// Interview: Sérgio Moro
Minister of Justice and Public Security (MJSP), Brazil *
JT: Data released in mid-July 2019 by Brazil’s National Council of Justice (CNJ) indicated that there were at least 812,564 prisoners in the country, of whom 41.5% (337,126) are provisional prisoners. Brazil has the third largest prison population in the world, after the United States and China. What is the strategy of the MJSP to deal with prison overcrowding and increase security in the country?
SM: I would like to point out a few caveats: Brazil has a very large population and a very high crime rate. The total number really is massive. The relative rate of prisoners per 100,000 inhabitants, in a comparison made by an international institute, placed Brazil in 26th position among more than 90 countries. Our relative rate is not that shocking. If we thought about comparing the number of prisoners with crime rates, we would probably conclude that it is not that significant. A large part of these 700,000 prisoners are not in a closed regime, but in a semi-open regime, which in many places basically works with anklets and house arrest. The Ministry of Justice’s assessment is that the size of this prison population is a major challenge. There is a real need to think about specific situations and alternative solutions to prison sentences, such as service provision, but there are limits to alternative solutions: serious crimes committed with violence or corruption, for example. We must continue to punish these crimes with imprisonment. What we have been doing is trying to expand our prison structure to avoid overcrowding problems and to improve the structure of the currently existing prisons so that they are in better condition.
JT: What measures does the government have in mind to solve the issue of the high number of provisional prisoners?
SM: I do not know if this number is so high compared to other countries, when identifying the percentages of these countries. According to our internal data the percentage is 33% provisional prisoners, who are considered to be those who have been arrested and have not yet undergone any trial. From the moment the trial takes place, if the process is delayed, of course this is a problem, but if the prisoner has been tried, they may not have been definitively tried, but they have already been criminally convicted by the court.
And that 33% is not much different from what is seen in other European countries too. The number differs from the CNJ. It’s a difference in criteria: We consider a provisional prisoner to be someone who has not yet been tried in any court. One thing that is definitely a problem in Brazilian justice is the great slowness in the appeal phase. If we are going to consider all those who do not have a definitive trial as provisional prisoners, there would be a much larger number. From the moment of the condemnatory trial and if there is an appeal, the time for the process is partly given according to the defence’s action.
JT: What is planned for the strengthening of alternative penalties? How will this strengthening alleviate the problems of over-incarceration and the high rate of pre-emptive detainees?
SM: We already have legislation that provides for the possibility of combinations of up to four years’ imprisonment in lieu of an alternative penalty. I think that is enough of a step. What we need, however, is to take control of these alternative penalties. It is often done based on service and sometimes with difficulty in keeping up with the service of those convicted, but in the area of abstract legislation, I think that our law is generous enough.
On the one hand, we can say that the issue of violence in the country has been aggravated by organized crime, including the multiplied number of gangs and criminal factions in the territory and also in prisons. On the other hand, the explosion of the prison population is correlated to a large extent with drug crimes; in 2016, 28% of the prison population in the country was responsible for this type of crime.
JT: On the one hand, we can say that the issue of violence in the country has been aggravated by organized crime, including the multiplied number of gangs and criminal factions in the territory and also in prisons. On the other hand, the explosion of the prison population is correlated to a large extent with drug crimes; in 2016, 28% of the prison population in the country was responsible for this type of crime. What actions are being or will be carried out, under your tutelage, to stop and reverse the problem of organized crime groups, inside and outside of prisons?
SM: The government has taken a very firm stance against criminal organizations. Much of the violent crime in Brazil is linked, especially in metropolitan regions, to disputes between criminal organizations, or in the case of drug trafficking, to disputes between the supplier and the consumer. The government has had a policy of transferring criminal leaders to maximum security federal prisons, which are usually in excellent condition for the maintenance of these prisoners. It is a tougher prison, although conditions are generally much better than even those of state prisons. They have better food and hygiene, they are more controlled, they have individual cells, there are no leaks, there are no rebellions and there are no mobile phones. This has broken the chain of command of criminal organizations, it has caused it to weaken, and the volume of drug seizures has grown in Brazil. Partly because of the greater efficiency of the federal police, and on the other hand we intend to focus also on the confiscation of assets, as we already do in investigations leading to the dismantling of the organisation, and not only with the arrest of the leaders. It is important to note that there has been a decrease in the main crime indicators since the beginning of the year. In murder matters alone, we have a 22% drop compared to the same period last year.
For other crimes, for example, theft from a financial institution, this drop was even more significant, around 40%. This is a shared accomplishment because public security is a social responsibility not only of the federal government, but of state governments. I firmly believe that this confrontation of organised crime, with efficient investigation, confiscation, and isolation of the leadership, has played a relevant role in this decrease. As for drug-related crimes, we have some official data. By September, 75 tons of cocaine had been seized, while last year it had not reached 50 tons. Regarding other drugs like marijuana, we have established important partnerships with Paraguay, which is a producer country, for the eradication of marijuana plantations in that country, which is a much more efficient method than seizing drug shipments in Brazil.
JT: In the last two days we have participated in an event organized in conjunction with your Ministry on public-private partnerships in the prison system as one of the ways to alleviate the needs of the prison population. Regarding Public-Private Partnerships in the prison sector, what is the type of action that your Office may take in terms of evaluating the need for this type of partnership? And to what extent do you think such partnerships have the potential to support your government’s objectives with respect to the prison issue?
SM: We are studying and building a model of public-private partnerships mainly with regard to prison establishments. Basically, the main construction initiative comes from the states, as they build state prisons. Federal prisons are designed for maximum dangerousness, so no partnership can be made in this area. For states it is different since they deal with the general prison population. What the Federal Government will do is suggest a model which independent states may or may not welcome, with their nuances and attempt to establish guidelines. Of course, following the model suggested by the federal government is easier at the level of funding. However, the model is under construction, because we want to make a model also based on the work of the inmate, so that part of the inmate’s salary is destined for himself, but part is also directed towards the cost of the inmate’s own funding for the construction of these establishments.
JT: The fight against corruption is one of his main mottoes as Minister of the current government of Brazil, however the institutions of the justice system itself (including the police, prison system and other entities) register cases of corruption. In fact, in the World Corruption Perceptions Index 2018, the country fell from 96th to 105th out of 180 countries assessed. The score went up to 35 points out of 100: the lowest figure in seven years4. How does Your Excellency intend to confront corruption within the Justice institutions? And to what extent does the problem of corruption not call into question the efforts of your ministry to increase the effectiveness of the system?
SM: Facing corruption is a continually recurring theme for all countries. It is something that strengthens not only the economy, but democracy itself. Our Ministry is committed to strengthening the federal police force in particular, giving them the best structure of human and financial resources, and tools to investigate corruption, which is a very complex crime. In 2019 we began to encourage the states to set up corruption investigation stations, not just the federal police, since there is corruption in the state governments. We have established the creation of some funds within the Ministry where the funds are allocated to security investments by the states. We have established criteria for the distribution of resources. One of the criteria we highlighted was the requirement for each state to have an organised unit specialised in investigating the crime of corruption. After this trigger, or parallel to it, several states began to create units of this nature, which is quite promising.
The duty of the Ministry of Justice and Public Security is more concerned with the executive part – the police. The judiciary has great independence and autonomy from its management bodies. Our level of involvement is somewhat lower, except of course for legislative proposals. We sent an anti-crime bill to Congress earlier this year with measures against corruption, organized crime, and violent crime.
Sérgio Moro is a former magistrate, writer, university professor and current Minister of Justice and Public Security of Brazil. He was a federal judge at the 13th Federal Criminal Court of Curitiba (capital of the state of Paraná) and Professor of Criminal Procedural Law at the Federal University of Paraná (UFPR). Specialist in combating financial crime, money laundering and criminal organization. He has spent more than twenty years in the career of the federal magistracy, having been involved in Operation Car Wash and the Banestado case, among others. In 2012, he was an examining magistrate at the Federal Supreme Court.
* Mr Moro withdrew from the position of Minister of Justice and Public Safety in late April 2020
and does no longer hold the post held at the moment when this interview was done.