Leiden Law Blog

The Perfect Age for…Prison?

The Perfect Age for…Prison?

You might think that the country of samba and soccer doesn’t have any real problems, right? Wrong. Brazil is considered one of the most unsafe countries in the world, with colossal crime rates. The country has the seventh highest intentional homicide rate per 100,000 inhabitants when compared to 95 countries in the world. The rate of intentional homicides in the Netherlands in 2012 was 1 per 100,000 inhabitants and in Belgium in the same year it was 2. In the same year in the United States, the homicide rate was 5 per 100,000 inhabitants. Brazil, on the other hand, has a considerably higher number: in the same year, the rate of homicides was 25 per 100,000 inhabitants.

Data is significantly vast when it comes to the serious problem of crime rates in Brazil. The high volumes of criminal activity have only been increasing throughout the years. Consequently, a feeling of constant fear has become normal in Brazilian society, and its faith in the state´s capacity to offer safety is gradually diminishing. In an attempt to reduce the seriousness of the situation, many years ago the legislature proposed amending the Brazilian Constitution with regard to the minimum age for criminal responsibility. The proposal was initially rejected and later put on hold. Until now. In 2015, the discussion in the Chamber of Deputies has started up again.

The amendment proposal

Brazil´s current Constitution expressly states that people under the age of 18 cannot be subjected to imprisonment. However, that does not mean that individuals younger than 18 years are not held responsible for their offences. When an adolescent aged between 12 and 18 years commits an offence, they are obliged to comply with what are referred to as “socio-educational measures”. These are alternative types of sanctions with a more educational approach that allow, at least in theory, the young individual to rehabilitate and reintegrate back into society. Prison in Brazil is therefore only an option for individuals older than 18 years old, meaning that criminal responsibility, according to the present Constitution, is only attributed to individuals above this age.  

However, in view of the urgent need to respond to the country´s immense crime rates, a constitutional amendment has been proposed to reduce the age of criminal responsibility from 18 years to 16 years. Although the proposal has not yet become law, many arguments for and against can be heard in Brazil´s society. Those in favour of the proposal argue that 16 and 17 year old individuals are already capable of making judgments, clearly aware of the difference between right and wrong. Those against the proposal argue that investment in basic education would be much more effective than incarcerating young people, since the Brazilian prison system is far from capable of contributing to the rehabilitation of its incarcerated population. But who´s right? A better question would be: is reducing the minimum age for criminal responsibility in Brazil a proposal based on principled standards?

A step backwards or forwards?

The immense homicide rate in Brazil is unquestionable. It is important, however, to understand how many of those homicides are actually committed by young adults aged 16 or 17 years. Surprisingly, according to the Brazilian Ministry of Justice, adolescents aged between 16 and 18 years are responsible for less than 0.9% of the overall number of crimes committed in the country, and of this percentage only 0.5 % are actual homicides.

Young Brazilians, the “targets” of this amendment proposal, have long been facing social and economic disadvantages. The educational system in the country is deficient. The proportion of people aged between 15 and 17 years that attend elementary school decreased from 34.7% in 2004 to 26.7% in 2013. The average number of years of education for 13 year olds in 2004 was 4.9, and this number had increased to a mere 5 in 2013, meaning that over a nine year period very little change could be observed in the number of years of education completed by children within this age group. Therefore, reducing the minimum criminal age would mainly affect vulnerable young adults who already find themselves in the midst of significantly vulnerable social and economic conditions. It seems clear that in a country where education is not a priority, lowering the age for criminal responsibility and increasing the number of incarcerations is not a fair choice, and certainly not one based on principled standards. 

The prison system in Brazil is deplorable. The country has the fourth highest incarceration rates in the world with 607,731 people, and a penitentiary system that is overpopulated. In this alarming scenario, it is fair to conclude that to incarcerate young adults, individuals who should otherwise be engaging in other educational activities, will have several prejudicial consequences not only for them but for also society itself once they come out. Thus, it seems not only inefficient but also damaging to place young adults in a failed prison system where rehabilitative opportunities are few and the risk of later recidivating is high.

It seems clear that reducing the minimum criminal age in Brazil would be a major setback for the country. So, what is the perfect age for prison? One thing is certain: in the case of Brazil, it is not 16.

2 Comments

Marcelo
Posted by Marcelo on October 27, 2015 at 00:46

Congratulations!! The discussion is based on real numbers and gives the reader a good vision of the complex security problem in Brazil.

Ton Liefaard
Posted by Ton Liefaard on October 15, 2015 at 11:20

Thank you for this blog on this important issue, which also touches upon Brazil’s responsibilities under the UN Convention on the Rights of the Child (art. 40 and 37 in particular).

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