Home Law International Handbook of Juvenile Justice
II America: North America, South America
Corinne Davis Rodrigues, Valeria Cristina de Oliveira, and Rafael Lacerda Silveira Rocha
THE LEGAL STATUS OF JUVENILES: HISTORICAL BACKGROUND
The development of juvenile justice in Brazil follows many of the same patterns experienced by the rest of Latin America during the nineteenth and twentieth centuries, that is, a process of gradual specialization and differentiation from a penal system oriented for adults heavily influenced by the experiences of mainly European countries (Mendez 2006).
Until the mid-nineteenth century, the juvenile justice system was an undeveloped legal field, and the treatment of children and adolescents who engaged in crime was equivalent to that provided to adults. This phase, known as the undifferentiated criminal character, lasted from the Colonial period (sixteenth century to the early nineteenth century) through Royal Portuguese Ordinances (Ordenaqoes Reais Portuguesas). It provided that only those younger than 7 years of age could be treated differently from adults in the case of deviant conduct (Arruda, Jalusa Silva de 2011).
The independence of Brazil from Portugal resulted in significant changes in its political structure. The legal framework related to children and adolescents (or “minors,” being more consistent with the terminology used at the time), however, made little progress. The Penal Code approved in the imperial period (1822-1899) and the first Republican Penal Code (1890) did not break with the undifferentiated
C.D. Rodrigues (*)
V.C. de Oliveira
Center for the Study of Criminality and Public Safety (CRISP),
© Springer International Publishing Switzerland 2017
S.H. Decker, N. Marteache (eds.), International Handbook of Juvenile Justice, DOI 10.1007/978-3-319-45090-2_4
model. Only specific changes such as mitigating penalties for adolescents and the creation of specific institutions for interning minors separate from adults were suggested (Arruda, Jalusa Silva de 2011).
In the nineteenth century, in the wake of the juvenile reform movement in the United States and the influence of reforms in Western Europe, the new republic became more sensitive to the particularities linked to the treatment of juveniles and the idea of a separate juvenile justice system. At that time, the proposed reforms moved the country closer to a social juridical guardianship or “social welfare” model (Marinho 2012; Mendez 2006).
Generally speaking, this guardianship model was based on an approximation between the social and criminal dimensions of the offense. Thus, the legal instruments reflect a tendency to consider the child or adolescent who commits a deviant act not as an individual responsible for his or her actions and as such is exempt from punishment. The deviant act is considered the result of a process of social exclusion that makes the accused a victim of the process. There is therefore a greater approximation between social assistance and criminal law, so that the focus is much more on protecting the juvenile than in the application of classic principles of criminal law as due process and the right to a full defense (Arruda, Jalusa Silva de 2011; Marinho 2012).
The vague definition of the norms and punishments made the application of juvenile justice in the protection model very subjective and open to abuse given that there was no difference in the treatment between an abandoned or abused child and a juvenile. The judges took on a paternalistic role in responding to children and adolescents, especially those in socially vulnerable situations, whose motivation for the crime mostly had structural roots (Marinho 2012).
Through the adoption of the Juvenile Code, in 1927, Brazil was the first country in Latin America to approve specific legislation for measures of “assistance and protection” dedicated to the “minors of either sex, abandoned or delinquent under 18 years of age” (Brasil 1927). The Code made children and adolescents unpunishable via criminal law, given that children under 14 who committed offenses would be punished on the basis of special code. Those aged between 14 and 18 could be accepted in reform schools, while those aged between 16 and 18, with high degree of dangerousness, could be housed in common (adult) units of detention. Regulatory instruments adopted between 1927 and the 1940s were based on the definition of a so-called irregular situation like the one involving the commission of an offense which, according to Marinho (2012), reinforced the criminalization bias of poverty and legalization issues by making equivalent social phenomena such as abandonment, crime, and vagrancy (Arruda, Jalusa Silva de 2011; Marinho 2012).
It was only with the approval of the Penal Code in 1940 that the legal age and the consequent liability for commission of offense were mandated at 18 years of age (Brazil 1940). This wording of the Code was amended in 1984 and remains in effect to this day. This amendment kept the age of legal majority at 18 years of age, characterizing minors as “criminally incompetent” and therefore “subject to the rules laid down in special legislation,” i.e., the Juvenile Code.
At that time, in the mid-twentieth century, the first institutions in the executive branch emerged to organize the services of social assistance and the application of correctional measures for juveniles. The Assistance Service for Minors (Servi^o de Assistencia ao Menor—SAM), created in 1941, was linked to the Ministry of Justice and dedicated to the implementation of the Juvenile Code. In compliance with the Juvenile Code, dedicated detention centers were created to house abandoned children and juveniles involved in illegal acts. Over time, such centers became spaces characterized by the expansion of the duties of the SAM, encompassing instruction, social assistance, and control, reinforcing its repressive character. This made it the subject of numerous allegations of ill treatment and torture of the juveniles it served.
This scenario and the publication of the Declaration of the United Nations Rights of the Child in 1959 motivated the creation of a new project for the care and assistance of children and adolescents. Progressive for its time, the legislation was guided by humanitarian principles, such as the need to keep children and adolescents with their families, treating internment as an exceptional and secondary measure, applied only in cases of extreme need (Brasil 1964; Marinho 2012).
In a way unprecedented until that time, the federal government proposed a national policy of social assistance to minors with the creation of the National Foundation for Welfare of Minors (Funda^ao Nacional do Bem Estar do Menor—FUNABEM; Brasil 1964). The FUNABEM replaced the SAM as the agency responsible for the implementation of the Juvenile Code. Its main purpose was the formulation and implementation of national policy for the welfare of minors. This was accomplished at the state level through the administration of the State Foundations for the Welfare of Minors (Funda^oes Estaduais do Bem Estar do Menor—FEBEM). Compared to the previous model, under the FUNABEM, the child or adolescent who committed an infraction was treated as a social service case, but not in the strict sense of the previous protection model. Under the system implemented by FUNABEM, it was the responsibility of individual states to provide care and assistance to juveniles and to ensure that institutional care was provided when necessary, while respecting the principles laid out in the Declaration of the Rights of the Child.
However, it should be noted that 1964 is also the same year of the establishment of military dictatorship in Brazil (1964-1986). This period was marked by a paradigm of National Security, with policies and practices designed to protect Brazil from external and internal threats (particularly communist ideology).
Therefore, even with the progress represented by FUNABEM (whose reflection is prior to the outbreak of regime in 1964), the dynamics observed in juvenile correctional institutions were based on building an image of juveniles as a source of social danger, thus maintaining the repressive model. As such, FEBEM, especially in states such as Rio de Janeiro and Sao Paulo, did not represent a progressive model of social service and protection but rather centers rife with reports of mistreatment and coercive practices (Silva 1997).
The beginning of the gradual democratic opening in 1979 promulgated the creation of a new Juvenile Code. The 1940 Juvenile Code was replaced definitely in 1990 by the Children and Adolescents Statute (Estatuto da Crianqa e Adolescente—ECA; Brasil 1990) that transforms FUNABEM into the Brazilian Center for Childhood and Adolescence (Centro Brasileiro de Infancia e Adolescencia—CBIA). Before 1990, however, the end of military rule and the promulgation of the democratic Federal Constitution (FC) of 1988 already alluded to changes in the country’s juvenile justice system. The FC reaffirmed the age of legal majority at 18 years of age and stated that juveniles were subject to specific legislation (in this case the ECA).
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