São Paulo, April 8, 2015

A pilot program in northeastern Brazil is reducing the number of people sent to pretrial detention, a major factor in prison overcrowding and gang recruitment, Human Rights Watch said today. The program in Maranhão state promptly brings detainees before judges for “custody hearings” to determine whether they should be held in pretrial detention or released on bail.

 The prompt hearings are required under international law but are rarely provided in Brazil, where many prisoners wait months to see a judge. In nearly 50 percent of cases in the pilot program in the state with the worst prison violence in recent years, presiding judges found that pretrial detention was not warranted and ordered the detainee’s release. In cases in which judges made custody determinations based only on police reports, judges ordered detainees released in 10 percent of the cases, although international law requires a legal presumption in favor of release.

“Prisons are supposed to help contain violent crime, but in Maranhão they have instead promoted gang membership and violence, both within their walls and out on the streets,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “The pilot program is showing that respecting Brazil’s human rights obligation also has the potential to help curb this chronic problem throughout the country.”

In January 2015, Human Rights Watch visited Pedrinhas, the largest prison complex in Maranhão, and interviewed 25 inmates and 17 relatives of current or former inmates, as well as judges, prosecutors, public defenders, defense lawyers, former guards, local officials, and representatives of the Sociedade Maranhense de Direitos Humanos (Maranhão Human Rights Society), a nongovernmental group.  

 Custody hearings prevent the unlawful arbitrary imprisonment of suspected nonviolent offenders while they await trial. The hearings allow judges to make informed decisions regarding whether a person has been lawfully detained and should be sent to pretrial detention.

 Without the hearings, detainees waiting to see a judge for the first time may spend months in overcrowded prisons, under intense pressure to join gangs, Human Rights Watch found.

More than 90 inmates have been killed in Maranhão’s prisons in the past two years, most by members of rival gangs, according to data from the National Council of Justice and the Maranhão Human Rights Society. Gang members have mutilated their victims, carried out kidnappings and extortion inside prisons, and raped visitors, detainees and officials told Human Rights Watch.

 Over the past decade, two gangs formed within Pedrinhas: the Primeiro Comando do Maranhão (Maranhão’s First Command, PCM), most of whose members are from the interior of the state, and Bonde dos 40 (Streetcar of the 40, a reference to 40-caliber handguns), most of whose members are from São Luis, the capital city. Initially created by inmates seeking to protect themselves from violence within the prisons, the gangs grew to control entire facilities within Pedrinhas.

 They also extended their illegal activities outside the prison walls and now dominate entire neighborhoods of São Luis. During these years, violent crime rose precipitously in the state, with the homicide rate tripling between 2002 and 2012, according to the Mapa da Violencia 2014, an academic study based on Health Ministry data.

 In January 2015, police detained 36 men at a party in São Luis, after anonymous callers told the police that it was organized by a prison gang, though partygoers and family members Human Rights Watch interviewed said they were not gang members. Yet upon arrival at Pedrinhas, the detainees asked to be held in cells with members of Bonde dos 40 because they live in neighborhoods dominated by that gang and were afraid they would be killed if they were incarcerated with members of PCM. This is clearly a recipe for gang recruitment, Human Rights Watch found, with consequences for the detainees long after their release.

 The growth of the gangs has been due in large measure to the lack of security within prisons, which has been aggravated by overcrowding, local officials told Human Rights Watch. As of October 2014, more than 6,500 people were incarcerated in Maranhão facilities, which were built to hold 3,605 inmates, according to a state judiciary report.

 Sixty percent of these inmates are pretrial detainees, the report says. They are routinely housed with convicted criminals, in violation of international standards.
 The right of a detainee to be brought before a judge without delay is a fundamental right under international law, enshrined in treaties ratified by Brazil, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights. The right applies to all detainees without exception and is intended to bring the detention of a person in a criminal investigation under judicial control. The individual must be brought physically before the judge so the judge can inquire into the person’s treatment in custody.

 Custody hearings are also critical to stem torture and mistreatment of detainees by police, a serious problem in Brazil. Judge Fernando Mendonça told Human Rights Watch that he found signs of mistreatment in three cases during custody hearings under the pilot program and referred them to the Prosecutor’s Office. Physical signs of mistreatment would have most likely disappeared if detainees had to wait for many months to see a judge.

 A draft bill introduced in Brazil’s Congress in 2011 would require custody hearings throughout the country, but Congress has not acted. In February 2015, the state of São Paulo started its own custody hearings program in partnership with the National Council of Justice.

“Brazil’s Congress needs to stop sitting on the custody hearings bill and make these hearings the law of the land,” Canineu said. “But states don’t need to wait for Brasilia to act. Maranhão has shown that custody hearings both respect human rights and produce promising results.”

Summary of Findings

 For years, lack of custody hearings in Maranhão has resulted in the unlawful incarceration of people charged with minor crimes who should not have been held in pretrial detention under Brazilian law. Filling prisons with people who should not legally be there contributes to overcrowding, a major cause of the growth of gangs in Maranhão.

 Pretrial detainees are routinely housed with criminals, another violation of international law that has contributed to gang recruitment.  

 Detainees who did not belong to a gang before their arrest feel compelled to join one when they are incarcerated, detainees, family members, and local officials told Human Rights Watch. When detainees arrive, prison personnel ask them what gang they belong to and assign them to the units controlled by that group. They are also allowed to ask to be sent to a “neutral” unit if they say they are not gang members. However, both detainees and officials said they believed gangs were also present in that unit.

 The deputy head of Maranhão’s Public Defender’s Office told Human Rights Watch that for cases involving drug charges, the first hearing before a judge takes place “in the best of circumstances” 90 to 120 days after arrest. “That means gangs have 120 days to convince the person to join them,” he said.

 For detainees accused of other crimes, the wait is often even longer, officials told Human Rights Watch. Human Rights Watch found cases of pretrial detainees in the prison who had been held up to nine months without seeing a judge.

 A spiral of prison violence finally led Maranhão to adopt custody hearings starting in October 2014. Through December, 20 percent of the people detained in flagrante – or caught in the act – in São Luis were granted custody hearings, according to the first official report on the pilot program. Early assessments show that the hearings have helped prevent the improper arbitrary pretrial imprisonment of nonviolent suspects and that custody hearings can be provided through the collaboration of local authorities and the police. Other Brazilian states should follow its example, Human Rights Watch said.

Prison Overcrowding and the Growth of Gangs in Maranhão
 Maranhão’s prisons have for years been plagued by overcrowding, contributing to lawlessness and the rise of gangs within the prison walls. 

 As of October 2014, there were 6,538 detainees in a system with a capacity of 3,605, according to a report by the state judiciary. Pedrinhas had 152 inmates in a unit for 96, and 252 inmates in another unit for 104. During the January 2015 visit, Human Rights Watch saw between 12 and 16 people in three cells, each with a capacity of 8. One cell had 9 detainees but only three cement bunks.

 This overcrowding makes it very difficult for guards to maintain control and protect inmates from each other, two former Pedrinhas guards told Human Rights Watch. One said that for many years there had not been enough guards to safely enter cellblocks and cells “to stop atrocities and crimes.” As a result, prison personnel mostly stayed outside of the iron gates of cellblocks. For years cells were not locked in Pedrinhas, and detainees were free to move around within cellblocks.

 Inmates from nearby São Luis routinely victimized detainees from the interior of the state, who were sent to Pedrinhas due to lack of space in facilities closer to their homes, officials said. To defend themselves, the inmates from the interior founded the PCM, prompting São Luis inmates to form Bonde dos 40. “The state let the gangs take control of the prison system,” Cesar Castro Lopes, a former guard who is vice president of the guards union, told Human Rights Watch.
 
Gang Violence 

Gangs were responsible for a dramatic increase in the number of killings behind bars in the state in 2013. Sixty inmates were killed, most in Pedrinhas, compared with seven the year before, according to data from the National Council of Justice and nongovernmental groups. There were 32 killings in 2014 and 3 from January to March 23, 2015.

 Most of the victims are targeted because of their real or suspected membership in a rival gang. “It is a war,” the jailed leader of the PCM, Moises Magno Soares Rodrigues, aka “Saddam,” told Human Rights Watch, referring to the violence between his gang and Bonde dos 40.

 Ubiracy Pereira Aranha, 22, was a random victim of that war. He was shot in the head on October 10, 2013, after PCM members invaded the area where Bonde dos 40 inmates were being held during prison riots and attacked them indiscriminately. Eight other inmates were killed that day and 20 were injured. Aranha had been convicted of homicide for participating in a robbery during which one of his accomplices killed a restaurant owner. He was scheduled to be released on furlough the day he died, his mother told Human Rights Watch.

 In some cases, gang members killed inmates placed in a cell or facility controlled by a rival gang. AJ, a detainee, said that in June 2013 prison officials transferred 16 members of Bonde dos 40 to a wing occupied by PCM detainees in Pedrinhas. He attributed the decision to negligence on the part of the prison director, who did not bother to check gang memberships. From a window, AJ saw the PCM members kill three of the transferred inmates with homemade knives and a gun. The other Bonde dos 40 members were able to escape, some of them injured, he said.

In several cases, inmates took gruesome steps to cover up alleged murders. Ronalton Silva Rabelo, 32, who was sent to pretrial detention in September 2012 on burglary charges, was found to be missing on April 1, 2013, according to police and prison reports obtained by Human Rights Watch. JK, one of his cellmates, told police that some days earlier, eight inmates, among them members of Angels of Death (Anjos da Morte, ADM), a small gang, entered the cell and grabbed Rabelo. One of them called ADM’s top leaders to ask them for authorization to kill Rabelo, which they granted. The killers dismembered Rabelo and cooked his body parts to disguise the odor of a decomposing body, then disposed of them in the garbage, JK said. PY, another witness, corroborated the story and said that Rabelo was killed because before he was sent to prison he had injured a man who was later detained in the same unit.

 The police decided not to open a formal criminal inquiry after some inmates said that they heard rumors that Rabelo had paid 40,000 reais (about US$12,700) to two prison employees to facilitate his escape. According to the police report JK said one of those inmates was among the killers. Rabelo’s family said they did not believe he escaped because he was to be released a few days later.  

 Another inmate, Rafael Alberto Libório Gomes, 23, was discovered missing in 2014, and his dismembered remains were found buried within the prison grounds a few days later.

 In other cases, gang members mutilated their victims’ corpses and left them on display. The first beheadings in Maranhão’s prisons occurred during a riot in Pedrinhas in 2010 and since then inmates have decapitated victims several times, local officials said. In January 2014, video footage recorded by prisoners and posted online by Folha de São Paulo newspaper showed the decapitated corpses of three of the four inmates killed by fellow prisoners in December 2013.

Segregation of Gang Members 

 The government of Maranhão declared a state of emergency in the prison system and deployed the Military Police and National Guard in Pedrinhas in October 2013 after a riot that left 9 inmates dead and 20 injured. Gang members also burned buses in São Luis; the violence led schools to suspend classes.

 A year later, in an attempt to reduce violence within Pedrinhas, prison authorities began housing gang members in different units. Previously, inmates from different gangs had been housed in the same units and, although divided into separate wings, had more opportunities to come into contact with one other, said Paulo Rodrigues da Costa, who served as director of the state prison system from September to December 2014. Authorities also started keeping prisoners locked in cells, rather than allowing them to interact in open pavilions. Since then, the number of deaths has dropped dramatically. From October 1, 2014, to March 20, 2015, there were five deaths in Pedrinhas. However, gang leadership control over the inmate population within each facility has increased, according to several state officials with whom Human Rights Watch spoke.

Pressure to Join Gangs

 When pretrial and convicted male detainees arrive at Pedrinhas, they are initially placed in what is known as the “triage” unit, where separate cells are reserved for Bonde dos 40 members, PCM members, and detainees who are not gang members. Prison authorities ask the new arrivals whether they belong to a gang and assign them to cells based on their response. 

 The inmates who declare themselves gang members are eventually transferred to one of five Pedrinhas units designated for one of the two gangs. Those who declare themselves “neutral” are moved to a facility known as “Cadet” (short for “Casa de Detenção”) that is supposed to be free of gang activity. But prison officials and judges told Human Rights Watch that they suspected there were gang members in the “neutral” facility as well. Female inmates are held in a seventh unit.

Inmates told Human Rights Watch that they come under intense pressure to join the gangs. One pretrial detainee said that members of Bonde dos 40 and PCM had called his wife to tell her that he had to join a gang. He is being held in a special isolation unit for his protection.

 OS, 42, is a detainee in a “semi-open” facility in São Luis, where inmates who have already served part of their sentences are allowed to leave during the day but must return at night. He works at his brother’s minimarket, in a neighborhood controlled by Bonde dos 40. He said that in Pedrinhas, he felt compelled to stay in PCM cells because he is from the state’s interior. “In prison either you go to PCM or to Bonde, there is no neutral,” he said.

 Now, members of Bonde dos 40 consider him an enemy, even though neither he nor his brother is a formal member of PCM. They get threats from gang members in the neighborhood and fear death every day, he said. Bonde dos 40 killed a third brother in front of his house in São Luis in August 2013.