Portuguese Law on the Release of Prisoners due to the COVID-19 Pandemic
With a recent law, the Portuguese legislator, in order to deal with the coronavirus emergency within the prison system, has adopted a pardon, together with other measures aimed at reducing the number of prisoners.
1. A vast number of measures have been adopted by the Portuguese public authorities in order to deal with the COVID-19 pandemic. As far as criminal law is concerned, measures are being currently implemented in order to prevent the high risk of contagion amongst the prison population.
At an early stage, public governmental agencies approved several measures in order to reduce the risk of penetration of the virus in the prison system. Measures included the temporary suspension of outside visits and the suspension of transfers of prisoners between prisons.
More recently, in the beginning of April, in a State of Emergency context, the Government introduced a bill (Law Proposal 23/XIV) which was transformed into law by the Parliament on the 10th of April (Law 9/2020). The provisions of this law, which I will comment below, provide for a “flexible regime for the enforcement of penalties and other exceptional measures in the context of the COVID-19 pandemic”.
2. As an introductory note, it suffices to highlight that the prison population is particularly exposed to the risk of contagion by the new coronavirus. Indeed, prisons do not favor social distance; many are in fact unhealthy spaces; and studies show that the prison population suffers more, and more intensely, from health problems, in comparison with the general population. In particular, the Portuguese prison system has vulnerabilities that increase the risk of contagion: numerous prisons are overcrowded; tuberculosis rate is high; and the incarceration rate is among the highest in the European Union (as of January 2018, the rate was of 124.9 prisoners per 100,000 inhabitants)
Thus, it is not surprising that multiple recommendations have stressed the need for the adoption of measures to reduce the risk of contagion. In addition to the suspension or restriction on prison visits, more drastic measures have been recommended, namely the temporary or permanent release of some prisoners. This measure eliminates the aforementioned risks of contagion for prisoners who are released and it contributes to mitigate the overcrowding problem while, at the same time, reducing the risk of contagion for other prisoners who are not released.
Against this background, it is of note that the adoption of Law No. 9/2020 was not met with widespread enthusiasm. While left-wing political parties voted in favor of it, those on the right voted against it. The latter were particularly in opposition to the pardoning scheme devised by the law. In this context, it is necessary to highlight that while, in the beginning of April 2020, prison population was of 12,729 persons, the estimate is that the legislative measures encompassed by the law will cover around 2,200 persons.
3. Law 9/2020 provides: a) a partial pardon of prison sentences (art. 2); b) a special pardon regime for prisoners over the age of 65 who are particularly vulnerable (art. 3); c) an extraordinary exit regime based upon administrative decisions (art. 4); and d) extraordinary rules for early release on parole (art. 5).
First, all prisoners targeted by these measures are immediately released. In relation to a) and b), the penalty is no longer enforced (art. 128 Penal Code); in relation to c) and d), enforcement occurs outside the prison.
Secondly, these exceptional legislative measures only apply to persons convicted who were serving a prison sentence at the time of the entry into force of the law (11.04.2020).
Thirdly, pardons do not cover all crimes (objective limits) and prisoners (subjective limits). Art. 2/6 provides an extensive catalog of crimes that are not covered. For these crimes not even the exceptional pardon provided for in art. 3 is encompassed (cf. art. 3/5). Amongst others, here at stake are crimes against persons (homicides perpetrated with intent or dolus, domestic violence, crimes against physical integrity, crimes against personal freedom, sexual crimes, etc.). Moreover, pardons do not extend to persons convicted for organized crimes, money laundering, corruption and some serious drug trafficking offences. Pardons will also not cover crimes perpetrated by certain categories of persons: members of the police and security forces, armed forces or prison officials (art. 2/6 / l)); those exercising political or other high office, judges and prosecutors (art. 2/6 / m)).
As a considerable percentage of the prison population is deprived of liberty in connection with property related offences, it can be expected that pardons will predominantly cover crimes of this nature (thefts, frauds, robberies).
4. Of most relevance amongst the measures adopted, is the pardon in connection with imprisonment penalties under enforcement at the moment the law entered into force (11.04.2020). Such pardon does not cover the cases of imprisonment penalties enforcement subsequent to the entry into force of the law. Such limitation has created some legal controversy, namely on the argument that it runs counter the principle of equality, by arbitrarily depriving some prisoners of its scope.
Full pardons can be granted in the case of imprisonment penalties of up to 2 years (art. 2/1). Partial pardons can be granted in relation to penalties of more than 2 years, if the remaining enforcement time is 2 or more years, and the prisoner has already served at least half of the penalty (art. 2/2). The pardon, if granted, does not “erase” the crime, but it does eliminate the penalty or a part of it. Notwithstanding, the effects of the pardon will be reversed if the beneficiary perpetrates an intent or dolus crime within the period of one year (art. 2/7).
As the pardon eliminates the penalty, the beneficiary is to be released. Upon release, the person enjoys the same rights is required to observe the same duties as other citizens, particularly in what concerns house confinement during the period the state of emergency is in force. For example, in contrast with beneficiaries of exit permission upon administrative decision (art. 4/2), the pardoned person will not be under a duty to remain at home on a permanent basis.
In this sense, a pardon constitutes a real and definitive release of prisoners. In view of the alternative possibility of a home-based imprisonment enforcement, it might be argued that this solution has gone too far. Indeed, one might wonder whether the legislator has not ultimately approached the whole situation as an “opportunity” to reduce the prison population. Taking into account that it is projected that the pardon will cover about 1,000 prisoners, 8% of the prison population is to be immediately reduced as a result. In general, it should also be noted that here at stake are situations where the deterrence demands related with the enforcement of prison penalties are not at a rather low – but rather at a high – level. Hence, it would arguably have been more adequate to subject these prisoners to a temporary regime of home-based enforcement.
5. Drawing upon a recommendation from the Ombudsman, art. 4 provides for an extraordinary permission to exit prison upon administrative decision. This measure allows prisoners, who are not covered by a pardon, to benefit temporarily (in tune with the evolution of general situation related to COVID-19 (art. 4/3)) from a home-based enforcement. The objective and subjective limits provided for in relation to pardons do not apply in this case (art. 2/6 and art. 2/6, ex vi art 3/5).
Only the prisoners who have previously benefited from a judicial decision granting one exit (under the so-called “open regime”) or two exits (under the so-called “common regime”) will be able to benefit from this extraordinary exit permit. The rationale seems to be that, if the prisoner has already been considered trustworthy by a previous judicial decision and that trust was in fact not violated, he or she can benefit from this permit. In this sense, the solution seems to attain a reasonable balance between, on the one side, the protection of the life and the (physical and mental) health of prisoners and, on the other side, the purposes of punishment. Nonetheless, legitimate concerns might result from the fact that the decision lies with the administration and not with the courts.
6. In sum, I am of the view that the general purpose and some contents of the law are to be commended. However, some of the legislative options, particularly the pardon provided for in art. 2, are not immune to criticism because the legislator might have gone far beyond what is truly necessary to protect the life and health of prisoners. In doing so, it might have inadequately sacrificed in practice values pertaining to the enforcement of the purposes of punishment.
For a more detailed analysis of Law No. 9/2020, see “A libertação de reclusos em tempos de COVID-19. Um primeiro olhar sobre a Lei n.º 9/2020, de 10/4” (in portuguese).