Lula’s Christmas pardon vetoes pardon for January 8 prisoners

The presidential decree that establishes the rules for the Christmas Pardon for prisoners in this first year of the Lula 3 government bears the mark of the leftist policies of the Workers’ Party management. The pardon was sanctioned by President Luiz Inácio Lula da Silva (PT) this Friday (22), however, it vetoes the benefit to those convicted of acts of vandalism at the headquarters of the Three Powers, in Brasília, on January 8.

One of the rules stipulated by the National Council for Criminal and Penitentiary Policy (CNPCP), a consultative body linked to the Ministry of Justice and Public Security (MJSP) and responsible for preparing the pardon, was that prisoners for crimes against the Democratic Rule of Law cannot receive the benefit.

The pardon also vetoes the granting of pardon to those serving sentences for environmental crimes, crimes against the public administration, the national financial system, bidding, violence against women, racial prejudice, reducing people to conditions analogous to slavery. , torture, terrorism, genocide and those contained in the Child and Adolescent Statute.

The text also prohibits people convicted of the crime of drug trafficking from benefiting, or who are “members of criminal factions that play in them or have played a leadership role or participated in a relevant way in a criminal organization”.

Lack of consensus

The CNPCP is made up of 13 full members, five of which were appointed in the government of former president Jair Bolsonaro (PL). During the deliberations, the prohibition of pardons for crimes against the Democratic State was the subject of disagreements among members. Furthermore, those appointed in the previous administration were in favor of including pardons for police officers in the text, which ended up not happening.

Throughout the year, the Council held public hearings in which it heard public defenders, jurists, religious people dedicated to the prison system and members of the Public Ministry to prepare the text. This year, there was even consultation with the Federal Supreme Court (STF), in order to ensure that the collegiate does not suspend the decree, as it did with the pardon signed by Bolsonaro in 2022.

In January 2023, Minister Rosa Weber suspended part of the pardon that benefited security agents convicted of crimes committed 30 years ago and that were not considered heinous at the time of their commission. This category included the police officers involved in the Carandiru massacre in 1992. The Attorney General’s Office (PGR) was the body responsible for sending the request to review the decree to the STF.

Until last year, the pardons promulgated by the former president included the pardon of sentences for security agents convicted of negligent crimes, those committed without intention. Federal police officers, civilians, military personnel, firefighters and soldiers who, during the performance of their duties or as a result of them, had committed this type of infraction were covered.

Expansion of the pardon

Despite the restrictions on granting pardons, the list of humanitarian issues that allow inmates to receive pardons has been expanded. In addition to prisoners with serious illnesses and the elderly, indigenous people and those who care for people with disabilities will also be eligible to receive the pardon.

The decree also grants collective sentence forgiveness for inmates sentenced to up to eight years in prison and who have served a third of their sentence, if they are repeat offenders, and a quarter if there is no repeat offense. For those sentenced to sentences between eight and twelve years, the pardon can only be granted to non-repeat prisoners who have served a third of their sentence, or half of it, if they are repeat offenders and as long as the crime was not committed with violence.

Also for those sentenced to sentences between eight and twelve years, if the crime was not committed under serious threat, the time spent serving the sentence to obtain a pardon is reduced to a quarter, if they are not repeat offenders, or a third, if they are repeat offenders. Prisoners over the age of 60 will have more lenient conditions to get their sentence pardoned.

The text also benefits “women sentenced to a custodial sentence of more than eight years, for a crime committed without violence or serious threat to a person, who have a son or daughter under eighteen years of age or, of any age, with a serious chronic illness or disability and who, by December 25, 2023, have served a quarter of their sentence, if they are not repeat offenders, or a third of their sentence, if they are a repeat offender”; and also “women sentenced to a custodial sentence of no more than eight years, for a crime committed without violence or serious threat to a person, who have a son or daughter under eighteen years of age or, of any age, with a serious chronic illness or disability and who have served, by December 25, 2023, one fifth of their sentence, if they are not repeat offenders, or one quarter of their sentence, if they are repeat offenders”.

Differences between Christmas pardon and end-of-year “saidão”

The Christmas pardon is the pardon or even the extinction of the sentence that is granted to some inmates who meet the requirements established by a decree of the President of the Republic. The determination is guided by the guidelines defined by the CNPCP, which need to be evaluated by the Ministry of Justice and Public Security and the Civil House.

There is no specific date for the promulgation of the decree, but traditionally, it is published in the Official Gazette of the Union on Christmas Eve, December 24th, or close to that date, as occurred this year. The promulgation of the pardon is not mandatory. In 2018, for example, then-president Michel Temer did not publish it.

To apply the act, the judges responsible for executing the sentences need to analyze whether the inmates comply with the decree’s requirements. This decision may take up to a few months after the pardon is issued.

In general, the pardon usually benefits people detained for crimes considered minor or who have good behavior, who have some type of disability and women who have children.

Sometimes, there is confusion with the temporary release or “saidão”, which is the temporary suspension of freedom restrictions granted to prisoners who are already serving the semi-open regime, so that they can spend celebratory dates with their families. It is not uncommon for there to be cases of inmates who do not return to prison after being released. If they are recaptured, they return to serve their sentences in a closed regime. Temporary departure does not require a presidential decree.

Senate may vote to end temporary departure

In August 2022, the Chamber of Deputies approved a bill that prohibits the temporary release of prisoners. Since then, PL 2,253/2022 has been awaiting approval by the Senate. In November of this year, it was discussed and voted on by the Public Security Commission, but the meeting was cancelled. The current rapporteur of the proposal is senator Flávio Bolsonaro (PL-RJ).

Deputies demanded a position from senators to approve the project. Federal deputy Sergeant Gonçalves (PL-RN) stated that it is necessary to tighten legislation against crime. “This issue of” bad guys “only encourages the commission of crimes. We have to put an end to this nonsense once and for all,” he said.

Representative Silvia Waiãpi (PL-AP) highlighted that the “saidões” end up generating insecurity for the population, as some benefited inmates return to committing crimes while outside prison. “We have to put an end to this benefit that brings panic and terror into society. Once again, we, law-abiding citizens, will be at the mercy of crime and banditry. We are reversing values. It is a disservice to Brazilians.”

In 2020, a law was passed that prohibits benefits for inmates who committed heinous crimes. However, the measure is not retroactive, which allows perpetrators of crimes that shocked the country to obtain a temporary exit.

Among those granted a provisional release, for example, were Alexandre Nardoni, sentenced to more than 30 years for the death of his daughter, Isabella Nardoni; Gil Rugai, sentenced to 33 years for the murder of his own father and stepmother, and Cristian Cravinhos, who participated in the murder of Suzane Von Richthofen’s parents.