SAMFORD UNIVERSITY CUMBERLAND SCHOOL OF LAW MASTER IN COMPARATIVE LAW PROGRAM

SAMFORD UNIVERSITY

CUMBERLAND SCHOOL OF LAW

MASTER IN COMPARATIVE LAW PROGRAM

PROFESSOR M. FLOYD

THE RELEASE OF PRISONERS AS A REMEDY TO THE CRISIS IN MASS

INCARCERATION: A COMPARATIVE STUDY BETWEEN JUDICIAL DECISIONS IN

THE UNITED STATES AND BRAZIL

GUSTAVO CÂMARA CORTE REAL

BIRMINGHAM – ALABAMA

2012

Cumberland School of Law The Release of Prisoners as a Remedy to the Crisis in Mass Incarceration

2

TABLE OF CONTENTS

I) Introduction……………………………………………………………………….………… 3

II) A brief history of mass incarceration ……………………….……………………………… 3

A) The United States mass imprisonment current crisis: origins and possible

causes………………………………….………………..…………………..………….. 3

B) The Brazilian penitentiary system and the issue of prison

overcrowding…………………………………………………………………………... 5

III) The release of prisoners in compliance with the Eighth Amendment’s Cruel and Unusual

Punishments Clause of the United States Constitution and the Brazilian Federal Constitution’s

Principle of Human Dignity …………………..……………………………………..…….….. 7

A) The United States Constitution Eight Amendment’s Cruel and Unusual Punishments

Clause ……………………………………………...………………………………… 8

B) The Principle of the Dignity of the Human Person in the 1988 Brazilian Federal

Constitution………...…………………………………………………….……….…... 11

IV) A comparative analysis of recent court decisions in the United States and Brazil………. 14

A) Decisions in the United States concerning the release of prisoners as a remedy for

overcrowding ………………………….…………………..………..………………... 14

B) Brazilian decisions determining the release of prisoners or change in prison

conditions for failure to comply with minimum standards required by the Brazilian

Federal Constitution ………..……………………………….…..……..…..…………. 20

C) Competing dignities in both systems……….………………....……..…..………... 23

V) Conclusion………................................…………………….………………..…………..... 27

VI) Bibliography……………………………………….……………….……..……………… 28


3

I) INTRODUCTION

The purpose of this study is to analyze the current phenomenon of mass

incarceration experienced by The United States and Brazil. Particularly judicial decisions

ordering the release of prisoners as a remedy to circumvent the crisis.

Firstly, it will be necessary to address how this system of punishment led to a crisis

of mass incarceration in both countries. Constitutional principles associated to possible

violations of prisoner’s rights are mentioned to illustrate how both countries approach the issue

legally.

The subject under discussion has gained considerable importance after 2011, when

the Supreme Court of the United States maintained a decision held by the United States Court

of Appeals for the Ninth Circuit, ordering the release of inmates in California prisons because

of overcrowding. Similarly, in 2010 the Brazilian Supreme Court decided that prisoners could

not be exposed to conditions of imprisonment more burdensome than those contained in his

sentencing decree.

At last, it is imperative to analyze the key judicial decisions taken by both Supreme

Courts, specifically the reasons and points of convergence between the two countries. It will be

emphasized the principle of human dignity and the discussion whether such theory could apply

to protect non-enumerated rights with correlation with a statistical, sociological and

constitutional aspects developed in this paper.

II) A BRIEF HISTORY OF MASS INCARCERATION

A) The United States mass imprisonment current crisis: origins and possible

causes.

David Garland (2001) defines the concept of mass imprisonment as the institution

that has emerged in the United States over the past two decades, being a phenomenon of the


4

twenty first century that confined more than 2,000,000 Americans1. The same author claims

that imprisonment becomes mass imprisonment “when it ceases to be the incarceration of

individual offenders and becomes the systematic imprisonment of whole groups of the

population2”.

Currently the United States has approximately a quarter of the world inmate’s

population, followed by Russia3. David Garland (2001) describes that for most of the twentieth

century, the America’s rate of imprisonment oscillated around a stable mean of 110 per

110,000 inhabitants and since 1973 such percentage is been increasing significantly4. In

accordance with the Bureau of Justice Statistics of the United States Department of Justice, at

year-end 2010 the incarceration rate in the United States was 731 adults incarcerated per

100,000 population5.

The existing model of imprisonment is based in the warehouse system. It consists

in moderns buildings, with heavy usage of electronic technology in order to control pods built

far from the cities and marked by the absence of a possible rehabilitation of prisoners6. It

emphasis on disciplinary rules instead of therapy or education. The libraries contain basically

law material and religion is practiced only as a personal preference and constitutional right, not

as a program offered by the state7. A fractionated system using race as the main form of

identification is the new convict ideal8.

The structure of prisons today reflects and explains the very causes of the

significant increase of its population in the last decades. Ruth Wilson Gilmore (2007) proposes 1 As mentioned by the author: “an unprecedented event in the history of the USA and, more generally, in the history of liberal democracy.” at David Garland, ed., Mass Imprisonment: Social Causes and Consequences 1, (Sage Publications ed., 2001). 2 David Garland, ed., supra at 1. 3 Alfred Blumstein, The Roots of Punitiveness in a Democracy, Journal of Scandanavian Studies in Criminology and Crime Prevention 8 (Suppl. I), 4 (2007). 4 David Garland, ed., supra at 1. 5Also, the total correctional population in the United States at the end of 2010 was 7,076,200, with 2,266,800 incarcerated. at Lauren E. Glaze, Correctional Populations in the United States, 2010 (Jun. 3, 2012, 09:13AM), http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf. 6 John Irwin, The Warehouse Prison: Disposal of the New Dangerous Class 58, (Roxbury Public Company ed., 2004). 7 Id. at 58-60. 8 John Irwin (1980) describes the “contemporary prison”: “The prisoners are divided by extreme differences, distrust, and hatred. Nonwhites, especially blacks, Chicanos, and Puerto Ricans, have risen in numbers and prominence. A multitude of criminal types - dope fiends, pimps, bikers, street gang members, and very few old-time thieves - assert themselves and compete for power and respect.” at John Irwin, Prison in Turmoil 181, (Little Brown ed., 1980).


5

three basics explanations: firstly, the “catapulting of crime to public anxiety”, even when other

issues of great social impact could receive the same level of prominence, such as

unemployment and economic recession. The Author (Gilmore 2007) also points out that

according to statistics published by the Bureau of Justice Statistics, the general crime rate in

the United States is decreasing considerably9. Secondly, the declared war on drugs and the

presumed threat to public safety. In this point she adds as well that illegal drug use among all

kinds of consumers throughout the Unites States declined significantly in recent years10. At

last, the structural changes in employment opportunities, “which left a substantial number of

people challenged to find new income sources, and many have turned to what one pundit called

illegal entitlements”11.

Therefore, a sentencing viewpoint that takes the determinate system as its principal

method invariably leads to a large prisoner’s population. It leaves almost no chance for

rehabilitation and consequentially release before completing the minimum period of

incarceration. Furthermore, statutes similar to the “Three Strikes Laws”12 would also increase

incarceration rate, together with the high rates of parole and probation revocation, as well as

with the virtual abolition of parole in some States13.

B) The Brazilian penitentiary system and the issue of prison overcrowding.

The current rate of imprisonment in Brazil is 269.38 incarcerated per 100,000

population14 . Although statistics show a lower incarcerate rate than the United States,

9 RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND OPPOSITION IN GLOBALIZING CALIFORNIA 17-18 (University of California Press ed., 2007). 10 Id. at 19; BRUCE WESTERN AND BECKY PETTIT, BEYOND CRIME AND PUNISHMENT: PRISONS AND INEQUALITY 41, (Contexts ed., 2002). 11 Gilmore (2007), supra at 19. David Garland (2001) also suggests three other aspects that may be considered as catalysts for the mass incarceration phenomenon: (a) sentencing law policies that changed from indeterminacy to determinacy; (b) enhanced sentence as the “three strikes law” statutes, largely applied in the United States; and (c) high rates of probation and parole revocation, at David Garland, ed. (2001), supra at 5-6. 12 The “Three Strikes Laws” are a series of states statutes that oblige the state courts to impose a life sentence to individuals who have been condemned of three or more severe criminal transgressions at Tom R. Tyler and Robert J. Boeckmann, Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers 31:2 LAW & SOC'Y REV., 238 (1997). 13 James Austin, Prisoner Reentry: Current Trends, Practices, And Issues 47:3 CRIME & DELINQUENCY, 315 (July 2001). 14 Ministry of Justice, Brazil, Consolidated Data 2011, (Jun. 3, 2012, 10:56AM), http://portal.mj.gov.br/data/Pages/ MJD574E9CEITEMIDC37B2AE94C6840068B1624D28407509CPTBRIE.htm.


6

conditions in the correctional facilities in Brazil is considered one of the worst in the world15.

In the present day there are 1,237 correctional facilities in the country, with an inmate’s

population of 513,802 and 304,702 available vacancies16. Such data demonstrates that the

system is overcrowded approximately by 40% in the relation prison’s population/vacancies.

During the eighteenth and nineteenth centuries, sentences in Brazil still followed

the pattern of torture. Severe corporal punishment and cruel public executions were common,

using the rites practiced in Europe, with no particular difference in method of enforcement of

criminal law and penal codes17. The introduction of the first Brazilian Criminal Code in 1830,

heavily influenced by Enlightenment ideals coming from Europe, eliminated the death penalty

for political crimes; the individualization of punishment; determined the consideration of

mitigating and aggravating factors in accordance with the defendant individuality; and

established a special procedure for defendants under the age of 14 years18. The Criminal Code

currently in force in the country was sanctioned in 194219.

The Brazilian penitentiary system was distinct by an evolution similar to the United

States. Initially with the elimination of corporal and cruel punishment and later with the

introduction of correction houses, which aimed to recover through the scientific method. Only

in 1984 the Brazilian parliament passed a specific law for the enforcement of sentences,

determining the rights and duties of prisoners, such as family visits and medical care20.

Among the possible causes of overcrowding in the Brazilian penitentiary system,

which differs from the causes already mentioned above, it could be pointed out: (a) a 15 Rafael Damaceno de Assis, A Realidade Atual do Sistema Prisional Brasileiro, 74 CENTRO DE ESTUDOS JURÍDICOS DE BRASÍLIA 39 (2007) (Br.), (Jun. 5, 2012, 23:45PM), http://www2.cjf.jus.br/ojs2/index.php/cej/article/viewFile/949/1122. Also, according to the international organization Human Rights Watch, “Brazil’s prisons and jails are plagued by inhumane conditions, violence, and severe overcrowding … The use of torture is a chronic problem within the penitentiary system. A report by the multiparty National Parliamentary Commission of Inquiry on the Penitentiary System concluded that the national detention system is plagued by ‘physical and psychological torture’ ” at Human Rights Watch, Country summary: Brazil Reports (January 2011), (Jun. 5, 2012, 00:17AM), http://www.hrw.org/sites/default/files/related_material/brazil_0.pdf. 16 See Ministry of Justice, Brazil, Consolidated Data 2011, Supra note 14. 17 FERNANDO SALLAS, AS PRISÕES EM SÃO PAULO: 1822-1940 47-48 (Annablume/FAPESP ed., 1999). 18 Lei de 16 de dezembro de 1830, CARTA DE LEI DO BRASIL [C.L.BR.] de 1830, (Jun. 9, 2012, 22:21PM), http://www.planalto.gov.br/ccivil_03/Leis/LIM/LIM-16-12-1830.htm. 19 Decreto-Lei No. 2.848, de 7 de dezembro de 1940, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 31.12.1940 (Braz.), (Jun. 9, 2012, 22:21PM), http://www.planalto.gov.br/ccivil_03/decreto-lei/Del2848compilado.htm. 20 Lei No. 7.210, de 11 de julho de 1984, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.7.1984 (Braz.), (Jun. 9, 2012, 22:26PM), http://www.planalto.gov.br/ccivil_03/leis/L7210.htm.


7

significant number of temporary detentions (pretrial detainees); (b) a high rate of recidivism;

and (c) the failure of the progressive system of prison conditions.

The temporary prison is a precautionary detention preceding the final

imprisonment. This type of detention represents a total of 36.4% of the current prison

population21. Although the Federal Constitution prescribes that “no one shall be considered

guilty before the issuing of a final and unappealable penal sentence”22, the precautionary form

of prison is used extensively. Added with a considerable delay in the criminal legal process,

leads to the fact that more than a third of all prisoners are, indeed, waiting for a trial. The rate

of recidivism is 60-70%23, which is another relevant factor that contributes for the increased

number of prisoners.

Finally, Brazilian legislation stipulates a progressive system of penalties, consisting

of three different prison conditions. The “open conditions” for less than four years in prison,

the “semi-open conditions” for sentences between four and eight years in prison and “closed

conditions” to penalties of more than eight years' imprisonment. Such model is not rigid, since

the judge may determine a regime more severe for lower penalties24. From the “semi-open

conditions”, the inmate already has right to temporary exits, as well as external work. In the

“open conditions”, the inmate can even spend the day working outside, returning only to sleep

to a different facility, known as “dormitory prison”. The delay in deciding on applications for

progression regime has contributed to overcrowding. Prisoners who could already enjoy the

benefits of slighter regimes remain for months or even years in the “closed conditions”,

awaiting only the conclusion of the legal procedure.

III) THE RELEASE OF PRISONERS IN COMPLIANCE WITH THE

EIGHTH AMENDMENT’S CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF

21 See Ministry of Justice, Brazil, Consolidated Data 2011, supra note 14. 22 CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASIL DE 1988 [CRFB] Oct. 5, 1988, art. 5º, LVII (Braz.). 23 See Ministry of Justice, Brazil, Consolidated Data 2011, supra note 14. 24 Art. 33, § 1°, supra note 19.


8

THE UNITES STATES CONSTITUTION AND BRAZILIAN FEDERAL

CONSTITUTION’S PRINCIPLE OF HUMAN DIGNITY

A) The United States Constitution Eight Amendment’s Cruel and Unusual

Punishments Clause.

Federal and state statutes, as well as the organization and administration of prisons

facilities, regulates the rights of the prisoners in the United States. Prisoners do not enjoy the

same rights of free citizens. They retain some basic constitutional rights, such as prohibition of

cruel and unusual punishment, enabling them a minimum standard of living. These

prerogatives also include right to due process in general25, especially in their right to

administrative appeals and access to the parole process.

Historically, the position of the U.S. Supreme Court regarding the right of

prisoners held that prisoners did not have the same constitutional rights as other citizens,

including the Eighth Amendment’s Cruel and Unusual Punishments Clause26. This doctrine

excluded the courts from interfering on prisoners’ rights, except to order the release for those

who were illegally confined. This theory was later called “hands-off doctrine” and would

change substantially just in the 60’s in Jones v. Cunningham, when limited rights such as writ

of habeas corpus were restored27.

The present study is limited to analyzing the statement expressed in the Eighth

Amendment to the United States Constitution’s Cruel and Unusual Punishments Clause.

Particularly, the prohibition of cruel and unusual punishment, with respect to overcrowding

25 “Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519 (1972); Wilwording v. Swenson, 404 U.S. 249 (1971); Screws v. United States, 325 U.S. 91 (1945). Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed.” at Wolff v. Mcdonnell, 418 U.S. 555-556 (1974). 26 The opinion of the Court in Pervear v. Commonwealth of Massachusetts (1866) illustrates such assertive: “We perceive nothing excessive, or cruel, or unusual in this. The object of the law was to protect the community against the manifold evils of intemperance. The mode adopted, of prohibiting under penalties the sale and keeping for sale of intoxicating liquors, without license, is the usual mode adopted in many, perhaps, all of the States. It is wholly within the discretion of State legislatures. We see nothing in the record, nor has anything been read to us from the statutes of the State which warrants us in saying that the laws of Massachusetts having application to this case are in conflict with the Constitution of the United States.” at Pervear v. Commonwealth of Massachusetts, 72 U.S. 475, 480 (1866). 27 Jones v. Cunningham, 371 US 236 (1963), cited by JOEL SAMAHA, CRIMINAL JUSTICE 432, 508-509, (Thompson Wadsworth ed., 7th ed., 2006).


9

and lack of minimum conditions of life in prisons. Initially, it will be addressed the possible

interpretations of the clause, especially the position of the Supreme Court on the incidence of

the principle of proportionality. Lastly, it will be proposed a correlation between the situation

of the U.S. prisons and the possible use of this clause as guarantor of rights.

The Eighth Amendment to the United States Constitution stipulates that “excessive

bail shall not be imposed, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.28” This amendment is divided in three distinguished clauses, the Excessive Bail

Clause; the Excessive Fines Clause and the Cruel and Unusual Punishments Clause, the latter

being the object of the present study.

The linguistic of the amendment came from a provision in the Virginia

Constitution, which in turn was taken directly from the English Bill of Rights of 168929. In

Solem v. Helm30 the U.S. Supreme Court held that the principle of proportionality under the

Eighth Amendment would apply to felony prison sentences31. Posteriorly, Justice Scalia

discussed that the meaning of the words “cruel and unusual” referred only to barbarous

methods of punishment32 and not to sentences, regardless of its length. According to his

opinion, the Eighth Amendment solely adopted this language as a ban on certain modes of

punishment33.

Indeed, as already discussed in chapter II, in the eighteenth century incarceration

was not generally used as a penal function, but rather to hold the defendants before their trial.

Thus, it would be questionable to affirm that upon the introduction of the Eighth Amendment

to the U.S. Constitution, the Framers had the same notion of proportionality that exists today.

From the system later adopted as a method of punishment, based on the notion that the

28 U.S. Const. amend. VIII. 29 The Eighth Amendment, Proportionality, and the Changing Meaning of “Punishments”, 122 Harv. L. Rev. 960 (2009). 30 Solem v. Helm, 463 U.S. 277, 285 (1983). 31 Id. at 288. 32 Harmelin v. Michigan, 501 U.S. 957, 961–94 (1991) (Scalia, J., dissenting). 33 Id. at 975-985.


10

criminal could be rehabilitated, the proportionality was a “theoretical imperative”34. The

rehabilitation process depended extensively on the sentence being particular to the individual

in order to have any practical effect. Deterrence as a rational choice, which is used as one of

the rationales of modern theory of punishment, could not be sufficiently accomplished “if there

is no relationship whatsoever between offenses and the lengths of prison sentences”35.

Consequently, it is possible to assert that the principle of proportionality can be

understood as implied within the discretion in setting prison sentences. However, the issue

remains under discussion. John F. Stinneford (2011) sustains that “there are doubts about the

legitimacy of proportionality review. Unlike the Eighth Amendment’s Excessive Bail and

Excessive Fine Clauses, the Cruel and Unusual Punishments Clause contains no obvious

reference to proportionality”36.

The question that arises does not concern the narrow application of the principle of

proportionality to penalties rendered excessive, but only using its philosophical basis to

propose a renewed discussion on the conditions found in American prisons. In fact, despite the

possible limitation of the principle of proportionality according to the view of the originalist

interpretation, the Framers of the Eighth Amendment’s Cruel and Unusual Punishments Clause

understood it to prohibit punishments that were excessive in light of prior practice.

Consequently, the Cruel and Unusual Punishments Clause prohibits punishments that are

“cruel and new”37.

The central question is whether the interpretation of this clause could be extended

to the current situation of the U.S. prison system, since as overcrowding experienced today is

unprecedented in the United States history.

34 The Eighth Amendment, Proportionality, and the Changing Meaning of “Punishments”, supra note 29, at 974. 35 Id. at 978. 36 John F. Stinneford, Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, 97:4 VA. L. REV. 899 (2011). 37 “… whereas the evolving standards of decency test asks whether a punishment comports with current moral standards, the Cruel and Unusual Punishments Clause asks whether the punishment comports with the standards that have prevailed until now” id. at 899-900.


11

According to the U.S. Department of Justice, at the end of 2010 at least nineteen

state systems were operating above their highest capacity, with seven states at least 25% over

such standard38.

Prison conditions are not considered punishment within the meaning of the Eighth

Amendment39. However, since the prisoner is deprived of its ability to self-sufficiency while

incarcerated, it is the state’s burden to supply minimum conditions for survival, such as food

and health care. The sentence imposed by the court only determines the length of the prison;

not the conditions under which the prisoner will serve it40. Consequently, any harm suffered by

the prisoner while incarcerated is absolutely unrelated to their original offense. For that reason,

the prison itself could be considered as part of the punishment process41.

The significant increase in prison population eventually exceeds the number of

places available, allowing prisoners end up serving an excessive sentence, beyond the limits

imposed by the court. The mere fact of serving a sentence in a place designed for half of the

projected capacity, being deprived of basic needs could be considered as cruel and unusual.

These conditions could be submitted to Eighth Amendment scrutiny, which sets normative

limits on what the state may do to convicted criminals as punishment for their actions.

B) The Principle of the Dignity of the Human Person in the 1988 Brazilian

Federal Constitution.

During the twentieth century the Principle of the Dignity of the Human Person has

become one of the major ethical compromises in the world. The Universal Declaration of

38 Alabama at 196% and Illinois at 144%; the Federal Bureau of Prisons operated at 36% above reported capacity at yearend 2010 at Paul Guerino, Paige M. Harrison, and William J. Sabol, Prisoners in 2010, U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, DECEMBER 2011 (Jun. 10, 2012, 21:43PM), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf. 39 “The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation.” at Farmer v. Brennan, 511 U.S. 825, 837-838 (1994) (Souter, J., delivered the opinion of the Court). 40 Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84:4 N.Y.U. L. REV. 885 (2009). 41 “… Although framed by the sentencing court in terms of the length of sentence, the nature and content of the punishment is only manifest through the conditions of confinement to which the offender is ultimately subject. Any harm people experience while incarcerated should therefore be cognizable under the Eighth Amendment if it is traceable to state-created conditions of confinement.” at id. at 907-908.


12

Human Rights established dignity as one of the main focus of modern human rights

protection42.

The principle is expressed in innumerable documents throughout the world, being

part of a significant portion of the world’s written constitutions43. The Brazilian Federal

Constitution prescribes in Article 1 the dignity of the human person as one of its fundamental

principles44. The Constitution of the United States does not enumerate the principle expressly,

however, can be considered to be a “core value underlying express and un-enumerated

constitutional rights and guarantees”45.

The concept of human dignity varies in time and space. History, tradition and

culture, as well as political and ideological values prevent a narrow and universal definition

about what rights might be protected by this principle. This principle does not constitute an

objective rule, on the contrary, is endowed with certain subjectivity, and can be applied freely

in the Brazilian system as a guide in judicial decisions46. As a fundamental right, the principle

can be divided into three distinguished dimensions: the right to life, the right to equality and,

finally, the right to physical and psychological integrity47. It is relevant to point out that these

rights are not enumerated, but instead, they constitute values, frequently associated with

general purposes – such as respect for life, individuality, privacy – establishing a direction for

judicial and government actions.

42 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948). 43 BUNDESVERFASSUNGSGERICHT [BVerfG] [CONSTITUTION] Oct. 3, 1990, art. 1, par. 1 and 2 (Germ.): "(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority; (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.”, (Jun. 10, 2012, 23:00PM), https://www.btg-bestellservice.de/pdf/80201000.pdf; CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA [CRSA] Dec. 18, 1996, chapter 1, item 1, (a): “(a) human dignity, the achievement of equality and the advancement of human rights and freedoms", (Jun. 10, 2012, 23:40PM), http://www.info.gov.za/documents/constitution/1996/a108-96.pdf; BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSCHAFT [BSE] [CONSTITUTION] Apr. 18, 1999, art. 7 (Switz): “Human dignity is to be respected and protected”, (Jun. 10, 2012, 23:40PM), http://www.servat.unibe.ch/icl/sz00000_.html. 44 CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASIL DE 1988 [CRFB] Oct. 5, 1988, art. 1º, III (Braz.).: “Article 1. The Federative Republic of Brazil, formed by the indissoluble union of the states and municipalities and of the Federal District, is a legal democratic state and is founded on: … III - the dignity of the human person” (Jun. 10, 2012, 23:40PM), http://www.v-brazil.com/government/laws/titleI.html. 45 Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 NEB. L. REV. 740 (2005). 46 “Modern constitution drafters consciously emphasized principle and abstract ideals because they sought to create a higher moral order, not just a legal order.” at Naomi Rao, On the Use and Abuse of Dignity in Constitutional Law 14:201 COLUM. J. EUR. L. 221 (2007-2008). 47 DIRLEY DA CUNHA JÚNIOR, CURSO DE DIREITO CONSTITUCIONAL 558-560 (JusPodivm ed., 5th ed., 2011).


13

Ingo Wolfgang Sarlet (2002) proposes one of the possible concepts of human

dignity: "… a complex of fundamental rights and duties to ensure both the person against any

act of degrading and inhuman nature, as will assure the existential minimum conditions for a

healthy life.48"

Therefore, since the Brazilian Constitution is predominantly focused on the values

expressed in its preamble, particularly the human dignity, positive rights must be interpreted in

light of such commands. A clear example of the impact of the principle of human dignity as

guiding value for judicial decisions can be verified in a recent decision by the Brazilian

Supreme Court, ordering the release of a prisoner in custody precaution because of the delay in

the course of judicial proceedings49.

The question is whether such principle – with binding effects as a parameter for

judicial decisions – could be used as grounds for release of prisoners due to inadequate

conditions of living in penal institutions. As reviewed in chapter II, the Brazilian penitentiary

system is noticeable by the practice of torture, violence, and severe overcrowding. Prisoners

live in inhumane conditions, with insufficient access to medical and psychological treatment,

among other problems encountered by the international organization Human Rights Watch

(2011)50. This miserable existence goes far beyond the appropriate punishment dictated by

justice. It is manifestly an affront to the existential minimum conditions for a healthy life,

prescribed by the principle of human dignity.

48 INGO WOLFGANG SARLET, DIGNIDADE DA PESSOA HUMANA E DIREITOS FUNDAMENTAIS NA CONSTITUIÇÃO DE 1988 62 (Livraria do Advogado ed., 2th ed., 2002). 49 Justice CELSO DE MELO delivered the opinion of the court: “… It must be recognized at this point that the prolonged, abusive and unreasonable pre-trial arrest of someone, as happens in kind, offends, so the front, the principle of human dignity, which is - considering the centrality of this essential principle (Federal Constitution, article 1, item III) - a significant interpretative vector, a true value source that shapes and inspires the whole constitutional order in force in our country and that translates, so expressive, one of the grounds on which it relies, among us, the order enshrined in the republican and democratic system of positive constitutional law.” at STF, H.C. No. 85237, Relator: Min. CELSO DE MELO, 17.3.2005, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 29.4.2005 (Braz.). 50 Human Rights Watch, Country summary: Brazil Reports (January 2011), (Jun. 11, 2012, 07:21AM), http://www.hrw.org/sites/default/files/related_material/brazil_0.pdf.


14

Brazilian and U.S. prisons share similar statistics regarding the issue of

overcrowding and lack of minimal conditions of living51. In the next chapter it will be analyzed

possible concurrent judicial decisions about the release of prisoners as a remedy for such

dilemma, as well as their respective grounds, highlighting the differences in the opinions

delivered by the Justices in both Courts.

IV) A COMPARATIVE ANALYSIS OF RECENT COURT DECISIONS IN

THE UNITED STATES AND BRAZIL

A) Decisions in the United States concerning the release of prisoners as a

remedy for overcrowding.

The release of prisoners due to overcrowding in the penitentiary system in the

United States comes from a long history of requests, refusals and great controversy52. When

the judiciary determines a sentence, it exercises a state power to deprive someone of their

legitimate right to freedom because of a specific fact previously committed. The expectation is

that the offender must serve his sentence in full, or possibly to take advantage of attenuators

institutes, such as parole and credits for good behavior.

In this chapter, it will be reviewed briefly some of these decisions taken by the U.S.

Supreme Court involving requests for release based on alleged violation of rights prescribed in

the Eighth Amendment. Also, a decision held the Supreme Court of the State of Philadelphia,

with greater emphasis on one of the most recent and controversial judged by the U.S. Supreme

Court in May 2011. 51 See chapter II, sections A and B. 52 There are numerous precedents in state and federal courts addressing the issue of prison overcrowding, although the U.S. Supreme Court has not addressed the matter directly until Brown v. Plata (2011). As examples: (a) Newman v. Alabama, 683 F.2d 1312 (1981), when the United States Court of Appeals for the Eleventh Circuit overruled a decision taken by the District Court for the Middle District of Alabama in December 14, 1981 to release hundreds of prisoners as a means of reducing unconstitutional overcrowding in the Alabama prison system. The court noted that the district court abused its discretion by framing relief that was intrusive on the state’s prerogative to administer its prison and parole systems; (b) Grubbs v. Bradley, 552 F. Supp. 1052 (1982), a class action in which plaintiffs, adult prisoners, challenged the constitutionality of conditions of confinement in 12 state adult penal institutions in Florida. The United States District Court for the Middle District of Tennessee found that prison conditions amounted to cruel and unusual punishment and violated the Eighth Amendment, ordering defendant officials to submit proposed remedies; and (c) California Correctional Peace Officers Assn. v. Schwarzenegger, 163 Cal. App. 4th 802 (2008), a precedent from the Court of Appeal of California that concluded that the Governor did not exceed his powers in declaring a state of emergency based on prison overcrowding two years earlier. signing contracts to meet extraordinary needs of the state.


15

The U.S. Supreme Court held in Hutto v. Finney that it was possible for the District

Court to establish a 30-day limit on sentences to isolation as part of its comprehensive remedy

to correct possible constitutional violations53. Justice Stevens, delivering the opinion of the

Court, concluded that “The punishments for misconduct not serious enough to result in

punitive isolation were cruel, unusual, and unpredictable.54”. He also argued that punitive

isolation itself did not violate any constitutional rights, as long as the “new conditions of

confinement are not materially different from those affecting other prisoners.55”.

In Rhodes v. Chapman, the Court held that the double celling in prisons could not

be considered cruel or unusual punishment56. Delivering the opinion of the Court, Justice

Powell stated that conditions of punishment in prisons must not inflict an unnecessary level of

pain and constitute a disproportionate penalty, conversely, harsh conditions in prisons “are part

of the penalty that criminals pay for their offenses against society.57”.

Despite all the precedents recognizing the fundamental rights of the prisoners

under the Eighth Amendment to proper conditions of living, such as cell minimum space and

health care58, only in 1995 the United States had a court that actually agreed and acknowledged

53 “The order is supported by the interdependence of the conditions producing the violation. The vandalized cells and the atmosphere of violence were attributable, in part, to overcrowding and to deep-seated enmities growing out of months of constant daily friction. 10 The 30-day limit will help to correct these conditions” at Hutto v. Finney, 437 U.S. 678, 688 (1978) (Stevens, J., delivered the opinion of the Court). 54 Hutto, 437 U.S.. at 682. 55 Id. at 686. 56 “(…) the suggestion that double-celled inmates spend most of their time in their cells with their cellmates; and the fact that double celling at SOCF was not a temporary condition. Supra, at 343-344. These general considerations fall far short in themselves of proving cruel and unusual punishment, for there is no evidence that double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment.” at Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (Powell, J. delivered the opinion of the Court). 57 Id. at 347. Another relevant precedent of the U.S. Supreme Court regarding Eighth Amendment scrutiny could be found in Wilson v. Seiter, 501 U.S. 294 (1991) (Scalia, J. delivered the opinion of the Court), where the Court held that to accept an alleged violation of the Eighth Amendment, it would be necessary to prove a “culpable state of mind on the part of prison officials”, in which “the offending conduct must be wanton” see Id. at 296 and 303, respectively. Thereby, any liability of the state by adverse conditions during the serving of the sentence must be analyzed from the viewpoint of the prisoner and the agent causing the harm. The issue was not treated as an institutional problem. Overcrowding, hence, could only reach the prisoner's right not to receive “cruel punishment” with conclusive proof that the state’s agent was grossly negligent or indifferent. 58 Sharon Dolovich (2009) cites two important precedents of the U.S. Supreme Court related to the issue of prison conditions and the interpretation of what would be considered as a cruel punishment. In Farmer v. Brennan, 511 U.S. 825 (1994) (Souter, J. delivered the opinion of the Court) the Court agreed that it was the responsibility of prison officials to prevent prisoners from harming each other, to the point where prison officials who were "deliberately indifferent" were ruled liable under the Eighth Amendment. Nevertheless, the court did not make prison officials liable for all violence between inmates, but “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” see Id. at 832. In Estelle v. Gamble the holding was that “deliberate indifference to serious medical needs of


16

the issue of overcrowding. The decision was taken by the United States Court of Appeals for

the Third Circuit in 1995 in Harris et al. v. The City of Philadelphia59. The decrees imposed by

the District Court were partially affirmed, achieving a moderate degree of population control

just by disallowing new admission into the penitentiary’s system of alleged criminals charged

with minor offenses60. The holding, however, did not compel the state to release any prisoner

serving time on a conviction. The prisoners that were, in fact, “released” from incarceration

were those awaiting trial especially selected by an appointed commission by the Court61.

The most recent and also controversial case involving the release of prisoners took

place in the U.S. Supreme Court in May 201162. The Appellants questioned whether the

injunction order issued by a special three-judge court in 2009 from the Northern District of

California63 was consistent with the Prison Litigation Reform Act (PLRA) of 1995. The order

determined that the State should “provide the court with a population reduction plan that will in

no more than two years reduce the population of the CDCR’s adult institutions to137.5% of

their combined design capacity.64”.

According to Justice Scalia’s dissenting opinion “… is perhaps the most radical

injunction issued by a court in our Nation’s history … 65”. The Court’s holding consolidated

two different actions, reaching a single decision for both cases.

The first case submitted to the Court was Coleman v. Brown (1992)66, which had as

the cause of action the failure of the state to provide medical care for inmates with serious

prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.” at Estelle v. Gamble, 429 U.S. 97, 104 (1976). In both cases, the author criticizes the idiosyncratic approach of the U.S. Supreme Court decisions, focusing only on individual issues. See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment 84:4 N.Y.U. L. REV. 895-897 (2009). 59 The Pennsylvania legislature authorized the use of “intermediate punishment” in 1990, facing criminals who would be otherwise incarcerated but who were sentenced for non-violent crimes. It was an alternative to incarceration through community projects and broad oversight of the state. This plan was submitted to the District Court and then to the Court of Appeal at MICHAEL TONRY, PENAL REFORM IN OVERCROWDED TIMES 73-74 (Oxford University Press ed., 2001). 60 Harris et al. v. The City of Philadelphia, 47 F.3d 1342 (1995). 61 Id. at 1355-1356. 62 Brown v. Plata, 131 S. Ct. 1910 (2011). 63 The District Judges in both cases came to the conclusion that reducing the prison population was the only applicable remedy for the constitutional violations they identified and such order could only be given by a three-judge court in accordance with 18 U.S.C. §3626(a)(3)(B) (2006). 64 Coleman v. Schwarzenegger, 2009 U.S. Dist. LEXIS 67943, 2009 WL 2430820, 183 (E.D. Cal. Aug. 4, 2009). 65 Brown, 131 S. Ct. at 1950 (Scalia, J. dissenting opinion).


17

mental illnesses. The District Court afterwards appointed in 1995 a Special Master as an

injunction order, to verify the state of mental health care of the inmates, which presented a

report 12 years later, concluding that “the state of mental health care in California’s prisons

was deteriorating.67”. In the second action, Plata v. Brown (1995)68, the class of state prisoners

differed from Coleman v. Brown (1992), being composed by inmates with health problems, not

specifically mental. The final report by the Receiver appointed in 2005, quoted in Justice

Kennedy’s opinion, explained that “overcrowding, combined with staffing shortages, has

created a culture of cynicism, fear, and despair which makes hiring and retaining competent

clinicians extremely difficult. 69”. Another important conclusion was that this lack of medical

care promoted violence among the prisoners, increasing the necessity of long-term lockdowns,

making it more difficult to deliver any medical attention to the prisoners70.

According to the Prison Litigation Reform Act (PLRA) of 1995, requirements for

prisoners’ relief must fully meet the following conditions:

Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief71.

Also, any order for the release of prisoners should be preceded by a less intrusive

one, which has failed to answer properly the violation of the federal right72, as well as

66 Coleman Co. v. Brown, 531 U.S. 1192 (2001). 67 Brown v. Plata, 131 S. Ct. at 1926 (Kennedy, J. delivered the opinion of the Court). 68 Plata v. Brown, 2011 U.S. Dist. LEXIS 95702 (N.D. Cal. Aug. 25, 2011). 69 Brown, 131 S. Ct. at 1927 (Kennedy, J.). 70 Id.. 71 18 U.S.C. §3626(a)(1)(A) (2006). 72 18 U.S.C. §3626(a)(3)(A)(i) (2006).


18

crowding is the primary cause of the violation of a federal right; and no other relief will

remedy the violation73.

Delivering the majority opinion, Justice Kennedy concluded that the order issued

by the Three-Judge Court fulfilled all the necessary requirements prescribed in the PLRA of

199574. Analyzing the requirement of primary cause of the violation, the opinion stated that

overcrowding has restricted the resources of prison personnel, both correctional and medical.

Also, it created unsanitary and unsafe conditions, invalidating any attempt to deliver proper

medical care75. Consequently, crowding could be pondered as the primary cause of the

violation. The order was likewise valid because it had appointed, previously, a Special Master

in Coleman and a Receiver in Plata, aiming a less intrusive remedy; together with plenty of

time for the State to overcome the violations, twelve years in Coleman and five years in

Plata76.

Addressing the requirement for a narrowly drawn order, Justice Kennedy pointed

out that the release could eventually reach beyond the plaintiff class, however, he mentioned,

“The scope of the remedy must be proportional to the scope of the violation…77”. Furthermore,

the order would have the range to protect future class members of being exposed to insufficient

medical health care, as “They are that system’s next potential victims.78”. In addition to this

last argument, the order gave the State enough flexibility to allocate its prisoners between

institutions, since it did not determinate that all the prisons in California had to comply with

the 137.5% limit. The same ground is applied to the requirement of “substantial weight” to any

potential adverse impact on public safety, since the State would have the prerogative to balance

prisoner should be released.

73 18 U.S.C. §3626(a)(3)(E)(i) (2006). 74 Brown, 131 S. Ct. at 1927-1928 (Kennedy, J.). 75 Id. at1928. 76 Id. at 1929. 77 Id. at 1930. 78 Id. at 1932-33.


19

Dissenting from the majority opinion, Justice Scalia emphasized that the order

violated the limitations of power of the Article III of the U.S. Constitution, taking federal

courts beyond their institutional capacity79. Besides, the dissenting opinion pointed out that just

a small part of the inmate’s population received brutal treatment and most plaintiffs would not

have sustainable claims under the Eighth Amendment80.

Practically in all opinions it is incontrovertible among the Justices that prisoners

have essential rights, such as minimum standard of living conditions, basic subsistence and

proper medical health care. Even Justice Scalia concurs with this assertion81.

As mentioned in chapter 3, modern constitutions give human dignity a crucial

value and it has been one of the main functions of constitutional courts in the Western world to

delimit the implementation of this principle in specific cases of alleged violations of rights.

Actually, the leading role played by the constitutional courts is to give meaning to the breadth

of protection that emanates from this principle.

The unrestricted nature of the principle of human dignity offers a wide range of

interpretation and practical application on judicial decisonmaking. In Brown v. Plata (2011)

the majority opinion expressed great concern about the need to balance the right to punish with

the need to maintain minimum living conditions. It is possible to restrict rights under the

constitution. The dignity of the human person can be restricted, such as deprivation of liberty.

However, this intrusion into the existential core of the human being must be analyzed from the

viewpoint of other important principles, such as a life with dignity and respect for human

beings.

79 Brown, 131 S. Ct. at 1951 (Scalia, J., dissenting). 80 Id. at 1954 (Scalia, J. dissenting). 81 Id. at 1952 (Scalia, J. dissenting). Despite his resistance to consider that in Brown v. Plata all the prisoners would fit in plaintiff’s class, as he writes: “… and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” Id. at 1953 (Scalia, J. dissenting).


20

B) Brazilian decisions determining the release of prisoners or change in prison

conditions for failure to comply with minimum standards required by the Brazilian

Federal Constitution.

The system of penalties in Brazil differs from the American model, since it

comprises three basic prison conditions for deprivation of liberty sentences82. Each of these

conditions has a specific facility, corresponding to its own gravity. The “closed conditions”

includes full imprisonment, with the possibility of inside work83. The “semi-open conditions”

consists of industrial or agrarian prisons (work prison), where the prisoner work and live

outside his cell, but within the facility’s perimeter84. The “open conditions” is the milder of all,

in which the prisoner lives normally, only returning to a special facility to sleep85. This last

facility is not a regular prison but rather a dormitory with a more relaxed disciplinary rules,

classrooms and vocational courses.

The Brazilian Constitution expressly prohibits any punishment that is cruel, of life

imprisonment, of banishment, hard labour and death, except in case of declared war86. Also,

the same Constitution ensure to prisoners respect for their physical and moral integrity, as well

as prescribes that the sentence will be served in separate establishments, according to the

nature of the offense87. The Federal Law n° 7.210 from July 11 1984 also specifies minimum

rights and guarantees that prisoners in Brazilian institutions are entitled to88.

The inhuman conditions in Brazilian prisons have already been debated in this

paper. The question is whether the Brazilian Supreme Court is responding to such violations of

the Constitution and Federal Law, together with the substance of this response.

82 Chapter II, section B. 83 Lei No. 7.210, de 11 de julho de 1984, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.7.1984 (Braz.), art. 31, (Jun. 9, 2012, 22:26PM), http://www.planalto.gov.br/ccivil_03/leis/L7210.htm. 84 Lei No. 7.210, de 11 de julho de 1984, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.7.1984 (Braz.), art. 91 and 92, (Jun. 9, 2012, 22:26PM), http://www.planalto.gov.br/ccivil_03/leis/L7210.htm. 85 Lei No. 7.210, de 11 de julho de 1984, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.7.1984 (Braz.), art. 93, (Jun. 9, 2012, 22:26PM), http://www.planalto.gov.br/ccivil_03/leis/L7210.htm. 86 CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASIL DE 1988 [CRFB] Oct. 5, 1988, art. 5º, XLVII (Braz.). 87 Id. at XLVIII and XLIX. 88 Lei No. 7.210, de 11 de julho de 1984, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.7.1984 (Braz.) (Jun. 9, 2012, 22:26PM), http://www.planalto.gov.br/ccivil_03/leis/L7210.htm.


21

In the history of the Brazilian Supreme Court there was never a decision

recognizing the issue of overcrowding in prisons or determining the release of prisoners for

that particular reason. This position of the Brazilian Supreme Court is surprisingly similar to

the “Hands-off doctrine” largely applied in the nineteenth century in the United States89.

In the 24th of November of 1998 the Supreme Court held in the trial of the Habeas

Corpus n° 77.399-5 that a prisoner in the “semi-open conditions” should be allowed to work

outside the prison90. The establishment in which he was serving his sentence did not have the

specific system (industrial or agrarian). Therefore, he was serving his time identically to those

prisoners serving in a “closed regime”, contrary to the original sentence.

Delivering the opinion of the Court, Justice Maurício Corrêa argued that the

prisoner could not wait to be transferred to lest a rigorous regime if he already had the right to

it. So, it was justified that he could serve in the milder of the three prison conditions91. The

opinion was grounded on the principle of human dignity, with emphasis on the expectations

created in the prisoner that was waiting to progress in his serving. Still, the decision noted that

determining the prisoner to wait under a more severe punishment regime was not part of the

original sentence92.

Another relevant decision taken by the Brazilian Supreme Court was in the trial of

the Habeas Corpus nº 96.169-0 in the 25th of August of 2008. The Court held that a prisoner

that who progressed to the “semi-open conditions” could be placed under house arrest by the

lack of an appropriate institution to serve their sentence in the “open conditions”93. In this

decision, the Supreme Court determined that if the state could not provide a prisoner the proper

89 See footnote 27. 90 STF, H.C. No. 77399-5, Relator: Min. MAURÍCIO CORRÊA, 24.11.1998, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 19.02.1999 (Braz.). 91 STF, H.C. No. 77399-5, Relator: Min. MAURÍCIO CORRÊA, 24.11.1998, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 19.02.1999 (Braz.). 92 Id.. 93 STF, H.C. No. 96169-0, Relator: Min. MARCO AURÉLIO, 25.08.2009, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 09.10.2009 (Braz.).


22

institution for his prison conditions, it would be allowed to him to serve the rest of the sentence

at home.

The Brazilian Supreme Court has not addressed specifically the issue of

overcrowding in any of its decisions. In Brazil, as a matter of fact, such topic is found just in

single decisions taken by first instance judges, with subsequent reform by appellate courts94.

Recently, the Supreme Court held that the possible lack of vacancy in facilities

designated for prisoners under the “open conditions” (dormitory houses) in cities where such

establishments existed meant the same that the inexistence of any vacancy. The Court ordered

house arrest for prisoners waiting a place in these facilities95. The grounds of this holding were

almost the same as the aforementioned decision96.

The question of overcrowding and the response by the Supremes Courts of Brazil

and the United States have some key points of convergence, although reaching diverse

conclusions.

In both factual situations brought to the attention of the Courts, there was the issue

of prison minimum living circumstances. Overcrowding and lack of proper medical treatment

was the main foundation of cases in the United States. In the Brazilian hypothesis the lack of

vacancies in the appropriate prison conditions.

The constitutional Courts used – in both situations – the appreciation of the human

being and his dignity as a basis to interfere in the management of prisons, this exclusive task of

the executive power. Justice Kennedy expressly mentioned the principle of human dignity in

his opinion in Brown v. Plata (2011)97; and Justice Maurício Corrêa also referred to the same

94 In 2005 the State Judge Livingston José Machado ordered the release of all prisoners incarcerated in the prison of Contagem, State of Minas Gerais, which was reformed afterwards at T.J.M.G., M.S. No.1.0000.05.426750-5/000(1) Contagem, Relator: Des. Paulo Cézar Dias, 22.11.2005, Diário do Judiciário Eletrônico [D.J.e.], 15.02.2006 (Braz.). 95 STF, H.C. No. 95334-4, Relator: Min. MARCO AURÉLIO, 02.03.2009, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 21.10.2009 (Braz.). 96 STF, H.C. No. 96169-0, Relator: Min. MARCO AURÉLIO, 25.08.2009, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 09.10.2009 (Braz.). 97 See footnote 76.


23

argument in his opinion in the trial of the Habeas Corpus nº 77.399-598. The dissenting opinion

delivered by Justice Scalia in Brown v. Plata (2011) mentioned the order affirmed by the Court

as an example of “structural injunction”, that turned “… judges into long-term administrators

of complex social institutions such as schools, prisons and police departments … They require

judges to play a role essentially indistinguishable from the role ordinarily played by executive

officials.99”. This “structural injunction” reported by Justice Scalia is the very nature of the

Brazilians holdings, in which the judiciary has acted as a supervisor for the penitentiary

system, remedying an express violation of a fundamental right.

The last section of this chapter will be devoted to a brief analysis of the role of the

principle of human dignity in American and Brazilian experiences.

C) Competing dignities in both systems.

As mentioned in chapter 3, the United States Supreme Court has referred to the

principle of human dignity occasionally. However, even under considerable criticism100,

several justices have supported the use this principle as a basis for their decisions. In Brazil

such dilemmas have reduced proportions, precisely because this principle is expressed in the

constitution and the constitutional tradition of Brazil approaches European standards101.

The holding by the U.S. Supreme Court in Brown v. Plata (2011) was in fact the

affirming of a prior decision taken by a three-judge court in California. This last Court defined

a contingency plan to mitigate the situation in the California’s State prison system due to

overcrowding and lack of proper medical health care. This plan was based on the Prison

Litigation Reform Act (PLRA) of 1995, which foresaw the possibility of release of prisoners,

98 See footnote 90. 99 Brown, 131 S. Ct. at 1953 (Scalia, J., dissenting). 100 Naomi Rao (2007-2008) criticizes the acceptance by some members of the Supreme Court and scholars of the human dignity as a applicable principle, since the U.S. Constitution is based on fundamentally individual rights instead of social ones. See Rao, supra note 46 at 253-255. 101 The “European standards” is used to express common values shared by European nations in their written constitutions that were largely influenced by contemporary ideals after the publication of The Universal Declaration of Human Rights in 1948. Among them is the valuation of the human being expressed in the constitutional text. See footnote 42.


24

as long as certain requirements met102. Accordingly, there was a solid and express federal

statute allowing the three-judge court to proceed with the releasing order, as long as the

requirements were completely fulfilled. Nonetheless, it is possible to support that the justices

went far away from a strict legal positivism, applying principles not expressed in the

Constitutional frame to justify their pronouncements.

In Justice Kennedy’s opinion it is possible to visualize the use of the principle of

human dignity as a ground, when he clearly mention that the interpretation of the clause

prohibiting cruel and unusual punishment in the Eighth Amendment is animated for the dignity

inherent in every human person103. Since such principle is not expressly written in the U.S.

Constitution, it can be concluded that there was an application of transcendent values in that

opinion in particular.

The majority decision in Brown v. Plata (2011) was based primarily on the PLRA

of 1995. There was a federal statute allowing the state plural court to order the injunction.

Nonetheless, the objective requirement were not exactly met, since the release of prisoners

could not be considered “the least intrusive means necessary to correct the violation of the

Federal right”104, as appointed by Justice Scalia in his dissenting opinion105. The State of

California could have transferred a variety of inmates to other states, as indicated in Justice

Kennedy’s opinion. Furthermore, as Justice Alito expressed in his dissenting opinion, just

transferring specifically the plaintiff’s classes would be a far less intrusive order106.

Even with such contradictions, the Court decided to release approximately 46,000

inmates for lack of minimum conditions of existence. The philosophical basis of this command

is undoubtedly the appreciation of human beings and their dignity. Notwithstanding the

102 See footnote 71. 103 See footnote 75. 104 18 U.S.C. §3626(a)(1)(A) (2006). 105 Brown, 131 S. Ct. at 1957-1958 (Scalia, J. dissenting). 106 Id. at 1959. 1963 (Alito, J. dissenting).


25

apparent unprecedented nature of this holding, there are precedents in the Supreme Court

addressing the human dignity and the Eighth Amendment107.

In the Brazilian experience, the Supreme Court went even further. There is no

equivalent in the Brazilian legal system to the American PLRA of 1995. Only the Criminal

Code of 1942 and the Law of Penal Execution of 1984108 mention the conditions for

punishment and none of them specifies de possible release of prisoners.

The absence of express legal provision makes the decisions taken by the Brazilian

Supreme Court even closer to the concept of a normative constitution, in which values are not

simply used as a principled basis, but as commands with binding effects.

The Brazilian Constitution conceives the principle of human dignity differently in

relation to the American model, incorporating it not just as an orientation or basic value, but

like a positive command. All the Brazilian decisions cited in this paper overruled or affirmed

holdings by lower courts disposing directly against the federal statue, using as a value-based

rule carved in the constitution. The Law of Penal Execution of 1984109 determines that a

convict sentenced to a “semi-open” prison condition should serve his sentence in a industrial or

agrarian facility but never at home, even if it is a “house arrest” hypothesis. Meanwhile, in

view of the sub-human conditions found in Brazilian prisons, the court held that the law could

not exceed a supreme value, embedded in the constitution not as a mere principle for guidance,

but as a mandatory rule.

107 Maxine D. Goodman cites two cases in which the U.S. Supreme Court addressed such matter, in Trop v. Dulles, 356 U.S. 86 (1958) the majority opinion delivered by Justice Warren noticed that the Eighth Amendment: “draw its meaning form the evolving standards of decency that mark the progress of a maturing society” and in Hope v. Pelzer, 536 U.S. 730 (2002) the court remarked that the Eighth Amendment could apply to overrule inhuman prison treatment, such as refusing a inmate request for water; denying access to bathroom and using a hitching post as punishment for disorderly conduct at Goodman, supra note 45 at 773-775. 108 See footnotes 19 and 20, respectively. 109 See footnote 20.


26

The communitarianism prevalent in Brazil and European countries is not easily

adaptable to American ideals of individual liberty110. The answer to the confrontation between

rights of the same importance, the individual interest will prevail as a general rule.111

The abstract nature of the concept of human dignity does not provide accurate

responses when the rights of same category are compared. Therefore, the very use of this

principle inevitably leads to decisions heavily influenced by cultural understandings and

dominant political forces. As Neomi Rao (2007-200) explains:

“The principle of human dignity has little meaning in constitutional adjudication apart from external moral judgments about the varying weights to be given to competing dignities. The application of human dignity to determine the allocation of rights will depend on social, historical, and cultural factors that shape national values.112”

Consequently, the American ideal substantially based on individual freedom113 is

inevitably limited when facing a constitutional system that considers human dignity as a higher

value. In the United States law and politics have are usually distinguishable dimensions:

constitutional rights are indeed apart from the needs of the democratic society114.

In the case of Brown v. Plata (2011) and the Brazilians counterparts, the state’s

right to punish and consequently the individual right of citizens to feel safe by state action is

confronted directly with the dignity of the prisoner as a human being. Such notion is based on

the concept that common values – as human dignity – are more important than individual ones.

This conclusion is easily accepted in countries with value-based constitutions like Brazil. In the

110 Rao, supra note 46 at 221. 111 A good example of this conclusion can be found in Justice White’s dissenting opinion in Miranda v. Arizona (1966): “The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. New Jersey, 306 U.S. 451, 455. These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values” at Miranda v. Arizona, 384 U.S. 539 (1966) (White, J., dissenting). 112 “… equating rights with other interests may undermine the commitment to rights protection … human dignity and other constitutional values often minimize the importance of individual rights because these values are defined by political interests that reflect the collective good of society” in Rao, supra note 46 at 211. 113 Although it is recognized that even in the American constitutional system rights might be eventually overridden by government needs or compelling policy interests. Among several examples: Grutter v. Bollinger et al, 539 U.S. 306 (2003). 114 Rao, supra note 46 at 226.


27

United States, still, the recognition of “values” outside the enumerated rights may confront the

idea of a constitution characterized as a charter of negative liberties115.

In those cases both courts concluded that this value should prevail. However, future

decisions will depend profoundly on the subjective view of the members of the respective

bench, since both courts did not provide a solid framework for later cases.

V) CONCLUSION

Despite all the contradictions and criticisms, the prison remains as the main form of

punishment in the Western world. Its adoption widespread ultimately led to incarceration

numbers and rates never seen in history. The inability of the state apparatus to provide

minimum conditions of existence for the detainees eventually undermines its credibility as an

institution. In American experience, privation of essential medical care resulted in the release

of thousands of prisoners, by simple exposure to conditions of punishment that went beyond

those specified in the sentence. In Brazil the causes of judicial action are similar, even though

they have the particularity of not dealing with releases by inhumane conditions in prisons, but

rather the deficiency of proper facilities with adequate conditions for the sentence.

The Eight Amendment’s Cruel and Unusual Punishments Clause has an open text,

allowing multiple interpretations. The lack of proportionality in serving a sentence without the

proper health care was considered one of the grounds for the result reached in Brown v. Plata

(2011). In this paper was also advocated that the when the state fails to provide basic needs for

prisoners, the prison itself becomes part of the punishment, imposing conditions not mentioned

in the original sentence, transforming it into a cruel reprimand. This innovative character of

imprisonment could be also rendered as contrary to long usage, therefore, unusual.

115 The peculiarity of the U.S. Constitution as a guarantor of negative rights can be extracted from the opinion delivered by Justice Rehnquist: “But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” at Deshaney v. Winnebago City Social Service Department, 489 U.S. 189 (1989).


28

In the Brazilian hypothesis the philosophical basis of all decisions was the need to

meet higher values than the text expressed in the law, with the uniqueness of being in absolute

opposition to the corresponding federal statute. In both situations the principle of human

dignity was largely used as ground, with great criticism and controversy in the U.S. holdings.

The incarceration process of criminal offenders could be defined as a transaction

between the state and civil society. The state persecutes, punishes and incarcerates those

considered undesirable by society, which hopes to have security and social peace. But like any

contract, there is a price to be paid. The state’s carceral burden, afforded by public funds,

necessarily implies the expenditure of large sums to maintain a minimal system with basic

living conditions. If the state fails to provide such conditions, the alternative found in Brazilian

and United States Supreme Courts was the release of prisoners.

The infliction of pain ought to be, in spite of everything, just. Any punishment

orchestrated by the state is justified only in its own extension. When the state decides to

incarcerate individuals, depriving them of the capacity to provide for their own care, eventually

take the affirmative obligation to protect them from any harm. In case the punishment goes

beyond the limits of the own sentence, it is rendered excessive and subjected to judicial

control.

The justification for the punishment lies in the necessity for the offender to respond

for what he has done. Its purpose, otherwise, is what the community hopes to achieve with the

application of that penalty. Most theories of punishment – deterrence, incapacitation, and

rehabilitation – have the function to benefit the community. Only retribution focuses

exclusively on the individual and its actions. Starting from this assumption, it is worth asking

whether there was any reason for submitting a detainee to a cruel and inhuman treatment, with

severe deprivation of health care and living conditions, exceeding the very measure of his

culpability.

VI) BIBLIOGRAPHY


29

ALAN ELSNER, GATES OF INJUSTICE: THE CRISIS IN AMERICA’S PRISONS (Pearson

ed., 2006).

Alfred Blumstein, The Roots of Punitiveness in a Democracy, JOURNAL OF

SCANDANAVIAN STUDIES IN CRIMINOLOGY AND CRIME PREVENTION 8 (Suppl. I) (2007).

BERT USEEM & ANNE MORRISON PIEHL, PRISON STATE: THE CHALLENGE OF MASS

INCARCERATION (Cambridge University Press ed., 2008).

BRUCE WESTERN AND BECKY PETTIT, BEYOND CRIME AND PUNISHMENT: PRISONS

AND INEQUALITY (Contexts ed., 2002).

DAVID GARLAND, PUNISHMENT AND SOCIETY: A STUDY IN SOCIAL THEORY (The

University of Chicago Press ed., 1993).

DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN

CONTEMPORARY SOCIETY (The University of Chicago Press ed., 2001).

DAVID GARLAND, ED., MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES

(Sage Publications ed., 2001).

DARIO MELOSSI & MASSIMO PAVARINI, THE PRISON AND THE FACTORY: ORIGINS

OF THE PENITENTIARY SYSTEM (Macmillian Press ed., 1981).

DIRLEY DA CUNHA JÚNIOR, CURSO DE DIREITO CONSTITUCIONAL (JusPodivm ed.,

5th ed., 2011).

FERNANDO SALLAS, AS PRISÕES EM SÃO PAULO: 1822-1940 (Annablume/FAPESP

ed., 1999).

Human Rights Watch, Country summary: Brazil Reports (January 2011), (Jun. 5,

2012, 00:17AM), http://www.hrw.org/sites/default/files/related_material/brazil_0.pdf.

INGO WOLFGANG SARLET, DIGNIDADE DA PESSOA HUMANA E DIREITOS

FUNDAMENTAIS NA CONSTITUIÇÃO DE 1988 (Livraria do Advogado ed., 2th ed., 2002).

James Austin, Prisoner Reentry: Current Trends, Practices, And Issues, CRIME &

DELINQUENCY 47:3 (July 2001).


30

JOEL SAMAHA, CRIMINAL JUSTICE (Thompson Wadsworth ed., 7th ed., 2006).

John F. Stinneford, Rethinking Proportionality Under The Cruel And Unusual

Punishments Clause 97:4 VA. L. REV. (2011).

JOHN IRWIN, LIFERS: SEEKING REDEMPTION IN PRISON (Routledge ed., 2009).

JOHN IRWIN, PRISON IN TURMOIL (Little Brown ed., 1980).

JOHN IRWIN, THE WAREHOUSE PRISON: DISPOSAL OF THE NEW DANGEROUS Class

(Roxbury Public Company ed., 2004).

JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME

TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (Oxford University

Press ed., 2007).

Lauren E. Glaze, Correctional Populations in the United States, 2010 (Jun. 3, 2012,

09:13AM), U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS,

http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf.

LOÏC WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENT OF

SOCIAL INSECURITY (Duke University Press ed., 2009).

Maxine D. Goodman, Human Dignity in Supreme Court Constitutional

Jurisprudence 84 NEB. L. REV. (2005).

MICHAEL TONRY, PENAL REFORM IN OVERCROWDED TIMES (Oxford University

Press ed., 2001).

MICHAEL TONRY & KATHLEEN HATLESTAD, EDS., SENTENCING REFORM IN

OVERCROWDED TIMES: A COMPARATIVE STUDY (Oxford University Press ed., 1997).

MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Vintage

Books ed., 1995).

MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS (The New Press ed., 2010).


31

Ministry of Justice, Brazil, Consolidated Data 2011, (Jun. 3, 2012, 10:56AM),

http://portal.mj.gov.br/data/Pages/ MJD574E9CEITEMIDC37B2AE94C6840068B1624D2840

7509CPTBRIE.htm.

Naomi Rao, On the Use and Abuse of Dignity in Constitutional Law 14:201

COLUM. J. EUR. L. 221 (2007-2008).

NORVAL MORRIS & DAVID J. ROTHMAN, EDS., THE OXFORD HISTORY OF THE

PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY (Oxford University Press ed.,

1998).

Paul Guerino, Paige M. Harrison, and William J. Sabol, Prisoners in 2010, U.S.

DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, DECEMBER 2011 (Jun. 10, 2012,

21:43PM), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf.

Rafael Damaceno de Assis, A Realidade Atual do Sistema Prisional Brasileiro 74

CENTRO DE ESTUDOS JURÍDICOS DE BRASÍLIA (2007) (Br.), (Jun. 5, 2012, 23:45PM),

http://www2.cjf.jus.br/ojs2/index.php/cej/article/viewFile/949/1122.

RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND

OPPOSITION IN GLOBALIZING CALIFORNIA (University of California Press ed., 2007).

Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment 84:4

N.Y.U. L. REV. (2009).

The Eighth Amendment, Proportionality, and the Changing Meaning of

“Punishments”, 122 HARV. L. REV. 960 (2009).

Tom R. Tyler and Robert J. Boeckmann, Three Strikes and You Are Out, but Why?

The Psychology of Public Support for Punishing Rule Breakers, LAW & SOC'Y REV. 31:2

(1997).

Date post:	15-Jan-2023
Category:	Documents
Upload:	independent
View:	0 times
Download:	0 times

SAMFORD UNIVERSITY CUMBERLAND SCHOOL OF LAW MASTER IN COMPARATIVE LAW PROGRAM

Documents