Fear is a major motivator in a movement in the Brazilian Congress
to change federal laws and
allow children to be sentenced
to adult prison starting at 16 years of age. Such a change,
according to
several experts, would be a losing situation.
by:
Heidi Cerneka
"Adolescent perpetrators of crime have a free license to kill." This was the inflammatory headline of an article written
by an appeals court judge in defense of a movement to lower the age at which adolescents could be tried in an
adult court for any crimes they commit from 18 to 16 years. An ongoing discussion about this reduction of the age limit for
trying youth in adult courts has been heating up in the last three years as hundreds of non-governmental organizations,
human rights committees of local, state and federal congresses, and church organizations continue to defend the rights of
minors as defined in the Statute for the Child and Adolescent.
In July of 1990, the Federal Government passed a law called the "Statute for the Child and Adolescent" (Estatuto da
Criança e do Adolescente or ECA), which defends the rights and defines the needs of children under the age of 18. Article 4 of
ECA, which includes aspects of the Federal Constitution of 1988 (article 227), defines as the responsibility of all—family,
society and government—to secure the fundamental rights of children and adolescents as an absolute priority, including the
rights to life, health, alimentation, education, recreation, professional formation, culture, dignity, respect, liberty and the right
to live with one s family and in one’s own community. In addition, the law protects the youth from being put at risk of
negligence, discrimination, exploitation, violence, cruelty and oppression.
With this Article 227 as a background, one can better understand the specifics of Article 228 of the Federal
Constitution. A minor, with less than 18 years of age, has a fundamental and therefore irrevocable right to not be involved as a
defendant in criminal processes of any kind.
It is clear that fear is a major motivator in this movement in Congress to change federal laws and allow youth of 16
years to be sentenced to adult prison . It is a tragedy that those who are pushing these laws cannot trust in the laws of their
own country and application of them. From a legal point of view, the Federal Constitution, the Statute for Children and
Adolescents, and International Convention for the Rights of Children and Adolescents (a United Nations agreement signed by Brazil
in 1990) all define the importance of Public Policy to defend the rights of minors.
Those who defend the rights of minors to not be sentenced to adult prisons point out that this Article of the
Federal Constitution cannot be changed simply by an act of Congress, or replaced simply by another law. They see it as one of
the pétreo (set in stone) articles of the Constitution that would need a constitutional assembly to change. And, the
Federal Constitution recognizes that "the rights and guarantees expressed in this Constitution do not exclude others, ….
including any international treaties that the Federal Republic of Brazil has signed" (including UN documents).
Beyond being a legal question, of whether it is even possible to change the Constitution and ECA, this movement
of organizations—governmental, non-governmental and religious—clearly argues that sending minors to adult prisons is a
losing situation. The reduction of the age limit at which a minor can be prosecuted as an adult clearly focuses the concerns of a
society saturated with violence on the youth and adolescents, when statistics show that minors are responsible for only 10
percent of all crimes, and the majority are non-violent crimes.
The state of São Paulo built 24 new prison facilities in 2001 and last year received almost US$ 30 million in federal
funds to build more prisons. Despite all of this, violence has increased rather than decreased in the state. The building of
prisons cannot keep up with the numbers of people arrested. Building new prisons, and sentencing minors to them along with
adults only attempts to re-route the focus of society about the questions of violence.
Clearly, until some of the primary causes of violence are addressed—20 percent unemployment in the city of São
Paulo, inhumane salaries, a strong marketing force that convinces people they need products that are far beyond their
purchasing capacity, weak social policies, corruption that cuts across all levels of public power, and the abandonment of the
education system by the State—violence will continue to torment society at alarming levels.
As one public prosecutor wrote, "You cannot expect any other result in a country with an abysmal distribution of
wealth, where there is an absurd concentration of wealth in the hands of a very few, and the majority of the population lives
marginalized, in other words, unable to benefit from the riches produced by the country….You cannot expect any other result in a
country rocked by misery, hunger, unemployment, where a great majority of youth have no access to recreational activities,
culture, sports, and have way too much unoccupied time."
Hell Jails
A document distributed by Judges for Democracy" (Juízes pela Democracia) asks the obvious question, "Do we
want to address the infractions of our youth with vengeful-repressive measures, or do we choose to adopt an educational
perspective?"
Prison in Brazil are consistently denounced for torture, for overcrowding (more than 30 men being held in cells
constructed for 4, for example), for violence, corruption and a complete lack of any resources to benefit the resocialization of
prisoners. While one cannot juridically justify not reducing the legal age limit simply because of the abysmal conditions in the
prisons, the possibility of knowingly sending youth (or for that matter adults) into this hell is also unacceptable.
Perhaps the most important argument against the reduction of the age limit is the Statute for Children and
Adolescents itself. ECA does not propose impunity for minors, as those who defend the reduction of the age limit suggest. ECA, in
fact, holds adolescents responsible for their crimes by invoking one of six social-educational measures, depending on the
seriousness of the infraction, whether it is a repeat offense and whether the youth poses a threat to society.
The consequences range from an official warning to "assisted freedom" (similar to parole) to detention. However,
ECA provides for accompaniment by educators and social workers so that each of these measures has, as an objective, both
the education of the individual and prevention of further infractions.
Clearly, the system for youth and adolescents is also far from perfect, and has been the subject of numerous reports
and denouncements in recent years, but the Statute for Children and Adolescents provides for an effective means of
working with youth exactly so they do not become one more statistic in the adult prison system. At least 47 percent of former
prison inmates return to prison at least one time in their lives. As problematic as the youth detention system is, the percentage
of repeat offenses is only 7.5 percent, which suggests that this system is at least more effective than adult jails and prisons.
In conclusion, the manifesto against the reduction of the penal age limit written by Judges for Democracy states, "In
the beginning of the 21st century, we continue to dream of a Brazil that can be the Country of the Future. That future can
only become a reality when there is a real investment in the education and development of our youth."
Sources: Juízes para a Democracia, Jan./Mar. 2001; Constitution of the Federal Republic of Brazil, 1988
This article has originally appeared in News from Brazil, a newsletter from SEJUP (Serviço Brasileiro de Justiça e Paz).
Heidi Cerneka, the author, works in Prison Ministry in São Paulo. You can reach her sending your email to
sejup@alternex.com.br
