BETWEEN CARE AND CUSTODY

THE LEGAL TREATMENT OF MAD OFFENDERS IN BRAZIL

Resumo

My research investigates the legal treatment of Mad Offenders - individuals said to experience mental health distress and to have committed criminal offenses - in contemporary Brazil. Historically situated at the intersection of penal and psychiatric regulation, these individuals have, since the 1940 Penal Code, been governed by the security measures regime, specifically designed to manage their supposed mental incapacity and dangerousness. Unlike other offenders, they are not punished for past offenses, but subjected to preventive measures justified by the assumed likelihood of future offenses - an assumption grounded in a psychiatric evaluation that defines them as incapable of understanding or complying with the law. Deemed too incapable and dangerous for either prison or psychiatric care, Mad Offenders are confined in asylum-prisons - criminal asylums - until their dangerousness is considered cured, a cure that may never come. While this penal-psychiatric arrangement has long been criticized by its discriminatory foundations and violent outcomes, it was only with the 2023 enactment of Resolution n. 487 by the National Council of Justice that it was formally challenged at the national level. The Resolution explicitly recognizes Mad Offenders' right to healthcare and mandates the replacement of criminal asylums with community-based health services, aiming to align the implementation of security measures with the Anti-Asylum Act - which had already prohibited asylum-like institutions in 2001 - and the Convention on the Rights of Persons with Disabilities (CRPD). Through my study, I analyse to what extent Resolution n. 487 reconciles the criminal law treatment of Mad Offenders with the health-oriented approach of the Anti-Asylum legal framework, also evaluating how Brazilian law could advance the recognition of Mad Offender’s right to healthcare. To do so, I adopt an interdisciplinary doctrinal method that combines analysis of legislation, case law, and doctrine with a contextual inquiry into the normative, political, and theoretical foundations of the security measures regime and the Anti-Asylum legal framework, employing anti-asylum and penal abolitionist methodologies. My central hypothesis is that, despite marking a significant normative advance, Resolution n. 487 exposes a structural contradiction: while it seeks to extend healthcare rights to Mad Offenders, the concepts of dangerousness and incapacity - left untouched in the penal codifications - continue to legitimize their control and cure under the security measures regime. As such, the Resolution's attempt at reconciliation may not only be legally impossible but undesirable. Dismantling the walls of criminal asylums without confronting the regime that legitimizes them risks reproducing the very “curative violence” it aims to overcome. My research contributes to a largely underexplored field in legal scholarship and offers one of the first doctrinal and critical examinations of the recent Resolution n. 487. More broadly, it opens up space to imagine alternative ways of holding Mad Offenders accountable for their actions while upholding their right to healthcare. Ultimately, I hope to spark more caring relationships between law and Mad Offenders - alternatives that are urgently needed to counter the punitive and pathologizing forces that have long marked Brazil’s treatment of marginalized populations.