Opinion: Crime and Punishment in Brazil

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – About three months ago, the Curmudgeon opined on the question often referred to as the “presumption of innocence”, as interpreted by Brazil’s Supreme Court (STF) in a 7-4 decision holding that convicted criminals can be jailed after a Court of Appeals decision, even if they are pursuing further appeals.

The Curmudgeon further noted that there was another case pending at the STF dealing with the same question, and that there was a good chance that the prior 7-4 decision would be overturned, as Justices in the majority reconsider their prior position.

That case was decided this past Wednesday, October 5th, and was upheld by a 6-5 decision, with new Presiding Justice Carmen Lúcia casting the deciding vote. This decision represents a landmark in STF case law, because the decision is “erga omnes” or legalspeak for a decision binding on all future cases. The prior decision only applied to the litigants in that case.

The one Justice who changed his vote argued that the difference was critical, as he felt that each case should be considered separately, rather than under a hard and fast rule. The majority disagreed, holding that a rule was definitely needed.

The irony of this latest decision is that what it did was overturn a 2009 STF decision that had held, for the first time in Brazilian history, that the “presumption of innocence” means that someone convicted of a crime cannot be jailed until they have exhausted all their appeals.

Justice Carmen Lúcia had dissented from that decision, because she (and others) know full well that in practice, the principle only applies to those wealthy enough to afford a full set of appeals. More specifically, this latest decision helps the Lava-Jato investigations of corrupt politicians and their cronies.

The public prosecutors and Judge Sergio Moro have long argued that rich and important defendants convicted of corruption, whose convictions have been affirmed by an Appellate Court, should be in jail even as they file other appeals. They have been vindicated.

It is now far more difficult to say that in Brazil, “if you’re poor, you go to jail; if you’re rich and powerful, you don’t.”

The Curmudgeon comes from a country where lower court decisions are respected by upper courts, and where convicted criminals remain in jail pending final appeals.