End of special prison for graduates is democratization of prison hell – 01/04/2023

In a unanimous decision, the ministers of the Federal Supreme Court ended the special prison for graduates. The hierarchy of prisons is one of the greatest social inequities in Brazil. It makes no sense that a poor young man caught with a small amount of drugs is stuck in an overcrowded cell and a journalist, doctor, engineer or any subject with a higher education commits murder and goes to a space called “special prison”.

Until the final conviction, notes the Code of Criminal Procedure, the graduated prisoner will be provisionally collected in a different place from common prisoners. The law qualifies the cell of the privileged. He informs that it needs to meet the “salubrity requirements of the environment, due to the competition of factors of aeration, sunlight and thermal conditioning suitable for human existence”.

The privilege of special cane, now considered unconstitutional by the Supreme Court, was instituted in 1937, under the dictatorial regime of Getúlio Vargas. Since then, legislative patches have been passed that have refined the anomaly. But in 86 years, no parliamentarian has emerged capable of presenting a proposal that would eliminate the idea that common prisoners are unworthy in the eyes of the State. A bill with two articles would suffice:

Article 1: All persons who are arrested shall be entitled to special imprisonment.

Article 2: All provisions to the contrary are hereby revoked.

As is known, all Brazilian prisons operate in a chronic state of unconstitutionality. The differentiation of the delinquent by his social origin, not by the quality of the crime, would be an excrescence in any time and place. In a country like Brazil, where chains remain in the Middle Ages, the absurd becomes heinous. In the “ordinary” cane, there are prisoners sleeping piled up. Or standing, tied to the bars.

The action that resulted in the extinction of the special prison for graduates was filed by the Attorney General’s Office in 2015, under the management of Rodrigo Janot. Rapporteur of the process, Minister Alexandre de Moraes highlighted the obvious in his vote:

“Just the fact that the separate cell is not overcrowded is already a circumstance that, in itself, entails better conditions of confinement for the beneficiaries of this right, when compared to the spaces allocated to the prison population in general — which, as is known, consists of a very serious problem in our country, which can extrapolate by up to four times the number of vacancies available.”

Moraes hit the bull’s eye in two parts of the winning vote. In one, he noted: “Although the current Brazilian reality already disallows the association between a bachelor’s degree and political prestige, the fact is that obtaining an academic title is still something inaccessible for the majority of the Brazilian population. The extension of special prison to these people characterizes a true privilege which, ultimately, materializes social inequality and the selective bias of criminal law, and harms the fundamental precept of the Constitution that ensures equality among all in the law and before the law”.

In another section, the minister wrote: “I don’t think there is any reasonable justification, in the light of the Constitution of the Republic, that is able to support the distinction of treatment for people subjected to precautionary imprisonment, by the State, based on the level of academic education, in the case of a mere qualification of a strictly personal nature that, by itself, does not impose the segregation of living with other inmates.”

Moraes recalled in his vote that law 10,258, enacted in 2001, maintained in the Code of Criminal Procedure the possibility that beneficiaries of special imprisonment be detained in military barracks, with an infinitely better structure than ordinary prisons. This type of environment is called a “staff room”—a guesthouse that includes a private bathroom, clean bedding, decent food, and daily sunbathing.

The list of delinquents who “will be taken to barracks or special prison, available to the competent authority, when subject to arrest before final conviction is available in article 295 of the Code of Criminal Procedure. The list of caste members is reproduced below:

1) Ministers of State;

2) Governors or intervenors of States or Territories, municipal mayors, councilors and chiefs of Police;

3) Members of the National Parliament, the National Economy Council and the State Legislative Assemblies;

4) Citizens registered in the “Book of Merit”;

5) The officers of the Armed Forces and the military of the States, the Federal District and the Territories;

6) The magistrates;

7) Graduates from any of the higher faculties of the Republic;

8) Ministers of religious confession;

9) Ministers of the Court of Auditors;

10) Citizens who have already effectively exercised the role of jury.

11) The police chiefs and civil guards of the States and Territories, active and inactive.

Taking the thesis of the unconstitutionality of special cane to its ultimate consequences, Brazil can achieve the democratization of prison hell. If the universalization of access to the debacle of penitentiaries is followed by the end of impunity, well-born and well-off Brazilians will soon be taking up arms for the improvement of prison conditions.

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