Erivaldo dos Santos - The quest for prisoners’ rights

 

Sixteen years ago, Erivaldo Santos abandoned his job in a bank and became a judge. He is now renowned in Brazil and beyond for his innovative, award-winning projects.

When we meet, Erivaldo dos Santos is seated at his comfortable desk in the National Justice Council head offices in one of the buildings along the Esplanade of Ministries in Brazil’s capital city, Brasília, where all the government’s top leadership is concentrated. But, this assistant judge, attached to the Presidency of the Council, can remember his first contact as if it were yesterday with the prison environment four years ago. ‘I clearly remember the impact it had on me; the unhealthy surroundings, the sub-human conditions, the latent violation of human rights’.

Not even the beautiful view from his office can make him forget the dramatic stories from prisoners, and the experiences he has lived through alongside them. ‘We found many condemned prisoners that had already served out their sentences but were still in prison because of failures in the system. One of them became an icon of the Mutirão [Collective Effort]; a prisoner serving a five-year sentence who had actually been behind bars for eight years’.

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Son of a family from the interior of southern Brazil, Erivaldo dos Santos abandoned his job in a bank as he wanted to help make the world a better place. He became a judge and managed to achieve what he set out to do. Today, Santos has gained recognition for his efforts to improve the Brazilian prison system and has coordinated a process that led to the release of 20,000 prisoners that were being illegally detained.

As well as what came to be called Mutirões Carcerários, [special collective efforts directed at the prison system], the judge was responsible for developing another high-impact programme entitled ‘Begin Again’ (Começar de Novo) that gives prisoners and ex-prisoners a chance to obtain employment and reintegrate themselves in society. The success of those initiatives led to both the ‘Begin Again’ and the Mutirão programmes receiving the Innovare Institute awards in 2009 and 2010 in recognition of their good practices in the field of human rights in Brazil. Subsequently, Santos’s programmes have become an example for some African countries that look to the Brazilian model for ways to improve their own systems (see box).

Trading places

Despite the recognition afforded to his defence of human rights in recent years, Erivaldo’s life has not always been dedicated to that cause. After graduating in Law, he began his career in the early 1990s behind the counter in the branch office of a bank. The monotony of that occupation and his urge to do more made Santos restless and soon afterwards he decided to become a judge: ‘I took up my studies again. When I changed my profession, it was because I wanted to contribute towards achieving a better world’. In 1995, Santos passed the civil service entrance examinations and took up the post of federal judge in the south of Brazil.

During his first few years working in the courts, Santos became uneasy at seeing people losing their homes because of his judgments – due to defaults on payment, for example. As a result, Santos initiated his first project. ‘Those people had no prospect whatever of recovering their property. That was why I proposed conciliation between banks and clients to ensure that the clients did not lose their homes because of a default on payment’.

The project began in the south of Brazil where Santos was posted at the time, but it was so well received that, today, it is present in most Brazilian states. Considered to be a national success, its outreach has been so great that even the bodies of the justice system that directly participated in it have difficulty in calculating exactly how many thousands of people have benefited from the initiative.

From courts to prisons

As if the considerable change of scenarios from the branch of a bank to the daily round of a court judge were not enough, life had another surprise in store. Thanks to the nation-wide diffusion of his work promoting conciliation between banks and their debtors, Santos acquired national visibility and caught the attention of Gilmar Mendes, then President of the Supreme Federal Court, the highest body in Brazil’s Justice Branch hierarchy.

In June 2008, during a conversation with Mendes, Santos received an invitation to take up the post of judge on the National Justice Council, one of the country’s most important bodies, responsible for inspecting the Justice Branch. Though the new post had no direct connection with the prison system, the judge’s own restless nature and the social circumstances at the time led him to engage with the world of prisons once again. The attention of Brazilian society was being drawn to the question of imprisonment by a report produced by the House of Representatives that had revealed disturbing data about human rights violations. According to the parliamentary report, in the prison population of around 500,000 prisoners, 150,000 were being kept behind bars illegally.

 


Those people had no prospect whatever of recovering their property. That was why I proposed conciliation between banks and clients to ensure that the clients did not lose their homes because of a default on payment,
Erivaldo dos Santos

 

The question was further highlighted by a case that shocked the country. A 15-year-old girl had been locked in a cell with 20 male prisoners and raped repeatedly for two weeks. Minister Gilmar was hotly questioned by society at large and even by a representative of the UN’s Human Rights division. ‘It was a situation that could not be allowed to continue. and that was what motivated me to elaborate the Mutirão Carcerário Project in an attempt to improve the chaotic situation in the prison system’.

Within a few weeks Santos began his pilgrimage to the Brazilian prisons. The first visits of the National Justice Council (NCJ) team led by the judge took place in Rio de Janeiro, in August 2008, with a visit to verify the situation in the state’s prisons. The team observed some excesses there, but nothing that was unduly serious. Reality came to the surface, however, on the second mission in October of the same year, when the team conducted a Mutirão in the state of Maranhão, in the northeast of Brazil, one of the country’s poorest regions. ‘There we found a highly dramatic situation that gave credence to the shocking statistics presented in the parliamentary report.’

Violations of every kind

Reports of judges and other civil servants on the working group that visited the prisons reveal violations of every description. The most common situation they found was condemned prisoners that had already served their sentences but were still in prison because of the state’s inefficiency. Many prisoners held under temporary detention orders – awaiting judgment or awaiting a sentence – had exceeded the legal period for temporary detention. The first act of the Mutirão Carcerário coordinated by the judge was to guarantee that the law was enforced and that made it possible for many prisoners to be granted conditional parole. Many other prisoners had the right to progress to semi-parole and there were those whose sentences had been commuted or even extinguished, all of which ought to have led to immediate release.

The Mutirão visited dozens of prisons. Santos recalls that on various occasions, the team came across highly dramatic situations such as those in one of Brazil’s poorest states, Piauí. Data gathered by the Mutirão revealed that almost 80 per cent of the prisoners were being held under temporary detention orders; in other words, out of every ten prisoners, only two had actually been sentenced, the rest were merely awaiting trial or judgment. The situation was so precarious in the state’s prisons that, in many cases, such prisoners had been waiting three or four years to be tried. Furthermore, many of them had not even been formally accused by the Office of the Public Prosecutor, which mirrored a very serious failure on the part of the Office of the Public Defender itself.


We came across all kinds of absurdity. The number of those with sentences already served or with highly dramatic stories to tell increased with every action that we undertook,
Erivaldo dos Santos

Each visit revealed new surprises. ‘We came across all kinds of absurdity. The number of those with sentences already served or with highly dramatic stories to tell increased with every action that we undertook. I referred to them as ‘the Mutirão findings’. But there were some cases that were more disturbing than others, like that of a prisoner in Espírito Santo who had been in prison for 14 years without being judged and another in Ceará who had been waiting 11 years to come before a court. Tragically, the same stories were told again and again. There was the case of a prisoner who spent five years in jail because his case documents had disappeared. ‘Nobody managed to find the document so that he could be tried and so he was doomed to remain behind bars indefinitely’.

Another outstanding story was of a prisoner in the State of Paraíba who had been detained for five years beyond his original sentence because the judge, although he recognised that the sentence had been served, had ordered the State Security Department to investigate whether there were any other arrest warrants out for him on other charges. ‘And what was the result of that? The department took an incredible five years to make that verification, and all that time the individual was kept in jail!’

System failures

It was almost like a military operation in time of war. The work of attempting to solve the problems of the Brazilian prison system was hard and urgent; so urgent that at one point, in 2006, the working groups were running three Mutirões at the same time; in Pernambuco, in Ceará and in Paraíba. By April 2010, at the end of Minister Gilmar’s term of office and 20 months after the work had begun, the Mutirões had liberated 20,000 people in the 17 states where they had been conducted.

‘The prisoner is a person devoid of any credibility in the eyes of society. If he declares that he has served five or six years more than his original sentence, the state pays no attention to him because he has no social credit. Things cannot go on that way’ says Santos. Irrespective of the prisoner’s good or bad faith, the state is obliged to look into his complaint and determine whether he is telling the truth or not.

‘Keeping a person locked up without a legal decision having been made to that effect is not compatible with the democratic regime that the Brazilian state embraces.’ The judge points out that Brazil is not only a signatory to all the major human rights agreements, but is also recognised by the international community as a country where there is respect for human liberties. However, for that to become applicable to the Brazilian prisons, all the bodies involved need to show greater disposition and have better structures to guarantee that prisoners receive the attention due to them.

The prison system’s failure, still latent even today, contributes towards further heightening the prisoners’ vulnerability. Santos does not lay the blame for these problems on the Office of the Public Defender or the Office of the Public Prosecutor alone, but on all the various bodies of the legal system involved in the process and on structural inadequacies as well. ‘The proper functioning of the system for administering criminal law calls for the participation and active performance of various bodies, including the judiciary, which, I would say, is actually the most important actor.

‘However, the participation of the Office of the Public Prosecutor, the Office of the Public Defender and the Brazilian Bar Association is also of the utmost importance. If any one of those bodies effectively assumes its responsibility for the present situation, than it may lead the others to alter their performances as well. I think that is where the NCJ makes all the difference.’


In the eyes of local society, we were there simply to release 700 criminals onto the streets. They filled a whole big gymnasium; it was a crazy sight,
Erivaldo dos Santos

Santos feels that the Mutirão Carcerário is not just a lesson learned, but an ongoing lesson for the entire Brazilian legal system. In his view, the criminal justice system’s complacency and inertia reflected in the prisoners’ situations has gradually begun to change. ‘The Council’s action has created a feeling of discomfort among those people, which leads me to believe that the Mutirões do not merely liberate illegally detained prisoners, they also make many officials within the system [exert] themselves and come out of their former state of comfortable inertia’.

As a result, other public bodies have also woken up to the situation and begun to do their part and take on their share of the responsibilities. The judge believes all those facts have led to a change for the better in the criminal justice system.

The project, which is well on the way to becoming a public policy, has achieved a considerable victory in the form of Resolution Number One, drawn up jointly by the NCJ and the Office of the Public Prosecutor. It determines and regulates the joint actions in prison Mutirões. It makes the Office of the Public Prosecutor, the judiciary, the Office of the Public Defender and the Brazilian Bar Association responsible for the project, and that means better chances of achieving more positive results

Innovare Institute awards: knowledge exchange

The successful work implemented in the last few years has brought recognition of Erivaldo dos Santos’s programmes that have been put into practice alongside the National Justice Council. Such recognition includes the awards granted for two consecutive years by the Innovare Institute, which rewards good practice in the justice system in Brazil. The prize was granted to Santos in 2009 for the Mutirão Carcerário. In 2010, the Innovare Institute and the International Bar Association Human Rights Institute launched a special prize focused on human rights, which Santos won again for his ‘Begin Again’ project.

Last year, thanks to the award, the judge was given an opportunity to visit Angola, Mozambique and South Africa, to explore local social realities, make a presentation on the Brazilian initiatives and acquire knowledge from the projects being developed by government authorities and society at large in those countries.

On his visit to Mozambique, Santos was highly impressed by his hosts’ receptiveness and by how much they admired Brazil. ‘They are anxious to learn from us, to learn from our experience’. One outcome of the trip, which involved visits to prisons, justice system bodies and communities, was that Santos was able to establish a partnership in the name of the National Justice Council with the Public University of Maputo, designed to foster a study to adapt the Brazilian alternative sentences programme to Mozambique.  

The alternative sentences programme is widely viewed as highly successful insofar as it makes it feasible for people to pay for their crimes without necessarily having to go to jail. We now know that while the rate of re-offending among ex-prisoners is around 85 per cent, but among offenders that receive alternative sentences, it is far lower, somewhere between five and 10 per cent.

‘The idea in Mozambique is not to copy the Brazilian version but to adapt it to Mozambique’s own culture. In that country the institution of private justice is still firmly rooted. Perhaps it will be best to work with that ingrained concept of justice, traditionally administered by the community itself. So actually we can only serve as a source of inspiration.’ The idea is for the university here to catalogue the rules that are in force in the Mozambican communities and in the future, apply them, when it is practicable to do so, as probable alternative sentences.

In addition to the question of alternative sentences, Santos and the Government of Mozambique are negotiating a possible partnership arrangement for reviewing imprisonments in the prison systems as well as Mutirões and the Begin Again programme ‘But, here again, serving as an inspiration and not as models to be replicated 100 per cent’. 

The judge’s visits to public bodies in Angola revealed the poor qualification of the civil servants staffing government entities. To close those gaps, the Council is expected to offer courses on the Rights of Children and Adolescents, access to health and education, including their relation to the context of loss of liberty in the prison system. Although the approach to be adopted will address theoretical aspects, it will be focused much more on practice, and examples of real-life cases of human rights violations will be used with explanations of how to activate legal protection mechanisms, both in local and international spheres.

South Africa was a big surprise. ‘There, we are not the ones that have a lot to teach, we have a lot more to learn. They have a fascinating project similar to the Begin Again programme that has been operating in the national sphere for decades. It is run by an NGO called The National Institute for Crime Prevention and the Reintegration of Offenders (NICRO).

‘It was very gratifying to find an improved version of our own programme in existence, insofar as we never had the time to seek to seek inspiration in other similar projects before implementing our own.’ The idea is to use the South African project as a source of knowledge to improve our work here in Brazil.

Another excellent discovery during the South African trip was the curricular obligation imposed on law students to give classes on rights and citizenship in high schools and in prisons as well. By getting to know their rights, Santos believes that prisoners will be in a better position to understand their situations and even conduct their own defences. ‘All these experiences have shown me that we have a long way to go in achieving new partnerships and also in seeking out good examples like South Africa’s to guide and inspire us in our efforts to construct a better Brazil’.

Start again

While it is true that the Mutirões Carcerários have managed to guarantee prisoners’ rights, many people are critical of work that leads to the release of waves of prisoners. Such opposition is most evident among the residents in cities near to the prisons, due to the high probability of the ex-prisoners taking up their criminal activities again on release.

It was during the Mutirão in Paraíba that the National Justice Council Working Group became aware of the need to find a solution for the people being released. Over 700 prisoners were released in a single month, throwing the local community into a state of alert. ‘In the eyes of local society, we were there simply to release 700 criminals onto the streets’, says Santos, who decided to hold a hearing with all the ex-prisoners. ‘They filled a whole big gymnasium; it was a crazy sight. I talked to some of those people and many of them actually had a profession – bricklayers, drivers, mechanics – and they needed an opportunity to get back to work.  After the hearing, we managed to get some of those people back into the labour market and that was the embryo of the [Begin] Again project.’

The programme guarantees a job to people being discharged from prison, making it possible to resocialise ex-prisoners and drastically reducing the rate of relapsing into a criminal life. Santos explains that not only have recently released individuals shown themselves disposed to getting back to work but there has also been a high rate of adherence to the project among companies and public bodies offering jobs to men and women ex-prisoners. ‘Society needs to invest increasingly in this so that people are not drawn back to crime after they get out of prison. Providing this option gives greater meaning to the act of freeing a person because often, the mere act of releasing a person from prison does not signify making him truly free, it often means sending him back to a life of crime insofar as he cannot envisage or believe he has any other option’.

Since the programme began, just over 1,600 vacancies have been filled. There are another 2,551 available but they have not been taken because of the lack of professional qualifications. Those surplus vacancies are a glaring sign that an institutionalised public policy is needed to point the way to resocialisation and not just a relatively isolated programme like the Start Again programme. ‘We need to play the role of the state from the start to the finish. We are very good at making arrests but terrible at administering prisons and socially reintegrating these people. The Start Again programme is pointing the way, but there is a need for much more; otherwise we will make no progress in the field of public security’.

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Ana Galli is an award-winning journalist based in Brazil. She can be contacted at: anapaulagalli@gmail.com.

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