Over the past few years, there has been much discussion about the resocialization of prisoners and the updating of the Brazilian prison model.
On one side, there is a more conservative pole, which believes that there is too little rigor in criminal laws, such that life imprisonment and the death penalty would be appropriate in certain cases. On the other side, there is a progressive pole, which does not believe in the current model of incarceration, given that the inmate does not return to society with the necessary behavioral change.
The progression of prison regimes is one of the fundamental institutions of Criminal Law and Penal Execution in Brazil, allowing the convicted person to gradually advance to less severe regimes as they serve part of their sentence and demonstrate good behavior.
This mechanism reflects principles such as the individualization of punishment, the resocialization of the offender, and the dignity of the human person. However, despite its legal support, the progression of prison regimes faces challenges in practical application, stemming from both legal and structural barriers within the Brazilian prison system.
In this article, we explore the legal rules governing the progression of prison regimes, the criteria for granting them, the difficulties faced in their implementation, and the impacts of this institution on the prison system and society.
The Progression of Regimes and its Foundations
Cleber Masson lists in his doctrine three classic systems that govern the progression of prison sentences: the Philadelphia system, the Auburn system, and the English system.
Under the Philadelphia system, prisoners are isolated in their cells, without the possibility of leaving them, except occasionally for walks in enclosed courtyards.
In the Auburn system, the convict works quietly during the day with other prisoners and is placed in isolation at night.
The English or progressive system, on the other hand, is based on isolating the convict at the beginning of their prison sentence. However, at a later stage, they are allowed to work in the company of other prisoners. And finally, in the last stage, they are released on parole.
The progression of prison regimes is provided for in the Penal Execution Law (Law No. 7.210/1984) and the Brazilian Penal Code. Article 112 of the Penal Execution Law establishes the general requirements for granting the benefit, while the Penal Code determines the regimes for serving sentences: closed, semi-open, and open.
The goal of progression is to allow a gradual transition of the convicted person to freedom, preventing recidivism and promoting social reintegration. The central idea is that, as the offender demonstrates effort and commitment to their rehabilitation, they can be transferred to less severe regimes, culminating in their reintegration into society.
To be eligible for progression to a less restrictive prison regime, they must meet two essential and mandatory criteria: (i) the objective criterion, relating to the length of the sentence; and (ii) the subjective criterion, relating to the social assessment.
Requirements for Progression to a Different Regime
As mentioned, progression to a less restrictive regime depends on fulfilling two fundamental requirements, which we will discuss below.
Time Requirement (Objective Criterion)
The length of a sentence varies according to the nature of the crime and the offender's recidivism. Progression to a less restrictive regime requires serving a minimum percentage of the sentence, as established by Article 112 of the LEP (Law of Criminal Execution) and Article 33 of the Penal Code. These rules were modified by Law No. 13.964/2019, known as the "Anti-Crime Package".
According to article 112 of the LEP (Law of Penal Execution), the percentages required for progression are as follows:
- 16% of the sentence – If the convicted person is a first-time offender and the crime committed is not heinous or equivalent;
- 20% of the sentence – For repeat offenders, provided that the new crime is not heinous or equivalent;
- 25% of the sentence – For first-time offenders convicted of heinous or equivalent crimes that did not result in death;
- 30% of the sentence – For repeat offenders of heinous or equivalent crimes that do not result in death;
- 40% of the sentence – For first-time offenders convicted of heinous crimes or equivalent offenses resulting in death;
- 50% of the sentence – For repeat offenders of heinous crimes or crimes equivalent to those resulting in death;
- 60% of the sentence – For convicts who are members of a criminal organization and have held a leadership position;
- 70% of the sentence – For those convicted of a heinous crime or equivalent offense if they are a repeat offender.
Subjective Requirement (Good Prison Behavior)
In addition to the objective criterion, the legislation requires that the prisoner prove good prison behavior, as per paragraph 1 of the same article, a requirement verified through a report prepared by the prison administration.
Good behavior involves:
- The absence of serious disciplinary infractions;
- Participation in work or educational activities in prison;
- Respect for the rules and regulations of the prison.
- In cases of conviction for heinous or equivalent crimes, a criminological examination may be required by the judge to assess the possibility of the convict's social reintegration. Although this examination is not legally mandatory, courts frequently use it to support their decisions.
The Procedure for Progression to a Different Regime
The progression to a less restrictive prison regime does not occur automatically. The convicted person or their lawyer must submit the request to the judge of the Criminal Enforcement Court, demonstrating compliance with the objective and subjective requirements.
It is important to highlight that, according to the jurisprudence of the STF (Supreme Federal Court), the absence of a suitable penal establishment does not authorize the maintenance of the convicted person in a more severe prison regime. In this case, the parameters established in RE 641.320/RS, which led to the establishment of General Repercussion Theme 423, reported by Minister Gilmar Mendes, 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.)
Therefore, if a detained defendant meets the necessary criteria to obtain a more lenient regime, but the Public Administration lacks the structure to offer it, the party may obtain a more lenient regime in order to prioritize the defendant's rehabilitation.
Importance of Progression for the Penal System and Society
The progression of prison regimes plays a crucial role in balancing the penal system. It prevents over-incarceration, reduces state costs associated with prisoner maintenance, and contributes to rehabilitation. Studies indicate that the proper application of progression reduces recidivism rates, as it allows the convicted person a controlled transition back into society.
Furthermore, progression reinforces the principle of individualization of punishment, ensuring that the punishment is adjusted to the reality of the convicted person and preventing the serving of sentences in a uniform and disproportionate manner.
Conclusion
The progression of prison regimes is an essential mechanism to guarantee justice in the execution of sentences and to promote the resocialization of convicts. However, its effectiveness depends on the existence of adequate structures, an agile judiciary, and a change in social perception of the penal system.
For lawyers working in criminal enforcement, understanding the criteria and challenges of progression is fundamental to ensuring that their clients' rights are respected. The pursuit of a more efficient application of this legal mechanism is a necessary step towards a fairer and more humane criminal justice system.
BIBLIOGRAPHIC REFERENCES
CAPEZ, Fernando. General Part . Criminal Law Course Collection. 24th ed. São Paulo: Saraiva Educação, 2020.
MASSON, Cleber. Criminal Law : General Part (Articles 1 to 120). 14th ed. – Rio de Janeiro: Forense; São Paulo: MÉTODO, 2020.
NUCCI, Guilherme de Souza. Course on Criminal Law : General Part. Rio de Janeiro: Forense, 2017.
RE 641.320, rel. min. Gilmar Mendes, P, j. 5/11/2016, DJE 159 of 8/1/2016, Theme 423
