Presidential pardon and mentally ill offenders detained in forensic hospitals

The presidential pardon is a Brazilian tradition enacted every Christmas season by federal decree. An inheritance from Portuguese tradition, the Imperial pardon was incorporated into the first Brazilian constitution, of 1824, and remains a presidential prerogative according to the 1988 Federal Constitution.¹ In 2008, this merciful regulation included, for the first time, mentally ill offenders detained in forensic hospitals (decree 6076/2008).¹ Since then, it has been renewed on an annual basis.

According to the Brazilian Penal Code (1940, revised 1984), when a defendant is unable to understand the illicit nature of his or her acts or is incapable to behave in accordance with his or her understanding, he or she will be found “unimputable” (not subject to criminal responsibility).¹,² Defendants thus found will be pronounced not guilty by reason of insanity (NGRI) and sentenced to compulsory treatment, a type of criminal commitment known as a “safety measure.”¹,² The modality of treatment and its length are determined by law. An annual psychiatric risk assessment is required, as patients held under a safety measure are, by legal definition, “dangerous.”² However, the new presidential decrees (issued from 2008 on) explicitly do not require a medical examination for a full pardon. These presidential decisions have been confirmed by two superior courts: the São Paulo State Court and the Superior Tribunal of Justice, in Brasilia. These peculiar decrees and upcoming sentences raise a series of questions.

First, patients in safety measure are sent to a forensic hospital for treatment, not for punishment. Thus, the logical rationale would be to follow a multidisciplinary treatment plan and discharge them only when properly treated. If this is not accomplished, some patients will be released when still under treatment, to the detriment of their best interests. Second, the forensic population is a heterogeneous one, and comprises from chronic mental patients who have committed minor offenses to psychopathic serial killers. Thus, these decisions can be a mistake from both the human rights and social security standpoints; the former because some pardoned patients are released to the “freedom of the streets” or removed to non-forensic psychiatric hospitals. As it is widely known, these hospitals do not have secure facilities, and their staff lacks expertise in treating forensic patients. Depending on their clinical characteristics, these patients can put the staff and other patients at risk, clearly contradicting Law 10.216/01 and basic human rights. Disregarding the risk assessment (the “cessation of dangerousness” examination) will place a large number of citizens at risk, since some dangerous criminals may be released only to commit new offences.²

Since these patients were declared NGRI, is the presidential pardon applicable? Is it ethical and legal to cease ongoing treatment abruptly? Should the safety of society and the routines of non-secure hospitals be put aside?

The authors do hope that legislators will seek guidance from mental health professionals regarding the field of mental health, and, furthermore, that future instances of the presidential pardon take into account professional opinions when dealing with mentally ill offenders.

References

• ¹ Rede de informação legislativa e jurídica (LEXML) [internet]. Brasília: Senado Federal; 2009 [cited 2012 June]. http://www.lexml.gov.br/
  » http://www.lexml.gov.br/
• ² Taborda JG. Criminal justice system in Brazil: functions of a forensic psychiatrist. Int J Law Psychiatry. 2001;24:371-86.

Publication Dates

• Publication in this collection
  Mar 2014

History

• Received
  25 June 2012
• Accepted
  22 July 2012