PRISONING DURING THE COVID-19 PANDEMIC

a perspective from the brazilian higher courts

Abstract

This article examines critically the manner in which the Judiciary, more specifically the Superior Court of Justice and the Federal Supreme Court, dealt with issues related to the deprivation of liberty through prison during the Covid-19 pandemic, when judging cases in which should apply and interpret rules on measures to contain the spread of the virus. In order to verify the hypothesis that the Judiciary’s performance in the context of the pandemic was more suited to reaffirming the discourse of legitimation of the neutralization of incarcerated individuals (turned into an “other”) than to the protection of individual or collective health, the method was used. approach and the techniques of bibliographic and documentary research, analyzing the specialized literature, court decisions and official reports. Initially, the measures devised by the Executive Power to control the spread of the disease in the prison system were discussed. In a second moment, a foreshortening was made on the Recommendation nº 62/2020 of the National Council of Justice and its amendments. Subsequently, decisions of the Superior Courts were analyzed, to find out how the Judiciary Power faced situations that concern the extrication and the limitation of fundamental rights of prisoners. Finally, confirming the initial hypothesis, it was found that the Judiciary found in the pandemic context fertile ground for the re-legitmization of incarceration and other practices based on retributive and discriminatory ideals, from the suppression of fundamental rights and guarantees, without concern regarding the adoption of adequate compensations.