Crises in the management of Brazilian prisons tend to be neglected by state actors who see the problem as intractable. Institutional conflicts weaken state authority, political and financial incentives for change are weak, and accountability on this issue has rarely been a priority for civil society. But some novel programmes show that much progress can be made despite this difficult terrain, writes Débora Zampier.



Prisons represent everything that can go wrong in the interplay between state, market, and civil society: a mix of social abandonment, lack of opportunities, and bad incentives.

At least ten million people are incarcerated worldwide, yet the topic is virtually invisible in development debates. In the humanitarian arena, state violations against inmates have a far lower public profile than violations involving victims of war, immigrants, or refugees.

Chronic crises in prison management are inexplicably neglected from a policy perspective, creating scenarios of segmented state failure where functioning states coexist with collapsed prisons. This neglect has allowed organised crime to grow and spread from within, but states seem unable to respond and civil society remains largely apathetic.

Understanding this phenomenon requires an interdisciplinary investigation of formal and informal institutions, starting with a reflection about state effectiveness and the process of change.

The problem of seeing prisoners as non-citizens

Development debates about improving state effectiveness usually revolve around the idea of active citizenship. But prisoners do not sit comfortably within this argument for two reasons. First, they generally lose the right to vote once imprisoned and become tax consumers rather than tax payers. Second, prisoners usually come from low-income groups that lack voice and political leverage.

As a result, the pressure for a better system has to come from wider civil society, but this entails practical problems. From a behavioural perspective, it is logical to expect civil society to object to the idea of having its taxes spent on the wellbeing of people that have negatively impinged on the public, particularly in a scenario of widespread violence and no guarantee of rehabilitation.

This argument is even more relevant for developing countries, where state effectiveness in priority areas such as health and education is weak and where the cost of incarcerating a single inmate can be greater than the combined income of various households.

Gaps in authority, incentives, and accountability

So, is it possible to improve prisons without having civil society as an ally? The answer depends on gaps in macro-institutional arrangements around authority, incentives, and accountability (AIA), as the case of Brazil demonstrates.

Three points of institutional conflict weaken state authority, resulting in poor coordination between key actors and a lack of compliance.

First, there is a federal versus local clash: the system is decentralised and the 27 local governments enjoy a high level of autonomy and discretion in prison management, often ignoring federal laws and policies.

There is a second clash between the executive and the judiciary: both are responsible for penal outcomes, with the executive managing the system and the judiciary providing enforcement, but each blames the other for ongoing problems and shared responsibility can morph into no responsibility.

Finally, a repressive approach to public security prevents the institutionally associated prison system from setting its own agenda, which leads in turn to worsening prison conditions.

The two main incentives that could induce state agents to deliver better services are very weak for the prison system. Politicians and state agents have little political incentive to improve prisons when civil society shows limited interest in this agenda. As with the Brazilian health system, local states might better adhere to national policies for the prison system if this brought financial gains from the central government. Instead, the federal budget for this purpose has been cut, diverted, or blocked in recent years.

These problems in authority and incentives are also intimately linked to a lack of accountability, with wider civil society apathetic about the issue and reluctant to pressure the government for improvements.

Improving on a dysfunctional system

State officials tend to wash their hands of the problem, arguing that dysfunctional prisons are simply too complex to change. However, it is possible to find solutions by targeting the right mechanisms of authority, incentives, and accountability.

One example is the Custody Hearings programme, which obliged Brazilian judges to meet pre-trial detainees before issuing a ruling. This avoided more than 115,000 unnecessary incarcerations in just two years, all without the need for major investment or new legislation.

The programme was implemented in 2015 by the former Chief Justice of the National Council of Justice and the Supreme Federal Court, Ricardo Lewandowski, who used his authority and leadership to coordinate local actors.

It also explored different incentives: magistrates were asked to comply with the law, while the executive was presented with a chance to cut costs. Based on agreements with local-state representatives rather than legal reform, the accountability aspect proved to be the weakest pillar, and the programme’s continued existence depends on perceived incentives for local actors.

More broadly, even though the issue never fails to provoke strong emotions, deeply conflicting interests, and intractable disagreements, there are many alternative approaches to managing the prison system that could provide at least partial solutions.

Given the special nature of their service-delivery dynamics, prisons could benefit from establishment of a central authority that could inform and articulate relevant policies. Even if civil society is generally apathetic, there remains much room for specialised legal and human-rights organisations to join forces and advocate for a progressive agenda. Political incentives could be created through a change of discourse on improving prison management, framing it in terms the risk of state paralysis due to organised criminal activities or the growing cost of the system, for example.

Instead of focusing on alerts and normative prescriptions that have limited impact, the international community would do well to act more strategically in its interactions with local actors and attempt to reinforce mechanisms of authority, incentives, and accountability that are already in place.

Notes:

• The views expressed here are of the authors rather than the Centre or LSE

• This article draws on the author’s contribution to the edited volume “Para além da prisão: reflexões e propostas para uma nova política penal no Brasil” (Letramento, 2018)

• This is a revised version of a post originally published by the LSE International Development blog

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