Luciana Zaffalon has developed a unique multisectoral approach to promote both the right to a public defender and fairness within Brazil’s criminal justice system. She combines judicial and legislative reform with powerful public outreach to promote rights-respecting practices in the media and amongst the Brazilian public.
A nova ideia
The rights of the accused to a public defender and fair treatment under the law are widely abridged throughout Brazil by a sensationalized news media, a poorly equipped public defense structure, and a host of policies that discriminate against the poor. Recognizing that combating the many pressing rights violations currently found within Brazil’s criminal justice system requires more than pro bono work on a case-by-case basis, Luciana complements legal reform with a combination of media training and public opinion campaigns to foster a stronger culture of tolerance across Brazil. Since assuming the directorship of the Instituto de Defesa do Direito de Defesa (IDDD— Institute for the Defense of the Right to a Defense) in 2004, Luciana has transformed what was once merely a network of pro bono lawyers into Brazil’s first concerted effort to promote the rights of the accused. Her approach seeks to address the many sources of injustice currently plaguing Brazil’s criminal justice system. Most public defenders in Brazil are young lawyers in training, who regard their work merely as a stepping stone to more highly acclaimed case work. In response to this flawed system, Luciana works with 180 of Brazil’s most accomplished criminal lawyers; taking on clients who could not otherwise afford to pay. Using this network of well-regarded defense lawyers, Luciana then identifies particular high-impact cases, the outcomes of which would have particularly far-reaching implications in terms of changes in jurisprudence and similar legislative reform. Finally, she is strengthening dialogue between the media and civil society in order to combat the widespread sensationalism and presumption of guilt typically applied toward criminal cases. To this end, she is currently creating a handbook for journalists on how to cover criminal cases, illustrating the correct terms to use, the proper framework for presenting cases, and the consequences of certain forms of sensationalized coverage. Luciana has achieved numerous changes in federal policy, including major victories in issues related to the rights of women and immigrants in the criminal justice system. Moreover, she has positioned the right to defense among the core issues of Brazil’s political agenda, and continues to reform the way the public views criminal proceedings and the people involved in them.
Despite the Constitution’s declaration that all people are equal before the law, Brazil’s most disempowered groups are widely denied access to legal counsel and are often subject to mistreatment and discrimination within the prison system. In what is sometimes referred to as the “criminalization of the poor,” Brazil’s most socially excluded groups—particularly young black men—frequently face fabricated or exaggerated charges and even harsher sentences, and are denied the right to an adequate defense. Indeed, of the 500,000 prisoners in Brazil, 95 percent come from poor backgrounds, and an alarming 98 percent are unable to consult with a lawyer in the critical period immediately following their arrest. Despite the enormous need for public defenders, moreover, there exist fewer than two registered public defenders for every 100,000 people.
In the state of São Paulo, home to more than 50 percent of Brazil’s total prison population, nearly half of all prisoners are between the ages of 18 and 24. The vast majority of these youth are first-time offenders with only minor offences. Furthermore, many young people are imprisoned in places far from their local communities; destroying social ties to their families and neighborhoods. This practice has had the unintended effect of luring them further into crime. For example, gang leaders offer families free rides to visit the prisons, leaving the young prisoners indebted to the gang leaders upon their release.
Women are similarly subject to considerable discrimination under Brazil’s flawed judicial system. Female prisoners are typically held in sub-standard prisons that have been decreed unfit to house male prisoners. They are often denied the right to intimate visits afforded to men, and those who enter relationships face the loss of parole, are denied the right to see their children, and are refused access to basic sanitary products. Such injustices extend to immigrants’ rights and those of other marginalized groups as well. Unlike native Brazilians who can understand the charges being brought against them, imprisoned immigrants have long faced sentencing and judicial proceedings without translation or access to a bilingual lawyer. Consequently, these defendants are left completely isolated from the legal process, unaware of their rights to further judicial recourse.
These discriminatory policies are made all the worse by the extreme imbalance between Brazil’s criminal defense structures and its prosecutorial bodies. The lawyers of the public prosecutor’s office are well-paid and trained, and as a result, are perceived as the “owners” of the criminal justice system; public defenders on the other hand, are poorly paid, under-trained, and ill-equipped to carry out their duties. This discrepancy is demonstrated within the courtroom itself: The judge and prosecutor sit on the same side of the room and at the same level, facing the defendant and his or her lawyer, who are seated on a lower level.
Meanwhile, the media frequently fail to provide balanced coverage of cases, preferring instead to take a highly sensationalized account of criminal behavior. As a result, the public tends to associate defense with impunity, believing that more people behind bars is evidence that the justice system is working efficiently.
Soon after taking charge of the IDDD, Luciana began to sense that the network’s pro bono activities were merely putting out fires—aware that with every victory, five more cases would come to the forefront the next day. To produce a more sustained impact, she sought instead to change the court’s jurisprudence and to address the myriad causes behind Brazil’s rampant criminalization. She has completely restructured the Institute and developed a diverse series of strategies aimed at securing the right to defense and educating society on its fundamental importance in the attainment of justice.
Luciana begins by identifying critical issues in the criminal justice field, and matching corresponding cases to lawyers in the network. With a membership that includes four former Ministers of Justice, the IDDD is widely hailed as bringing together some of the best defense lawyers in Brazil. Rather than tackling each case one-by-one, Luciana identifies as many as a hundred related cases, and assigns lawyers of the IDDD to those that best represent the issue at hand to effect powerful changes in jurisprudence. With regard to immigrant rights for example, she and her team took a case all the way to the Supreme Court, which resulted in a decree that the rights guaranteed by the Brazilian Constitution include access to an interpreter for foreigners charged with a criminal offense.
While such precedents provide defense lawyers with valuable new arguments, they are not absolutely binding. Luciana thus complements the network’s case work with legislative advocacy. In the translation case, for example, she has teamed up with a number of embassies and consulates and continues to lobby for new legal statutes mandating the provision of translators and guaranteeing their rights while in prison. This approach has proven similarly effective in her efforts to change national policy regarding women’s imprisonment. In 2007, having carried out a thorough investigation of the conditions in women’s prisons, she took the report and a related case to the Inter-American Court of Human Rights. The Brazilian government was then obliged to create an inter-ministerial group tasked with finding a way to restructure the female prison system. Luciana was charged with monitoring the process and the public policies that followed.
Beyond her efforts to alter jurisprudence, Luciana works to equip both public defenders and defendants with the knowledge and resources necessary to mount an effective defense, employing an array of strategies to improve the public apparatus. In São Paulo for example, there had been little formal structure to ensure defendants the right to a fair trial. In response, Luciana and the IDDD led a movement of more than 300 organizations for the installation of a Public Defense Office, leading to its creation in 2006. In addition, she created an ombudsman structure: The first such institution recommended by and composed of members of civil society. To build the sector’s overall capacity, Luciana offers legal counsel and guidance to other citizen organizations (COs) involved in the criminal justice field. In partnership with the University of São Paulo, Brazil’s best known law school, and the Jury Court, the public institution that oversees Brazil’s court system, she has developed an advanced training course to better equip lawyers in the public defense office. More than 300 lawyers have already gone through the course, learning how to quickly develop a sound defense within the limited timeframe before a trial, as well as strategies for arguing before a jury. To further motivate the public defenders, Luciana created an annual Justice for All Prize, awarded to the top performing lawyers of the defense office.
The second core element in Luciana’s strategy revolves around efforts to change public attitudes toward those charged with criminal offenses. Having worked initially with journalists on a case-by-case basis, Luciana realized that truly protecting the rights of the accused requires building a culture of tolerance amongst the media and the public. In 2005, in partnership with Globo (Brazil’s largest TV network) and several major newspapers, Luciana launched a campaign to ensure that the media provide balanced coverage of the defense and the prosecution, and refrain from criminalizing the accused. To this end, she built a series of relationships between various media bodies and the associated lawyers of IDDD, who monitor the coverage of criminal cases and provide regular feedback. In addition, she has partnered with other COs to create a handbook on how to cover criminal cases, illustrating the correct terms to use, the proper framework for presenting cases, and the consequences of certain forms of sensationalized coverage.
By seeking to improve disadvantaged people’s access to the justice system from every angle, Luciana has won major victories at both the judicial and legislative levels, and has achieved dramatic changes in public opinion—creating a lasting impact on Brazil’s public defense structures. She has begun work with the Fonte Institute on strategic planning and is in the process of building a series of alliances to extend her programs beyond São Paulo and Brazil, including a promising partnership with the United States-based Innocence Project.
Luciana is an only child, born to a family of moderate means in the town of Bauru, in the countryside of São Paulo state. Her parent’s hard work and their subsequent financial stability helped to instill a keen sense of independence. As a teenager, Luciana dedicated herself to the study of contemporary politics, ancient history, and theatre. At age sixteen, frustrated by the lack of cultural facilities in her town, she founded a student organization whose mission was to both address students’ complaints and to expand the school’s range of available extracurricular activities.
At eighteen, Luciana moved alone to São Paulo and studied social work at the Pontificate Catholic University. One year into the course, however, she realized that the course content remained theoretical and failed to focus on needed social interventions. It was then that Luciana discovered the power of the legal system as a tool for effecting change in the social sector, and she soon switched to a career in law. She expected that studying law would enable her to work in the social fields of culture or public education—she never imagined that it would be both a bridge to making social interventions and the principal tool of her work to intervene directly in issues of social change.
Luciana worked in various law offices to finance her university studies. Frustrated by the unfulfilling nature of the work, she moved to Bahia to volunteer for six months at an arts and educational project, “Graos de Luz e Grio.” This experience crystallized her commitment to social issues and heavily influenced her decision to work in criminal law, believing that the worst consequences of Brazil’s immense social inequality lay there. She acquired a trainee position in a criminal law firm, which in addition to routine activities had established volunteer work through the Institute for the IDDD. At the time, the activities of the IDDD were restricted almost exclusively to offering free legal services and its President and founder, Dr. Marcio Tomaz Bastos, was ready to resign to assume his position as the Minister of Justice, leaving the organization with a highly uncertain future. Luciana immediately put herself forward for the position of general coordinator. In 2004, having convinced an interview panel of eleven of Brazil’s most accomplished criminal lawyers, she assumed general coordination of IDDD at just twenty-three years old.