below indicates that imprisonment is still not seen as a problem itself, as human rights reports and countless studies have system­ atically shown. What is primary here is the global result of the functioning of a criminal justice system that has created an unprecedented increase in prison population in the last decades that far exceeds public investments in construction or maintenance of such (p. 696) establishments. Other than rare exceptions, this research has not found norms ex­ plicitly addressed at the prison system as a whole, or the problem of prison overcrowding in particular. With this in mind, the third part of the text addresses the way Constitutional Courts, particularly in Brazil and Colombia, have been facing this issue in the context of the ‘state of unconstitutional affairs’ doctrine. In these cases, prisons begin to become part of the problem and not the solution. 39.2 ‘Prisoners’ Rights’ in the Constitutions of Brazil, Colombia, Peru, and Mexico What are ‘prisoners’ rights’? The simplest and most direct answer in a Democratic State governed by the Rule of Law would be ‘all rights not directly affected by the deprivation of freedom’. If so, there would be no need for this Handbook to include a chapter on ‘pris­ Page 3 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights oners’ rights’, but rather simply a footnote in the chapter on fundamental rights: persons deprived of freedom have equal access to every right listed, except the freedom to come and go. We have not found a formulation of this type in the constitutions studied here, even if it appears in international documents13 and in the infra-constitutional legislation in a very tepid way regarding the principle of equality (Mexico)14 and human dignity (Colombia)15 and in a more explicit way in Brazil.16 But besides the rights provided to every citizen, in principle applicable to incarcerated persons, this research isolates the norms that refer specifically to deprivation of freedom, distinguishing them from the broader group of rights and guarantees provided to those individuals under criminal investigation.17 Based on a reading of constitutional texts, this research proposes the organisation of laws directly related to deprivation of freedom into three groups. In the first place, there are norms that refer to the act of incarceration, es­ tablishing duties for police and legal authorities, and rights for citizens (1). This is followed by norms that establish, qualitatively, the types of punishment admitted, as well as the way they should be served (2). Finally, the third group focuses on the norms that establish exceptions and suspensions of rights for incarcerated persons (3). To con­ clude this section, this text raises some questions concerning the enforcement of the norms studied (4). (p. 697) 39.2.1 Incarceration: Duties and Rights All of the Constitutions analysed in this research contain norms referring to the act of de­ priving an individual of his or her freedom. A common point found in all four Constitu­ tions is the requirement that imprisonment is imposed by a competent legal authority.18 Other than that, the Peruvian Constitution establishes, among the principles of jurisdic­ tional function, that ‘all persons should be informed, immediately and in writing, of the causes or reasons of their detention’. More extensively, the Brazilian Constitution pro­ vides that the ‘prisoner will be informed of his/her rights, among which are remaining silent, being guaranteed the right to family assistance and to a lawyer, as well as “the right to identification of those responsible for the arrest or for his/her police interroga­ tion”’. It also establishes that ‘the imprisonment of any person and the place where they can be found be immediately communicated to the competent judge and to the family of the prisoner or to the person indicated by the person’.19 Additionally, the constitutions of Brazil, Colombia, and Peru explicitly dispose on the possibility of habeas corpus in case of threat to individual freedom.20 39.2.2 Penalties: Types, Definitions, Prohibitions As for the second group, it is possible to identify negative norms (indicating penalties that are prohibited) and positive ones (specifying how they should be imposed). Among the first type, the four Constitutions establish the prohibition of imprisonment for debt or for infractions of purely civil character.21 Many other penalties, not directly related to depri­ vation of freedom, are also prohibited in the studied Constitutions.22 Within the limits of this study, it (p. 698) is worth noting that only Brazil and Colombia explicitly prohibit life Page 4 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights sentences and cruel sentences, and Mexico prohibits any ‘unusual and transcendental sentences’.23 The prohibition of torture, of inhumane or degrading treatment appears in the text of all the constitutions, except for the Mexican one.24 Peru extends this prohibition to ‘moral, psychological or physical violence’, noting that anyone may request a medical examina­ tion of the victimised person, and stating that declarations that are obtained through acts violence ‘are lacking in value’ and that the person that inflicts it ‘incurs responsibility’.25 In the Brazilian Constitution, other than the prohibition of torture and of inhumane or de­ grading treatment—which does not refer only to the prison environment—there is also a law that is specifically directed to ensuring the physical and moral integrity of the prison­ ers.26 In the same sense, but more broadly, the Mexican Constitution establishes them as ‘abuses that will be corrected by the law and repressed by authorities’, ‘every bad treat­ ment during apprehension or arrest, every nuisance that is inflicted with no legal reason, every tax paid or contribution made in prisons’. It also prohibits the extension of prison term due to non-payment of fees or any other monetary payment, as a result of civil re­ sponsibility or any similar reason.27 The norms that positively refer to prison sentencing refer to how the sentence is defined or the way they shall be served within prison facilities. Among the first, this research has found very few norms. The Brazilian Constitution, when listing the applicable sentences in the country, indicates that ‘the law will rule over the individualisation of the sentence’, without specifying what might be the guiding principle indicated.28 The Mexican text es­ tablishes that ‘every penalty should be proportional to the crime that it sanctions and to the legal interest protected’. It also establishes that every prison sentence must take into account the time of pre-trial detention.29 Regarding conditions of imprisonment, Brazil and Mexico have norms establishing the separation of prisoners into different facilities. In Brazil, this is ‘according to the nature of the crime, the age and sex of the prisoner’.30 In Mexico, the separation shall occur among men and women and among prisoners with provisional or definitive sentences.31 Beyond separation into different facilities, the Brazilian Constitution explicitly provides for norms ensuring that imprisoned women have ‘conditions to be with their children dur­ ing the breastfeeding period’.32 Among the Constitutions herein studied, the Mexican Constitution is the only one that es­ tablishes general rules regarding the functioning of the criminal justice system. Accord­ ing to article 18 (reformed in 2011), ‘the criminal justice system will organise itself based on the (p. 699) respect for human rights, work and job training, on respect for education, health and sport as means to achieve non-recidivism of committing crimes, observing the benefits that the law offers’. The same device establishes that, under conditions as pro­ vided for by law, individuals may comply with their sentences at penal centres closer to their homes ‘with the intention of facilitating their reintegration to the community as a way of social reinsertion’.33 As will be seen below, the Constitution also provides for ex­ ceptions to this norm. Page 5 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights 39.2.3 Exceptions and Suspensions of Rights The Constitutions are also normative spaces that are directed at depriving rights from those investigated, persecuted, and sentenced for committing crimes. Based on a reading of the constitutional texts of all four countries, it was possible to identify two groups of rules. First, are norms that establish different treatments for the population as a whole and for those who are the object of penal interventions. Second, there are norms that dif­ ferentiate the reach of constitutional rights of persons being criminally investigated, processed, or imprisoned, due to the type of crime attributed to them. In the first group, for example, are the constitutional norms that guarantee the ‘inviolabil­ ity of the home’ and note as an exception flagrante delicto (in blazing offence).34 Or the norm that establishes that ‘no one can be forced to perform personal jobs without fair ret­ ribution and without their full consent, except for work imposed as a sentence by a legal authority’.35 However, the broadest and most decisive way of differentiation among persons experienc­ ing penal intervention and the rest of the population is present in the rules that limit or suspend political rights. With distinct scopes, the Brazilian, Mexican and Peruvian Consti­ tutions contain these sorts of norms. In Brazil, the rule concerning ‘the political rights’ establishes as a hypothesis of loss or suspension the ‘criminal sentencing determined in judgment, while its effects last’.36 This is a norm provided for in all Brazilian Constitu­ tions, under the same terms since 1824. Mexico and Peru refer more widely to the sus­ pension of ‘citizen’s rights and prerogatives’37 and to the ‘exercise of citizenship’.38 If Pe­ ru, like Brazil, indicates suspension from sentencing, Mexico anticipates the suspension of rights from the moment the person is ‘under criminal processing for offence that war­ rants corporal punishment’, counting from the date of the arrest. It also includes the pos­ sibility of suspension of rights of citizenship for ‘fugitives of justice’.39 In Colombia, the ‘non-qualification of the exercise of rights and public functions’, which includes the right to elect oneself and to be elected, is provided for in the Penal Code, as an additional pun­ ishment beyond imprisonment, for the time of the term, and up to one-third longer.40 The second set of exceptions regards norms that restrict the reach or alter the content of constitutional rights due to type of crime. In Mexico, for example, the right to serve in a prison close to home ‘does not apply in case of organised crime’.41 The Peru­ vian Constitution establishes different times for the presentation of the person arrested in flagrante delicto for legal authority. A 24-hour time frame may be extended to up to fif­ teen days in cases of terrorism, espionage and drug trafficking.42 In Brazil, the Constitu­ tion prevents the granting of bail, pardon and amnesty in cases of torture, drug traffick­ ing, terrorism and others; and considers the crime of racism and action of armed groups, civil or military, against a constitutional order and the Democratic State, as not subject to bail nor any statutes of limitations.43 (p. 700) Page 6 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights 39.2.4 Barriers to Enforcement of Constitutional Norms Given this scenario, how can we understand the constitutional treatment toward persons deprived of freedom? Taken as a whole, these norms favour an interpretation that agrees with Aguirre’s formulation cited at the beginning of this chapter. The suspension of politi­ cal rights creates a boundary line in the recognition of citizenship, guaranteeing constitu­ tional status to the exclusion of a population from the country’s political life. This exclu­ sion mechanism also strengthens the widespread notion that there is something inherent­ ly different in the men and women who are selected by the criminal justice system to compose the prison population. This state of things is overlapped by fundamental rights, frequently as duties for authorities, among which are guaranteeing that the act of impris­ onment is emanated or approved by legal decision and reviewed in case illegality by habeas corpus, and the other specific rights indicated in the first part of this section. At the same time, the studied Constitutions seem to recognise the prison institution as a conducive environment for State violence. As was seen, only the Mexican Constitution has norms that establish guiding principles regarding definition of sentencing (propor­ tionality) and the function of the prison system (rehabilitation). This device of the Mexi­ can Constitution is also distinguished for being the only one among those analysed ad­ dressed directly to the ‘prison system’ and not individually to persons deprived of free­ dom, agents or state authorities. The question that arises is this: within the context of Latin-American prison briefly out­ lined at the beginning of this article, how can these fundamental rights be interpreted in concrete cases? What level of barbarity is required for prohibition of a cruel sentence? What do prison conditions need to be like before there is recognition of the assaults upon the physical and moral integrity of persons deprived of freedom? This group of norms es­ tablishing prohibitions—of certain types of sentences, assaults to physical integrity, mis­ treatments, etc.— generate at least three types of effects: (i) imposing on the legislator the creation of laws; (ii) allowing constitutionality control of the legislation by the Judicia­ ry; and (iii) when directly addressed to prison facilities, generating multiple forms of accountability of the implicated agents.44 In the last two cases, the enforcement of these norms depends on the judicial activity. (p. 701) These questions reveal the central role played by public prosecutors and the Judiciary, as well as by legal dogmatic and doctrine that would need to be developed to assure that le­ gal decisions and institutional practices enforce the Constitution norms. At least in Brazil, there is recognition of the ‘rudimentary nature of case law’ and the extremely low inter­ est of the doctrine on this subject.45 These features strongly compromise the possibility of decisions on sentencing to be made in light of the constitutional norms discussed above. The next section is dedicated to this matter. Page 7 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights 39.3 The ‘Unconstitutional State of Affairs’ in Colombia and in Brazil The ‘unconstitutional state of affairs’ constitutes a figure developed by the Colombian Supreme Court in 199746 which has been used in cases of violations of fundamental rights that share three characteristics: they are: (i) ‘the result of a structural or historical cause’; (ii) ‘cannot be attributed to only one entity but to the State as a whole’; and (iii) ‘require the adoption of long-term measures’.47 Since then, many systematic violations of fundamental rights have been analysed by the Colombian Court in light of the ‘state of unconstitutional affairs’, allowing the Court to make its scope of action on these cases broader and more sophisticated. Considered ‘one of the fundamental contributions of the Colombian constitutionalism for case law and international discussion on the human rights protections’,48 the ‘unconstitu­ tional state of affairs’ raises many pertinent questions for the study of Latin-American constitutional law. This chapter, however, is limited to presenting and discussing, from the perspective of ‘prisoners’ rights’, some aspects of Colombian and Brazilian Supreme Court’s decisions. Among the notable differences between the two decisions, both do co­ incide in declaring the ‘unconstitutional state of affairs’ within the prison system and (p. 702) directing interventions for changing this scenario exclusively to the administra­ tion. Especially in Brazil, the plaintiffs’ requests to defeat the incarceration culture at the heart of the criminal law system were denied. The same was true for the new decision by the Colombian Supreme Court in a case that also sought measures devoted to reducing incarceration. The differences between the decisions of the two countries are of many orders. Firstly, the Colombian decision49 may be observed in light of its effects: there are governmental documents listing the actions taken to comply with the decision, as well as debates and academic studies on its meaning, input and limits. In Brazil, however, only a preliminary injunction was judged50 was judged and, up to the conclusion of this chapter, there’s no final decision. In light if this, this paper is aimed at observing the way in which Constitu­ tional Courts have dealt with the matter of systematic violation of prisoners’ rights and the specific requests they have decided to grant (even if in an injunction, as in Brazil). In the Colombian case, the permanence of the ‘unconstitutional state of affairs’, despite compliance by a great part of the orders imposed by the Supreme Court, led to filing of new cases, judged by the Supreme Court in 2013 and 2015, to which there is scarce ma­ terial for analysis.51 The decisions of the Colombian and Brazilian Supreme Courts, respectively in 1998 and in 2015, recognise the ‘unconstitutional state of affairs’ of the prison systems. They are supported by reports, documents, data on prison population, as well as on inspections carried out by public authorities. The decisions illustrate what is defined as ‘absolutely sub-human’, ‘a shame to the State’, ‘hell-like situations of overcrowding’52 and as a ‘shameful situation’ and ‘daunting’53 with descriptions on the many violations of prisoner Page 8 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights rights. The Colombian decision mentions prisons in which people sleep on the floor, in­ cluding the bathrooms, cells designed for one person that end up housing three to six people, wood and cardboard cells built by the inmates themselves, in which one could hardly breathe under suffocating heat.54 The Brazilian decision adds to this narrative the absence of ‘adequate conditions for human existence’: filthy cells, with no light or ventila­ tion, the areas for bathing and taking sun having open sewage, lack of access to water, food being served in plastic bags, all well as absence of basic hygiene supplies. With no access to education, work or any form of occupation, ‘people live with the barbarities committed against themselves’: ‘massacres, homicides, sexual violence, decapitation, gut­ ting and dismemberment’, and also ‘police torture, beatings, strangulations, electric shocks, rubber bullet shootings’. It also describes the specific violations of the rights of transgender persons, the absence of separation of people by age, type of offence and na­ ture of imprisonment (pre-trial detention and convicted), as well as the insufficient num­ ber of and training of prison staff.55 As in the (p. 703) Colombian Court, concluded that this ‘scenario is not exclusive to this or that prison’, showing a similar situation in differ­ ent regions of both countries. The decisions also list the constitutional laws described above, as well as international, criminal, procedural and penitentiary laws that are systematically violated by this state of affairs. The Colombian Court describes this legal framework, as well as the Court’s ju­ risprudence, as ‘dead letter’.56 The narratives, in both cases, are nothing new. The sce­ nario is widely known by the public power and by the population.57 The decisions also emphasise that the systematic violation of prisoner rights is directly associated to the ‘inaction of the authorities’ and despite ‘the many requests and critics’ there is no development of an ‘official policy to change the root of the country’s terrible prison situation’.58 Minister Marco Aurelio’s vote discusses at length the ‘responsibility of the public power’, expressly indicating that this responsibility must be taken up by the three powers, both at federal and state levels. ‘There is a lack of legislative sensitivity and political motivation of the Executive’, says the Minister. Allied to the problem of ‘formula­ tion and implementation of public policies’, mentioned by the Colombian decision, Minis­ ter Marco Aurelio adds, as a problem, ‘interpretation and application of criminal law’. More specifically in relation to the responsibility of the judiciary, the Minister emphasizes the high number of pre-trial detainees who are acquitted or sentenced to non-jail sen­ tences, and those who remain imprisoned beyond the time of their sentences. Prior to this, he concludes that the ‘solutions…must involve the coordinated and mutually comple­ mentary action of the Legislative, the Executive and the Judiciary, at different federative levels’.59 In a very tepid way, for reasons hereinafter exposed, the Colombian decision al­ so indicates that the problem is not only in the hands of the executive, especially the Min­ istry of Justice, and that therefore ‘distinct areas and organs of the Public Power’ are re­ quired to ‘take adequate measures to solve the problem’.60 The Colombian decision, unlike the Brazilian one, is organised primarily around the issue of prison overcrowding. Despite mentioning the many other aspects related to terrible prison conditions, the empire of violence, lack of opportunities and means for rehabilita­ Page 9 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights tion, the Court’s main base of arguments and requests focus on overcrowding. This is how the Court derives violation of rights of all prisoners: the right to dignity, to not re­ ceive cruel, inhumane or degrading sentences or treatments, to life and to physical in­ tegrity; to family (given the obstacles to arranging visits), to health, to work and educa­ tion and to presumption of innocence, which is violated by the absence of separation be­ tween pre-trial detainees and convicted.61 Within this context, the Court determines, first of all, the notification of the highest authorities, of the three powers, of the unconstitu­ tional state of affairs of Colombian prisons. It also tasks the organs of the executive pow­ er with the development of a plan for ‘prison construction and reform’, and determines that the government must provide a budget for this. The plan must be executed in four years and, during this same period, a complete separation of convicted and pre-trial pris­ oners must be completed. The Court also made other more specific requests, regarding the separation of prisoners from the Public Force Officers (Military Police Officers), solv­ ing the problem of unspecialised prison personnel, and the creation of detention centres by state and municipal governments, as well investigation by the Superior Council of the Judiciary over the insufficient numbers of (p. 704) judges in certain prisons. The decision concludes by ordering the President of the Republic to ‘while the carrying out the re­ quested constructions of prisons…take the necessary measures to guarantee public order and the fundamental rights of those interned’,62 without specifying what such measures might be. The first decision that declares the unconstitutional state of affairs in Colombian prisons is therefore restricted to demanding the development of a plan for the construction and reform of prisons, with the goal of solving the matter of overcrowding. Overall, it calls for the executive power to act upon problems related to separation of prisoners and of prison staff; but it remains silent on the way the judiciary itself could act to reduce the number of persons deprived of freedom. Without an intervention by the Judiciary, the increased number of beds created by the construction plan could rapidly become insufficient, as has already happened in the Colombian case. We will address this matter in the following sec­ tion but, before doing so, we will briefly present the Brazilian decision that, although be­ ing provoked to intervene on judicial activity, has denied all requests of this nature. Out of the eight injunction requests formulated in the Claim of Non-Compliance With a Fundamental Precept (ADPF),63 six targeted the Judiciary. For the plaintiffs, solving the severe prison problem in the country requires not only the improvement of prisoner ca­ pacity in penitentiaries—room must be made for approximately 200,000 prisoners—but the interpretation of constitutional norms in light of the ‘dramatic conditions of the country’s prison system’.64 The injunction requests that judges (a) explicitly motivates the decisions that do not apply non-custodial measures; (b) have custody hearings in up to twenty-four hours after arrest; (c) consider the dramatic scenario of the prison system in the concession of pre-trial measures, in the definition and execution of the sentence; (d) apply ‘whenever viable’, alternative sentences to prison, aimed at preserving the propor­ tionality and the humanity of the sentence; (e) soften the temporal requirements for the fruition of benefits and rights of the prisoners; and (f) reduce the prison time to be served, when the conditions of imprisonment are significantly more severe than those im­ Page 10 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights posed in the sentence. The two last requests, not directed at the Judiciary, are addressed to (g) realization of ‘prison group efforts’, by the National Justice Council to review the execution processes with view of adjusting them to requests (e) and (f) above and (h) the liberation of funds from the National Penitentiary Fund (Funpen) for state governments to use for construction, renovation and improvement of the penitential systems. Among the requests directed at the judiciary, only the determination of custody hearings (item (b)) was granted by the Court. The two requests that could result in non-incarceration—(e) and (f)—were either unanimously denied (request (f)) and by nine votes to one (request (e)). The others—(a), (c), and (d)—were denied by a small majority (six votes to four). The final request, related to the release of funds from Funpen, was also granted. The definitive ADPF request, which is still pending, in addition to confirming the injunc­ tion measures above, requires the development of a national plan by the Federal Govern­ ment, aiming to overcome this unconstitutional state of affairs. With specific proposals and goals, as well as a budgetary allocation of monetary resources, the plaintiffs demand the plan be submitted to a wide public debate before being homologated by the Supreme Court. After the conclusion of the national plan, they also demand the development of state plans by (p. 705) state governments, also subject to public debate and deliberation by the Supreme Court. Finally, the authors request that the plan’s implementation be monitored by the Supreme Court ‘in a public and transparent process, open to the collab­ orative participation of civil society’.65 39.4 Final Remarks Both decisions discussed in the previous section are similar in that they position the prison problem as a demand of ‘minorities’, which the constitutional courts have the ‘mis­ sion’ of defending.66 The Brazilian decision highlights that it deals with ‘an unpopular subject, involving the rights of a group of people that are not simply stigmatised, but whose human dignity is considered by many as lost, considering the committing of crimes’.67 And even considering this ‘mission’ and the full recognition of the unconstitu­ tional state of affairs, the decisions did not venture to recognise and enforce the norms analysed in Section 2, which prohibit cruel penalties, inhuman or degrading treatment and which guarantee the physical and moral integrity of people deprived of freedom. As seen, there have been no measures taken that imply concrete changes in the life condi­ tions of the thousands of people who live under the ‘unconstitutional state of affairs’. In the Colombian case, Ariza points out that the sentencing sought to solve the problem of prisons through construction and reform, during a four-year period, without adopting any order that could remedy the problems of the individuals housed there during the im­ plementation of the plan. In addition, he asks, ‘how is it possible that at the same time that prison is recognised as violating fundamental rights, prisoners are demanded to stay stoically in it?’68 The same questioning is valid for the Brazilian decision. To Ariza, this paradoxical posture from the Colombian Court is possible due to the definition of the prison reality as a historical problem ‘which allows an indolent use of the vital lifetime of Page 11 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights the persons who are in prison’.69 According to the author’s evaluation, seven years after the decision, the Court’s answer has translated into a significant increase in the peniten­ tiary system, with the creation of new spots, ‘without there being a parallel change in the conditions of imprisonment’.70 Based on Colombia’s overcrowding rates between 1997 and 2009, Uprimny and Guzmán observe an important decrease during the years 2000 and 2001—in which the rate was around 16 per cent compared with 45 per cent in 1997. For these authors, the decrease ‘seems to be due to the actions carried out by the State’ in compliance with sentence 153/1998. However, they affirm that ‘there was a return to a toughening of punitive poli­ cies’ leading to a new increase in the rate that in 2009 nearly reached 39 per cent.71 That is, the number of spots increased, but not at the same rate as the number of prisoners. For this reason, (p. 706) Colombian Court went back to declaring the unconstitutional state of affairs of prisons in 2013 and 2015. Brazil is awaiting the definitive judgment of ADPF 347, so that beyond the recognition of the calamity of the facts, it may enforce and extract consequences from constitutional norms that explicitly prohibit this state of affairs. To do so, as indicated by those who drafted this claim, the decision needs to be directed to the judges that work in criminal courts. The constitutional court has the possibility of affirming that in every decision that creates or maintains the deprivation of freedom of a person, the Constitution remains above any criminal and procedural norms. Notes: (1) The National Secretary of Youth, Bruno Julio, declared that ‘such a slaughter is neces­ sary per week’ and was removed from office immediately: Editorial, ‘“More Had To Be Killed’: The Statements of a Terrible Week’ El País Brasil (7 January 2017) <http:// brasil.elpais.com/brasil/2017/01/07/politica/1483794733_299158.html> accessed 10 Janu­ ary 2017. (2) On the seriousness of the prison situation in Latin America, see Elías Carranza, ‘Cár­ cel y Justicia Penal: el Modelo de Derechos y Obligaciones de las Naciones Unidas, y Una Política Integral de Seguridade de los Habitantes Frente el Delito’ in Elías Carranza (ed), Criminalidad, Cárcel y Justicia Penal en America Latina y el Caribe (Siglo XXI 2009). César Leal refers to a ‘hideous picture’ that is ‘prevalent in almost all of Latin America and the Caribbean’ and ‘has been the subject of denunciations by international human rights organizations and notable prison rights activists’: César Barros Leal, Execução Pe­ nal na América Latina à luz dos Direitos Humanos. Viagem Pelos Caminhos da Dor (Juruá 2010) 100. (3) Inter-American Court of Human Rights, Tibi v Equador, 7 September 2004, concurring vote Sergio García Ramírez 17. (4) Carlos Aguirre, ‘Cárcere e Sociedade na América Latina, 1800–1940’ in Clarissa Maia and others (eds), História das Prisões no Brasil (Rocco 2009) 40. Page 12 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights (5) Aguirre (n 4) 42. (6) Ibid 71. (7) During the same period, European countries experienced a decrease of 21 per cent: Roy Walmsley, ‘World Prison Population List, 11th edition’ (World Prison Brief, October 2015) <www.prisonstudies.org/sites/default/files/resources/downloads/ world_prison_population_list_11th_edition_0.pdf> accessed 11 January 2016. (8) The prison density data compiled by Carranza refer to the year 2007: Carranza, ‘Cár­ cel y Justicia Penal’ (n 2) 63. (9) Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of Liberty in the Americas (Inter-American Commission on Human Rights 2011) 2. (10) Many authors explore this abyss between the law and the daily life of prisons in Latin America. Uprimny and Guzmán refer to the existence of a ‘tension or paradox: although we have made considerable progress in achieving a legal framework that offers constitu­ tional guarantees to persons deprived of their liberty, there is a very serious precarious­ ness in the effective enjoyment of fundamental rights of the prison population of the country’: Rodrigo Uprimny Yepes and Diana Esther Guzmán, ‘Las Cárceles en Colombia: Entre una Jurisprudencia Avanzada y un Estado de Cosas Inconstitucionales’, III Simposio Internacional Penitenciario y de Derechos Humanos (Universidad de San Buena Ventura 2010) 145. Carranza (n 2) 61: ‘We know that not all law coincides with reality, and prison reality is usually the most serious example of that discrepancy.’ In the same sense, Leal, in Execução Penal na América Latina (n 2) 117 discusses the ‘the divorce between laws and reality’ in the area of prisons. (11) With Wandall, this research makes an effort to create distance from ‘gap studies’ that are very common in prison studies. With special awareness of studies on ‘sentencing’, the author warns that ‘focusing on this gap between law and action causes sentencing stud­ ies to invest less energy in understanding the contours of the law and in analysing the ways in which court-decision making is fixed within the law’: Rasmus Wandall, Decision to Imprison: Court Decision-Making Inside and Outside the law (Ashgate 2008) 2. (12) According to the latest edition of the World Prison Population List, Brazil has sur­ passed 600,000, México has approximately 255,000, Colombia 121,00, and Peru 75,000: Walmsley (n 7). All citations refer to the original texts and subsequent amendments to the Constitution of the Federative Republic of Brazil (5 October 1988), the Political Constitu­ tion of Colombia (20 July 1991), the Political Constitution of the United Mexican States (5 February 1917), and the Political Constitution of Peru (29 December 1993) and were translated to English by the author. (13) ‘5. Except for those limitations that are demonstrably necessitated by the fact of in­ carceration, all prisoners shall retain the human rights and fundamental freedoms’: see Page 13 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights Basic Principles for the Treatment of Prisoners adopted by UN GA Resolution 45/111 (14 December 1990). (14) ‘Persons subject to this Law shall receive the same treatment and opportunities for access to the rights recognized by the Constitution, international treaties and applicable legislation, under the terms and under the conditions established by them’: see Mexico, Ley Nacional de Ejecución Penal (16 June 2016), art 4. (15) ‘In prison facilities, respect for human dignity, for constitutional guarantees and for universally recognized human rights shall prevail’: see Colombia, Código Penitenciario y Carcelario (Ley 65/1993), art 5 (modified, Ley 1709/2014). (16) ‘[To] the convicted and the imprisoned, all rights not reached by the sentence or the Law will be guaranteed’: see Brazil, Lei de Execução Penal (Lei 7210/1984), art 3. (17) For a complete picture of constitutional criminal law in Brazil, see Dimitri Dimoulis, Direito Penal Constitucional. Garantismo na Perspectiva do Pragmatism Jurídico-Político (Arraes Editores 2016). Specifically regarding rights and procedural safeguards, in sever­ al Latin American countries, see Alberto Binder, Ed Cape, and Zaza Namoradze, Defensa Penal Efectiva en America Latina. Argentina, Brasil, Colombia, Guatemala, México, Peru (Open Society Foundation 2015). It should also be noted that we do not include here the law that specifically addresses the arrests of public authorities. (18) Constitution (Brazil, n 12) art 5, LXI; Constitution (Colombia, n 12) art 28; Constitu­ tion (Mexico n 12) art 14; Constitution (Peru n 12) arts 2, 24 ‘f’. (19) Constitution (Peru, n 12) art 139, 15; Constitution (Brazil, n 12) arts 5 LXIII, LXIV, and LXII. (20) Constitution (Brazil, n 12) art 5, LXVIII; Constitution (Colombia, n 12) art 30; Consti­ tution (Peru, n 12) art 200, 1. (21) Constitution (Brazil, n 12) art 5, LXVII; Constitution (Colombia, n 12) art 28; Constitu­ tion (Mexico n 12) art 17—reformed in 2010; Constitution (Peru n 12) arts 2, 24, ‘c’. (22) This is the case of the prohibition of the death penalty (Constitution (Brazil, n 12) art 5, III; Constitution (Colombia, n 12) art 11; Constitution (Mexico, n 12) art 22; Constitu­ tion (Peru, n 12) art 140), with exceptions in case of ‘declared war’ (Brazil) and in case of treason, war and terrorism (Peru). Are also prohibited, in Brazil, forced labour, banish­ ment, as well as penalties that pass from the person of the convicted person (art 5, XIX, c e d; XLV), in Colombia, exile (art 34) and in Mexico, mutilation, infamy, branding, lash­ ings, pillories, torments of any kind, excessive fines, and any other unprecedented and transcendental penalties (art 22). Regarding confiscation, the prohibition appears explic­ itly in the Colombian (art 34) and Mexican (art 22) constitutions, while in Brazil the prohi­ bition of confiscation was present in previous Constitutions, but not in the current one. Page 14 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights (23) Constitution (Brazil, n 12) art 5 XIX; Constitution (Colombia, n 12) arts 12, 34; Consti­ tution (Mexico, n 12) art 22. (24) Constitution (Brazil, n 12) art 5, III; Constitution (Colombia, n 12) art 12; Constitution (Peru, n 12) arts 2, 24, h. (25) Constitution (Peru, n 12) arts 2, 24, h. (26) Constitution (Brazil, n 12) art 5, XLIX. (27) Constitution (Mexico, n 12) art 19—reformed in 2008, art 20, B, IX. (28) Constitution (Brazil, n 12) art 5, XLVI. The Federal Supreme Court has on several oc­ casions dealt with this norm. For a complete picture of the ‘constitutional-jurisprudential understanding’ of individualization of sentencing in Brazil, see Dimoulis (n 17) 108–12. (29) Constitution (Mexico, n 12) arts 22, 20, B, IX. (30) Constitution (Brazil, n 12) art 5, XLVIII. (31) Constitution (Mexico, n 12) art 18—reformed in 2011. (32) Constitution (Brazil, n 12) art 5, L. (33) For a discussion, from humans rights perspective, of the reach and limits of art 18, see Miguel Sarre, ‘Ejecución de Sanciones y Medidas Penales Privativas de la Libertad’ in Jose Luis Caballero Ochoa and Eduardo Ferrer Mac-Gregor (eds), Derechos Humanos en la Constituición. Comentarios de Jurisprudência Constitucional e Interamericana, tomo II (Conrad Adenauer 2013) 1833–66. (34) Constitution (Brazil, n 12) art 5, XI; Constitution (Peru, n 12) art 2, 9. (35) Constitution (Mexico, n 12) art 5. (36) Constitution (Brazil, n 12) art 15, III. (37) Constitution (Mexico, n 12) art 38. (38) Constitution (Peru, n 12) art 22. (39) Constitution (Mexico, n 12) art 38, II, V. (40) Colombian Penal Code (Ley 599/2000, of 24 July 2000) arts 44, 52. (41) Constitution (Mexico, n 12) art 18. Art 19 also changes the conditions for pre-trial de­ tention in the case of organised crime and several other crimes. (42) Constitution (Peru, n 12) art 2, 24, f. (43) Constitution (Brazil, n 12) art 5, XLIII, XLII, and XLIV. Page 15 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights (44) Discussing this ‘set of constitutional provisions [which] seeks to alleviate the impact of imprisonment on the fundamental rights of the accused’, Dimoulis (n 17) 52–54 indi­ cates that these norms have effects in three directions: ‘impose upon the legislator the creation of concrete laws’, ‘direct commandments to state organs that act in the cases of imprisonment’ and permit verification of ‘the constitutionality of legal norms on the treat­ ment of prisoners’. (45) Ibid 117. (46) Constitutional Court of Colombia (6 November 1997) Ruling SU-559. (47) Libardo José Ariza, ‘La Prisión Ideal: Intervención Judicial y Reforma del Sistema Pen­ itenciario en Colombia’ in Daniel Bonila and Manuel Iturralde (eds), Haciaun Nuevo Dere­ cho Consitucional (Universidad de los Andes 2005) 283. The characterization of this fig­ ure appears in somewhat different terms in Garavito: ‘they affect a large number of peo­ ple’, ‘involve several state entities considered responsible for systematic failures of public policies’ and ‘imply complex orders of execution, through which the judge instructs sever­ al public entities to take coordinated actions to protect the entire affected population’: César Garavito, ‘Más Allá del Desplazamiento, o Cómo Superar un Estado de Cosas In­ constitucional’ in César Garavito (ed), Más Allá del Desplazamiento: Políticas, Derechos y Superación del Desplazamiento Forzado em Colombia (Ediciones Uniandes 2009) 431. (48) Garavito (n 47) 435. (49) Constitutional Court of Colombia, (28 April 1998), Ruling T-153/98. (50) Supreme Federal Court (9 September 2015) ADPF 347-MC. This particular judicial lawsuit is called ‘claim of non-compliance with a fundamental precept’. (51) I give my thanks to Professor Libardo José Ariza for drawing my attention to these ac­ tions, facilitating access to the available materials and for providing clarifications essen­ tial for understanding the two new decisions. As a matter of prudence, I will not venture to directly analyse the Colombian decisions; I rely, in this text, on the reflections pro­ duced by Professor Ariza and other Colombian legal experts who focused, in particular, on the 1998 ruling. (52) T-153 (n 49), 37. (53) ADPF 347 (n 50) 22, 26. (54) T-153 (n 49) 33–35. (55) ADPF 347 (n 50) 25–26. (56) T-153 (n 49) 70. (57) Ibid 37. (58) Ibid 72. Page 16 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022 Prisoners’ Rights (59) ADPF 347 (n 50) 26–27. (60) T-153 (n 49) 74. (61) Ibid 73. (62) Ibid 79–80. (63) ADPF 347 (n 50) 14–15. (64) ADPF 347, ‘Initial Submission’ (27 May 2015) 68. (65) Ibid 72. (66) ADPF 347 (n 50) 21. In the same sense, the Colombian Court: ‘The constitutional judge is obliged to take on the call of the forgotten minorities, that is, of those groups that scarcely have access to political organisms’: T-153 (n 49) 72. (67) ADPF 347 (n 50) 21. (68) Ariza (n 47) 312. (69) Ibid 313. (70) Ibid 284. (71) Uprimny e Guzmán (n 10) 157. Maíra Rocha Machado Maíra Rocha Machado, Associate Professor at the Law School of Fundação Getulio Vargas in São Paulo. Page 17 of 17 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 25 January 2022