The Brazilian House of Representatives is on a fast track to adopt a constitutional amendment (PEC 171/1993) by the end of this month to lower the age of criminal responsibility from 18 to 16 years old for violent crimes. If confirmed by the Senate and finally adopted, the amendment’s impact will be the incarceration of teenagers in an adult-like prison system, instead of in juvenile detention centers specially designed for adolescent offenders. What does this amendment mean for youth rights and their protection under the Constitution of Brazil?
This amendment applies to the most serious offences from rape and murder to serious bodily harm and aggravated robbery. Available data shows that only 11,1% of the 20,532 adolescents in juvenile detention systems in Brazil in 2012 committed criminal offenses against life (murder or robbery followed by death). Nevertheless, according to recent opinion polls, 87% of the population is in favour of the measure, which is promoted by right-wing politicians from the so-called ‘bullets, beef and bible’ caucus as an effective response to high crime rates. This attempt to make teenagers just as responsible for violent crimes as adults in the eyes of the criminal law faces two strong legal critiques.
First, as it was argued by congressman Mr Luiz Couto during the parliamentary debates, the amendment is unconstitutional because it explicitly violates an eternity clause of the Constitution, which prohibits amendments with a retrogressive impact upon individual rights and guarantees (Article 60, para. 4). The fragility of this constitutional protection, though, was illustrated when the parliamentary Constitution and Justice Commission chose instead to adopt the reasoning laid out in congressman Mr. Marcos Rogério opinion. According to Mr Rogério and the majority of the Commission, merely lowering the age of criminal responsibility does not evoke the eternity clause, since the very institute of the age of criminal responsibility remains in place.
The constitutional amendment has sparked extensive, yet qualitatively poor, debate within and outside the Brazilian Parliament. Based on a strictly textual reading of the constitution, others argue that the provision establishing the age of criminal responsibility does not provide an individual guarantee or right simply because it is not contained under the main rights provision (Article 5 of the Constitution). Yet, as one legal commentator indicated, a structural reading of the constitution clearly suggests that several individual rights and guarantees are provided for in other parts of the constitutional text. Furthermore, the constitution requires “absolute priority” to be given to children and adolescents’ rights (Article 227 of the Constitution), such as the right to education, as well as right to family and community life.
A structural reading of the constitutional text, accompanied by a generous interpretation to this principle of absolute priority, ought to prevent such modification to the age of criminal responsibility for violent crimes as anything but a violation of the eternity clause.
Second, the measure dismantles the legal framework set forth by the 1990 Child and Adolescent Statute (ECA), concerning juvenile justice in Brazil, which favours social rehabilitation – through socio-educative detention centers reserved precisely for cases involving violence or repetitive practice of severe offences – rather than adult-like imprisonment.
The proposed constitutional amendment ignores the gains made by specialist youth detention facilities. While this system is far from perfect, statistics reveal that the recidivism rate is almost 5 times lower in the juvenile detention system compared to the adults prison system. It serves to further exclude an already socially vulnerable population. The United Nations office in Brazil reports that between 2006 and 2012, at least 33,000 teenagers between 12 and 18 were murdered, predominantly black and poor. Finally, it runs counter to international trends, which have seen countries – such as the United States – limit custodial sentences for young people avoiding the harms adult-like prisons reportedly cause on them. Furthermore, according to UNICEF, out of the 54 countries analyzed, 78% of them defined – like Brazil – age of criminal responsibility as 18 years old.
Putting the youth judicial and detention system beyond the reach of teenagers over 16 and forcing them towards an overpopulated adult prison system (the 4th largest in the world) is an egregious policy and a statutory mistake of historic magnitude, born out of unreasoned parliamentary debate. Through all of this, the wisdom of the constitutional text whispers a better alternative. What is yet to be seen is if Brazil’s Parliament and the country’s apex court will dare to listen to it.