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1 Implementing restorative justice against a background of excessive incarceration rates
The prison population in Brazil is approximately 750,000 inmates.1x Brazil Ministry of Justice (2019). Infopen. National Survey of Penitentiary Information. 750,000 is an average daily basis in the period between July and December. Retrieved from https://app.powerbi.com/view?r=eyJrIjoiMmU4ODAwNTAtY2IyMS00OWJiLWE3ZTgtZGNjY2ZhNTYzZDliIiwidCI6ImViMDkwNDIwLTQ0NGMtNDNmNy05MWYyLTRiOGRhNmJmZThlMSJ9 (last accessed 2 September 2020). Of these, 30 per cent are on a provisional basis, and 35 per cent are between 18 and 29 years old. There is an over-representation of mixed race and black people, as in the general population its index is 56 per cent and in the penal system it reaches 66 per cent. Considering education, 75 per cent of the Brazilian prison population did not attend high school and less than 1 per cent has a university degree. Almost 10 per cent are sentenced to up to four years despite the possibility of this penalty being easily changed to a more socially relevant response than keeping people in custody.
The penal system has a vacancy deficit of 41 per cent, which means that almost half the inmates share even their mattress besides other spaces with another prisoner. The prison situation came to be considered an ‘unconstitutional state of affairs’ by the Supreme Court of Brazil in 2015, in the judgment of the case ADPF nº 347.2xADPF n. 347 2015 (Brazil). Retrieved from http://portal.stf.jus.br/processos/detalhe.asp?incidente=4783560 (last accessed 2 September 2020). ADPF means, literally, ‘Allegation of Non-Compliance with Fundamental Precept’. Its purpose is to question if a given situation/act/case violates a fundamental precept/principle foreseen in the Federal Constitution. Given this scenario, which is certainly not exclusive to Brazil, it is legitimate to have hope in the restorative justice movement, a spark of light.
How does one expand the understanding of the policymakers that restorative justice can dialogue with mass incarceration, since this topic did not appear in the Handbook? How does one get attention from the leaderships in the justice system if such an important international guiding document did not consider the issue? Perhaps, there are not enough initiatives in restorative justice to prevent incarceration or lack of studies to document how restorative justice circles and practices during the time of incarceration prevent recidivism. Or, perhaps in working out these proposals there was a lack of community members who, besides imagining possibilities and studying cases, experience deeply the pain of this reality. -
2 The extent of responsibility taking
The act of taking responsibility is central to the restorative procedure. Taking responsibility is the result of a reflection or introspection that can be favoured by the use of good questions. It is necessary to provoke an internal problematisation that will gradually lower the resistance and welcome the darker and sometimes perverse side of our own actions. It is about identifying and, in some way, integrating inappropriate and possibly violent behaviours that scratch the self-image. It is already common sense that the accused/offender, the victim and their relational communities participate in the restoration procedure and all are invited to exercise this kind of reflection.
Determining whether a case may be appropriate for restorative justice requires an assessment of the possibilities and risks involved for the parties. According to the guidance of the Handbook (UNODC, 2020: 52-53), such assessment includes factors that mainly concern the crime, its background and criminal relationship; they also concern the victim, the mental states and cognitive abilities of the victim and offender, their possible relationships and supportive communities. Although these aspects are far beyond those conventionally used by the criminal justice system, they seem insufficient to achieve the changes in the social structure.
From the learnings we experienced with participation in activities and processes of restorative justice as a public policy in the criminal justice system, we perceive the need to introduce other dimensions, in addition to the so-called stakeholders and their relational communities. And yet, we need to offer other questions that allow reflections that go beyond the limited context of these relations.
If we imagine the act to be treated with the metaphor of a spiral, the innermost nucleus will represent the stakeholders, and the next layer their communities of care and affection. We are talking about the relational dimension, the most visible and easiest to be themed in the restorative work. Much has been said about restorative justice being a relational justice.
It is necessary for the next layer of the circle to reach the institutional dimension, which gives direct support to the relational sphere. The necessary work is to transform the institutional ambience, so that the structure and culture itself (invariably hierarchical and excluding) does not repeat the situation of violence, as well as does not manipulate the restorative procedures to maintain the power relations in the institution (Penido de Almeida & Mumme, 2014).
Opening even more the spiral, the next circle leads to the social texture that, in many places in Brazil is highly problematic, and according to our perception, is the least envisaged sphere in the restorative approach. Considering the levels of human development3x PUND (2019). Human Development Report 2019. In the human development index, referring to health, education and income data, Brazil ranks 79th among 189 countries. Retrieved from http://hdr.undp.org/sites/default/files/hdr_2019_pt.pdf (last accessed 2 September 2020). which refer to health, education and income, Brazil ranks 79th among 189 countries. It is an unfavourable situation for a country that ranks nine in the list of the world’s largest economies. At the same time, Brazil occupies the seventh position4x Projected GDP Ranking – Gross Domestic Product, 2019. Retrieved from http://statisticstimes.com/economy/projected-world-gdp-ranking.php (last accessed 2 September 2020). as the most unequal country in the world.
The first and only time that the socio-structural inequality is mentioned in the Handbook and the recognition that this issue needs to be addressed is related to hate crimes (UNODC, 2020: 77). It affirms that restorative justice possibly has an important role to play in our social response to hate crime (see also the Notes from the Field on hate crime in this issue). However, applying restorative justice to remediate hate crimes brings with it a unique set of challenges related to power dynamics between the offending party and the victim(s), also, because hate crimes do not only affect individual victims but potentially an entire community. Maybe the so-called hate crimes in some countries are fuelled by the same social inequality that in other countries causes other types of crimes. It is important to consider the social, economic and other structural dimensions when addressing crime by restorative justice; unfortunately, the Handbook does not do so. -
3 On rights and performance of state agents
The above statistical information indicates that the realisation of many rights guaranteed in the Constitution is not available for most of the people. At the same time, the statistics and the reality represented can evoke possible feelings of frustration and social anger, expressed to a greater or lesser extent. In the last decade, the increase in the number of homicides and suicides5x In Brazil, the suicide rate increased by 7 per cent, in contrast to the world index that fell 9.8 per cent in the last six years, according to WHO. Retrieved from https://pebmed.com.br/setembro-amarelo-taxa-de-suicidio-aumenta-7-no-brasil-em-seis-anos/ (last accessed 6 September 2020). (mainly affecting the younger population) and the increase in the use of psychotropic drugs6x In Brazil, consumption of antidepressants grows 74 per cent in six years. Retrieved from https://saude.abril.com.br/mente-saudavel/consumo-de-antidepressivos-cresce-74-em-seis-anos-no-brasil/ (last accessed 6 September 2020). are realities that hide enormous social pressure, and that cannot be ignored when it comes to justice that aims to restore relations and harms.
This reality is further aggravated by the performance of state agents. A survey of people who have passed custody hearings shows that there is little interest in addressing abuses by police or prison officials. In a sample 2,774 cases in Brazil, 23.8 per cent of those in custody stated that there was an occurrence of mistreatment during the act of the arrest; of these, only 21.6 per cent were referred by the judge to the forensic medical institute, and in less than 1 per cent (six cases) a police investigation was initiated (IDDD, 2019; see also Valença, Castro & Borba, 2017).
Further, in 2018, more than 6,160 people in Brazil were killed by police actions, an 18 per cent increase from the previous year. An analysis of 5,896 police killings between 2015 and 2016 found that 65 per cent of the victims were between 18 and 29 years old, and 76 per cent were black (Muggah & Pellegrino, 2020). This data on the police approach confirms the structural racism already pointed out in the data of the penal system.
The numbers so far show the social inequalities that, when multiple and overlapping, contribute even more to urban violence. Deviating from the popular estimate, people in neighbourhoods with lower income and wealth are more likely to be victims of violence than those in neighbourhoods with higher income. Racial and gender inequalities, too, not only perpetuate economic inequality, but also are associated with greater exposure to violence (Muggah & Wahba, 2020). -
4 Social inequalities, structural and cultural dimensions of violence
The above questions are part of the structural and cultural dimensions that need to be taken into account, since the construction of a justice that restores has to be related to the establishment of social rights capable of reversing the levels of violence and raising those of public security. Yet another observation considering the cultural dimension is, as mentioned in the Handbook, the idea that aspects of restorative justice are influenced by aboriginal cultures helps to have a sense of the precautions to be taken when dealing with people from a different cultural, ethnic, linguistic and/or religious background (UNODC, 2020: 51). Taking care that the facilitators are as close as possible to the cultural origin of the stakeholders is already present in restorative practice, although it is not always feasible.
However, the cultural dimension has another significance. I would like to reflect on culture as a place of learning the reproduction of violence, sometimes from early childhood or during the exercise of a profession. The reproduction of culturally learned and justified violence can lead to considering this behaviour normal, nearly natural. Some examples are the data on the violence of state agents presented above, partially covered up and not addressed by alleged ‘guardians of justice’. How can we protect restorative justice from this cultural blindness or eventually bring up this issue in restorative proceedings?
This is a very big challenge for the advancement of restorative justice in countries like Brazil. It is not enough to apply an innovative methodology to work on relational issues if the dimensions of structural violence are not addressed. Often, neither the participants, nor the facilitators, the police, prosecutors and judges are aware of various events of historical and structural violence. The system does not allow them to recognise how they are affected and reproduce violence. Everyone needs to be awakened to identify and overcome blindness, deafness and complicit silence, which make it difficult for restorative practices to truly repair needs, injustices and violence. In countries like Brazil, this calls for an effort to change the lenses several times. In addition to looking at the needs of the people involved, the lenses must be panoramic to foresee a future environment in which the reproduction of violence is stopped.
Law enforcement as a response to crimes involves guaranteeing social rights, on which democracy and social peace depend. To (re)construct what is just, historical and structural injustices need to be remedied. This implies the understanding that justice cannot treat those involved in criminal proceedings as if they were all equal and the same. As mentioned in the Handbook (UNODC, 2020: 95), leadership is required to help criminal justice personnel and stakeholders within the community alter their perceptions of justice and how justice is best achieved. This requires thinking beyond the box and broadening/extending the range of the justice system’s response beyond the reactive, adversarial and retributive approaches to include such notions as structural injustice as well as healing, forgiveness and reintegration. -
5 Conclusion
Concluding my reflection, I return to the initial statement about the core idea to building a restoring justice: the act of taking responsibility. As well as the stakeholders in criminal cases, it is necessary that the lawyers, magistrates and prosecutors take responsibility for their acts and the reality in which they legislate. It is necessary that the constitutional guarantees that founded the Republic guide the work of restoring justice for all, because that is what democracy depends on. For a longer-term impact, there is an urgent need for a creative, inclusive and socially responsible spirit, so as not to feed an anti-constitutional situation by incarceration. The Handbook suggests that these changes should involve a reorientation of university courses (UNODC, 2020: 65). But from our perspective, the urgent demand, far beyond the introduction of restorative justice principles in school and university curricula, is for a legal redemption of rights, including social rights.
The Handbook is a very important tool for all who work with restorative justice for bringing extensive information about possibilities and experiences and thus inspiring new actions. Of course, it would also be interesting and necessary for local groups from universities, the justice system and civil society to deepen it, to apprehend the important contents of each reality as well as to add what that local reality demands. References IDDD (2019). O fim da liberdade. A urgência de recuperar o sentido e a afetividade das audiências de custódia. Retrieved from https://iddd.org.br/pesquisa-revela-o-fim-da-liberdade-nas-audiencias-de-custodia/ (last accessed 28 August 2020).
Johnstone, G. & Van Ness, D.W. (2007). The meaning of restorative justice. In G. Johnstone & D.W. Van Ness (eds.), Handbook of restorative justice (pp. 5-23). Cullompton: Willan Publishing.
Muggah, R. & Pellegrino, A.P. (2020). Prevenção da violência juvenil no Brasil: uma análise do que funciona. Rio de Janeiro: Instituto Igarapé. Retrieved from https://igarape.org.br/wp-content/uploads/2020/02/Prevencao-da-violencia-juvenil-do-Brasil-youth_violence.pdf (last accessed 28 August 2020).
Muggah, R. & Wahba, S. (2020). How reducing inequality will make our cities safer. The World Economic Forum COVID Action Platform. Retrieved from www.weforum.org/agenda/2020/03/what-are-the-causes-of-urban-violence-inequality/ (last accessed 28 August 2020).
Penido de Almeida, E. & Mumme, M. (2014). Justiça restaurativa e suas dimensões empoderadoras: como São Paulo vem respondendo o desafio de sua implementação. Revista do Advogado: mediação e conciliação, 123, 75-82.
UNODC (2020). Handbook on restorative justice programmes. Vienna: United Nations. Retrieved from www.unodc.org/documents/justice-and-prison-reform/20-01146_Handbook_on_Restorative_Justice_Programmes.pdf (last accessed 28 August 2020).
Valença, M.A.R., Castro, H.R.C. & Borba, M.M. (2017). Audiências de custódia e seus desafios: apontamentos a partir da realidade do Recife. In A.E.R. Santoro & G.C.E. Gonçalves (eds.), Audiência de custódia (pp. 437-458). Belo Horizonte: Editora D’Plácido.
Wood, W. (2015). Why restorative justice will not reduce incarceration. The British Journal of Criminology, 55(2), 883-900. doi: 10.1093/bjc/azu108.
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1 Brazil Ministry of Justice (2019). Infopen. National Survey of Penitentiary Information. 750,000 is an average daily basis in the period between July and December. Retrieved from https://app.powerbi.com/view?r=eyJrIjoiMmU4ODAwNTAtY2IyMS00OWJiLWE3ZTgtZGNjY2ZhNTYzZDliIiwidCI6ImViMDkwNDIwLTQ0NGMtNDNmNy05MWYyLTRiOGRhNmJmZThlMSJ9 (last accessed 2 September 2020).
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2 ADPF n. 347 2015 (Brazil). Retrieved from http://portal.stf.jus.br/processos/detalhe.asp?incidente=4783560 (last accessed 2 September 2020). ADPF means, literally, ‘Allegation of Non-Compliance with Fundamental Precept’. Its purpose is to question if a given situation/act/case violates a fundamental precept/principle foreseen in the Federal Constitution.
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3 PUND (2019). Human Development Report 2019. In the human development index, referring to health, education and income data, Brazil ranks 79th among 189 countries. Retrieved from http://hdr.undp.org/sites/default/files/hdr_2019_pt.pdf (last accessed 2 September 2020).
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4 Projected GDP Ranking – Gross Domestic Product, 2019. Retrieved from http://statisticstimes.com/economy/projected-world-gdp-ranking.php (last accessed 2 September 2020).
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5 In Brazil, the suicide rate increased by 7 per cent, in contrast to the world index that fell 9.8 per cent in the last six years, according to WHO. Retrieved from https://pebmed.com.br/setembro-amarelo-taxa-de-suicidio-aumenta-7-no-brasil-em-seis-anos/ (last accessed 6 September 2020).
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6 In Brazil, consumption of antidepressants grows 74 per cent in six years. Retrieved from https://saude.abril.com.br/mente-saudavel/consumo-de-antidepressivos-cresce-74-em-seis-anos-no-brasil/ (last accessed 6 September 2020).
In this short reflection, I wish to welcome and comment upon the second edition of the UNODC Handbook on restorative justice programmes (UNODC, 2020) (hereinafter the Handbook), which hopefully will be translated as soon as possible into Portuguese because of its relevant contributions to the implementation of good restorative justice policies and practices. At the same time, I reflect critically on some, according to my understanding, crucial points to develop and implement restorative justice in a country such as Brazil with such excessive incarceration rates, structural inequality and violence. An underlying question is whether the Handbook considers sufficiently this kind of challenges, especially for the southern countries of our world.
Restorative justice is defined by some as an alternative to the criminal justice system, while others think of it primarily as a complement to the criminal justice system (Johnstone & Van Ness, 2007). The Council of Europe’s Recommendation CM/Rec (2018) 8 of the Committee of Ministers to Member States concerning restorative justice in criminal matters acknowledges that restorative principles and approaches may be used within the criminal justice system, but outside of the criminal procedure. According to this orientation, an adequate application would be in dealing with grievances, conflicts and misconducts within the criminal justice system, particularly in policing and in prisons (UNODC, 2020: 38).
Despite the recommendation of the Council of Europe and the fact that there are still no formal studies that show that restorative justice can reduce the number of people in prisons (Wood, 2015), there are various social movements expecting transformation at the micro and macro levels, in medium and long term, to favour behavioural changes not only in the accused persons, but also in the broader social structure. Unlike many places, in Brazil, the hope of restorative justice as a public policy also has to do with the possibility of changing the punitive culture and, consequently, promoting a reduction of incarceration rates. This could have an impact on the volume of incarceration.