The Brazilian criminal justice system comes from the civil law of Western Europe, in particular Portuguese law, which derives from Roman law. The earliest legal documents in Brazil were land grants and charters dating to the early 16th century, which continued to be used until independence in 1822. Various basic principles of law are enshrined in the 1988 Constitution, such as the principle of legality and the principle of human dignity.

Various institutions work together to implement the criminal justice system, including the National Congress, which passes laws to define what acts are considered criminal in the Penal Code and codifies the criminal procedures for implementing them; three national and multiple state-level police forces to prevent and combat crime and hold alleged perpetrators for prosecution; the judiciary, including 92 courts at the federal and state levels, to interpret the codes, and hear prosecutions and judge perpetrators; and a correctional system to punish and rehabilitate convicted criminals.

The workings of the criminal justice system have had many changes, reflecting Brazil's history of colonialism, Empire, Republics, military dictatorship, and democracy, and of persistent, endemic corruption and scandals. There have been attempts to rein in corruption: in the 2010s, Operation Car Wash an investigation into corruption within the government which lasted eight years. The investigation extended to multiple foreign countries, and resulted in a thousand indictments, half a billion dollars in fines, affected three former presidents, and imprisoned one.

Rates of crime in Brazil are elevated. Brazil ranks high amongst the most number of homicides in the world; it ranked 4th in South America in 2021. In the correctional system, although laws guarantee prisoners a livable amount of space and decent living conditions, in fact prisons are very overcrowded, typically housing two to five times the number of inmates they were designed for.

Introduction

Historical background

Brazil's legal tradition derives from the civil law of Western Europe, in particular Portuguese law, which in turn comes from Roman law.

Unlike other parts of Latin America, Brazil in pre-colonial times before the arrival of the Portuguese in 1500 did not have any developed indigenous cultures with institutions of their own, such as Mayas, Incas or Aztecs elsewhere. It was also very different from Spanish or English colonization, as Brazil was a vast and very sparsely populated region. Also, Portugal was busy with African and Asian colonies, before looking toward Brazil around 1530. In 1548, the General Government was created () to administer the area.

Some of the first legal documents were the For hereditary ownership, and the Foral, a royal decree which called for defining borders and administering the land from the early 16th century, shortly after the Portuguese arrived in Brazil. These continued to be used until independence in 1822. Indigenous practices were ignored, although outside legal practice they had a great influence on the developing nation. The huge, unknown and hostile environment led to slow development of legal practices due to the distance of the motherland, and generally lacked legitimacy from initial discovery to declaration of the kingdom in 1815, and the republic in 1822.

Civil law came to Brazil with the Empire of Brazil.3.1 Pedro I and Pedro II companion website to the 2021 third edition of James N. Green and Thomas E. Skidmore's textbook Brazil: Five Centuries of Change, published by Oxford University Press.

Originally a plantation economy, Brazil abolished slavery in several stages during the 19th century.The Abolition of Brazilian Slavery, 1864–1888, Ricardo Salles, in Latin American History, Oxford Research Encyclopedia https://doi.org/10.1093/acrefore/9780199366439.013.733 Published online: 30 October 2019

Colonial period (1500–1822)

During the colonial period, the system of law consisted of Royal Ordinances: the Alfonsine Ordinances () from 1446, which drew heavily from Roman law, the () from 1603, and the Manueline Ordinances of 1512. The Alfonsine Ordinances are unique in being the first norms produced in the way modern codes are. The Manueline was a revised version of the Philippine, and the first printed code anywhere; portions remained in effect after independence in 1822, and it was not fully replaced until Clovis Bevilaqua's Civil Code of 1917.

Old Republic (1889–1930)

Changes in earlier, classical views of criminology arrived in Brazil in the nineteenth century, especially after 1870, from the ferment and discourse in Europe in positivist criminology, and fin de siècle views of "degeneration" and supposed "scientific" methods of dealing with deviant elements of society and protecting society from them.

Positivist criminology emerged in Europe in the 1880s in the context of legal and scientific discourse on criminality and deviance which attempted to understand the question, "what makes a man become a criminal?". In Brazil, these currents emerged during the First Republic, which was a period of intense political, economic, and social upheaval. The Republic was proclaimed in 1889, the economy was being transformed by capitalism, and society was being reshaped in a more individualistic form. The legal system, and especially criminal law, struggled to keep pace with the whirlwinds sweeping Brazil during the First Republic.

The Zeitgeist of the time was the advance of science and cause and effect in understanding phenomena, replacing earlier, more spiritualist views dating to the Middle Ages. Evil had to be understood and explained through observation, calculation, and the use of neutral experiment and scientific method. This extended to the field of medicine, which also was seen as the arbiter of what is normal or pathological, and especially psychiatry, which became key, as besides being concerned with mental illness asoaddressed the issue of identifying dangerous behavior.

Fin de siècle Europe was suffused with images of degeneration and decay, and the idea the dangerous classes and criminality would take over society was common. This impeded progress, and to stop it, science would analyze it and provide possible cures. Degeneration became an umbrella term for numerous categories of people, spanning criminals, prostitutes, the insane, and other forms of deviance, and could be countered by the emerging field of criminology, whose object of study was the deviant and attempted to understand the causes, in order to be able to protect society, and to support progress by reducing or controlling degeneration. Cesare Lombroso combined many of these threads and analyzed theories about criminality from a medical perspective, essentially creating a "criminal profile" of someone who is born a criminal. This led to a conception of criminal anthropology by doctors who viewed crime as a symptom of the inborn nature of a criminal, who therefore needed to be treated and not punished. The field of law was encroached upon by biology.

The "scientific" development of the idea of "degenerate individuals" veered away from actual study of the criminal element, and towards a means of governing. "Normal" individuals (i.e., white men, employed, civilized per European standards) viewed other types as deviants from normality and a threat to the social order. All of these ideas and theories and attitudes and methods of dealing with them arrived in Brazil from Europe in the nineteenth century, especially after 1870. The new ideas from the positivist school mixed with earlier liberal views from the classical school, and were well received by Brazilian jurists, being viewed as the latest advances from Europe, and resulted in various legal and institutional changes in Brazil, especially in the area of punishment, and control.

Brazil already had a mature legal culture, and the reception of European criminology happened during a time of profound social and political changes from the end of slavery to consolidation of the republic. There was an atmosphere of openness and inclusion of new ideas, such as by the Recife School. This paved the way for the acceptance of positivist criminology, with its air of modernity and free from a spiritualist past they rejected, and moving towards a goal of ensuring social order, which is part of the motto on the Republican flag. The Republic's first piece of business was the ; the Constitution itself was only written the following year.

The integration of positivist criminology by Brazilian legal culture took place gradually, centering around legal scholars in the top law schools. There was resistance at first, and Tobias Barreto, a professor of legal philosophy at Recife law school was especially critical of Italian criminologist Lombroso's theories of anthropological criminology and heritable criminality, and was aware of the incursions of the medical field into law. , professor of criminal law in Recife, was the first jurist to support criminological positivism in Brazil, although it took him a while to fully adopt its tenets. Vieira's debates with João Baptista Pereira, author of the republican code and professor of criminal law at the Rio law school was a microcosm of the debate between proponents of the classical and positivist schools in Brazil for the duration of the First Republic. These, in turn, were a reflection of debate on this topic going on in Europe, mostly in Italy, between these schools. Vieira was a gradualist, and his increasing understanding and support of the new ideas did not translated into attempts to reform the classical code into a criminological one; his approach followed that of Italian criminologists Ferri and Garofalo, who held that positivist reform would be inevitable, but gradual. He took over revising the Republican code, but chose to find improvements by referring to the old, Imperial code, hoping to increase the prestige of the Republican code through links to the venerated Roman code.

Theory

The German, tripartite system of underlies the theory of crime in Brazil, as well as in all Latin American countries.

English-speaking common law systems are based on the simpler, bipartite system of criminal theory. The central thesis is that a criminal offense is based on two elements: the actus reus, or external action in the world, and the mens rea, or internal mind state, in particular, intent and that for a crime to occur, both elements must be present. France and many countries whose codes are influenced by French law which do not follow common law nevertheless also use the bipartite system, where they call the two elements the material element (actus reus) and the moral element (mens rea). The American Model Penal Code was a project of law released in 1962 which heavily influenced penal law in the United States, and came up with a four-part division of mens rea, more than most European countries based on the tripartite system, which distinguish between only two elements, negligence and intent.

The German tripartite system, on the other hand, takes a different approach, with a criminal offense having three dimensions: the definition of the offense (; in Portuguese and Spanish); wrongfulness or unlawfulness; and culpability or blameworthiness (mens rea). This allows criminal defense lawyers to find a particular action as unlawful but not culpable, and since all three must be present in order to find a defendant guilty, that is sufficient for acquittal.

Principles