Opinion: An End to Impunity in Brazil?

Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – The Curmudgeon, whose daytime job involves laws rather than public health, today wishes to proclaim that this week, Brazil’s Supreme Court (STF) has taken a major step towards reducing impunity in Brazil. In a controversial landmark 7-4 decision, the STF decided that criminals who have been convicted by a lower court, and who have had that conviction confirmed by an appellate court, must go to jail and begin serving their sentence.

If you’re used to the anglo-american system of justice, you’re probably wondering why this is controversial. The rule there is that once you’re convicted at the lower court level, you “go directly to jail, do not pass Go, do not collect $200”. If you appeal, you remain in jail serving your time while your appeal is heard.

In Brazil, however, the rule has long been different. Here, even though you have been convicted, you have the right to remain out of jail until such time as your very last appeal has been denied and the lower court decision has become final.

That is often twenty years or more, because Brazilian criminal procedure has far more appeal possibilities than the U.S. system, the appellate court system is overloaded and almost every conviction winds up going to the STF or the STJ, the supreme courts for constitutional and non-constitutional matters.

There’s a worse problem with the Brazilian system. Statutes of limitations on most crimes continue to run while appeals are pending. In other words, if your conviction has not become final within the statutory period, you walk

This occurred during the Mensalão Scandal, where the appeals had run so long that the STF was under immense pressure to take a final decision before the statute of limitations ran out.

The justification used by defenders of Brazil’s erstwhile system is the “presumption of innocence”. In other words, the lower court may have got it wrong, the appellate court as well, so until the STF/STJ decides, you must be presumed innocent — and innocent people shouldn’t be in jail.

This justification may be based upon the historic track record of lower courts, which are overworked and often incompetent, although most judges make very good money. It is also based upon the greed of criminal attorneys, whose fees grow proportionately to the number of appeals.

But the true origin of the overturned Brazilian rule is that it was purposely designed to ensure impunity to Brazil’s elite—in Brazil, as everyone knows, “rich people don’t go to jail”. Poor people don’t have adequate legal assistance, so they almost never appeal. Rich people can afford clever lawyers, who will game the system to ensure their clients stay out of jail forever.

This STF decision will affect numerous white-collar criminals, notably some who have been and will be convicted for crimes in connection with the Petrolão Scandal. Their lawyers will continue their appeals, but the criminals will remain in jail while they do.

That is a sea change for Brazil’s system of justice, and a vast improvement over the past.

The Curmudgeon has returned from a Zika-free zone to a largely shame-free zone, but is immensely pleased to discover some good news.