The prospect of a former president of Brazil facing a long prison sentence highlights the discrepancy in access to justice between privileged and ordinary Brazilians, writes Omar Phoenix Khan
Last week Luiz Inácio Lula da Silva, aka ‘Lula’, ex-president of Brazil, was found guilty of corruption and money laundering and sentenced to nine years and six months in prison. He has been allowed to remain outside prison while he appeals, and may also remain in the running to become president in 2018.
But what if he had to wait in prison for his appeal? What if instead of being surrounded by his party members while waiting for his original trial, he had been remanded to prison, to languish in a cell before he had been found guilty of anything?
My point in this piece is not party political. I am not making a comment about whether Lula is guilty or not. Perhaps he is, or perhaps as many Brazilians believe, as Lula himself claims, that the conviction is ‘an attempt to take me out of the political game‘. Brazilian politics appears to be a House of Cards script that Machiavelli would have been proud of right now; so who knows.
This piece isn’t even really about Lula. What I am asking you to consider, is what if someone of Lula’s political stature did go to jail – like an average João. Whether he deserves is or not; whether he is guilty or not; what would the ramifications be for the struggling prison reform agenda in Brazil?
This is just a thought experiment. I can hear people already suggesting (which may well be the case), that if Lula went to prison, he would not be in a rundown, overcrowded, ill-ventilated, unsanitary, gang-run, violence-dominated hellhole. He would lead a privileged life even in prison.
The very fact that we automatically assume this is emblematic of the deep natured discrepancy in access to justice between the privileged and the underserved. But, just for a moment, let’s imagine that he is in prison… real prison.
Unlike Lula, many don’t retain their liberty while waiting for trial and are kept in remand prisons. When I say many, I mean it. As of April 2017, there were more than 242,000 individuals being held in Brazilian prisons who had not been found guilty of a crime, that’s approximately 37 per cent of the prison population.
How strong would Lula’s case have been if he barely had chance to speak with his lawyer? How strong would his appeal be?
‘But Lula is not a direct threat to anyone. People need to be kept in prison while on trial to protect the public’ – my imagined devil’s advocate.
Of course, there are always some violent offenders or certain cases where public protection should be prioritised over an individual’s freedom, but the scales of justice do not weigh this accurately. People accused of or convicted of nonviolent crimes, with no previous criminal records are ‘overloading prisons‘ in Brazil.
Typically, it’s the poor (I prefer the term the underserved, to lay the weight on the shoulders of the state and not blame the individual), that make up this pretrial population. This is generally because they cannot afford the bail terms, cannot afford a lawyer – or dare I say, a bribe.
As well as being deprived of liberty, as well as being surrounded by violence and kept from lawyers and family, being on held in prison on pretrial detention may well negatively influence the outcome of a trial. A study from the US found that ‘being detained before trial significantly increases the probability of a conviction’.
The fact is that Lula did not face pretrial detention and he is even able to remain in the community to fight his appeal. But let’s image that he loses.
Lula in prison
So now he’s just a number. A prison number that joins the 659,000 plus number currently in Brazil’s prisons, built to house 393,593. Perhaps he is forced to join a gang for protection and witnesses, or even takes part in serious violence. Perhaps he is in a prison where a riot takes place and he survives the torture, beheadings and burning alive that others do not.
Maybe you think this hypothesising gratuitous, but this has literally already happened several times in 2017, leaving people questioning who is really in control of Brazil’s prisons?
What would the public make of an ex-president being caught-up in a hostage situation? Would it change the general public’s support for mass incarceration if they thought that he was tied to bars in order to sleep?
Prison reform is hard to contemplate in the current climate and change proposed in congress is usually to toughen sentences or conditions. It seems that something radical needs to happen before we see Brazil fall in line with the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), as if decapitation wasn’t enough.
Let’s imagine that after serving a third of his sentence, Lula is granted permission to move to more open conditions and then eventually reintegrated back into society.
Will he then use his platform to fight for prison reform? Will the experience of having no food other than that provided to him by his family leave a lasting effect on how he views the justice system?
Will he then get through to the public in a way that nobody else ever could and convince people of the need to ensure the basic safety, health and human rights and move towards greater equality in access to justice?
Perhaps he would. Perhaps he would just sit on a beach and never want to speak in public again. It doesn’t really matter – it was just a thought experiment.
But something needs to happen, because while it is make believe for me, you and Lula, it is reality for a hell of a lot of people, some of whom, their only crime is being underserved by their own state.
Omar Phoenix Khan is Director of Justice Focus