Crowded Prisons: Brazilian Magistrates Review Recidivism Rules for Petty Crimes

RIO DE JANEIRO, BRAZIL – In São Paulo, a young man was sentenced to four months in prison for stealing chocolates from a convenience store. In Paraná, another man tried to steal three R$12 (US$2) T-shirts, was arrested, and sentenced to one year in jail. In Rio, a homeless and hungry elderly man stole food from a store and ended up behind bars amid the Covid-19 pandemic.

The scenario is replicated in the Brazilian judiciary, although these crimes could be framed in the so-called principle of insignificance, which seeks to avoid punishing behaviors with negligible results from a legal and patrimonial perspective.

With crowded prisons, the trend is starting to change. Last week, the STJ (Federal Superior Court) upheld Judge Felix Fischer’s ruling that acquitted a man convicted of stealing three bottles of shampoo, despite the fact that the man was a repeat offender in the crime of theft. The STJ’s sentence, according to jurists, is contrary to what courts typically decide in such convictions, as quoted by the magistrate in his monocratic decision.

“In the STJ’s opinion, a negative past record, as a rule, removes the application of the principle of insignificance. However, it must be emphasized that such factors should not be analyzed in isolation, since they do not represent absolute guidelines,” wrote Felix Fischer.

Fischer lists four requirements to identify insignificance: minimal offensiveness in the perpetrator’s actions, no social danger resulting from the actions, a very low degree of culpability in the behavior, and negligible legal damage caused.

His decision opens the way for other minor crimes by repeat offenders to be exempted from conviction, at a time when the higher courts have 1,501 petitions submitted by September 2020 alone on the issue of insignificance.

Although there is no consolidated survey of recent years, it is possible to assert that the number of petitions for insignificance in higher courts has exploded over the decade. A study conducted in 2011 by researchers from USP (University of São Paulo) criminal law department showed that, at the time, the annual petitions reached 38 in the STJ and STF – less than three percent of the 1,463 lodged in nine months in 2020.

The petty crime cases in the higher courts are diverse. But, according to jurists heard by Folha news site, recidivism is a key topic.

Most magistrates believe that repeat-offenders are not entitled to the principle. On the other hand, virtually all cases are related to people in extremely vulnerable situations, particularly when they involve the theft of hygiene products and food.

“It is very common what jurists call theft to feed themselves. Usually, these crimes are linked to social vulnerability and only increase, because no public policy is developed for these people,” points out the criminal defense coordinator of the Rio de Janeiro Public Defender’s Office, Emanuel Queiroz.

At the start of the pandemic, the Rio de Janeiro Defender’s Office dealt with the case of an elderly man arrested for stealing R$35 worth of food. Last week, the Defender’s Office went to the Supreme Court to petition for the dismissal of an action sentencing a man to one year and six months in prison for the theft of a shampoo and a conditioner worth R$16.99, which were immediately returned.

Queiroz questions the role of the state in such cases since an inmate costs R$3,000 a month to the public coffers. The lack of sound public policies to reinstate more vulnerable convicts once their sentence is served also weighs heavily.

“We don’t applaud the conduct of those who steal things, but what is the social value of this? What is the value of criminal law enforcement? Will it achieve any results? Or only the deepening of inequality and the destruction of a citizen?” he asks.

Among other cases of this type that have reached the STJ and the STF are that of a man sentenced to almost five years in prison for stealing R$8, that of a boy sentenced to one year in jail for stealing a gas cylinder from his brother, and a defendant who was sentenced to four months for stealing 5.8 kg of meat.

“It makes no sense for the State to use its perception to determine this type of conduct because it has no legal importance,” says criminal attorney Daniella Meggiolaro, vice-president of IDDD (Institute for the Defense of the Right to Defense) and president of the criminal law commission of the São Paulo Bar Association.

“Recidivism must not interfere in recognizing insignificance. If a crime is not present and the Judiciary understands that it is atypical, it is irrelevant if committed more than once, given that it is not a crime.”

Deputy Prosecutor General Luiza Cristina Frischeisen, a member of the Federal Prosecutor’s Office, notes a trend of higher courts to disregard recidivism in insignificant offenses. “There is greater awareness. I believe they tend to reduce convictions, we have been discussing this a great deal and it’s causing reflection,” she says.

Last Friday, October 15th, the deputy prosecutor worked on two cases in which the defendants had stolen candy. In one of them, habeas corpus was petitioned to the Supreme Court for a recidivist already sentenced to four months in prison for the theft of 46 chocolates from a store (the merchandise was returned).

She says she believes that as recidivism is removed, the trend will consolidate and fewer indictments will be brought. “I see a deeper appreciation of these cases, both from the STJ and the STF, because of the amount of habeas corpus. You must punish the fact, not the person.”

In March this year, STF Justice Gilmar Mendes enforced the principle of insignificance to a recidivist for the theft of R$25. In his decision, he criticized the fact that the case had involved four levels of the nation’s Judiciary.

The opinion is shared by other Justices, who often complain of the excessive number of habeas corpus petitions reaching the highest court.

A survey of the Prison System in Numbers, conducted by the CNMP (National Council of the Prosecutor’s Office), points out that Brazilian prisons have a 161.60 percent occupancy rate. In other words: there are 721,363 prisoners in a system that can hold 446,389. In the Midwest region, occupancy reaches double its capacity.

According to Pierpaolo Cruz Bottini, a criminal attorney and professor of law at the University of São Paulo, half of the prison population is in pre-trial detention.

“What we do not see is the discrepancy over what insignificance is. The majority of common crimes, when they exceed R$200 seldom have their insignificance observed”, he says. He stresses a discrepancy in the system: “In tax crimes, the standard criterion of case law is R$20,000”.

Source: Folhapress