Why the Temer "government" lacks the guts to address the prison crisis.

With or without a coup, one fact is certain: the crisis in the Brazilian prison system has been brewing for a long time and cannot be attributed exclusively to this "government" that took power after the cunning removal of the legitimately elected President, Dilma Vana Rousseff. But another fact is also undeniable: this "government" is not even minimally capable of dealing with this problem. The reason is simple: the crisis cannot be resolved "by force," as the thugs under the command of Alexandre Moraes want, nor through the oversight of prison administrators by judges, with powers supposedly delegated by the National Council of Justice (CNJ), as its president, Minister Carmen Lúcia, desires.

This is typical post-coup Brazil. When a crisis arises that causes public outrage, the proposed solution is simple: more "brute force," whether in the form of brutal violence or increased police power. Public policies? Forget about it! They dismiss them as "the work of wasteful and incompetent PT supporters." And no wonder! The agencies that could formulate these policies have either been dismantled or disempowered, with their resources allocated to other areas. Less state intervention can only lead to the inability of public management to prevent tragedies like those that took place in Amazonas and now in Roraima.

In this context, it is impossible to forget Mr. Alexandre Moraes's brilliant idea of ​​diverting resources from the penitentiary fund to the National Public Security Plan, defying a decision by the Supreme Federal Court in August 2015, which mandated the urgent application of these resources to put an end to the "state of unconstitutionality" prevailing in prisons. This purpose was, incidentally, reinforced on April 26, 2016, through a technical cooperation agreement between the National Council of Justice (CNJ) and the Ministry of Justice, signed respectively by the then President of the CNJ, Minister Ricardo Lewandowski, and the Minister of Justice at the time, who is the one writing to you now. According to the agreement, which is still in effect, the CNJ is responsible for endorsing any application of the penitentiary fund's resources through a technical note. There is no record of the oversight body having commented on the intended diversion of funds. But this is just a detail, like everything else in the "government" that has taken power. And perhaps the current President of the CNJ isn't even aware of this detail!

But let's get to it. The government's reaction to these two tragic episodes of administrative chaos in our prison system was shameful. Mr. Alexandre Moraes quickly found a way to distance himself from the cup of bloody red wine. He first blamed the government of Amazonas for the "accident" (Mr. Michel Temer insisted a lot on using this word) in Manaus and then, noting that the Anísio Jobim Penitentiary Complex (Compaj) there is managed by the obscure company "UmanizzareHe preferred to place the blame for the tragedy on the private sector. Of course, theUmanizzare"It reacted promptly, warning in a public statement that the security of the complex was not its contractual responsibility, which would be limited, broadly speaking, to "catering"Daily. Security, the company said, was the responsibility of the state executive. The governor of Amazonas, in turn, adopted a cynical tone. As if shrugging his shoulders, he declared that "there were no saints among the dead prisoners."

In the case of Roraima, the more or less bureaucratic treatment was the same. Curiously, not a peep was heard from the Special Secretariat for Human Rights, so eager to defend the freezing of budgetary resources for social investments for the next twenty years before the American Commission on Human Rights. There were references, by the Ministry of Justice, to resources that would be transferred to the states, destined for the construction of new penitentiaries, as if this would solve the pressing situation experienced by the system. The governor declared that she had requested, last November, the support of the federal government and the use of the National Force in Roraima, as a matter of urgency, to face the serious risks she was facing in the management of the local penitentiary system. Mr. Alexandre Moraes, once again, tried to distance himself and stated that nothing had been requested for the penitentiary system, but only for public security. What a disgrace! The governor was forced to make public her letter to Mr. Alexandre Moraes, as well as her negative written response (Notice No. 1636/2016-MJ). Lies have short legs, and Pinocchio's nose would suit the "Minister of [In]justice" well.

The attitude of those who insist on being our rulers, even without votes or societal support, is deplorable. And the cynical comment of the Amazonian governor is no less nauseating. To push responsibility onto others and not even be capable of an act of humanity towards the loved ones of the approximately ninety Brazilians murdered in Manaus and Roraima with the tacit approval of the established powers is an unparalleled act of cowardice. It is a true attitude of…hit and run"It's like a kid hitting someone else's car and running away. Public opinion is still waiting for a gesture of humility from the 'government,' acknowledging its fault and proposing compensation for the families. Or will they just let it go, like the kid who hits someone else's car? Will the families have to invoke the Inter-American Court of Human Rights, as in the case of Urso Branco, which had a much smaller impact? The 'government' should be reminded – and Ms. Flávia Piovesan, who accepted the position of head of the Special Secretariat for Human Rights, as well as the ambassador with thirty-one years of experience and many merits, Silvio Albuquerque, know this very well – that there is no need to exhaust domestic resources to provoke the Commission in Washington. The repetition of such tragedies with the same format and dynamics constitutes an abusive administrative practice on the part of Brazil, indicating that internal judicial and administrative channels are ineffective (Article 46 of the American Convention on Human Rights)."

Furthermore, it is worth reminding Mr. Alexandre Moraes that, from the point of view of the international responsibility of the Brazilian State, it is absolutely irrelevant whether the violation of rights enshrined in custom or in treaties originated from the central government or from agents of peripheral governments, such as states and municipalities. For the purpose of accountability, the State is a monolith, and its internal organization, whether unitary or federative, is irrelevant to international law. Here, the American Convention even contains an express clause: Article 28, paragraph (2), establishes that “[w]ith regard to provisions relating to matters within the competence of the entities comprising the federation, the national government shall immediately take the pertinent measures, in accordance with its constitution and laws, so that the competent authorities of said entities may adopt the appropriate provisions for the fulfillment of this Convention.” In other words: the federal government must turn around to make the states comply with the international obligations assumed by national diplomacy! Shifting the blame to the state government might ease the conscience of the head of the group that seized power in Brasília, but it's like trying to sweep the problem under the rug, as it solves nothing from a legal standpoint.

Regarding the cynicism of the governor of Amazonas, it doesn't even deserve comment. Mr. José Melo has adopted the language of a death squad. For him, a good criminal is a dead criminal. A state that makes the summary execution of defenseless people in its custody an instrument of crime control policy is more criminal than those it intends to punish, because it cowardly uses its monopoly of violence against those who cannot stand against it. It doesn't matter if a citizen has committed crimes or not: their dignity is not diminished because of it, and if they are in the hands of the state, the state is responsible for their safety. Being "saintly" or not is not a criterion for measuring the protection due to everyone. And José Melo, removed from office in January 2016 by the TRE-AM (Regional Electoral Court of Amazonas) for alleged vote buying in the 2014 elections and temporarily reinstated by the same court two months later, also doesn't seem to possess the sanctity required to cast the first stone at the prisoners murdered in the custody of the state he represents in Amazonas.

It's incredible that, in the 21st century, after thirteen years of inclusive democracy, such obvious things still need to be said. How we've regressed! How brutalized we've become! Not that serious riots haven't happened before and even during past democratic governments. But the response was different. No one tried to evade responsibility. Responsibility was promptly assumed. An agreement was reached in the Inter-American Court that kept the Urso Branco Penitentiary under observation for several years. Brazil became a party to the Optional Protocol to the Convention against Torture, created its domestic implementation mechanism, and submitted to the Subcommittee on Prevention of Torture. In short, democratic governments were aware of the scale of the problem and strove to align themselves with international standards for guaranteeing rights.

Not now. It's a bunch of timid, push-and-pull tactics, proving this "government's" inability to handle crises. They should acknowledge that they've destroyed the administrative machinery that could provide solutions. They talk about building more prisons, which sounds like childish rhetoric. Prisons aren't built overnight and, therefore, aren't an adequate response to the current urgency. Prisons are expensive to maintain, and the federal government can even transfer resources to the states for construction, but if it doesn't also transfer them for management, it's as if it's doing nothing. There are brand-new prisons in the country, ready and empty due to a lack of money to put them into operation. What we see is that, far more important than new units, is knowing how to manage existing ones. In this respect, we're in the Stone Age.

A prison cannot be a repository for poor, ugly, and forgotten people; it cannot be a settling tank for social filth. The State's duty is to prevent new crimes, and this is only possible with adequate treatment for those under investigation or convicted after being proven guilty "beyond a reasonable doubt." Adequate treatment should be understood as recovering lost opportunities to recognize these individuals with debts to justice as worthy citizens, teaching them a trade, providing them with a basic education, offering them the conditions to heal their emotional wounds, and above all, giving them a new chance afterward. Without public policies of social inclusion, these results will never be achieved.

The acute crisis in the prison system should be an opportunity to reflect on the kind of society we want. Factions, gangs, and criminal groups are instruments of a profitable parallel informal drug market, managed by those who have no chance in the formal market and, therefore, either get involved in crime or remain in their usual misery, with very meager and painful prospects for improvement. Of course, in every social group there are also those who are resigned to their miserable condition and, therefore, unwilling to resist; but there are also those who are dissatisfied, full of justified resentment and willing to "kick over the traces." Making them resigned "by force" does not solve the problem they suffer from and will always expose society to violent outbursts from some, increasingly numerous, who do not accept their condition. Will we do as ostriches do? Will we bury our heads in the sand and ignore this "human garbage"? To avoid being bothered, would we prefer to lock ourselves away behind high walls and high-voltage wires? The problem is that most Brazilians can't afford that luxury, nor can they even imagine driving around with their sweet-smelling children in armored cars or helicopters over urban centers. We need everyone to live in safety and with quality of life; otherwise, those truly imprisoned will be those who live outside the prisons, and these will be run by those who live inside them, running free and organized into factions, gangs, and criminal groups. No one will be able to change this situation without confronting it head-on.

The prison fund has the resources to initiate the turnaround. But let's not confuse prison policy with public security policy, because the former is much broader than the latter. We need prison managers, prison architecture that makes a reality of what is mandated by the Penal Execution Law, one of the most progressive in comparative law, but relegated to the condition of being "just a law." This cannot be done with judges from the National Council of Justice (CNJ) creating yet another instance of control over administrators, especially since there is no rule that allows the collegiate body to interfere in the activities of the Executive Branch or intervene in the jurisdiction of judges of the Penal Execution Courts. We cannot use the crisis to "take advantage" of it with loose and improvised opinions, further empowering this or that actor in the public service. 

The judicial and public prosecutor's offices are largely responsible, with their blind punitivism, for the tragedy that has long been looming: since prisons are not their concern, they continue to overcrowd them with "human garbage" until the system collapses. The solution to the crisis therefore presupposes a change in attitude from the bodies involved in criminal prosecution and jurisdiction, which lack a criminal policy that makes them prioritize certain offenses over others and not pretend to blindly obey the principle of mandatory prosecution, without distinction. They need to realize that their disregard for the issue can no longer be tolerated. The proportion of prisoners holding prisoner assistance who are 80% incarcerated is awaiting trial. To cope with their workload, they shouldn't hide behind the excuse that they are overburdened. Judges and members of the public prosecutor's office in Brazil, who are very well paid, do not have controlled working hours and do not always spend eight hours a day on their cases. Let's change their remuneration method and pay them based on productivity targets, and see if the cases wouldn't move faster! There's no doubt that this would change the work culture and align agents with guidelines from higher authorities, even as a means of cultivating procedural economy. They would cease to be mere luminaries and become effective parts of an articulated mechanism that offers citizens legal security.

It is obvious, however, that only a government legitimized by the vote can do all this, because the group that seized power lacks the backbone and substance to challenge, with authority, the sinecure environment within the judiciary. This is because many of them are no better than those who were murdered, yet, unlike them, they remain free and ensconced in high-ranking public positions, hoping that justice, at its snail's pace, will call them to pay for their sins. Until they are removed from their illegitimate position, they will continue to make excuses for their failure, resorting to the pure denial of... irresponsibility, the random suggestion of decorative measures, social prejudice against the incarcerated, or the bandit cynicism of those who believe that the dead are not saints.

^* Deputy Attorney General of the Republic and Adjunct Professor at the University of Brasília, he was Minister of Justice in the legitimate government of Dilma Vana Rousseff.