Summary: The concept of criminal evaluation (CE) was first introduced in 1890, at the International Penitenciary Congress of St. Petersburg. At that time it was demonstrated the need of an accurate psychosocial biological evaluation of the felony, in case of returning to society. Brazil only adopted this evaluation in 1924, when the benefit of parole was cancelled (partial suspension of the freedom deprivation). The evaluation aimed at examining the behavior (inside the prison), family living capability, and social, psychological and psychiatric skills of the prisioner requiring benefits, and progression of regime (move to a better jail, with more freedom), requested by the Judge or the Public or Private Attorney. However, such examination has been altered throughout the years and was finnally abolished in 2003. Since 2003, however, this decision has been raising controversial opinions among professionals involved in the criminal system.

Resumo: A idéia do Exame Criminológico (EC) foi apresentada pela primeira vez em 1890, no Congresso Internacional Penitenciário de St. Petersburgo. Foi demonstrada a necessidade de uma avaliação biopsicosocial de um criminoso, caso este obtivesse a chance de um retorno à sociedade. O Brasil só adotou em 1924, quando inclusive teve revogado o benefício de livramento condicional (suspensão parcial da privação de liberdade).O exame tinha como objetivo avaliar o comportamento prisional, a capacidade sócio familiar, psicológica e psiquiátrica do prisioneiro, que pleiteava benefícios como o supracitado, ou o de progressão de regime (mudança da condição prisional), solicitados pelo Juiz, pela Defesa Pública ou Privada). Porém, o exame criminológico vem sofrendo modificações ao longo do tempo, sendo a última em 2003, quando foi legalmente abolido. Esta decisão vem provocando polêmicas opiniões em todos os envolvidos com o sistema penal.

KeyWords: Criminal Evaluation, Brazilian Criminal Code, Brazilian Penitentiary System, Parole, Psychiatry, Forensic Psychiatry.

Descritores: Exame Criminológico. Código Penal Brasileiro. Sistema Penitenciário Brasileiro. Livramento

 

 

 

Introduction:

   Before disserting on the criminal evaluation (CE) it is necessary to introduce some aspects of the Brazilian criminal laws, since the CE accomplishment is originated by a previous request of the convicted, for the legal acquisition of a benefit that will provide him with, what its know as, Parole. The following paragraphs describe some of these laws.

   The jurists point out that the benefit of parole was introduced in the first Criminal Code, (CC) of the Republic, by the Decree nº 847, in 11/10/1890, granted by the Marshal Floriano Peixoto, (arts. 50 the 52). However, it was only regulated and employed by the Decree nº 16,665, in 06/11/1924, when it actually became a jurisdictional measure. Therefore, it became necessary the creation of an agency whose purpose was to grant and supervise paroles. Such agency was called Penitentiary Board.

   From the Brazilian Penal Code regarding paroles:

“Art. 83 - The judge will be able to grant parole to the felony who has been convicted to a sentence of freedom deprivation of or superior to 2 (two) years, as long as:

I –He has fulfilled a third (1/3) of the sentence, has not relapsed (regarding any type of criminal activity), and has good records;

II - He has fulfilled more than one half of the sentence, even if being involved in criminal activity;

III- An appropriate and satisfactory behavior during the sentence execution is evidentiated, or a good performance at the attributed job inside the prision or capacity to provide his own subsistence by an honest job outside the prision;

IV – He is (was) able to repair, except when it is impossible, the damage caused by his infraction.

 V - He has fulfilled more than two-thirds (2/3) of the sentence, in the cases of conviction for hideous crime, torture, illicit traffic of narcotics and similar drugs, and terrorism, if the felony has not relapsed concerning such types of crimes.”

Only paragraph: “For the convicted for violent ot threatning felony, the concession of release will depend on the confirmation of the prisioner`s personal and psychological conditions, indicating that the criminal, once set free, will not commit any crimes again.”

The above-mentioned phrase is marked in boldface, so that the reader actually notices the fragility of the new Law, because for the confirmation of such personal conditions, an entire exam, evaluating social, psychological, psychiatric aspects is obviouslly necessary. That is why a complete Criminal Evaluationg essencial.

   From the Criminal Process Code (CPC) regarding paroles:

 “Art. 712. The parole could be granted by petition from the sentenced him self, spouses, straight-line relatives, required by the director of the criminal establishment or by the Penitentiary Board.”

“Art. 713. The conditions of acceptability, convenience and concession oportunity of the release will be verified by the Penitentiary Board, whose final decision, however, is not related to the Judge’s.”

   And still according to Criminal Execution Law (CEL): Art. 131. The parole could be granted by an Execution Judge if: (1) all the requirements of article 83 are presented, includind interpolated propositions and only paragraph of the Criminal Code and (2) the Public Prosecution and Penitenciary Board are both heard throughout the process.

Art. 132 (LEP) – Once the order is granted, the Judge will specify the conditions on which the release is submmitted to:

§ 1º the prisioner granted with parole will always be submitted to the following obligations:
a) to get a legal occupation, during a reasonable deadline if fit for the job;
b) communicate periodically to the Judge about his occupation;

c) Not to move from the territory of the juristiction in which the parole sentence was executed without a previous authorization.

§ 2° other obligations might also be imposed:

 a) Not to move from the registrated residence without communicating the Judge and the parole officer

b) Curfew at a settled time;

c) Not to frequent certain places.”

   After explaining some of the penal aspects of the Parole, we move now to the scrutinization of the Criminal Evaluation itself. Before the controvorsial alteration regarding its utility and scopes, the psychological evaluation was under the Decree-Law nº 7210 of 11/07/1984 (Law of Criminal Execution) as followed:

 Art.112 (LCE): “The sentence of freedom deprivation will be executed progressively leading to a less rigorous regime (to be determined by the Judge), when the prisoner have fulfilled at least 1/6 of the sentence in the previous regime and present good behaviour, indicating progression of the sentence.”

 Only paragraph - the decision will always be motivated and confirmed by the Technical Classification Committe (TCC) and the Criminal Evaluation, when necessary”
   However, in 1º/12/2003 the above article (112), suffered an alteration in consequence of the Law nº 10792 and begun to role as follows:

Art.112 (LCE) - “The sentence of freedom deprivation will be executed progressively leading to a less rigorous regime (to be determined by the Judge), when the prisoner has fulfilled at least 1/6 of the sentence in the previous regime and present good behaviour (evidentiated by the director of the prision), indicationg progression of the sentence.”

 “The sentence of freedom deprivation will be executed in gradual form with the transference for less rigorous regime, to be determined by the judge, when the prisoner will have fulfilled the least 1/6 of the penalty in the previous regime and to (evidentiated by the director of the prision), and the rules that forbid the progression are respected.”

§ 1o the decision always will be motivated and preceded by manifestation of the Public Prosecution Service and the Attorney (Defender).

§ 2o an identical procedure will be adopted in the concession of parole, pardon and commutation of sentences, respecting the deadlines and current laws.

From this point beyond, the CE was extinguished.

  “The (CE) used to be carried out by a Technical Classification Committee (TCC) also referred to in the LCE (article 7º):

 Art. 7º (LEC) - “the Technical Classification Commtte in each establishment, will be presided by the director and composed of, at least, 2 (two) head officers, 1 (one) psychiatrist, 1 (one) psychologist and 1 (one) social assistant, when concerns a felony convicted to the sentence of freedom deprivation”.

Only paragraph: “In the remanescent cases, the Committe will act with the Judgment of Execution and will be integrated by inspectors of the social service.”

   The (TCC) used to send the evaluation to the Jurisdiction of Criminal Execution (JCE), along with: (1) collect guide (2) penitentiary records of the convicted felony, (3) certification of prision behavior, (4) criminal records, (5) certification of residence, (6) commitment of a job (when released). The (JCE) than, in turn, sent it back to the Penitentiary Board for consideration. It is important to remind that the Execution Judge resolution is not related to the Penitentiary Board decision and cannot be decided without this last one. The Penitentiary Board decision contributes to granting or not the benefit. In case the Board is favorable but the Judge denies the parole, the Board decision is crucial for an eventual appeal.

   Concerning the Penitentiary Board, the LCE determined that:

“Art. 69 (LCE) - “the Penitentiary Board was a council organ whose functions were to supervise the execution of sentences.”

§ 1º the Board was integrated by members nominated by the State Governor, the Federal District and Territories, including professors and professionals of the following areas: criminal law, criminal procedure, penitentiary and correlated sciences, as well as community leaders. The Federal and State legislation regulated its functioning.
§ 2º the mandate of the members of the Penitentiary Board lasted 4 (four) years.”
“Art. 70 (LCE) - The Penitentiary Board was responsible for:

  I – emitting decisions about paroles, pardon and commutation of sentences;

 II - inspecting criminal establishments and penal services;

III – presenting every 1º (first) trimesters of each year to the National Board of Criminal Politics and Prison, a complete report on everything done in the previous year;

IV - supervising the patronages, as well as the assistance to the egresses.

      By the new Law nº 10.792, item I was substituted by:

 “I – emitting decision about pardons and commutation of sentences, except when pardon is required based on the prisioner`s health”

   The Board than formulated a final synopsis and dispatched it again to the JEC for a final conclusion of the Judge. When all requirements were fulfilled, the prisioner was evaluated by the Technical Classification Committe, composed by psychologists, psychiatrists and social assistants. In this occasion, each professional elaborated a report separatively.

Discussion

   The Law nº10.792 of 1º /12/ 2003 modified the Law n^o 7.210, of 11/ 07/1984 - Law of Criminal Execution and the Decree-Law n^o 3.689, of 3 /10/1941 - Code of Criminal Process beyond other processes. It is noticed that the Penitentiary Board, was not, at least clearly, abolished. Obviously, after such a sudden resolution, a commotion was genetared in different sectors of the criminal system. A controversial discussion than begun, because some professionals defended the maintenance of the CE, while others did not. At the same time, everyone was trying to interpretate the specific role of the Penitentiary Board, in face of this recent resolution.

   The State of Rio de Janeiro, represented by the Public Prosecution (PP), was one of the first States fighting for the right of keeping the CE, obtaining later a verbal agreement with the Supreme Court (SC) to maintain the use of CE in the whole state. From than on, all the prisioners inside the penitentiary system of Rio de Janeiro pleading for benefits; either changes in their criminal regimes or parole requirements, continue being submitted to the Criminal Evaluation.

   Each professional interviews the prisoner one or two times in order to elaborate a complete report. There are a great number of pre-conceived forms that can be used by the professional, but in practice, they are almost never used, maybe because they do not meet the specific demands of each area. On the other hand, such practice may lead to partiality, since each professional tends to make more convenient questions, according to their own professional areas, establishing what is more relevent according to their personal concepts of evaluation. This situation is getting worse as the number of professionals is reducing while the population of prisoners increases.

 

1-What is the scope of the Criminal Examination?  To evaluate if the prisioner is ready for an addequate return to the society, from a medical, psychological and social perspective. Professionals of the TCC must also evaluate if the prisioners are not requirering benefits in order to maintain themselves in criminality, once they are out. Personality and mental illness might influence future actions, as well as the lack of family bonds or a profession, lower degree of education, no perspective of a real work, absence of regret, relapsing and others. It can be said that is not under evaluation the individuals’ danger, but a set of hazard-related circunstations.

2-Why abolish?  Maybe the professionals responsible for the CE were not taking their attributions seriously, resulting in successive delays in reports, harming the prisioners’ right for freedom, or slowing down the flow of information which could define the existence of certain rights for some prisioners. There a great number of bad quality reports, incorrectly made by these professionals showing their inaptitude for the job. It has been shown that most of times these reports would be the same for all prisioners. Hence the CE professionals were not able to discuss about the prisioners personal conditions based only on brief interviews. Sometimes, these reports were not even done due to lack of human resources and material. Many of the professionals presented obsolete and prejudiced trends. To think of some probabilities, to support the unverifiable (without observing the contradictory) would be unconstitutional attitudes. In addition, the absence of this examination would accelerate criminal execution.

C – Why Maintain? When elaborated by experts, it provides precious information on the behavior and particular characteristics of the prisoner, which are extemely useful when considering any kind of benefits. Even if the Judge is not submmitted to the Board, or the grant of benefits depends on a favorable decision, there are a great number of subsidies that can be provided by the CE to the Judge so he can appropriatly decide on granting or not benefits. The Criminal Evaluation used to be elaborated by professionals who did not spend time with the prisioners. But it is insane to change the reports done by professionals for those done by a penitentiary officer or the director, because these individuals are not qualified to observe and understand possible prisioner regeneration. Hence, many times their decisions are biased by affinities, empathy or apathy for certain prisoners. According to some experts, this new Law is not flawless; it brings more frustration than hope, and is not able to change the institutions in order to introduce more efficient codes destined to fight crime. To better qualify the professionals, improve their techniques; to rigorously select the council members, demanding certain indispensable titles, and to broaden the decision of the selecting these professionals to other areas that are not only political are some of the simple solutions for the improvement of the CE, in order to simple abolish it. It would be better to correct these errors than just not carrying out the evaluation. It would be more adequate if the legislator establishes a standard scale of behavior measurement, objecting the evaluation of prisional behavior, and therefore providing a more secure decision from a penal point of view; afterall “good prisional behavior” was not defined by the Law.

Conclusion

    The Criminal Examination aimed at observing the personality, social behavior, records and prision behavior of the convicted. It used to be, carried out by a group of qualifyied multidisciplinary professionals, such as psychologists, social assistants and psychiatrists. This group was called Technical Classification Committe (TCC). The Law 10.792/03 rewrote articles 6º and 112º of the Criminal Execution Law (CEL), discharging the Committee`s decision and the Criminal Evaluation for regime progressions and regressions, conversions of sentences, parole, pardons and commuttation. 

The change, though, did not apply in the case of granting parole to the convicted for felony committed with violence or serious threat the victim. This is related to the rule of the only paragraph of article 83 from the Criminal Code, where concession is submitted to a confirmation of personal psychological conditions assuming that the realeased individual will not commit any more crimes. This confirmation would still depend on the Criminal Evaluation.

From a psychiatric point of view, where do we psychiatrists stand now? Does the convicted for felony that wants (and can) to spend the rest of his sentence out of the prision institution must go through a multidisciplinary examination? If yes, how could it be done? Our study aimed at raising some questions and trying to answer some of them, after all, this is the real contribution of forensic psychiaty to justice.

References

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FERRAZ Jr, Tercio Sampaio. “Antinomy, Encyclopedia Saraiva of Law”, pg. 14

DINIZ, Maria Helena. “Conflict of Norms”, 2ª ed., Ed. Saraiva, São Paulo, 1996, pg. 13

MAXIMILIANO, Carlos. “Hermeneutics and Law Application”, 7ª ed., São Paulo, 1961, pg. 172-173

MIRABETE, Júlio Fabbrini. “Criminal execution”, 6ª ed., Ed. Atlases, São Paulo, 1996,pg. 194

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WALNUT, Pablo Lúcio. “Commentaries on Criminal Execution Law”, Ed. Saraiva, 1990, pg.156

BALDIN, Antonio. “The LEP Reform did not abolish Criminal Evaluation”,

ISOLDI SON, Carlos Alberto de Silveira. “Criminal Evaluation, TCC deadlines and the New Law nº 10,792/03,

De SOUZA, Guillermo. “First Considerations on the Law Nº 10,792/03”,

SBARDELOTTO, Fábio Roque. “Preliminary Considerations Regarding the Alterations in Criminal Execution Law nº 10,792/03”,

SILVA, César Dario Mariano. “Progression of Criminal Regime and Parole concerning the changes on the Law 10,763, of 12/11/2003, and  Law nº 10,792, of 1º/12/ 2003”

 AMBROGI, Marcos Alexandre Santos. “Progression of Regime, Law nº 10.792/03. Dismissal of the Technical Classification Committed”. Constitutionality, in IBCCrim Bulletin nº 135, feb./2004, pg. 771.

 AZEVEDO, Cleuza M. Silveira de. “Reflections on the Alteration of the LEP Regarding the Law 10,792/03”,

 FURUKAWA, Nagashi. “The end of the criminal evaluation”. In: The State of São Paulo, Espaço Aberto, pg.A2, 10.may.2004

REALE JÚNIOR, Miguel. “Attempt on Eliminating the Danger Criterion”, in IBC Crim. Bulletin nº 140, Special Edition, jully/2004, pg. 02 and 03.

 COAST, Alvaro Mayrink de. “Criminal Law.” Rio de Janeiro: Forensic, v. II, 6ª ed., 1998

LOPES JUNIOR, Aury. “The legal employ of technical findings in criminal execution”. São Paulo: Brazilian institute of Criminal Sciences, Bulletin nº 123, feb. 2003.

 

Não há conflito de interesses dos autores em relação.

Este trabalho nao foi financiado por agências de fomento de pesquisas.

 

¹ Forensic Psychiatrist, MD, MSc - Institute of Psychiatry, Federal University of Rio de Janeiro. Av. Afranio de Melo Franco 149/405  - Leblon  - Cep: 22430-060 - Rio de Janeiro - RJ – Brasil Tel: (55) (21) 9647-6695 - Email: [email protected]

² Forensic Psychiatrist, MD, MSc, PhD - Institute of Psychiatry, Federal University of Rio de Janeiro. R. Francisco Sá 23/605 - Copacabana - Cep: 22080-010 - Rio de Janeiro - RJ - Brasil – Tel: (55) (21) 2523-0390 – Email: [email protected]

 

 

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