Brazil: the vital work of the Public Defenders’ Office in a public health crisis

The Brazilian prison system has never been an example of good humanitarian practices, but the situation has deteriorated considerably in recent years. The overwhelming increase in the country’s prison population has contributed decisively to this situation: in three decades the number of inmates has jumped from 90,000 to 900,000. The main outcome of Brazil’s move to mass incarceration has been an increase in overcrowding. Penitentiary facilities are deficient by over 300,000 prison places.

The deterioration in prison conditions was a predictable outcome, given that Brazil’s prison system is 170% above official capacity. In thirty years, poor living standards in prisons have become a humanitarian disaster. Human rights violations of all kinds are found: terrible health conditions, insufficient provision of opportunities to work or study, violence, and water and food rationing, among other serious problems.

In addition to this humanitarian emergency, the health crisis presented by Covid-19 has also hit Brazil’s prisons.

Social distancing as the central means of containing the virus is incompatible with Brazilian prisons, where almost all cells are shared. The closed environment of prisons, in itself prone to spread the virus, further deteriorates due to specific conditions of Brazilian prison life: overcrowding, lack of essential professional staff and health programs, water rationing, and poor provision of sanitation and hygiene products.

This unfolding tragedy prompted the Public Defenders’ Office and human rights NGOs to demand that public bodies take effective measures to prevent the risk of death in prisons. However, unlike measures taken in other countries – such as early release for

people in at-risk groups, preventive health programs, or priority in vaccination – inertia prevailed in Brazil, even with regard to testing for Covid-19.

Brazil’s approach to managing the pandemic is widely seen as one of the worst worldwide, made even worse by the denialism spread by the Brazilian President.

As a matter of fact, denialism or downplaying the disease was the defining strategy of the government’s response to the coronavirus pandemic. Amongst other actions, we saw the blocking of preventive measures, the underreporting of epidemiological data, therapeutic treatments being encouraged without scientific validation, the lack of national health strategies and, for much of the time, efforts to discredit the vaccine. Denialism was applied in the same way to penitentiary facilities, where there was a lack of tests to detect the virus amongst the prison population, thus denying the urgency and severity of the problem.

In the absence of concrete measures from the executive and legislative branches, all applications for release or sentence review were handled by the courts – both in individual and collective cases. These applications were mainly put forward by the Public Defenders’ Office and were all based on Recommendation no. 62 [^reco] issued in March 2020 by the National Council of Justice (CNJ).

[^reco] : Recommendation n°62

This document, the only tool capable of addressing the risk of Covid in prisons, recommended that judges adopt preventive measures to curb the spread of the virus. The measures included the reassessment of preventive arrests and the granting of early release to people belonging to specific certain at-risk groups mentioned in the Recommendation.

Recommendation no. 62 seemed very promising at first; however, its weakness was soon clear – it had no binding effect, so it made no real impact on life in prison. Judges largely ignored the recommendation – with a few exceptions – and in fact, the prison population has increased during the pandemic. The Brazilian Supreme Court has in fact revoked a large number of release orders made under the CNJ Recommendation.

Most of these thousands of applications were based on habeas corpus claims filed by public defenders. These claims sometimes included collective habeas corpus

proceedings: for example, for elderly prisoners, pregnant women, and others who were at higher risk from Covid. Nevertheless, the Supreme Court has rejected the possibility of house arrest for such people. Brazilian courts have only granted applications for house arrest in a few exceptional cases

The Public Defender’s Office did not limit its struggle to seeking the release of people at higher risk from Covid. In São Paulo, the state housing almost one third of Brazil’s prison population, the Public Defenders’ Office has filed lawsuits to put in place teams of basic healthcare staff in prisons, and also to set up public telephones and to organize on-line visits. The Office also urged the Brazilian President to grant humanitarian pardons to people at high risk. Of all these demands, only on-line visits were implemented.

The Public Defender’s Office in São Paulo has also carried out monitoring inspections in several penitentiary facilities, often following complaints made by inmates’ family members. Twenty-one penitentiary facilities were inspected, and data collected from the first fourteen facilities revealed that:

a) the prison with the lowest overcrowding rate still had an occupancy rate of 122%; and the prison with the highest rate was 230% occupied;

b) 86% of the facilities were rationing the water supply; one of them did not supply water for five days;

c) hygiene and sanitation products were in short supply; and in 31% of prisons, inmates reported they had never received such products;

d) all facilities inspected were providing only three daily meals of low nutritional value. There is a 13-hour gap between meals from one day to the next;

e) poor health is widespread, and there is little lighting or ventilation in the cells;

f) no facility has a full healthcare team, and four of them do not receive doctors’ visits.

The Brazilian government is maintaining its denialism despite all these alarming findings. Due to the inertia of the country’s public bodies, the Public Defenders’ Office in São Paulo has brought a claim to the Inter-American Commission on Human Rights, in order to expose the reality of Brazilian prisons during the pandemic, and urge the Government to explain itself.

Taking this action at a regional level may improve prospects for change, although Brazil has already suffered embarrassment on the international stage for its handling of the pandemic. We are the worst example of pandemic management, both within and outside of penitentiary facilities. This situation has further entrenched pre-existing inequalities, and worsened human rights violations. Change is critically important, and ever more urgent. The Public Defenders’ Office will keep fighting for it.