The article addresses the issue of child crime and the problem that it originates within society. We do not pretend to be reactionary and much less moralistic when dealing with this issue, as as law graduates we only have to manage the discussion in order to raise solutions to the problem in theory, as it is more than known by all that the major cause of this cancer that tears the Brazilian family is the lack of education.
Violence and crime have become an increasingly acute problem, especially in large cities. For many, young people are primarily responsible for this generalized feeling of insecurity. The most common reaction, not only from the public, but from many authorities and part of the press, is to blame the Statute for Children and Adolescents, ask for more police, and especially more jail. Only with prison would peace be restored.
According to the Statute of the Child and Adolescent, minor infractions should preferably be punished with measures that offer opportunities for education and the reinsertion of young people in society. In these terms, the internment measure should only be applied in the impossibility of another measure and in those cases in which there is a serious threat, reiteration in the commission of the infraction and non-compliance with the imposed measure, following the principles of brevity, exceptionality and respect for the peculiar condition of developing person.
It is no longer a question of whether the 16 or 17 year old has the capacity to understand the illicit nature of his infraction and to determine himself according to that understanding. It is clear that the vast majority of young people have this discernment and this possibility of self-determination, especially in relation to the most serious offenses. For these offending adolescents, ECA provides for the application of a socio-educational measure, consisting of deprivation of liberty, upon admission to an educational establishment, for a maximum period of 03 years (art. 121 et seq.).
The question, in fact, is of a political nature and is whether we want to repress and punish or, on the contrary, educate and protect children and adolescents, who live in a society so unequal and, for this very reason, so oppressive and violent. We understand that the second alternative is the most correct and fair. Furthermore, in the face of the imbalances, inequalities and injustices that characterize the Brazilian socio-economic and cultural reality, we understand that this is the only ethical and politically legitimate solution.
In view of the serious situation presented by juvenile delinquency, the most reasonable alternative may be to change the law to increase the length of hospital stay for the perpetrators of the most serious offenses (those committed through violence or a serious threat to the person) in order to allow hospitalization to exceed the maximum limit of 21 years of age. It is clear that this longer period of hospitalization would only have meaning and legitimacy if it were to occur in suitable establishments, capable of providing the adolescent (and the young adult who remains hospitalized after 18 years), the education and assistance provided by the ECA itself. As long as the State does not comply with the Statute, it seems to us irrelevant and even unreasonable any discussion about the reduction of the age of criminal responsibility.
The deprivation of liberty has proved to be absolutely ineffective. The prison has only contributed to the reproduction of criminality. It is based on all the assumptions that are contrary to the process of re-education and re-socialization – touted as justifications for removing the active subject from the crime of social coexistence. The perverse prison subsystem, which almost always selects those on the fringes of the economic process, carries with it premises of dehumanization, disqualification, stigma, prejudice: in short, it removes any sense of human dignity from the prisoner. Thus, in the face of the proclaimed failure of the prison, the proposal to expand its clientele becomes incoherent.
In fact, the real causes of the crime rate among young people, in addition to inequalities and social exclusion, which prevent them from fully enjoying the right to life, housing, freedom, health, education and the pursuit of happiness, consist, also, in the absence of ethical and moral references, in the family breakdown and in the crisis of values. Therefore, the solution to the problems arising from juvenile crime does not lie in authoritarian formulas for reducing the age limit for criminal liability and nor in the usual hospitalization of young offenders. Rather, it is necessary to respect the basic rights guaranteed by the Brazilian Federal Constitution, the Statute of Children and Adolescents and International Conventions signed by Brazil – International Convention on the Rights of the Child,
It is up to the Public Authorities, at its three levels, and the Civil Society to start working together to solve this problem.
For, as art. 227, caput, of the Federal Constitution in force, it is not only the State’s responsibility, but also the family and society’s unbearable obligation of greater, more intense and integral protection for children and adolescents.
It is worth mentioning that the proposal to reduce the age limit is unconstitutional, since provided for in art. 228, caput, of the Federal Constitution, which expressly establishes that minors under the age of eighteen are fully imputable, subject to the rules of special legislation.
The individual rights and guarantees provided for by the Federal Constitution are not subject to suppression, since they define the principles and guidelines of the Constitutional Charter, which in turn direct and guide the entire content of its rules. It is in this context that art. 228. The supremacy of the principles of constitutional norms is clearly guaranteed by art. 60, para. 4, when establishing that the individual rights and guarantees, among others, cannot be the object of deliberation, for their suppression, through Constitutional Amendment. Thus, if art.228 cannot be changed, the proposal to reduce the age limit for criminal liability, appears, unequivocally, as flagrant unconstitutionality.
We need to break with the traditional culture of fighting only the consequences, without acting on the causes. The Statute of Children and Adolescents opens the way for the whole policy of care for children and adolescents to be transformed, and the socio-educational measures it advocates are instruments for this. They need to be fully implemented and implemented, as they are really efficient means for the control of juvenile crime.
Thus, by encouraging the application of socio-educational measures, the award seeks to break the cycle of training criminals, as well as impunity, reducing recidivism, in addition to creating awareness of their role in society in these adolescents. A society that has perhaps lost sight of the deep sense of dignity cannot deny the prospect of a better future for those who are victims of its social and ethical misery. May all young people thus be able to dream.