The attack in Aracruz and the reduction of the age of criminal responsibility

A week ago, a 16-year-old teenager, carrying the guns of his police father, invaded two schools in Aracruz, Espírito Santo, and shot teachers and students. He killed 4 people and injured 12 others. Then he returned home, had lunch with his family and traveled with them to the beach house, as if nothing had happened.

The practice of serious crimes by teenagers has already scared the country on other occasions. Lowering the age of criminal responsibility is supported by the majority of the population, but is opposed by the left, including leaders of the Workers’ Party, who are gaining strength with the current government.

Is reducing the age of majority a positive and relevant public policy to be advanced by the new Congress, even against PT resistance?

To contextualize the debate, it is important to remember some episodes. In 2003, Champinha, a 16-year-old teenager, led a group that tortured and murdered a couple who were camping in the countryside, Felipe Caffé and Liana Friedenbach, then aged 19 and 16 respectively.

The practice of serious crimes by teenagers has already scared the country on other occasions. Lowering the age of criminal responsibility is supported by the majority of the population, but is opposed by the left, including leaders of the Workers’ Party.

Over the course of 6 days, Felipe was attacked until he was killed with a shotgun blast to the back of the head. Liana was raped and forced to pretend that she was Champinha’s girlfriend for 8 days, until she was brutally beheaded and stabbed. The crimes appalled the country.

In 2007, another atrocity would move the nation. Five robbers stole a car in Rio de Janeiro. A 16-year-old teenager, with a gun in his hand, surrendered to the driver. She and her daughter got out of the car, but they were unable to free João Hélio Fernandes, her 6-year-old son, from his seat belt.

The assailants fled and the child was dragged by the car for four kilometers. When the criminals abandoned the car, João’s body was still attached to the vehicle, without knees, fingers and head, ripped off on the way.

Many serious crimes are committed by persons under 18 years of age. In 2017, the last year for which data are available on the federal government website, there were 16,433 infractions in the country, committed by people under 18 years of age.

Half of them were robberies and a quarter were drug trafficking crimes. Homicides and robbery (robbery with death) added up to more than 2,600 cases, more than seven a day. There are four rapes per week committed by minors.

In Brazil, the Constitution determines that minors under 18 do not commit “crimes”, they are not responsible. When they practice facts equivalent to crimes, these are called “infractional acts”. For victims and society, the damage and suffering of crimes and infractions are the same.

However, the punishment is very different. “Internment”, a kind of imprisonment for minors (although its objective is to protect and educate and not to punish), lasts a maximum of 3 years. While an adult who commits a qualified homicide stays in prison, in a closed regime, an average of 4.8 years, the teenager who commits the same act is hospitalized, on average, for only 9 months. Internment lasts fifteen percent of the adult prison time.

In plain English, if crime pays for adults in Brazil, with low sentences, progressions, releases, outings and generous pardons, for teenagers, then, it pays much more. Its impunity favors the enticement of adolescents to commit crimes, especially by drug dealers.

The perception that this impunity is harmful is reflected in the opinion of Brazilians about reducing the age of criminal responsibility. This year’s survey by the Orbis Institute pointed out that 82.4% of Brazilians want to reduce the age of criminal responsibility.

In plain English, if crime pays for adults in Brazil, with low sentences, progressions, releases, outings and generous pardons, for teenagers, then, it pays much more

The study showed that the poor and periphery population, largely affected by crime, also advocates reducing the age of majority. It is important to say this because opponents of the change claim that it would harm this section of society above all.

In harmony with the will of the population, the Chamber of Deputies approved PEC 115, in 2015, which reduces the age of majority to 16 years in relation to heinous crimes, intentional homicide and bodily injury followed by death. Examples of heinous crimes are robbery and rape.

The PEC, which has been at a standstill with Senator Davi Alcolumbre since 2019, also determines that the sentence be served in proper establishments, separate from adults, which removes the argument of those who say that the arrest of minors would cause them to be co-opted in prisons by adults and their criminal organizations.

Among the many arguments for and against imprisonment, many of which are weak or fallacious, there are three central arguments.

The first issue is whether 16-year-olds have the discernment that allows them to be held accountable. In Brazil, the law already recognizes such discernment. Adolescents aged 16 not only can vote, but also, upon emancipation, carry out all acts, including complex ones, of civil life.

The second discussion is whether reducing the age of majority is a measure capable of reducing the number of crimes committed. Cristiano Oliveira, doctor in applied economics and researcher at the Federal University of Rio Grande, published in 2020 a study that suggests a positive answer to this question (“Law Incentives for Juvenile Recruiting by Drug Trafficking Gangs: Empirical Evidence From Rio de Janeiro”).

Based on data from all arrests made in Rio de Janeiro in 2016 and in the first half of 2017, it is observed that the number of arrests, by age, increases until the end of 17 years and, shortly thereafter, from 18 years, starts to decrease significantly.

The data support the thesis of behavioral economic analysis according to which criminal punishment effectively has a deterrent effect. The graphics presented at the end of this article, extracted from that work, are clear in this sense.

The study also points out that reducing the age of criminal responsibility would reduce the number of homicides by up to 37%, considering the deterrent effects identified. If this same percentage, resulting from the analysis of crimes in Rio de Janeiro, is extrapolated to Brazil, reducing the age of majority could save 962 people a year in Brazil, more than eighteen every week.

The number of lives saved indicated by the research could be even greater if one considers, in addition to the deterrent effect, the disabling effect of imprisonment, by preventing the offender from making new victims during the period of incarceration.

The third central discussion is whether the Brazilian Constitution, by establishing that minors under 18 years old are not liable, made the rule of majority at 18 years old a fundamental right. If so, the norm would be an unchangeable constitutional clause.

The answer is negative. First, because the rule is in Article 228 of the Constitution, outside the articles that establish most of the fundamental rights. Although this is not in itself decisive, it must be considered. Second, even if it is understood that the Constitution requires a rule of majority, the PEC does not extinguish it, but only changes the age criterion, adjusting it to the evolution of society.

The study also points out that reducing the age of criminal responsibility would reduce the number of homicides by up to 37%, considering the dissuasive effects identified

Third, many democracies that establish lower ages for criminal responsibility, without this being considered a violation of human rights. Among these countries are Sweden (15 years), Norway (15 years), United States (12 years in several states), Switzerland (15 years), New Zealand (17 years), Poland (17 years), Scotland (16 years) and United Kingdom (10 years).

Finally, no fundamental right, even when so recognized, is absolute. The age of majority rule must be reconciled with other fundamental rights, such as those to life and security. In this context, it is legitimate to establish a criminal response to serious crimes committed by adolescents aged between 16 and 18 years, such as the one in Aracruz, the one in Champinha, the assault that killed the boy João Hélio and the more than 2,600 annual homicides committed by adolescents .

Thus, reducing the age of majority to 16 years in the case of heinous crimes, under the terms of PEC 115/2015, is a way of respecting the majority of the population’s clamor for justice, without infringing fundamental rights, and may also contribute to saving thousands of lives. lives that are victims of crime, especially violent crime.

The measure is positive and relevant. It is up to the elected Congress, especially the Senate, to advance it.

Content edited by:Jonathan Dias Lima

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