During the nine months in which data was collected for the study entitled, “Giving birth in the shadows,” the team coordinated by Professor Ana Gabriela Braga detected a split in opinions among pregnant inmates and female detainees whose children stay with them in the prison. This study, which is not quantitative, clearly showed that some inmates were in favor of keeping children inside the prison, near their mothers, while others favored separation so that the babies were kept away from the prison environment. This study indicated that between the two most frequent options under the Brazilian prison system, both are seen as “the lesser of two evils.”
“Today, almost all the states have or are currently building a single establishment, generally located near the state capital, with specific wings for pregnant women or mothers with newborns,” says Braga, Criminal Law professor at the São Paulo State University School of Humanities and Social Sciences (Unesp), Franca campus. Therefore, Article 89 of the Sentence Execution Act (LEP in Portuguese), which was added in 2009, is not being complied with: “Women’s prisons will have a section for pregnant and birthing women, and a day-care center for children between the ages of 6 months and 7 years, to care for children whose mothers are incarcerated.” The analysis of all these questions led to the preparation of 30 proposals for public policies to try to improve the situation of constant violations.
“The problem surrounding the exercise of rights related to motherhood in the prison system is generally not a matter of enacting laws, but instead, of ensuring that existing laws are obeyed,” says Braga. Of the 30 proposals formulated by the study, only five require modification of existing legislation; of which three are the subject of bills currently before lawmakers. “The right to education and to work is not guaranteed to all inmates; there is no separation of units between those awaiting trial, and convicted prisoners and the legally guaranteed time period that mothers can stay with their children is not being respected,” she continues. “In practice, the minimum period of six months ends up being the maximum period, since room must be made for newborns.” In the absence of day-care facilities, babies stay in the cells with their mothers. When children are removed from the prison, they go to shelters or are handed over to family members, generally to their grandmothers.
The research coordinated by Braga was conducted under the scope of the project “Thinking about the Law,” of the Office of Legislative Matters of the Ministry of Justice, in partnership with the Institute for Applied Economic Research (Ipea). The study was conducted in a variety of spheres: 50 formal interviews with specialists in this area, 80 conversations with pregnant inmates or mothers of babies (based on guideline questionnaires), the creation of a focus group for discussions in the Franca prison and visits to women’s prisons in the capital cities of six Brazilian states and in Argentina, to hear from inmates and prison employees and to see the facilities. The work concluded with “recommendations for legislative and procedural alterations and for proposals for public policies to minimize the systematic scenario of violations to which the majority of imprisoned mothers are subject in Brazil.” These recommendations are largely laid out in the amendments to the LEP, by the Statute of the Child and Adolescent and by the Bangkok Rules, the set of guidelines on the treatment of imprisoned women approved in 2010 by the United Nations, to which Brazil is a signatory.
The female prison population has been growing significantly. According to data from the study, while the increase in the number of male inmates between 2000 and 2012 was 130%, the female population grew by 246%. The total number of women prisoners in 2012 was 35,072, which corresponds to 6.4% of all those incarcerated in Brazil. There are no specific statistics on the number of children who are with their mothers in the prison system, which justifies the label of “invisible population” given by researchers. The profile of the majority of women in prison is described by the study as “young, low-income, generally mothers, detained pre-trial for drug-related or property crimes.”
According to the researchers, the fact that drug trafficking is considered a heinous crime by the current legislation is used to give legitimacy to a policy of mass incarceration. Being categorized as a heinous crime does not constitute a legal impediment to pretrial release or pretrial detention for those accused or convicted of drug trafficking, but, according to Braga, “the issue of morality weighs heavily in the decisions of many judges, who see incompatibility between being a drug trafficker and a good mother”. According to Luciana Boiteux, a professor at the National Law School of the Federal University of Rio de Janeiro (FND-UFRJ), “some judges render decisions based on arguments such as security and the defense of society, to the detriment of rights and guarantees that are explicitly established in the law.”
“Women are the easiest target of the war on drugs,” says Braga. “Their status among traffickers is lower and they are usually restricted to transporting and storing the drugs at home, which enables them to reconcile this activity with their domestic duties. Nevertheless, they are the most visible point of organized crime, which leaves them more vulnerable.” According to the researchers, pretrial detention is common because it is based on the statements of the arresting officers.
Other problems identified include lack of access to education, which prevents inmates from taking advantage of the right to have their sentences commuted as a result of their studies, and precarious access to the judicial system. “The Public Defender system is very fragile, and women often do not even have contact with the judges who decide where the child will go,” says Braga. “It is common for them not to know where their children are, since they are not informed of their fate.” According to this researcher, there is often a lack of communication between the Civil Courts, where the children’s custody cases are decided, and the Criminal Courts, where the inmates’ alleged crimes are tried.
Medical care provided to mothers and children, which is required and provided for in detail in the LEP and in the Bangkok Rules, is also far from ideal, according to the study data. “All those interviewed complained about the disregard for health care provided in prison,” according to the final report of the study. “Even though the doctor comes every week, only one inmate in each cell can be seen by him each time, and there is no medication for certain illnesses and not enough medicine for all the women.”
The study entitled “Women and children behind bars,” coordinated by Luciana Boiteux, da UFRJ, and Maíra Fernandes, president of the Penitentiary Council of the State of Rio de Janeiro, indicates that at the Talavera Bruce prison in Rio, it is common for inmates to complain that the guards are distrustful of their requests for medical care and medication. The majority of inmates (53.7%) said they do not receive gynecological care. There have been numerous reports of incomplete prenatal examinations: some women only had ultrasounds, and others were only given blood and urine tests. There are also claims that some women were forced to give birth while handcuffed. “Babies should never be born inside prisons, due to the lack of proper hygiene and medical care,” says Boiteux. “In Rio de Janeiro, family members are not even allowed to be present during the birth.”
The recommendations of the study “Giving birth in the shadows” can be summarized as follows: “To implement policies designed to keep babies together with their mothers, which favor decarceration, and in cases in which the sentence is maintained, for this contact to occur in an environment that is comfortable and healthy for both parties.” The researchers chose to present the proposals considering, in all cases, the possibility that they will be sponsored by the Executive Branch: in cases of recommendations for implementation or alteration of a law or a bill before the legislature, or the development of a public policy.Republish