THE RELEASE OF PRISONERS AS A REMEDY TO THE CRISIS IN MASS INCARCERATION: A COMPARATIVE STUDY BETWEEN JUDICIAL DECISIONS IN THE UNITED STATES AND BRAZIL

Topics: United States Constitution, Supreme Court of the United States, Prison Pages: 94 (11644 words) Published: February 5, 2014
SAMFORD UNIVERSITY
CUMBERLAND SCHOOL OF LAW
MASTER IN COMPARATIVE LAW PROGRAM
PROFESSOR M. FLOYD

THE RELEASE OF PRISONERS AS A REMEDY TO THE CRISIS IN MASS
INCARCERATION: A COMPARATIVE STUDY BETWEEN JUDICIAL DECISIONS IN THE UNITED STATES AND BRAZIL

GUSTAVO CÂMARA CORTE REAL

BIRMINGHAM – ALABAMA
2012

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The Release of Prisoners as a Remedy to the Crisis in Mass Incarceration

TABLE OF CONTENTS
I) Introduction……………………………………………………………………….………… 3 II) A brief history of mass incarceration ……………………….……………………………… 3 A) The United States mass imprisonment current crisis: origins and possible causes………………………………….………………..…………………..………….. 3 B)

The

Brazilian

penitentiary

system

and

the

issue

of

prison

overcrowding…………………………………………………………………………... 5 III) The release of prisoners in compliance with the Eighth Amendment’s Cruel and Unusual Punishments Clause of the United States Constitution and the Brazilian Federal Constitution’s Principle of Human Dignity …………………..……………………………………..…….….. 7 A) The United States Constitution Eight Amendment’s Cruel and Unusual Punishments Clause ……………………………………………...………………………………… 8 B) The Principle of the Dignity of the Human Person in the 1988 Brazilian Federal Constitution………...…………………………………………………….……….…... 11 IV) A comparative analysis of recent court decisions in the United States and Brazil………. 14 A) Decisions in the United States concerning the release of prisoners as a remedy for overcrowding ………………………….…………………..………..………………... 14 B) Brazilian decisions determining the release of prisoners or change in prison conditions for failure to comply with minimum standards required by the Brazilian Federal Constitution ………..……………………………….…..……..…..…………. 20 C) Competing dignities in both systems……….………………....……..…..………... 23 V) Conclusion………................................…………………….………………..…………..... 27 VI) Bibliography……………………………………….……………….……..……………… 28

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The Release of Prisoners as a Remedy to the Crisis in Mass Incarceration

 
I) INTRODUCTION

The purpose of this study is to analyze the current phenomenon of mass incarceration experienced by The United States and Brazil. Particularly judicial decisions ordering the release of prisoners as a remedy to circumvent the crisis. Firstly, it will be necessary to address how this system of punishment led to a crisis of mass incarceration in both countries. Constitutional principles associated to possible violations of prisoner’s rights are mentioned to illustrate how both countries approach the issue legally.

The subject under discussion has gained considerable importance after 2011, when the Supreme Court of the United States maintained a decision held by the United States Court of Appeals for the Ninth Circuit, ordering the release of inmates in California prisons because of overcrowding. Similarly, in 2010 the Brazilian Supreme Court decided that prisoners could not be exposed to conditions of imprisonment more burdensome than those contained in his sentencing decree.

At last, it is imperative to analyze the key judicial decisions taken by both Supreme Courts, specifically the reasons and points of convergence between the two countries. It will be emphasized the principle of human dignity and the discussion whether such theory could apply to protect non-enumerated rights with correlation with a statistical, sociological and constitutional aspects developed in this paper.

II) A BRIEF HISTORY OF MASS INCARCERATION
A) The United States mass imprisonment current crisis: origins and possible causes.
David Garland (2001) defines the concept of mass imprisonment as the institution that has emerged in the United States over the past two decades, being a phenomenon of the

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The Release of Prisoners as a Remedy to the Crisis in Mass Incarceration

twenty first century that confined more than 2,000,000 Americans1....

Bibliography: David Garland (2001) defines the concept of mass imprisonment as the institution
that has emerged in the United States over the past two decades, being a phenomenon of the
population, followed by Russia3. David Garland (2001) describes that for most of the twentieth
century, the America’s rate of imprisonment oscillated around a stable mean of 110 per
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