Young People Deserve More: A Critique of Attempts to Reduce the Age of Criminal Responsiblity

For the original in Portuguese, by Alan Miranda, published in Observatório de Favelas, click here.

By the age of 16 in our society one can have a multitude of jobs, desires, possibilities and perspectives on life. At sixteen, generally teenagers are studying in high school. Maybe they’re taking a technical course. Others might study foreign languages, music, theater, circus skills, arts; play sports; travel to other states or countries. All of this comes from an optimistic outlook. At this age, new responsibilities are bestowed upon you: voting is optional, and with parental consent, you can be emancipated. But it is still very much a trial phase, one of discovery and ‘first times.’

According to Brazil’s constitution, children and teenagers should be given preference in the creation and execution of public policy. The document also highlights that children and teenagers are still developing as people. However, in Brazil not everyone enjoys the same opportunities: many young people experience sexual exploitation, have teen pregnancies, suffer from substance abuse or domestic violence, and skip school.

Currently, one of the most debated themes in public discourse is the reduction of the age of criminal responsibility. A proposed amendment to the Constitution (Proposta de Emenda à Constituição (PEC) 171/1993) is being considered by Congress. Created by the ex-congressman Benedito Domingos (PP), the proposal calls for the legal age of adult criminal responsibility to be lowered from 18 to 16 years of age. Since a majority of the Commission for the Constitution and Justice approved it, the proposal is now being discussed by a special commission of the House, which has three months to analyze the proposal. Following this, it will be voted on once again and, if approved, will go on to the Senate.

Situating the debate around the question of public safety, the current proposal suggests that the high levels of violence in the country are linked to the age of legal accountability. It should be pointed out here that it is not the age of adulthood that is at stake, but the age of criminal responsibility. Those who want the amendment to the Constitution argue that this change will see a reduction in criminal activity; that the law does not punish, or that when it does it is not strict enough; that at 16, a young person is mature and intelligent enough to vote so therefore they should be responsible as an adult for any crimes they commit. Or, in other words, the State should recognize them as responsible adults and punish them more heavily.

Eduardo Alves, sociologist and one of the directors of Observatório de Favelas (Favelas Observatory), criticizes the bias from which the proposal is being considered, discussing age from a criminal rather than civil perspective: “When formulating policies for young people, it is necessary to think about the present and the future; today’s adolescent is tomorrow’s adult. What type of adult are we creating by taking away two years of their youth? Lowering the age by two years means there is a reduction in the investment in youth policies, or, are we suggesting we think there has already been more than enough investment? There is an excess of violence in our society and it is the responsibility of the adults, not our young people. It is up to adults to create policies to reduce violence and boost culture and rights for young people. If it is the adults’ responsibility, then why knock two years off adolescence? Why increase punishment time for those who are not primarily responsible?” Alves asks.

And what about violence against young people?

The majority of justifications for, and the proposal itself, affirm through a negative ideal the attempt to combat violence against young people by extending the age group subject to criminal punishment. However, the defenders of the proposal rarely (if ever) appear to consider the alarming figures depicting the amount of violence suffered by young people, as highlighted by the Homicides in Adolescence Index (IHA), a recent study from the Observatório de Favelas, Unicef, the Secretariat of Human Rights, and the Laboratory for the Analysis of Violence of UERJ. According to this research, more than 42,000 young people (12 to 18 years old) in Brazil are at risk of becoming victims of homicide in cities of over 100,000 inhabitants from 2013 to 2019. Young black people are most at risk. That is to say that the main victims of violence, and in particular the main victims of lethal violence, are young people.

For police chief Orlando Zaconne, there is an inversion of agenda when discussing public security in Brazil. “In truth, the main theme is not violence by young people but violence against young people. Brazil is one of the countries with the highest levels of violence against its children and young people, but this fails to shock any of our society. The agenda to reduce the age of criminal responsibility also serves to obscure this fact,” says Zaconne in a video about Civil Police officers standing against the age reduction. In addition to the research by the IHA there are other related studies which demonstrate the State’s inability to comply with existing—but rarely applied—laws which guarantee the rights of young people and the social reintegration of those who served time on youth sentences. It is important to remember that Brazil is committed to at least three relevant international pacts: the UN Convention (1948) which considers the age of criminal responsibility to be 18; the American Convention for Human Rights (San José de Costa Rica Pact – 1969) which separates the treatment given to children and adolescents from that given to adults; and the Convention on the Rights of the Child (1990) from which Brazil’s Statute for Children and Adolescents developed.

In addition to this, Brazilian legislation already recognizes that anyone over the age of 12 can be held criminally responsible. According to the Statute for Children and Adolescents (ECA), a young person deserves socio-educational allowances such as warnings, an obligation to repair the damage caused by providing community service, a curfew or a rehabilitation order (monitored accommodation, restricted movements, etc.) or a secure unit. These measures are applied according to the severity of the offense. Among those youth who are imprisoned, the rate of repeated offense is 70%; among youth in the socio-educational program that rate falls to 20%. These data reveal major obstacles to the State’s current interventions in this context, obstacles that the current proposal also appears to ignore. According to information from the National Justice Council (CNJ), the National Socio-Educational Program (Sinase) and the Individual Care Plan (PIA) were created as tools for the reintegration of young offenders into society but they reach only 5% of adolescents who are found guilty in Brazil.

It is better to prevent than cure

To discuss the age of criminal responsibility means looking into the transition from youth to adulthood. For each age group, there is a distinct relationship between the individual and the world, just as there is between the State and the individual due to the fact that at each period in life one has specific needs, rights, and duties. Research studies are fundamental to understanding how and where to invest in improving the quality of life for the population as a whole. For example, studies about life expectancy in Brazil assist the government to estimate the costs and measures needed to design social welfare policies. Currently, 18 is the age recognized for civil criminal responsibility, although the concept of ‘youth’ in Brazil stretches up to the age of 29. While considered fully responsible for their actions, citizens up to the age of 29 must be considered as ‘youth’ when it comes to public policy. Half-price entry for cultural activities, for example, is guaranteed as a right until the age of 21.

In regards to the involvement of adolescents with criminal activity, it is necessary to concentrate on efforts to prevent their contact with crime. Adolescence is a developmental phase of learning and socializing with others. Young people in violation of the law must rely on the State’s efforts to provide social reintegration. We must tackle the circumstances that led to the crime through providing more opportunities, not more repression.

Although it needs improvements and adaptations, the Statute for Children and Adolescents (a document that guarantees rights to children and adolescents) should guide and strengthen the treatment of this part of the population. In an interview with Revista Forum, attorney Ariel de Castro Alves, a member of the São Paulo group against torture (Tortura Nunca Mais) and the National Movement for Human Rights, stressed the importance of taking preventative measures: “The Children and Adolescents Statute is more preventative than punitive in its approach. If the ECA was actually enforced we would not have teenagers committing crimes. Whomever the State excludes, crime will include. The absence of public policies, programs and social care services as required by law, in addition to the fragility of our social welfare system, favors the current state of affairs which leaves adolescents as victims and protagonists of violence,” Ariel explained.

In addition to the right to vote, which is so heavily emphasized in debates about the legal age of criminal responsibility, this discussion must give consideration to the right to education, which can help to reduce the vulnerability of young people. This is an especially relevant factor affecting those who commit a crime before they turn 18. One study carried out by a former São Paulo organization, FEBEM (State Foundation for the Wellbeing of Minors), concluded that 41% of those who committed a crime had not been going to school before their incarceration.  The absence of these youth from school relates to the need to work, with the difficulties in balancing studies and work at the same time, as well as conflicts with teachers and students, and the failures and low quality of education. A study by Professor Vania Sequeira from the Presbyterian University of Mackenzie points out that public policy and prevention are the keys to reducing juvenile crime.

It is clear that the core debate remains about what can be done to improve the quality of life of our young people. An increase in opportunities would seem to be the most effective method. The creation and improvement of technical courses and professional education programs would contribute to greater opportunities, but these measures must be extended to the majority of the population. Civil society organizations also take center stage in carrying out initiatives aimed at improving the lives of young people: the Universidade das Quebradas, Networks for Youth Agency (Agência de Redes para a Juventude), Escola Popular de Comunicação Crítica (ESPOCC), Imagens do Povo, Instituto Vida Real, and Projeto Uerê are just some examples.

Since young people are the future of the country, the debate should focus on their value and potential. Instead of suggesting a reduction of their rights, it is imperative to think about and create alternatives to meet their needs. What is being debated currently, however, is their right to grow up—something that young people ought to have a right to automatically. Claiming the right to punish them as adults is hacking away at their rights and opportunities, and is shortening the most crucial phase of human development. Our youth deserve more than this, much more!