Brazzil
March 2001
Politics
The past few weeks have offered Brazilians a chance to put some thought into a serious, decades-old distortion in the country's legal and penal systems. Created in 1941, it guarantees the distance between haves and have-nots, which characterizes Brazilian society, is maintained even in prison. For it does just that: guarantee special status for anyone who ends up in jail but has a university diploma, or meets several other criteria that in the end, spell "upper echelon".
For decades, this disturbing, backward aspect of Brazilian law went virtually unchallenged. Accepted by police, the judiciary and the public as normal procedure, it was seldom openly discussed, let alone seriously questioned. But it became a topic of debate among legal specialists and society in general, following the arrest last December of the most wanted man in Brazil in recent years—former Labor Judge Nicolau dos Santos Neto. He stands accused of orchestrating the siphoning of $90 million in public funds from the construction of a new labor courts headquarters in São Paulo—a project he supervised. Preliminary hearings leading to his trial are now under way.
As a retired judge and former occupant of a senior post, Judge Nicolau was entitled to "Prisão Especial", as the privilege is known. After eight months on the run from police in Brazil and abroad—a time federal prosecutors say the Judge and his associates spent shifting the stolen millions between numerous accounts in the U.S., the Caribbean and Europe, to keep the cash out of reach of investigators—his lawyers negotiated a surrender to Federal Police.
Terms are said to have included several guarantees: as a prisoner, he would not be subjected to public humiliation (meaning police would not parade him in front of TV cameras as is usually the case with "regular" prisoners), nor would the Judge have to wear handcuffs (again, too humiliating…), and of course, his right to special status would be respected. He would be kept in proper quarters, as called for in the law.
The people who created "Prisão Especial" obviously believed that if an exception is going to be written into law, it might as well go all the way. The law is aimed at periods when a person is in custody prior to the conclusion of a trial. If the person is found guilty, the privilege ends and the inmate joins the tens of thousands who inhabit the modern-day dungeons that most prisons in Brazil closely resemble. Terms of the law written sixty years ago also indicate that dungeon-like conditions are not a new phenomenon in the Brazilian prison system—the law was clearly an attempt to spare the elite who happened to get caught, from the sub-human realities of penal institutions. Most are desperately overcrowded, poorly built and managed, corruption-filled powder kegs where attempted breakouts and deadly rebellions happen frequently. In 1941, as in 2001, Brazil's prisons are no place for university-educated raiders of public funds or other white-collar types who go astray, really…
Higher education however is just a detail. The decree says "Prisão Especial" must be available for federal cabinet members, state governors and secretaries, mayors, city councilors, chiefs of police, state and federal legislators, armed forces and police officers, judges, and anyone who has ever served on a jury. It also specifies that special inmates must have "adequate" quarters, unlimited access to legal assistance, unrestricted visits from friends and relatives, uncensored mail, religious assistance when possible and medical assistance when necessary.
The inmate is guaranteed the right to regular sunshine, does not need to wear a prison uniform, and does not need to eat what other prisoners are served—relatives are allowed to bring outside food. Transportation to hearings and court appearances must also be "different" from that afforded "regular" prisoners—this is widely understood in Brazil, but needs explaining to readers abroad: "regular" prisoners are usually thrown in the back of police wagons, in a trunk-like compartment without seats. "Different" in this case simply means special prisoners get to use a seat in the vehicle.
None of these details escaped Judge Nicolau's lawyers, and they demanded that each detail of his custody match what is specified in the law. Temporary basement holding cells at the Federal Police custody house in São Paulo were deemed "inappropriate", so a room was set up for the Judge in the second floor. It included a bed, a couch, no bars on the door or window, a TV set and a video cassette player. Still not good enough lawyers said, and they complained to a federal judge who agreed and ordered Judge Nicolau moved to "proper" quarters. That was when the limit was reached, and the debate over the very existence of special status truly began: as it turns out, there are no holding cells anywhere in São Paulo, Brazil's largest city, that meet legal requirements for "Prisão Especial".
Judge Nicolau was actually moved to what the São Paulo police consider to be special holding cells, at the 77th Police Precinct in a central part of the city. Once lawyers had a look at what police say are "the best cells available", reserved for "special prisoners", they obtained a new court order sending Judge Nicolau back to his inadequate but cozy second floor room at the Federal Policy custody house.
I had a chance to visit the exact cell which Judge Nicolau shared for a single night with a lawyer accused of stealing court documents, and a journalist who confessed to the shooting death of his girlfriend—both awaiting trial. This "special" cell amounts to a hole in the wall—no more than 15 square meters of bare cement shared by four, sometimes five inmates who sleep on foam mattresses on the floor. A functioning shower is the main amenity, and there is definitely no sunshine to be had…
All of this has been taking place as Judge Nicolau's alleged doings with millions in taxpayer money have been extensively detailed in the Brazilian media. His trial hasn't even begun, but he has already gone from most wanted to most despised person in Brazil. Whenever the Judge is transported anywhere, there's a media frenzy and crowds gather to shout obscenities. And things can only get worse for the Judge: his lawyers continue to go on television to complain about his inadequate imprisonment, and calling on the courts to allow Judge Nicolau to wait for his trial at home "since there are no cells that meet legal requirements for special prisoners".
With the public becoming increasingly outraged at the situation involving the Judge, a laborious Justice Ministry official introduced a new twist in the past week. After digging through old files, he found that the government decree specifying the special status details Judge Nicolau's lawyers have been fighting so hard for, was revoked in 1991 during a bit of housecleaning—ironically, by then-president Fernando Collor de Mello, himself driven from the presidency because of a massive corruption scandal. In other words, for a decade now, "Prisão Especial" has continued to exist, even though there is no valid law detailing what it involves.
Justice Minister José Gregori has proposed new legislation to specify just what special status means, and because of pressure over the ongoing Judge Nicolau affair, it will likely mean a whole lot less than has been the case until now. As he advanced a few details, Gregori revealed that "Prisão Especial" in its new version will include three basic points: the prisoner will be held separate from convicted inmates, will be guaranteed an environment "adequate for human existence", and will not be transported together with regular prisoners. According to the Justice Minister, "unjustifiable privileges" will be eliminated.
It is unfortunate that Gregori did not see fit to take this opportunity and do away with any kind of special status in Brazil. He might have listened to the advice of Carlos Velloso, the presiding judge at Brazil's Supreme Court, who said special status in prison is in itself an unjustifiable privilege, "because it defies the constitutional principle of equality, which is the basis of the Republic". Velloso then suggested that Brazil look at prisons in the broader sense: "It is necessary to build new prisons, and improve existing ones". A very diplomatic way of reminding the government that Brazil's prison system is simply disastrous, and that guaranteeing a better deal for a selected few is no solution at all.
There is, however, a silver lining in this cloud, and it's an important one. In recent years, several high-profile prisoners benefited from special status, and that gradually helped to alert Brazilians to this outrageous piece of pure discrimination. Every time a politician or prominent business personality received special treatment in jail, it raised eyebrows. The positive aspect is that a dent, however small, is being made on Brazil's tradition of impunity: more and more, the rich and powerful are being taken to task.
Judge Nicolau and his lawyers went a step further, actually complaining and demanding more, and that may prove to be the total undoing of "Prisão Especial". There is every indication the government wants to redefine it quickly, and officials have already said that whatever it calls for in its new version will be applied immediately to Judge Nicolau.
Adhemar Altieri is a veteran with major news outlets in Brazil, Canada and the United States. He holds a Master's Degree in Journalism from Northwestern University in Evanston, Illinois, and spent ten years with CBS News reporting from Canada and Brazil. Altieri is a member of the Virtual Intelligence Community, formed by The Greenfield Consulting Group to identify future trends for Latin America. He is also the editor of InfoBrazil (http://www.infobrazil.com), an English-language weekly e-zine with analysis and opinions on Brazilian politics and economy. You can reach the author at editors@infobrazil.com