Criminal majority: experts point out flaws in the ECA and defend changes in the socio-educational system

The reduction of the age of criminal responsibility returned to the center of public debate after the attempt to include the reduction in the text of the proposed amendment to the Public Security Constitution (PEC), approved by the Federal Senate on Tuesday (3). (See more details here)

g1 spoke to experts about reducing the age of criminal responsibility. They defend changes to the Child and Adolescent Statute (ECA) and point out the risks of inserting adolescents into the adult prison system, such as strengthening ties with criminal organizations.

Prosecutor Afonso Henrique Lemos explains that the Brazilian State fails to hold teenagers responsible for committing serious criminal acts, but that the solution does not necessarily involve reducing the age of criminal responsibility.

For him, the problem is directly related to the operationalization of the Child and Adolescent Statute (ECA) and the law that establishes the National Socio-Educational Service System (Sinase).

🔎 The ECA is legislation that establishes the rights and guarantees of children and adolescents. The instrument was promulgated in 1990, during the government of Fernando Collor. Children are considered to be people under the age of 12; Teenagers are those aged between 12 and 18.

"The problem lies in the Child and Adolescent Statute itself, in the Sinase law, which has several provisions that do not generate adequate proportional liability in relation to serious acts. The ECA responds well to minor acts, but is terrible and very lenient for serious acts", he states.

According to Lemos, the solution involves a reform of the ECA, with provision for differentiated liability for serious acts and the establishment of a minimum period of hospitalization.

According to the prosecutor, the ECA only establishes a maximum period of three years for compliance with the internment measure, a period that, in his opinion, is short for cases of serious criminal acts.

"Teenagers who commit very serious criminal acts, in practice, rarely spend seven months in hospital; the term for murderers, rapists, robberies is around six, seven, sometimes five [months]. So, the maximum term is useless. You can even increase it to 10 years, but if there is no minimum term set, it doesn't make the slightest difference", he explains.

Adolescents who commit infractions are subject to socio-educational measures — and not sentences from the common prison system. These measures include:

Internment: Deprivation of liberty as the main measure;

Provisional commitment: Temporary custody before sentencing;

Semi-freedom: Partial regime with external exits;

Hospitalization-sanction: Punishment for non-compliance with the measure.

Juvenile offenders at the Luziânia detention center, Goiás — Photo: Reproduction/Defensoria Pública

Adolescents in prisons and recidivism

Lucas José Ramos Lopes, executive secretary of the Brazilian Coalition for the End of Violence against Children and Adolescents, states that sending teenagers to adult prisons increases the risks of violence, coercion and proximity to more structured criminal networks.

“Exposing teenagers to this environment can strengthen their links with crime and make it difficult for them to resume studies, family relationships and a life path outside of violence”, he states.

For the expert, the recruitment of these young people into crime exploits social vulnerabilities and power relations.

Grooming can also involve promises of money, protection and belonging. According to Lopes, these offers can become control mechanisms, with threats and difficulties in breaking the link with criminal groups.

He defends that teenagers who commit serious acts are held responsible through the measures provided for by law, including hospitalization when necessary. It also highlights the importance of individualized care, schooling, professional training and mental health monitoring.

According to Lopes, the Individual Assistance Plan (PIA), provided for in the Sinase law, is an instrument to organize this monitoring. In his opinion, it is necessary to ensure that the plan gets off the ground and results in effective services, such as school enrollment and attendance, health care and family support.

Monitoring must also continue after leaving socio-educational units, with a reference team and a transition plan that includes continuity of studies, professional training and protection against threats and new recruitment attempts.

"The State needs to offer a safe way out of crime. Returning teenagers to the same context of threat, without support and without opportunities, compromises the work carried out during the measure and the protection of the entire society", he points out.

Discussion in Congress

Both the PL and the PT presented proposals to lower the minimum age for young people to face crimes with the same punishments applied to adults.

In the government's proposal, the age of majority would be reduced to 16 years only for heinous crimes. In the PL, for 16 years as a general rule, and for 14 years in heinous crimes.

Despite the agreement to vote on the reduction on Wednesday (4), the discussion was suspended in the Senate. The president of the House, senator Davi Alcolumbre (União-AP), said that he decided to wait for the Chamber of Deputies to vote on the issue after talking to the president, deputy Hugo Motta (Republicanos-PB).

The two agreed that the reduction of the age of criminal responsibility will only be debated in the Senate after the PEC vote on the topic in the Chamber. Alcolumbre also argued that it was necessary to maintain an institutional relationship of respect with Motta.

In the Senate, the proposals were presented as amendments by the PT leader, Camilo Santana (PT-CE), by the opposition leader, senator Rogério Marinho (PL-RN).

In the Chamber, the reduction of the age of criminal responsibility is already discussed through its own PEC, which is being analyzed by a special commission.

The expectation is that the rapporteur, deputy Mendonça Filho (PL-PE), will present his opinion between the end of November and the beginning of December. The proposal will still need to advance in the Chamber before the discussion can be resumed in the Senate.