The Starving: The Hunger the Justice System is Blind to

Gulf between the view of justice system agents and the reality of life for the poorest Brazilians results in harsh treatment for those who steal food to survive and feed their families.

Regineide da Silva lowered her gaze in shame as she explained how she had failed to comply with the terms of the preventive measure against her because of a lack of money. The waste picker had been ordered to appear at the Barra Funda Criminal Court in São Paulo every month to accompany a charge of stealing from a supermarket, for which she’d been granted bail two years previously. She couldn’t manage it.

That afternoon, Regineide found herself back in one of the seven cramped rooms in the basement of the Court, where custodial hearings are held, after being caught attempting to steal some meat and a jar of Nutella. Visibly upset, she wrung her cuffed hands as she listened to the words of Judge Gabriela Marquez Bertolli.

“Money for what?” Bertolli asked, raising her voice.

“To get the bus here, I don’t make much money,” replied Regineide.

“I understand. But I must tell you that, irrespective of the verdict in your current hearing, you’ll be arrested as you’re considered a fugitive from your first trial,” announced the judge, with an air of certainty.

A mother of two, one of whom is still a child, Regineide sobbed as she was again taken into custody by a police officer, despite having been granted bail in her current trial. The hearing took just ten minutes.

Half an hour later, in another room, Aline de Jesus, a young black woman, was on trial for the theft of items from a supermarket. A mother of five, the youngest of whom was aged only eight months, she’d also tried to steal a jar of Nutella, as well as a birthday candle, plastic forks, two packets of coffee and three hygiene products. Unemployed, Aline had confessed to being a crack addict two years previously and agreed to undergo treatment.

At the trial, the judge granted the young woman bail, as it was her first offence and because of the low cost of the items stolen. Released two hours later, Aline emerged from a line of handcuffed prisoners. A Pública followed both cases on the afternoon of Monday, January 14th, despite the court press secretary having stated that no cases of “hunger thefts” – crimes carried out as a result of the need to feed oneself – had been registered in five years. But on our first day at the Court, we witnessed two custody hearings involving such thefts.

According to public defender Fernanda Macedo, who represented Aline, crimes of food theft are far from rare. “Every day I get at least one supermarket theft. In general, they’re committed by the vulnerable, or the long-term unemployed,” she says.

The contradiction between her words and the claims of the press secretary illustrate the gulf between the current understanding of hunger and its practical application by the courts.

The judiciary’s understanding of the “state of necessity”, the law that covers hunger theft, is so narrow that the concept has practically fallen into disuse in Brazilian law. Article 24 of the Penal Code states that anyone who commits a crime to “save themselves from current danger, which could not be avoided by any other means” should have their “illegality set aside”. In other words, for someone who is starving, stealing food to alleviate their hunger is not a crime. The concept of hunger, based on law, is directly linked to an urgent risk to life. The accused must provide, above all, consistent proof that they genuinely find themselves in such a situation.

Prosecutor Alexandre Rocha de Moraes, a criminal law professor at the Pontifícia Universidade Católica de São Paulo (the Pontifical Catholic University of São Paulo, or PUC-SP), confirms how rarely the state of hunger appears in the Brazilian legal system: “Vulnerability, or a lack of resources, may or may not result in a state of hunger which causes a risk to life, which would justify the state of necessity, or a risk to someone's physical integrity.”

When asked about the criteria he uses to prosecute people for food theft, however, he accepts that the definition of hunger is subjective. “It’s like pain, everybody bears it to a different degree. In other words, giving an objective criteria of hunger is completely pointless and arbitrary, it changes from person to person, from region to region,” he says. One factor that does make a difference when dealing with charges of this kind of theft, however, is the type of food stolen. “It carries some weight, but isn’t enough on its own. We have to consider the circumstances before and after the fact,” he says.

Value judgments about the quality of food taken are common in such cases. Often, judges believe that if a more expensive item is stolen, or something that demonstrates a choice based on taste or flavour, then it cannot be considered hunger theft.

Given such rigidity, lawyers have chosen to adopt another principle of defense: that of insignificance, or trifles, based on the idea that, while theft is considered a crime, the taking of certain small items should not be tried under criminal law. In these cases, the typicality of the fact is excluded, or in other words, such acts do not meet the definition of the crime of theft.

For a kilo of steak

A pioneer in applying the principle of insignificance as a defense in Brazil, appeals court judge Carlos Vico Mañas, of the 12th Criminal Chamber of the São Paulo Court of Justice (or TJSP), was just a young public defender when, concerned about the number of “insignificant” cases in the criminal justice system, he developed a thesis based on jurisprudence. Since then, he believes he’s been “labelled with the issue”.

“Criminal law is severe, it targets our most important asset: our freedom. It’s often said it is the last resort of social control. In other words, if a matter can be resolved a different way, everyone benefits,” he says. “Without a shadow of a doubt criminal punishment stimulates criminality. Those convicted are stigmatized, can’t get a job, and incarceration leads to depersonalization, providing ammunition for organized crime”.

The magistrate also points out that the large number of minor theft cases overburdens the system and leads to inefficiency. “When I started, I had major robbery cases, involving actual cruelty, alongside minor charges for stealing a kilo of steak from the supermarket. On our desks they’re the same thing, they take up our time the same way,” he says.

In fact, food theft cases not only lead to the opening of new trials, but frequently go as far as the third rung of the justice system. A Pública found at least 32 cases that reached the Supreme Court (or STJ) last year, by searching for cases that included the term “hunger theft” in their records.

Another factor that results in such cases going to trial is the attitude of those who first respond to the crime of food theft. According to Judge Vico Mañas, the police chief would have the autonomy to elect not to prosecute cases for which jurisprudence proposes automatic acquittal.

“They don’t have to open a case if it’s understood that it isn’t a crime in the eyes of the justice system. But is that what they do? No, because they’re afraid. The police environment is conservative, so they leave it up to the courts to decide. The same thing happens with the Public Prosecutor’s Office (or MP). They’re only obligated to file charges against someone when they consider their conduct to be criminal. Do they apply this? More so than in the past. The braver ones do. But that kind of thing takes courage. I’ve suffered a lot of retribution in my life, but I made my choice,” says the judge, who oversees a court known for being one of the most liberal in São Paulo.

Public defender Fernanda Macedo says she argues the principle of insignificance in “every blessed trial” involving the theft of supermarket products. She reveals, however, that “a doctrinal conflict” prevents judges from considering the merits of the cases and dismissing cases of insignificance in their custody.

“Nobody recognizes it. To give you some idea, some judges don’t even note that I argued the principle of insignificance or hunger theft in their decisions,” she says. “It isn’t recognized at the police station or in custody hearings, because it’s as though the principle of insignificance gives criminals carte blanche. They think that people commit theft because they enjoy it and that, if the State were to treat it more mildly, it would incentivise criminality. ”

For the lawyer and jurist Sônia Drigo, one of the founders of the Instituto Terra, Trabalho e Cidadania (the Land, Work and Citizenship Institute, or ITTC), the automation of the work of the courts, which should be interpretive, is a factor that prevents legal professionals from dismissing cases of insignificance and hunger theft.

“If I get a case involving the theft of bread or Toddynho (a chocolate milk drink), why am I going to take it any further? Why am I going to engage all the machinery of the State for a case which I already know won’t result in a conviction? Because they’re acting automatically. They don’t consider the facts or the person accused. A police report comes in, which becomes the facts of the matter for the prosecutor, and for the judge, and then it goes to criminal court. And so it takes on major proportions,” she says.

In some cases, the prosecutors themselves are responsible for appealing against acquittals, insisting on the conviction of those accused of insignificant crimes. Because they are part of the Penal Code, such crimes must be prosecuted by the authorities. In the opinion of magistrate Vico Mañas, if the supermarkets themselves had to press charges, the number of convictions would be much lower.

“The big chains already factor in these costs, which includes everything from products that spoil to those that are stolen. It’s added to the price of the products, so everyone pays for it, life goes on, and they don’t lose out,” he explains.

According to Vico Mañas, in Germany, the problem of the high number of criminal cases from the theft of supermarket products has been addressed by transforming criminal proceedings into private actions. “In Brazil, if I go into the supermarket and steal something, the chain doesn’t spend a penny prosecuting the individual. The police send it to the prosecutor’s office, who does it on behalf of the company. In Germany, if the supermarket wants to prosecute, they have to use their own legal department. The result? Zero supermarket theft lawsuits, because no businessperson is stupid enough to sue someone who tried to steal something from their shelves,” adds the judge.

For public defender Glauco Moreira, a criminal and infraction advisor to the Public Defender’s Office of the State of São Paulo, the resistance of judges when it comes to acquitting these small crimes makes no sense. He points out that the Supreme Federal Court (or STF) has already given acquittal verdicts in several cases of food theft, applying the principle of insignificance to stolen products worth almost the value of the monthly minimum wage. Other courts apply jurisprudence that determines values ​​of between 10% and 50% of the monthly minimum wage to be insignificant.

“Even so, the public defender has to make a series of appeals to enforce the verdicts of the STF or STJ. There are cases when we need to enter up to five appeals to obtain an acquittal. Perhaps if the judge at the original trial hadn’t applied the constitutional interpretation of the law, it would have been dismissed much earlier? If we were to follow the literal orientation of the Penal Code, without any interpretation of the law, we wouldn’t even need judges,” he says.

Helplessness and prejudice

In April 2016, G. A., together with her boyfriend, was caught trying to steal two take away meals, a piece of roast beef rib, a beer and a soft drink in a supermarket in the city of Ribeirão Preto, in the state of São Paulo. The products were valued at R$41. She was sentenced to eight months in an open prison.

At the time, G. was pregnant and living on the streets. She claimed that she committed the crime because she was starving. The case dragged on through the courts for two years until she was acquitted by an appeal court in December 2018.

Similarly, A. S. managed to overturn a judge’s decision in the appeal courts. He had been sentenced to one year and two months in prison, initially under a semi-open regime.

A. ate a yogurt and some cheese bread in a branch of the Carrefour supermarket, in São Bernardo do Campo, in the metropolitan region of the state of São Paulo. The case occurred on August 12, 2017. “Greedily, he still wanted to fill his belly with three Chokito chocolates, which he tried to hide in his pocket, and failed to pay for the goods,” the case brought by the Prosecutor described. A. was being watched and as soon as he passed the cashier he was arrested by supermarket security guards. At the police station, he also stated he was on the streets.

Waste picker J.R.S. was exonerated for the crime of theft after an appeal at Santa Catarina Court of Justice (or TJSC), in October 2017. He had been sentenced to four years and eight months in a full security prison, for the aggravated theft of 34 packages of Club Social biscuits, in three boxes, taken through a window of a bakery in Araranguá (Santa Catarina). In his statement, he also stated that he was homeless.

“I was collecting cans, I had been hungry for a few days, I couldn't find food in the trash. Then I saw the biscuits in the window, but I didn't break in or anything, I just took them,” he said. According to his defence lawyer Felipe José Ferreira, J.R.S. and another homeless person were found by the police on the next block, sitting in the gutter eating the biscuits. The TJSC's decision is one of the few cases in which the hunger principle was accepted by the court.

Thefts of food committed by homeless people recur frequently among the cases found. We visited the Cisarte Cultural Space, the headquarters of the National Street Population Movement (or MNPR), in downtown São Paulo, to talk to some of its representatives, who were meeting to discuss the growing numbers of people living on the street and the hate speech against them. They talked about the stigmatization they suffer, and how it also encourages convictions.

Carlos Henrique says he has been on the streets for five years. “I can't even go into a supermarket, they won't let me through the door. That's why I ask people to buy food for me, instead of giving money. The security guard identifies me straight away and follows me, thinking I’m going to steal. Sometimes they even take us into the office, accusing us of theft immediately.”

He also claims that security guards falsely identify victims at the police station. “They know that we’re vulnerable and can’t defend ourselves. We feel the justice system is unfair because the guy who steals a can of sardines is punished, while the guy who steals a bag of money is freed,” he complains.

Reports of false accusations, abuse and violence at the hands of supermarket security guards are also common. A recent reminder was the case of young Pedro Gonzaga, murdered on February 14 from a choke hold from a security guard at a branch of the Extra supermarket in Rio de Janeiro. In 2009, bricklayer Ademir Peraro was tortured and murdered by security guards at a Dia% store, part of the Carrefour chain, in São Carlos, after stealing chicken patties and cheese bread.

In November 2018, A Pública contacted Ademir's family lawyer, Arlindo Basílio, who told us that, after a series of appeals by the supermarket, compensation had only been paid to Ademir’s relatives that month, almost ten years after his death. The chain's press department announced, in a statement, that any action by security personnel is carried out only when there is proof of the crime, "with due care, respecting the company's procedures and values ​​and current legislation".

Another criticism made by members of the MNPR is the lack of quality control over the meals served in public shelters in the city. Marcelo Jamaica has been on the street for 15 years. Only last year, he contracted food poising twice, from, he says, the food provided at the Temporary Reception Center (or CTA) in Brás.

“I complained, but I didn't take it any further. I was even taken to the AMA [Outpatient Medical Clinic] by ambulance. The food is terrible. And they always blame a lack of money. They don't make the food at the CTA itself. It comes from far away, and sometimes on the journey, it goes off. It comes in the morning and is stored whichever way they can. And the same meal is used for lunch and dinner. It isn’t proper food.” The City of São Paulo did not respond to our questions about his claims.

Marcelo previously worked as a shelf stacker at a Carrefour unit in the Mooca neighborhood. “There was a rich guy who stole chocolate over and over again. Everyone knew about it and nobody did anything. When you’re middle class, it’s called kleptomania, right?” he said. Public defender Glauco Moreira agrees: "I don’t recall, and am not aware of cases of middle class people convicted of stealing food".

Food theft on the rise

A Pública obtained, via the Access to Information Law, all the police reports (or BOs) for food theft committed in the state of São Paulo in the last five years. The data show that there were 13,288 such thefts, excluding cargo thefts and those that had their location and circumstances reported as unknown. Between 2014 and 2018, there was a 16.9% increase in records of food theft.

Of the reports that listed the profession of the perpetrators of the crime, a quarter were committed by those described as unemployed, while in 76.8% of cases the accused were men. The vast majority of thefts were committed in commercial establishments, and the most commonly stolen food, among the categories listed, was beef.

Lawyer Luciana Zaffalon, general secretary of the Brazilian Institute of Criminal Sciences (or IBCCrim) and former ombudsman for the São Paulo Public Defender's Office, is the author of the book “The Politics of Justice: shielding the elites, criminalizing the poor”, a part of her doctorate research. Luciana analysed two administrations of the TJSP, between 2012 and 2016, to measure the social impacts of court decisions on public security and the prison system.

One of the conclusions of the study is that the Judiciary protects the elites, while giving the prison system over to the more disadvantaged classes. "An optimistic perspective would be to say that the justice system functions with class insensitivity, but in practice we observed an even crueller picture," says Luciana. “Choosing to criminally prosecute someone for hunger theft, or for an insignificant quantity of drugs, is irrational decision making in the purest sense of the word when we think about managing resources, whether human or financial. In any dimension of management, it doesn’t make sense. ”

Furthermore, Luciana points out that Justice applies the principle of insignificance in crimes of embezzlement and contraband, when the amount of tax evasion is below R$ 10,000. "Okay, we’re talking about different courts, but in practice it means that entering or leaving the country with this amount is considered irrelevant, while in crimes committed by another section of the population, values up to R$100 are prosecuted harshly."

"I needed support, not prison"

“Some beef’s gone from my lunch, do you think it was Mário?!”, joked one of the employees of Construtora Gois during a lunch break. He was referring to Mário Ferreira Lima, an electrician who had gotten a job at the company a few days earlier. It was just one of several taunts, often offensive, that the electrician suffered, after the story about his theft of 6 kilos of topside beef went viral on news outlets.

It was in May 2015, a few months after a motorcycle accident that left his wife in a coma, that Mário was caught, at the supermarket cash register, hiding the piece of meat. He had quit his job to look after his 11-year-old son. That day, with R$7 on his Family Credit card, he could only afford some bread and bananas.

“They said that the meat was very expensive. I didn't know it was rump steak, or thigh, or how much it cost. It was a piece I could eat. I wanted something to stop me being hungry,” explained Mário, now 54, sitting in the backyard of his run-down home, in Luziânia (Goias).

As he was caught in the act, the police were called, and Mário was taken to the police station in Gama, a city on the outskirts of Brasilia. Nervous, hungry, and worried about his son, who would arrive home from school in a few hours, he passed out while arrested.

But this wasn’t what brought Mário's case to the attention of journalists. What put his case in the public eye was the fact that officers at the police station decided to pay his bail. The amount was reduced to R$300, a third of the minimum wage at the time, and the amount stipulated by law.

After a collection organized by Civil Police agent Ricardo Machado, the officers went to see the conditions in which Mário was living. In the larder, there was only a bottle of water, so they decided to buy his groceries for the rest of the month as well. With the attention the case generated, Mário got a job at the construction company in Goiás. However, badly affected by the prejudice he faced and suffering from a depressive condition, he soon left to do odd jobs instead.

“I couldn't be around those people who looked down their noses at me. One even hid their cell phone when I entered the room, thinking I would steal it,” he said. “God has been very merciful to me, but I still haven't recovered psychologically. I still suffer a lot of prejudice on the street. There are times when I fall into a deep depression, and I don't feel like doing anything,” said Mário.

As the story made Mário’s name known across the country, newspapers identified two other police reports in his name, also for the theft of meat, which, as they were in the Goiás state records, and not those of the Federal District, hadn’t appeared in the initial police search. As a result, the electrician’s scheduled appearances on programs such as Fantástico, on the Globo network, and A Hora do Faro, on Record, were cancelled.

“If it was just me I’d eat garbage. But I couldn't see my son like that. I guarantee that if I had enough money I’d never, ever do that. They treated my son badly, threatened to shoot us, called me a meat thief.”

Officer Ricardo Machado, however, says Mario’s recidivism did not make him regret paying bail. “Every week I have one or two cases of food theft in supermarkets. They’re rarely people who can afford to pay for things. Thanks be to God, my daughter doesn’t lack anything. But is there anything I wouldn’t do if she came to me in the morning saying she was hungry, and she had nothing in the fridge? We know this happens all over Brazil, every day; people who live below the poverty line and have nothing to eat. I understood his desperation,” he admits.

Ricardo's attitude was criticized by other police officers. At the time, he had worked for the organization for only a year, and he believes this also influenced his decision. “Seeing such situations every day, we tend to get tough, get cold,” he says. “It’s common to lose your human warmth. To this day, some older officers say I did it because I was new. “You’ll learn, you’re a rookie,” they say. They create a certain resistance and antipathy to people's needs.”

The officer also believes that some cases of theft should not be tried under criminal justice. “Our prison system has no space today, we can barely lock up those guilty of serious crimes, like robbery, murder and rape. Today we have alternative sentences, community service. But the only job that nobody has the pride to take on is that which improves the prison system, because it doesn’t bring in votes. And also, to investigate the theft of a yogurt worth R$5, the State spends thousands of reais in wages,” he reflects.

For Ricardo, the bankruptcy of the prison system is even reflected in the negative image of those who emerge from it. “It’s ingrained in the population that the prison system doesn’t rehabilitate, and really, from what I can see, it’s true. Especially because people can't get a job. So, the big problem is that the prison system should re-socialize individuals, but it’s a failed system. It is very difficult to change this in a society that believes that ‘the bum deserves to die.’”

 

In 2017, Mário obtained the conditional suspension of his case, but still has to go to the Santa Maria courthouse to sign documents every three months.

“I have to take a bus from here to Gama, when I don’t have the money I walk, or ask for a lift. My son won’t miss out on breakfast so I can spend R$6, one way, to get there. When I can't, I say 'I didn’t have the money to get here'. They also said that I couldn't leave the Federal District. How does that work? I live in Goiás!”, he explained.

“Only those with no money are sentenced and condemned. There are people who steal enough money for the next three generations and don't even go to jail. At that time, I needed support, not prison. In your story, ask the other people if being arrested helped them,” he said, before saying goodbye.

Necessity: a female condition

Theft is one of the crimes most frequently committed by women in Brazil, trailing only drug trafficking and robbery, and represents 20% of the crimes for which women have been convicted or are awaiting trial. The data are from the 2016 National Penitentiary Information Survey (or Infopen), the latest such report to be published. Among the items most commonly stolen by Brazilian women are those related to basic needs.

This is because, as the sole heads of 40% of Brazilian families (IBGE, 2017), many women, when committing such crimes, are motivated by the need to care for their dependents, as Mariana Boujikian, a researcher from the ITTC Justice project, explains. "Infopen demonstrates a striking fact: among the sample of women prisoners interviewed, 74% were mothers." A Pública can also reveal data from a new survey by the institute, which followed 208 women's custody hearings at the Barra Funda Court. The results, which will be published in April this year, show that theft was the crime responsible for 39% of those caught. “The ITTC experience allows us to ascertain that the majority of such thefts related to items of general necessity, whether food or hygiene products,” the document says. The social and income profile of these women is also relatively homogeneous.

“There are a lot of unemployed women, and those with informal jobs, such as cleaners and street vendors. The overwhelming majority also have a low level of education. Our research shows a very high maternity rate, with most having more than one child, and young children too, rather than grown up children who could provide for themselves,” says Mariana.

Lawyer Sônia Drigo spent ten years as a pro bono defender of over 400 cases of women accused of petty theft. She highlights a series of recurring characteristics among the thefts committed by women, including the stealing of diapers and almond oil (used by pregnant women), and the fear of losing custody of their children if they are arrested. In the police report data obtained by A Pública, we found that “baby food” was among the most frequently stolen products.

“People have to understand what is going on in these moments. The child sees Nutella on television, at the supermarket, at their neighbour’s house. And, if the mother can’t give them what they want, she puts herself in second place and takes risks,” she said about the custody hearings described at the beginning of the report. “The Nutella wasn’t eaten, the candle wasn’t burned, everything goes back on the shelf. Do you need to call the police?” she asks.

In September 2018, M. D. was acquitted after an appeal of one of the charges that had resulted in a sentence of one year and six months in prison: corruption of minors. The accusation had been added to the crime of qualified theft, as the accused had taken two boxes of candy, two jars of mayonnaise, eight bars of chocolate, around a kilo of beef and a kilo of chicken from a market in São José do Rio Preto, in the presence of her two young daughters.

“The greatest need for these mothers is always products for their children. If not items for a meal, it could be toys at Christmas time, chocolate eggs at Easter, a yogurt. I’ve defended a woman arrested for stealing a ham on Christmas Eve. The woman is the head of the family. In the vast majority of cases, the father doesn’t help with raising children. She has to manage herself. And probably, if she’s arrested, her place as a carer will be taken by another women,” she adds.

In February 2018, C. F. P was arrested for stealing pieces of cheese and meat from a wholesaler in Taboão da Serra (São Paulo). She was nine months pregnant and the mother of two young children. At the time, the judge responsible for her custody, Wellington Marinho Urbano, of the Suzano County Court, ordered her to be handcuffed and sentenced her to temporary imprisonment because he believed she represented a danger to society, since her pregnancy “had not generated concern or care not to expose herself” to crime.

With her new-born baby in her arms, C. left the Franco da Rocha prison (São Paulo) one week later, under the collective habeas corpus ruling that requires house arrest for pregnant women and mothers of children up to 12 years old, approved by the Supreme Court that same month.

It’s “poor little me”, according to the judge

In a formally signed document, Judge Urbano answered A Pública’s questions, noting that the frequency of supermarket thefts in his trials is very low. "In six years I haven’t had more than five cases." Asked about the criterion used to identify a crime as hunger theft, the magistrate stated that, "in an economically devastated society like ours, we cannot, in our roles as judges, ‘broaden’ this interpretation too far."

Urbano also disagrees with the view that decriminalizing petty crimes helps to reduce the bloated, sluggish state of the judicial system, stating that in truth such problems are “a direct result of our times”, in his opinion, “a crisis in the most basic values, such as honesty (taking what isn’t yours) and ethics”. “On the other hand, welfare or “poor little me” is the rule,” he adds.

A more legalistic and conservative view of the law, in the opinion of judge Carlos Vico Mañas, is not the only blindfold that hides the eyes of the judges to the social profiles and histories behind petty thefts. “Almost always, we magistrates are part of a social segment that prevents us from understanding the reality of the people we sit in judgement of. So we judge them with our upper middle class, white standards, as people who had access to a good education, and impose these values ​​on a poor young man from a deprived neighbourhood, abandoned by the State,” he says.

“These are people who don’t have a vocation to perform their roles,” says lawyer Sônia Drigo. “The application process to be a judge, these days, doesn’t consider the person who’ll do the job. People apply for other reasons, for money.”

Vico Mañas believes that the solution of removing petty thefts from the criminal justice system, making the cases administrative – making citizens pay fines or giving them municipal warnings – is still far from being applied in Brazil.

“Somehow, it has become more widely accepted in the past 30 years. When I started to talk about it, it seemed that I was shaking the foundations of Judeo-Christian society; today, we already have the jurisprudence. But interpretation depends on the minds of those who interpret. Society is conservative; even more so since the president [Jair Bolsonaro] was given such an endorsement. Judges are part of society, so for most of them it works like this: ‘Did they steal it? Yes. Here’s your sentence”.

Hungry for what?

In 2018, the average unemployment rate was the highest in the last seven years in at least 13 Brazilian state capitals, according to data released by the IBGE on February 22. In addition, the public bodies responsible for monitoring hunger, such as the National Council for Food and Nutrition Security (or Consea) and the National Secretariat for Food and Nutrition Security (or Sesan), have been dismantled by the Bolsonaro government, on top of the cuts in social programs applied by the Temer government.

The connection between government policies that combat hunger and poverty and a reduction in crime has already been proven in several studies. The most recent of these, published by the Oswaldo Cruz Foundation (or Fiocruz), analysed data from municipal districts whose Family Support coverage was broader, and had been in place for longer, and identified a 24% drop in murders compared to before the programme.

For public defender Glauco Moreira, the same relationship can be made for cases of theft. “The amount of food theft is more connected to economic issues than any other phenomenon. In other words, when unemployment increases, theft increases.” In such circumstances, the perception of food theft as a social problem, and a wider understanding of “hunger theft”, in his opinion, are more necessary than ever.

This is already provided for in the Brazilian legal framework, albeit minimally. In February 2010, Constitutional Amendment 64 added food as a social right to Article 6 of the Brazilian Federal Constitution. In addition, the country is a signatory to the International Covenant on Economic, Social and Cultural Rights. Article 11 of this treaty recognizes "the right of everyone to an adequate standard of living for himself and his family", which includes food.

The Secretary-General of the Organization for the Human Right to Adequate Food and Nutrition (or Fian Brasil), lawyer Valéria Burity points out that this legal framework allows the justice system to consider hunger in its most wide-ranging forms. “The concept of food in our own laws is broad, it implies a set of needs which is not just about having access to rations, but to eat what will transform you into a person, with the ability to have other rights,” she explains.

For this reason, she considers cases of hunger theft to be the responsibility of the State itself. "A person who reaches the point where they lack the minimum to survive shows that, before the hunger, there was the absence of the State," she argues. "But the right to property, which is ultimately what is being defended, is far more valuable than the right to be able to meet one’s basic needs."

Removed from the legal arguments, Adriana Salay is a historian and researches hunger in Brazil in the 20th century. She recalls the theories of Josué de Castro, one of the country’s main scholars on the topic, which establish that people do not need to face a risk to life to be living with hunger – or in other words, they experience a form of “hidden hunger”.

As a researcher, Adriana argues that food is a “total fact”. “A person doesn't just eat to nourish themselves. Eating is not just a biological function, it is a social function, it has an aspect of pleasure. We all have this facet, regardless of our earnings,” she says. For her, being distanced from these elements symbolizes social exclusion.

“Eating encompasses philosophical, religious, behavioural, social, economic, and also biological issues, it is linked to many spheres. So, even if someone has access to food donated or given by the State, it isn’t necessarily food that will nourish them emotionally.”

Adriana is indignant when she learns of reports of the strict requirement to prove necessity before hunger theft can be applied. “The human being is an animal of desires, not of needs,” she points. “Desire becomes a necessity. Even capitalism needs this to survive. Imagine if your child asked you for food and you couldn’t give it to him. As a mother, I think I’d definitely be capable of stealing a cookie for him.”