Pretrial detention: recent reforms and next steps in light of the inter-american human rights system

Abstract

Despite the international obligation and the Brazilian Supreme Court (“STF”)’s position that pretrial detention must be used exceptionally, approximately a third of Brazil’s prison population has not been convicted in first instance. In view of this dissonance between the normative order and the country’s reality, part of the legal community periodically mobilizes for reforms aimed at reducing the use of pretrial detention. Among these reforms, the introduction of bail hearings in 2015 – fostered by its provision in international human rights treaties – and of a “judge of the investigation” (juiz de garantias) – currently suspended by the STF – stand out due to their structural nature, which makes them less susceptible of attenuation through interpretative channels. This article analyzes the potential and limitations of those reforms, as well as of the other relevant changes brought by Law 13,964/2019 (the “Counter-crime Package”), in rationalizing the use of precautionary measures. After finding that an holistic approach is required to achieve such goal, this article proposes additional reforms capable of aligning the normative order and the legal culture of judicial actors with the standards of the Inter-American Human Rights System (“IAHRS”), including the investment in precautionary measures alternative to prison and the introduction of actuarial pretrial risk assessment in Brazil.