In Brazil’s prisons, inequality isn’t just a condition. It’s the law.

In late 2018, Evaldo dos Santos told his mother he was stepping out to buy bread for breakfast and would be back in a few minutes. Seven months passed before she saw him again.

Walking through the winding back streets of Rocinha, one of Rio’s largest favelas, Mr. dos Santos was caught up in a shootout between drug traffickers and police. When the smoke cleared, police alleged he was part of the gang.

He spent the next several months in Brazil’s overcrowded prison system waiting for the opportunity to prove his innocence – a story shared by hundreds of thousands of Brazilian inmates languishing in pretrial detention. “They make it so that if you are poor, you are stuck in prison. You don’t have money to pay for a good lawyer? To pay for a good defense? Well then, sorry, but you are going to be behind bars for a while,” says Mr. dos Santos, who was eventually released without charges.

Justice systems around the globe are often accused of providing more leniency to people who are wealthy or white. In the United States, for example, the majority of citizens believe the system treats Black citizens less fairly. But Brazil’s justice system doesn’t informally discriminate: It’s written into law. The criminal code dictates that those with a university education – generally wealthier, lighter-skinned Brazilians – are guaranteed private cells isolated from the general prison population until their trial is complete. This protects them from spending pretrial detention in overcrowded, gang-controlled jails, and can sometimes mean awaiting their trial from home.

Yet, more than half of Brazil’s prison population is eventually released without a conviction. A 2013 study conducted by the Open Society Foundation found that of nearly 8,000 individuals arrested that year in Rio de Janeiro, it took on average more than three months for them to be brought to trial. As COVID-19 ravages Brazil – home to the highest pandemic-related death toll behind only the United States – these inequalities have become even more pronounced in prisons known for overcrowded conditions.

In the wake of COVID-19, Brazil has instituted a near-total shutdown of the country’s state and federal prisons to outsiders – whether lawyers or family members – putting prisoners at a heightened risk of catching the virus as well as reducing their access to a legal defense. The move stands in stark contrast to neighboring nations: In Peru, the government temporarily stopped sending people to prison due to the risks presented by COVID-19. And in Argentina, there was an early push to release more prisoners to carry out their sentences under home surveillance.

Brazil’s decision to lock down its prisons highlights its disregard for those it puts behind bars, prisoner advocates say. “I’ve had mothers come to me after their sons have been locked up with the wrong name or charged with the same crime twice and say, ‘Look at the absurdity.’ But it’s not absurd. I’ve heard the same story for years,” says Flavia Pinheiro Froes, a Brazilian lawyer fighting what she sees as a systematic effort to segregate the country’s poor and Black citizens into prisons. The coronavirus is exacerbating already serious human rights concerns around the prison system, but, she hopes, this moment could underscore the need for rapid reforms.

Law and justice

Ms. Froes has spent the past several years traveling Brazil visiting its maximum-security prisons where she meets with clients the government says pose such a risk that her only access is through a monitored video feed.

This hasn’t always been her niche. In a country where there is roughly one public defender per 160 prisoners she recalls accepting pastries in exchange for her legal services when she first launched her career in the 1990s. When Ms. Froes was finishing her law degree, she initially wanted to work to put offenders behind bars. She describes her younger self as a law-and-justice conservative and a “Bolsominon,” referencing Brazil’s hard-line President Jair Bolsonaro. But after a professor convinced her to take an internship at the public defender’s office, she says she was shocked to see the conditions in which inmates were living.

“You had people who were never convicted of a crime or were declared innocent but who the prisons wouldn’t release because there was no one to move their file from one office to the other,” she says. In a 2019 report, Human Rights Watch described Brazil’s penitentiaries as overcrowded, rife with violence, and a pipeline for gang recruitment. Brazilian prisons have nearly double the occupancy they were built to contain.

Her willingness to work with any client, regardless of that person’s wealth or stature, led her onto a career path that’s garnered her death threats and government investigations, but also high-paying gigs defending the country’s most notorious drug traffickers. That money, she says, funds her pro bono and criminal justice reform platforms.

Her work defending Brazil’s most infamous criminals underscores what she sees as the very basis of injustice in Brazil: a system that is selectively punitive, taking a “throw-away-the-key” approach for crimes like trafficking, while allowing openly corrupt politicians to carry on with business as usual.

Get out of jail free?

Brazil’s supreme court said in 2015 that the prison system was overwhelmed by “generalized violations of the fundamental rights of prisoners” and that it acts as a segregationist institution punishing those who are uneducated, mentally disabled, and minorities.

“The bottom line is that the people getting arrested are the poor, Black, and uneducated,” says Rio de Janeiro-based public defender Emanuel Queiroz Rangel. He says this imbalance is the “result of a racist society.”

It’s not just a university degree that can get Brazilians better prison conditions. The law extends to a handful of professions involved in Brazil’s legal infrastructure, including lawyers, police, judges, and anyone who has served on a jury. It also applies to politicians, ambassadors, union leaders, teachers, and anyone who is a part of the Livro do Mérito, a Brazilian professional honor society that can be joined by donation and which is regulated by the presidency.

A 2009 attempt to quash this form of special detention passed Brazil’s Senate, but Congress vetoed the bill and it has since been tabled, overshadowed by nearly a decade of political scandals implicating presidents, congressmen, and the business community. At least a third of the 2009 Congress has benefited from the law in some form following a laundry list of corruption and graft charges, many stemming from the world-famous Car Wash scandal.

The role that political influence plays in providing judicial leniency has become a point of contention in recent months.

Take Fabricio Queiroz, the former parliamentary aid to Flávio Bolsonaro, the president’s son. He was arrested June 16, accused of being the middle man in a corruption scheme implicating the younger Bolsonaro. Less than a month later, courts granted him rare leniency to spend his pre-crime detention at home on account of belonging to a group at high risk of contracting the coronavirus. On July 23, a team of human rights lawyers asked Minister João Otávio de Noronha, who released Mr. Queiroz, for similar leniency for other high-risk inmates. The appeal was denied.

Marcos Fuchs, associate director of Brazilian human rights nongovernmental organization Conectas, says the fact that Mr. Queiroz was granted leniency in itself isn’t wrong. But affording lawyers and finding doctors willing to appeal in one’s favor is an impossible outcome for the vast majority of people.

“From the moment you have your own lawyer, he will be able to apply for a habeas corpus. He will be able to push for the case to be taken to a higher court. Eventually the lawyer will find a way to get his client out,” Mr. Fuchs says.

Since March, Mr. Fuchs has submitted 520 pro bono compassionate release petitions to the courts. About 20 have been successful. The courts have denied over 84% of compassionate release petitions throughout the country over the past three months, with some states like Rio de Janeiro refusing nearly every request.

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