Why Has a Progressive Court Failed to Protect the Prison Population against COVID-19? Mass Incarceration and Brazil’s Supreme Court

Despite acknowledging the risks of the COVID-19 pandemic for the prison population, Brazil’s Supreme Court declined to issue structural injunctions during the health crisis ordering lower courts to consider these risks when making incarceration-related decisions. These injunctions could have been cr...

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Bibliographic Details
Published in:Health and human rights 2023-12, Vol.25 (2), p.67-82
Main Authors: WANG, DANIEL WEI LIANG, FERREIRA, LUISA MORAES ABREU, FILHO, PAULO SERGIO COELHO, DE BARROS, MATHEUS, HOMSI, JULIA ABRAHAO, ZAMBOM, MARIANA MORAIS, DOS SANTOS, EZEQUIEL FAJRELDINES
Format: Article
Language:English
Subjects:
Brazil - epidemiology
Case studies
Constitutional law
COVID-19
COVID-19 - epidemiology
Criminal law
Decisions
GENERAL PAPERS
Habeas corpus
Human Rights
Humans
Imprisonment
Incarceration
Injunctions
Jurisdiction
Litigation
Pandemics
Prisons
Supreme Court Decisions
Supreme courts
United States
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Summary:Despite acknowledging the risks of the COVID-19 pandemic for the prison population, Brazil’s Supreme Court declined to issue structural injunctions during the health crisis ordering lower courts to consider these risks when making incarceration-related decisions. These injunctions could have been crucial to mitigate mass incarceration and protect the prison population during the pandemic. Through an examination of the Supreme Court’s rulings in structural cases and in a sample of over 4,000 habeas corpus decisions, this paper argues that granting these injunctions would have overwhelmed the court with an unmanageable influx of individual claims. Consequently, the Supreme Court acted strategically in anticipation of its limited institutional capacity to enforce compliance with structural injunctions among lower courts. This case study illustrates how practical considerations can hinder structural decisions in criminal law and highlights the limits of structural litigation and constitutional jurisdiction to address mass incarceration.
ISSN:1079-0969
2150-4113