We've already discussed Law 13.964/2019, known as the Anti-Crime Package , and its amendments here on the blog, and today we'll talk about the progression of prison regimes. This law was responsible for significant changes in criminal and criminal procedure legislation, with the aim of increasing the success in combating crime.

Given this, one of the changes brought about by the aforementioned law was in relation to the rules for progression of prison regimes. Below, we will discuss in detail what progression of prison regimes is, and how it works in the Brazilian legal system.

What is progression of regime?

Brazilian law understands that the purpose of punishment should be to rehabilitate the offender, aiming to prevent the possibility of recidivism after release. Therefore, the progression of prison regimes is simply the opening of this space, allowing the individual to gradually reintegrate into society.

Thus, when sentencing, the judge specifies the length of the sentence and its justifications, as well as establishing the regime in which the convict must initially serve the sentence. Therefore, progression of the regime occurs when the convict meets the requirements to continue serving the sentence, but in a less severe regime.

This refers to a gradual change in the way a prison sentence is served, where the convict moves from a more restrictive regime to a less restrictive one. Therefore, progression to a less restrictive regime is a right guaranteed to prisoners serving a custodial sentence.

Our system allows for progression and regression of prison regimes. Regression can occur to any more restrictive regime. Therefore, it is possible for a convict to regress from an open regime to a closed regime without having to go through the semi-open regime first.

Unlike progression, in regime progression the convict must move from a more rigorous regime to a less rigorous one than the previous one, with progression from the closed regime to the open regime being prohibited; the inmate must first pass through the semi-open regime to do so.

The jurisprudential understanding is already summarized in the STJ (Superior Court of Justice), in the sense that progression per saltum is prohibited, as demonstrated:

Summary 491 – The so-called "per saltum" progression of prison regime is inadmissible.

It is also important to emphasize that if a vacancy is not obtained at the designated place of imprisonment, the inmate may not continue in the more severe regime due to simple unavailability, according to Binding Precedent 56:

The lack of a suitable penal establishment does not authorize keeping the convicted person in a more severe prison regime; in such cases, the parameters established in RE 641.320/RS must be observed.

RE 641.320/RS:
"Serving a sentence in a closed regime, in the event that there is no vacancy in an establishment suitable for their regime. Violation of the principles of individualization of punishment (art. 5, XLVI) and legality (art. 5, XXXIX). The lack of a suitable penal establishment does not authorize the maintenance of the convicted person in a more severe prison regime. 3. The judges of penal execution may evaluate the establishments intended for the semi-open and open regimes, to qualify them as suitable for such regimes. Establishments that do not qualify as "agricultural or industrial colony" (semi-open regime) or "halfway house or suitable establishment" (open regime) are acceptable (art. 33, § 1, bc). However, there should be no joint accommodation of prisoners from the semi-open and open regimes with prisoners from the closed regime. 4. If there is a shortage of vacancies, the following should be determined: (i) the early release of the sentenced person in the regime with a shortage of vacancies; (ii) electronically monitored release to (iii) the fulfillment of alternative sentences and/or study for the sentenced person who progresses to the open regime. Until the proposed alternative measures are structured, house arrest may be granted to the sentenced person. (RE 641.320, rel. min. Gilmar Mendes, P, j. 11-5-2016, DJE 159 of 1-8-2016, Theme 423.)

Given the above, the moment of progression to a less restrictive prison regime is very important in criminal proceedings, especially for lawyers, because in addition to guaranteeing a more dignified regime for their client, these professionals need to understand the mechanisms adopted so that the request is made at the right time and in the best possible way.

What are the prison systems in Brazil?

In Brazil, there are three types of prison regimes: closed, semi-open, and open. The initial regime to be established will depend on the competent judge at the time of sentencing, based on the grounds described therein, and, if all legal conditions are met, the inmate may benefit from a less severe initial regime.

In a closed regime, the sentence must be served in a maximum or medium security facility. This regime should be adopted for sentences exceeding 8 (eight) years, as imposed in the judgment.

Under the semi-open regime, the sentence will be served in an agricultural or industrial colony or similar establishment. It involves conditional freedom, with the individual being in prison only at night and remaining outside the facility during the day, usually for work or study.

This regime should be adopted when the convicted person is not a repeat offender and has a sentence greater than 4 (four) years and less than 8 (eight) years.

The open regime for serving a sentence takes place in a halfway house or suitable establishment, such as the individual's own residence. Under this regime, the sentenced person can work during the day and return home at night, even if it is their own residence. The open regime applies to crimes with sentences of less than 4 (four) years, provided they are not repeat offenders.

Finally, it is important to emphasize that, for the purposes of progression to a less restrictive prison regime, a repeat offender does not have the right to begin serving their sentence in the semi-open or open regimes, even if they meet the requirements for doing so.

What are the requirements for progression to a less restrictive prison regime?

The requirements for progression to a less restrictive prison regime are outlined in Article 112 of the LEP (Law of Penal Execution), which stipulates that at least one-sixth of the sentence must be served in the previous regime, and that the prisoner must demonstrate good behavior.

Article 112. The custodial sentence shall be served progressively, with transfer to a less restrictive regime, to be determined by the judge, when the prisoner has served at least:

I – 16% (sixteen percent) of the sentence, if the offender is a first-time offender and the crime was committed without violence against a person or serious threat;
II – 20% (twenty percent) of the sentence, if the convicted person is a repeat offender in a crime committed without violence against a person or serious threat;
III – 25% (twenty-five percent) of the sentence, if the offender is a first-time offender and the crime was committed with violence against a person or serious threat;
IV – 30% (thirty percent) of the sentence, if the convicted person is a repeat offender of a crime committed with violence against a person or serious threat;
V – 40% (forty percent) of the sentence, if the offender is convicted of a heinous crime or equivalent offense, if it is their first offense;
VI – 50% (fifty percent) of the sentence, if the convicted person is:
a) convicted of a heinous crime or equivalent offense resulting in death, if it is their first offense, parole is prohibited;
b) convicted of exercising command, individually or collectively, of a criminal organization structured for the commission of a heinous crime or equivalent offense; or
c) convicted of the crime of forming a private militia;
VII – 60% (sixty percent) of the sentence, if the convicted person is a repeat offender in the commission of a heinous crime or equivalent;
VIII – 70% (seventy percent) of the sentence, if the convict is a repeat offender of a heinous crime or equivalent crime resulting in death, conditional release being prohibited.

Before the legislative change brought about by the anti-crime package (Law 13.964/2019), which came into effect on January 23, 2020, article 112 only stipulated the amount of 1/6 (one sixth) or 1/8 (one eighth) for progression of regime.

It is important to emphasize that this amount can still be applied in cases of crimes committed before the effective date of the anti-crime package, that is, before January 23, 2020.
Currently, the progression of prison regimes works according to the percentages presented in the previously cited article, no longer using the old mechanism of fractions.

Furthermore, nowadays, the legal system only provides for the 1/8 (one eighth) fraction for progression of regime in the case of a pregnant woman or a woman who is a mother or guardian of children or people with disabilities.

How do I calculate the progression of my sentence regime?

The Anti-Crime Package (Law 13.964/2019) amended Article 112 of the LEP (Law of Criminal Execution) regarding the progression of prison regimes for convicts. The provision establishes the percentage of sentence served and its specificities for due progression. The final calculation for regime progression will depend on each specific case.

To be eligible for progression to a less restrictive prison regime, inmates must meet two basic criteria: the objective criterion, which is the length of the sentence served, and the subjective criterion, which is the social evaluation. Therefore, a prisoner is entitled to progress to a less restrictive regime when they have served a certain percentage of their sentence, with the specifics varying according to the concrete case.

The percentages for progression to a less restrictive prison regime take into account the type of crime (heinous or not, for example), whether the individual is a first-time offender or a repeat offender, and also whether the crime was committed with violence or serious threat.

Furthermore, the responsible lawyer must observe whether the convict committed any serious offense or whether he studied or worked during the serving of the sentence for the purpose of reduction, and since when the convict has been imprisoned.

From this, the professional will then perform the final calculation, in order to then request the progression of their client's prison regime, mainly because sometimes the calculations are incorrect, causing their client to remain imprisoned for longer than expected.

Calculation steps:

• Identify the specific criminal offenses (verify all crimes committed);
• To determine the percentage or fraction for calculation (check when the crime was committed and the applicable amount);
• Check if there is any deduction or remission (check if there was pre-trial detention and if the convict worked or studied);
• Check the base date (verify if there was any serious misconduct).

Finally, for a more precise calculation, some renowned professionals like Cristiane Dupret offer online calculators for calculating sentences.

So that's it, folks. We'll be back soon with more content here on the IDP Blog.

References

Filho, Paulo Bernardo. Progression of regime: how does it work and how to calculate it? JUSBRASIL, 2020.

Dupret, Cristiane. How the Progression of Regime Works. Brazil, 2021.

LGALVÃO, Lawyers. What are the types of prison regimes and what is regime progression?

STF. RE 641.320 – RS Available at: https://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=11436372