The shining Sugarloaf Mountain, at the mouth of Guanabara Bay, in Rio de Janeiro, still tries to smile with joy to locals and tourists that wander without a curfew around the Rodrigo de Freitas Lagoon. It is one of the highest-class neighborhoods in town, which will no longer wave back to the Sugarloaf in the same way they did before.
Brazil remains shocked. On Tuesday, May 19th, 2015, 57-year-old Jaime Gold, doctor, left home around 7 pm for a ride around the lagoon. Three criminals stabbed Gold four times, leaving a trail of blood and all for his bicycle.
Preliminary investigation indicates the three offenders approached the victim quickly, giving him no chance for defense. The suspects were aged 15, 16 and 17. Testimonies are still being conducted to clarify who the attacker was and the circumstances of the homicide. Until now, the oldest offender has claimed responsibility and the younger two were acquitted.
This episode received extensive coverage from all major outlets, which related the attack to similar recent events. A deluge of articles, op-eds and magazine covers has fostered a delicate debate about the age of criminal responsibility in Brazil, seen now by many as obsolete and tolerant with those that commit such heinous crimes.
The National Congress lost no time. A special commission of deputies is analyzing an amendment to the Constitution – the work is to be finished by the end of June 2015. It lowers the age to 16 years old, the age of voting in Brazil. The argument is straightforward: if one is given the right to choose their representatives, then she is also conscious enough and liable to answer for her own actions within the Penal Code.
Conceptually, it is undeniable that children and juveniles develop today at a much quicker pace than decades ago, shaping a different context to their mental capacity to engage in criminal conduct – the mens rea.
However, dissenters against the Congress bill have a practical claim. Where would Brazil fit so many prisoners? The jail system is chaotic already and according to data compiled by G1 Portal, from Globo, Brazil’s prisons have a shortage of nearly 200,000 places. The jail population is of 564,000. Twenty years ago, it was 126,000. Only the United States, China and Russia have higher numbers of prisoners than Brazil.
Moreover, as reported by newspaper Folha de São Paulo, the country does not have national statistics indicating juvenile’s participation in crime. There are no accurate percentages that prove that those now below 18 commit crimes at a higher rate than in the past.
According to Gary Stahl, Brazilian representative for UNICEF, the body of the United Nations aimed at protecting child rights, the picture is quite wrong.
"In Brazil, teenagers today are more victims than perpetrators of violence. Of the 21 million Brazilian adolescents, only 0.013 % committed acts against life. In fact, they - the teenagers are the ones who are being systematically murdered. Brazil is second worst country in the world for the overall number of teenage homicides, after Nigeria. Today, homicides account for 36.5% of the causes of death by external factors for adolescents in the country compared to 4.8 percent of the total population," he remarked in a public statement in earlier March.
Organizations such as UNICEF affirm that lowering the age of criminal responsibility is not the best way to tackle the problem. The Child Rights International Network – CRIN, a global research, policy and advocacy non-profit organization, frequently releases reports about the issue on all continents. Their position about this discussion is clear: young offenders must be educated and rehabilitated, not locked up in adult prisons that may make the scenario even worse while disrespect children’s fundamental rights.
Legislation to be addressed
In Brazil, if a person is under the age of 18, an alleged criminal offence is considered an infraction, subject to different sentencing regime. The Statute of the Child and Adolescent include socio-educative measures and penalties such as community services, probation and deprivation of liberty.
Heloisa Estellita, attorney, Law Professor at the Fundação Getúlio Vargas School of Law and Phd from the University of São Paulo, explains that the Statute of the Child and Adolescent is considered a modern legislation, respected by Brazilian authorities that work in the field. "It brings advertence, socio-educative actions, and determines special care for juveniles. There is nothing wrong with the legislation. On the contrary, it was structured to protect children’s rights and assure a safer re-insertion in society. The problem is only one: it is not fulfilled," she argues.
The age of 18 is one of the highest for criminal responsibility in the world. According to the CRIN, the majority of European nations have settled on 14 years and attempts to change this chessboard are never an easy task – Denmark is a clear example.
The matter is not regulated in the Danish Constitution, but by the Penal Code of 1930. The current social-democratic government raised the limit from 14 to 15 years – after the previous right-wing government had lowered it from 15 to 14, between 2010 and 2012. According to the party, the country must be determined to push away young people from the environment of criminality.
Simon Redder Thomsen, International Secretary of the Social Democrat party, highlights that today there is political opposition wanting to lower the age from 15 to 12 years.
"We believe this is the wrong way to go and that we should prioritize preventive measures and strong social action instead of providing young kids with a criminal record. The evidence proves that our effort is working," says Thomsen. According to the government – from 2011 to 2013, the juvenile criminality fell by 15%. Denmark will have elections on June 18th. Venstre, the conservative-liberal party that is sharing the polls' lead with the Social Democrat party, did not want to state a position about the issue.
Caroline Adolphsen, member of the Department of Law at Aarhus University, works closer on matters like children’s right and public law. Historically, she states, there has not been an extensive criminology research in Denmark as to the effects of lowering the age of criminal responsibility, in part due to the short period of time that it was in effect.
"But the criminal statistics do not show any significant increase or decrease in the numbers of offenses committed by 14-year-olds from 2010 to 2012 overall or in regard to specific offenses. In this period, a number of children were given special youth-sentences, and a lesser number were incarcerated and held in remand custody," she says.
Politics in the way
Brazil and Denmark are two very distinct countries in economic, social and cultural aspects. Both seem to be an example, though, that mirror how political affairs easily become the core of the debate relating to the age of criminal responsibility.
Societies in the late 20th and 21st centuries have relied on psychological research and social sciences to guide how the question should be faced by each political trend, identifying behavior, crime rates and penalty consequences. However, no rule can be completely determined by evidence.
"It will always be a moral and political question," stresses Adolphsen. "In Denmark, it is very clearly an issue between the right wing who are tough on crime, and the more liberal wing. It is a big issue in the current election for Parliament and there is no doubt that this question is part of the public debate, one of the most important in the current 2015 general elections."
In Brazil, the discussion is being eclipsed by a huge behind-the-scenes political battle. Deputy Eduardo Cunha, from Rio de Janeiro, is the president of the House of Representatives and also the one empowered to list all projects that shall be submitted to vote there. He is the one giving voice to the arguments in favor of lowering the age – as loud as possible.
Cunha affirms publicly that the intention is to change the Brazilian law immediately. He affirmed that when the House’s special commission ends the analysis of the project, the Congressmen will vote it straight away. "Who has the right to vote (on representatives), has the obligation. I have absolute conviction that the majority of the Brazilian population is in favor," he states in his Twitter account. If the text is approved, the Federal Senate will then analyze it. The final sanction must come from the President of the Republic.
Hardly a congressman is so assertive about a debatable project and so certain about the public opinion on a delicate matter. Cunha belongs to PMDB – the party that formed the coalition with the Worker’s Party on the last electoral victory, in 2014. Lately, the relationship has been an everlasting exchange of accusations, with complaints of broken political promises and retaliations. "The Worker’s Party does not want to lower the age of criminal responsibility and they think that everyone should agree with them. The project was in the drawer for 20 years and now we took it out", said Cunha.
Brazilian president Dilma Rousseff has declared that she does not believe this is a beneficial change for the society. "Where it happened, it was clear that it did not result in protection for the juveniles. We defend a bill in which the adult who uses the minor and the adolescent as a shield must be severely punished. The heinous crime committed by juveniles should have a different treatment and the socio-educative measures must be extended."
A hefty price tag
The debate comes in a particular time in the country’s history, which makes it clear that the political class has much work to do within its own structure to gain respect and get accredited for deliberating about complex matters such as the age of criminal responsibility. How can the country trust in a clean process when society’s degree of confidence in its representatives has never been so low?
Never before have so many high-ranked politicians been investigated and accused of participation in corruption scandals. It began during the mandate of Luiz Inácio Lula da Silva, back in 2005, when the 'Mensalão' scandal exposed a scheme of vote buying in the National Congress.
Now, the biggest corruption episode in national history, involving the state-owned oil company Petrobrás, is underway. The Lava Jato Operation was triggered by the Federal Police in March 2014 and dismantled a scheme of laundering money and tax evasion of around 6 billion US dollars. Giant contractors are suspected to integrate a "club" that combined price to close contracts with Petrobrás and diverted a share of the money to pay bribes to the company’s officials and inject money on the government-allied political parties.
João Vaccari Neto, the Worker’s Party former treasurer, is on the list. Eduardo Cunha is there as well, brought up by a plea-bargaining deal offered to Alberto Youssef, one of the main operators of the scheme. Cunha said that the accusation was "absurd", a "joke" and that the list in which his name is in is "indecent". He highlighted that he sees no problem in being investigated.
As utter nonsense as it is, the public debate in Brazil is now being shifted to safer directions. "The Parliament wants to impose its agenda to the Executive, and both are disputing territory. As hard as it seems, what is underneath is a political challenge, and the sensitive debate, the age of criminal responsibility, is on the surface," says Estellita.
Even in a moment of consternation Marcia Amil, ex-wife of doctor Jaime Gold, is still one step ahead from the class of politicians. She knows the country needs an urgent discussion about its priorities – in which the future lives of juveniles is not stamped with a price tag.
"I don’t even know if they were minors, but I know Jaime was a victim of the victims, who in turn were victims of the victims. As long as our country does not prioritize health, education and security, there will be more doctors being killed in the country’s postcard."
Pedro Henrique Barreto is a Brazilian journalist, currently based in London. Reach him on Twitter.