Currently, Brazil has the third largest imprisoned population in the world, with more than 770,000 people under State custody in approximately 2,600 prison units, most of which are in precarious conditions in regard to overcrowding, health, hygiene, water rationing and undernutrition. The sum of these factors exposes people to the proliferation of diseases such as tuberculosis, HIV, pneumonia, skin diseases, among others, not to mention the worsening of pre-existing diseases.

In 2015, the Supreme Federal Court recognised that Brazil is experiencing an “unconstitutional state of things” in its prison system. The current situation has been characterised as largely incompatible with the Federal Constitution, with serious violations of several fundamental precepts when considering the dignity of the human person, the prohibition of torture and inhuman treatment, the right to access to justice and the social rights to health, education, work and security of prisoners.

According to the data from December 2019 published by the National Penitentiary Department, the state of São Paulo represents approximately one-third of the total incarcerated population in Brazil. By analysing this microcosm, it is possible to understand these dynamics, which are extended throughout the national territory, a little better. In a data survey carried out by the National Council of Public Prosecution, it was observed that in 2018 there were 1,615 deaths of prisoners and 495 deaths were in São Paulo prisons.

With regard to female incarceration, the number of women has reached prison rates proportionally higher than the number of men imprisoned over the past two decades and it is strictly related to the punitive reinforcement of public security policies to fight against the drug trade.

Law no. 13,257, Legal Framework of Early Childhood (2016) expanded the possibilities of house arrest, determining that it be applied to women provisionally imprisoned when they are pregnant, mothers of up to twelve-year-old children, or whose sons and daughters are people with disabilities.

Then, in February 2018, the Federal Supreme Court (Superior Tribunal Federal, STF) ruled on collective Habeas Corpus No. 143,641, which guarantees the benefit of house arrest to women in pre-trial detention who fall under the Legal Framework criteria. Effectively, the decision establishes parameters for the interpretation of the law, aiming at harmonising judicial decisions and determining their mandatory application based on objective requirements, and their non-application must be justified.

In December 2018, the Law no. 13.769 / 18 was sanctioned, which also incorporates some points of the Federal Supreme Court’s decision and establishes, in the Criminal Procedure Code, objective criteria for substituting preventive detention for house arrest, as well as disciplining the regime for the execution of a sentence involving sentenced women in the same situation.

Due to the accumulation of knowledge on the subject of female incarceration, ITTC has several materials and researches published on the subject. In this sense, in 2019 the Institute released the report “Maternity Without Prison: Diagnosis of the application of the Legal Framework of Early Childhood” for the release of women, which sought to understand and identify what underlies the decisions of the criminal justice system in regard to the guarantees provided by the Legal Framework.

Through this research it was possible to observe that the judicial practices of application of the right to house arrest, the less they guarantee the full exercise of motherhood and the bond between mother and child and the more they reinforce punitiveness over women in conflict with the law based on different non-objective criteria. Such criteria actually question the destitution of the woman’s family power, attributing to her the position of a criminal and negligent mother.

Between December 2018 and December 2019, 6,357 women were preventively arrested in the state of São Paulo. Of this total, 3,168 are mothers, pregnant women or those responsible for people with disabilities. According to the responses obtained, of the total number of women who meet the requirements of the law, 915 remain provisionally imprisoned. This means that 29% of mothers, pregnant women or those responsible for people with disabilities had not the benefit of house arrest granted by the beginning of this year.

The Brazilian central region, made up of five female prison units, is where the largest number of potential women benefiting from the Legal Framework of Early Childhood is concentrated. Of the 1,435 women in custody, 78% fit the criteria, but 33% remain in prison.

Regarding final imprisonment, among the 15 female prison units in the state dedicated to the serving of time, 876 women under closed incarceration between December 2018 and December 2019 fulfilled the requirements for the progression of the regime established by Law no. 13.769/18. However, only 45% of the total number of prisoners had their rights applied in the same period. In other words, 480 women were kept under closed incarceration though having met all the criteria.

The Maternity Without Prison report collected a questionnaire applied by the State Public Defender’s Office during visits to the Franco da Rocha Provisional Female Detention Center, a form which contained a field for the woman herself to fill out indicating who would be responsible for her sons and daughters while she was in prison. The data show that “54.2% of the people responsible for the children during the mother’s absence are female subjects—mostly maternal or paternal grandmothers—, while only 19.6% of women indicated that a male subject, for example, the children’s own father, would be responsible for them. These numbers corroborate the understanding that care for dependent people is socially attributed to women.”

In addition to that, in 3.9% of the cases it was pointed out that sons and daughters are under the responsibility of the State, with records such as: shelter; institutional reception; tutelary council; and yet, deprived of freedom at a juvenile incarceration facility (Fundação Casa).

Through other research produced by ITTC, it is possible to observe that the profile of the female prison population represents mostly women responsible for the effective core and financial status of their families. Therefore, female incarceration affects the woman’s home by extending punishment to all people belonging to the family and the community around her.

In the information requests, prison units inspected by the Secretariat of Penitentiary Administration (SAP) were also asked whether the data collection of the arrested women contains matters related to maternity, as stipulated by the Legal Framework. Between December 2018 and December 2019, out of a total of 16 female prisons (one of which is exclusively dedicated to temporary imprisonment), 11 units said yes and 5 units did not respond.

Given the importance of data on maternity in the compliance with the law and the monitoring of specific conditions of women prisoners, the absence of data impairs the right to information and transparency of public bodies.

It is notable, in many ways, that the spread of the novel coronavirus around the world makes the prison environment increasingly challenging for the lives of those subjected to this space. According to the World Health Organization (WHO), the forms of transmission of the disease caused by the new coronavirus occur through the air, through droplets expelled through the mouth while speaking, sneezing or coughing, as well as through physical contact, such as handshakes and hugs and also by contact with unsanitised infected surfaces. Therefore, the best ways to prevent this virus are: constant hand sanitation, either with water and soap or alcohol gel, and social isolation in order to avoid agglomerations.

Therefore, contamination by COVID-19 in the entire Brazilian population can occur very easily, mainly due to health issues and access to financial resources, which prevent proper hygiene. Since, according to 2017 data from ABCON and SINDCON, only 52% of Brazilians have access to basic sanitation and 17% do not have access to drinking water, in penitentiaries across the country the scenario is no different.

Given this, some factors are even more visible. Despite the number of deaths attested by COVID-19 being underreported, for example, until May 2020, only 0.09% of the incarcerated people were tested for the virus due to the absence of a specific test, Brazil ranks fourth in number of deaths by COVID-19 in the prison system.

The National Council of Justice, in compliance with the recommendations of WHO and observing the existence of risk groups in the prison population, drew up the Recommendation 62/2020, which lists decarceration measures to prevent damage and guarantee the rights of prisoners and family members.

Although the National Council’s Recommendations are not binding, the Federal Supreme Court proclaimed that they should be observed by judges. Also, the Ministries of Health, Justice and Public Security resolved in an Ordinance on the mandatory compliance with measures to combat the pandemic. However, the scenario shows not only the failure to follow the recommended measures, but the actual increase of the incarcerated population.

In São Paulo, judicial decisions reaffirm imprisonment as the current punitive mode, exposing people to degrading and cruel penalties, as well as to a great risk of COVID-19 infection. In addition, the Criminal Procedure Code defines as a crime in its articles 132 “to expose the life or health of others to direct and imminent danger” and 267 “to cause an epidemic, through the spread of pathogenic germs”, externalising the concern and the responsibility for the spread of disease and the exposure of others to it.

Contrary to the recommendations, the Penitentiary Administration Secretariat computed that, of the 77 male prisons, 44 had an increase in the number of prisoners during the pandemic period.

Among the incarcerated population, approximately 11,500 are women and make up, in large part, imprisonments that could be replaced by other less harmful measures. Therefore, the freedom and the guarantee of the rights of mothers and pregnant women is an overwhelming need even prior to a global pandemic occurrence and it is even more urgent at this moment.

At the international level, there has been a growing concern with the protection of the fundamental rights of people deprived of their liberty due to the potential massacre caused, in prisons, by COVID-19. In March, WHO published a manual containing measures to combat coronavirus in prisons, in which it recommended member states to adopt alternative measures to deprivation of liberty to contain the tragedy announced in the prison system. The organisation’s positioning took place after the collective provocation of over 50 European social organizations.

In that sense, on April 10, the Inter-American Commission on Human Rights (IACHR) adopted the Resolution No. 1/20 recommending states in the North American continent to adopt measures to reduce the overcrowding of prison units. In addition, it determined that preventive prisons should be revaluated so that they can be converted into alternative sentences to freedom whenever possible, prioritising those most at risk of contagion, such as the elderly and pregnant or lactating women.

Also, the Commission praised the Resolution No. 62/2020 of the National Justice Council (Conselho Nacional de Justiça, CNJ), reinforcing that decarceration measures are adopted by Brazil through the implementation of penalties under open regime for pregnant women, lactating women, mothers or persons responsible for children up to twelve years old or for people with disabilities and other groups of risk. Going further, the Commission recognised the importance of reassessing preventive arrests that exceed 90 days.

In view of these determinations and aware of the importance of preserving life, on 7 May, Bolivia published the Presidential Decree No. 4226 of 2020, with an indispensable look into the situation of women prisoners. Amnesty and pardon were granted to all pregnant and lactating women in the country, as well as to people who had, under their unique and exclusive care, one or more sons or daughters under the age of 6, in addition to others at special risk.

In this drastic conjunctural situation that we have been facing, decarceration practices like these have been implemented in several countries around the world. Brazil, however, has been totally against the grain: every day the number of deaths in prisons has increased.

Several violations against women prisoners have been reported. In this scenario, they become even more conspicuous and potentially fatal. We reiterate the need for alternative measures to imprisonment for all those who are in the list of possibilities of the Legal Framework. According to the technical note of the National Penitentiary Department No. 17/2020, measures that guarantee rights to health, work, leisure and study must be guaranteed immediately.

Under all that has been exposed and acknowledging the high lethality of the novel coronavirus, if the Government fails to comply with urgent and effective measures, in particular, the release of people who are at risk, the number of infected individuals and deaths will continue to increase vertiginously over the next few months and it will blatantly show, now more than ever, that the lives of people in prison do not matter.