The presidential pardon is a Brazilian tradition enacted every Christmas season by
federal decree. An inheritance from Portuguese tradition, the Imperial pardon was
incorporated into the first Brazilian constitution, of 1824, and remains a presidential
prerogative according to the 1988 Federal Constitution.11. Rede de informação legislativa e jurídica (LEXML)
[internet]. Brasília: Senado Federal; 2009 [cited 2012
June]. http://www.lexml.gov.br/
http://www.lexml.gov.br/...
In 2008, this merciful regulation included, for the first time, mentally
ill offenders detained in forensic hospitals (decree 6076/2008).11. Rede de informação legislativa e jurídica (LEXML)
[internet]. Brasília: Senado Federal; 2009 [cited 2012
June]. http://www.lexml.gov.br/
http://www.lexml.gov.br/...
Since then, it has been renewed on an annual basis.
According to the Brazilian Penal Code (1940, revised 1984), when a defendant is unable to
understand the illicit nature of his or her acts or is incapable to behave in accordance
with his or her understanding, he or she will be found “unimputable” (not
subject to criminal responsibility).11. Rede de informação legislativa e jurídica (LEXML)
[internet]. Brasília: Senado Federal; 2009 [cited 2012
June]. http://www.lexml.gov.br/
http://www.lexml.gov.br/...
,22. Taborda JG. Criminal justice system in Brazil: functions of a
forensic psychiatrist. Int J Law Psychiatry. 2001;24:371-86. Defendants thus found will be pronounced not
guilty by reason of insanity (NGRI) and sentenced to compulsory treatment, a type of
criminal commitment known as a “safety measure.”11. Rede de informação legislativa e jurídica (LEXML)
[internet]. Brasília: Senado Federal; 2009 [cited 2012
June]. http://www.lexml.gov.br/
http://www.lexml.gov.br/...
,22. Taborda JG. Criminal justice system in Brazil: functions of a
forensic psychiatrist. Int J Law Psychiatry. 2001;24:371-86. The modality of
treatment and its length are determined by law. An annual psychiatric risk assessment is
required, as patients held under a safety measure are, by legal definition,
“dangerous.”22. Taborda JG. Criminal justice system in Brazil: functions of a
forensic psychiatrist. Int J Law Psychiatry. 2001;24:371-86. However, the new
presidential decrees (issued from 2008 on) explicitly do not require a medical
examination for a full pardon. These presidential decisions have been confirmed by two
superior courts: the São Paulo State Court and the Superior Tribunal of Justice, in
Brasilia. These peculiar decrees and upcoming sentences raise a series of questions.
First, patients in safety measure are sent to a forensic hospital for treatment, not for punishment. Thus, the logical rationale would be to follow a multidisciplinary treatment plan and discharge them only when properly treated. If this is not accomplished, some patients will be released when still under treatment, to the detriment of their best interests. Second, the forensic population is a heterogeneous one, and comprises from chronic mental patients who have committed minor offenses to psychopathic serial killers. Thus, these decisions can be a mistake from both the human rights and social security standpoints; the former because some pardoned patients are released to the “freedom of the streets” or removed to non-forensic psychiatric hospitals. As it is widely known, these hospitals do not have secure facilities, and their staff lacks expertise in treating forensic patients. Depending on their clinical characteristics, these patients can put the staff and other patients at risk, clearly contradicting Law 10.216/01 and basic human rights. Disregarding the risk assessment (the “cessation of dangerousness” examination) will place a large number of citizens at risk, since some dangerous criminals may be released only to commit new offences.22. Taborda JG. Criminal justice system in Brazil: functions of a forensic psychiatrist. Int J Law Psychiatry. 2001;24:371-86.
Since these patients were declared NGRI, is the presidential pardon applicable? Is it ethical and legal to cease ongoing treatment abruptly? Should the safety of society and the routines of non-secure hospitals be put aside?
The authors do hope that legislators will seek guidance from mental health professionals regarding the field of mental health, and, furthermore, that future instances of the presidential pardon take into account professional opinions when dealing with mentally ill offenders.
References
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1Rede de informação legislativa e jurídica (LEXML) [internet]. Brasília: Senado Federal; 2009 [cited 2012 June]. http://www.lexml.gov.br/
» http://www.lexml.gov.br/ -
2Taborda JG. Criminal justice system in Brazil: functions of a forensic psychiatrist. Int J Law Psychiatry. 2001;24:371-86.
Publication Dates
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Publication in this collection
Mar 2014
History
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Received
25 June 2012 -
Accepted
22 July 2012