On March 17, 2020 the National Justice Council of Brazil (Conselho Nacional de Justiça – CNJ) published recommendation #62 on preventative measures concerning the spread of COVID-19 in the criminal justice system.

According to Rafael Souza Barreto, Adjunct Coordinator of the program CNJ/PNUD, the Recommendation has established guidelines for Courts and Judges with the aim of reducing the prison population, promoting preventative health-care procedures, regulating prison visits and participation in contingency plans. These measures have had a significant impact in the country. In the course of a little more than a week, over 15,000 people have been released from custody, through early releases, and other means similar to parole and probation. Pregnant women, mothers with children under their care, elderly, sick and non-violent offenders have benefited the most.

For example, on March 27 the Superior Court of Justice (STJ) granted the release of prisoners who were freed on bail in Espírito Santo. The Minister of the STJ (the highest appellate court in Brazil) Sebastião Reis Júnior, granted an injunction allowing for the release of all prisoners in Espírito Santo whose provisional release has been conditioned to the payment of bail and who are still in prison. According to the minister, during the crisis caused by the pandemic of the new coronavirus, making prisoners' freedom conditional on the payment of bail is an "unreasonable" measure.

The Public Defender's Office of Espírito Santo filed a writ of habeas corpus to demand the release of these prisoners, regardless of the payment of bail, as a measure in line with Recommendation #62 of the National Council of Justice (CNJ). The request was made in favour of six specific prisoners (you can access a more comprehensive article in Portuguese here.)

Other NGOs issued communiqués urging authorities to follow recommendation #62 and apply alternatives to detention, such as house arrest, especially given the prison conditions in the country.

Prison conditions in Brazil, are another reason why these recommendations are so important. For example, in São Paulo, visitations have been suspended, and access to essential goods, such as medicines, food and hygiene items that are provided by visitors, has also been suspended. The Movimento Mães do Cárcere reported that “there is a lack of water” and that the facility is in a poor condition and does not allow for effective social distancing to contain the spread of the virus. The situation is the same in all prisons and socio-educational establishments in the country. Similarly, temporary exits were cancelled for at least 34,000 inmates out of fear that they could bring the coronavirus back with them upon their return. This measure resulted in riots and hundreds of inmates escaping from at least four prisons in the state of São Paulo.

NGOs have called on authorities to urgently apply decarceration measures to prevent people of African descent, the poor, and those living in peripheral regions from being the target of state violence. It is worth highlighting that, as the civil organization PBPD stated, Brazil has the third highest rate of incarcerated people in the world, with an average prison occupancy rate of 166%. (in Portuguese)

Some highlights from Recommendation #62:

• It requests the review of decisions that determined provisional detention (including of those who committed a non-violent offense).
• The recommendation highlights vulnerable groups (people with underlying conditions, pregnant women, adolescents, disabled and indigenous people).
• Alternatives to detention/substitution to imprisonment.
• Reassessment of pre-trial detentions giving priority to vulnerable groups. Including preventive detention that has exceeded the period of ninety days or that is related to non-violent offenses.
• Suspension of the obligation to appear in court periodically for individuals on provisional release or in conditional suspension of the process, during 90 (ninety) days.
• Exceptionality of new orders of pre-trial detention.
• Granting early release to specific cases, giving priority to vulnerable groups.
• Granting house arrest to specific cases.
• Placing inmates who are suspected or confirmed carriers of the virus under house arrest.
• Remote access to justice: prioritize the reassignment of hearings in cases where the defendant is not detained and use videoconference in the cases in which the person is deprived of liberty (this is what immigration courts are doing in the U.S. although they’re still holding in-person hearings in Batavia upstate NY)

*They establish a few guidelines for if hearings do take place, i.e. enough space; limited length (this could cause due process issues for the defence); substitution of judges if they belong to a at risk group, etc.