Could Brazil's Bolsonaro Be Edging Closer to Prison After His Latest Supreme Court Setback?

Brazilian former President Jair Bolsonaro could be edging closer to serving 27 years in prison after the country's Supreme Court rejected an appeal made by his legal defense earlier this month.

Bolsonarro is currently under house arrest after being sentenced on September to 27 years and three months in prison for plotting a coup to stay in power despite losing the 2022 election to current President Luiz Inácio Lula da Silva.

The former president must remain in his gated residence in the capital, Brasília, and is barred from using social media, leaving the country, or receiving any unauthorized visits.

The appeal was Bolsonaro's first effort to try and undermine his conviction.

Along with former military and cabinet officials, Bolsonaro was convicted of criminal organization, attempted violent abolition of the democratic rule of law, coup d'état, aggravated damage caused by violence and serious threat, and deterioration of listed heritage sites.

On January 8, 2023, thousands of Bolsonaro supporters stormed the country's government headquarters in an effort to overturn elections, resulting in millions of dollars in property damage. The attempt was unsuccessful.

However, despite the legal setback, several more options remain for Bolsonaro to avoid jail.

Brazil's Supreme Court is divided into two groups, known as turmas. The recent appeal rejection was ruled on by one turma, not the whole court.

Ilana Martins, a lawyer and visiting post-doctoral researcher at Fundação Getulio Vargas (FGV), told the Latin Times that Bolsonaro's defense may file an appeal to have the case reconsidered by the full Court of 11 justices. She added that it would be difficult to estimate how long such an appeal could take.

Bolsonaro's health could keep him out of a proper prison

Bolsonaro, 70, has had multiple surgeries related to a stabbing he suffered at a campaign rally in 2018. He also received treatment for kidney stones, intestinal obstruction and a skin infection caused by bacteria.

In April, the former president underwent surgery for abdominal pain, followed by the removal of skin lesions. At the time, the Court had already ordered his house arrest for disobeying orders to refrain from posting on social media during the trial against him.

Brazil's Penal Execution Law provides for the accused to serve his/her sentence under house arrest if they are over 70 years of age or suffer from serious illness.

The law also extends to currently incarcerated inmates, as was the case for former President Fernando Collor, who was granted house arrest in May after being imprisoned in 2023 for corruption.

Given Bolsonaro's combined age and deteriorating health, the courts could possibly allow him to avoid prison time.

A third option

For another possible scenario, one must look no further than current President Lula da Silva.

In 2017, Lula became the highest-serving public official to be convicted in the Lava Jato (Operation Carwash) corruption scandal that touched nearly every country in Latin America.

He was sentenced to over a decade in prison, but spent almost two years locked up in a Federal Police facility in the northern Curitiba state before being released in 2019 after his sentence was ruled unconstitutional.

"Following what happened with former President Lula, the judge [in Bolsonaro's case] can also determine, for example, that he be held in a Federal Police superintendency or possibly in some military facility, Cristiano Noronha, political scientist and vice-president of Arko Advice, told Latin Times.

Other experts, however, aren't so sure that Bolsonaro will avoid a jail cell altogether.

Armando de Mattos Júnior, a criminal lawyer based in São Paulo, believes that, regardless, Bolsonaro will likely be sent to the Papuda prison complex in Brasília, at least in the short term.

He said that any questions regarding health concerns would not be ruled on by the Supreme Court, rather "that is the responsibility of the execution judge in Brasília, in Papuda."

"Let's understand the following: he will now be placed in a cell prepared for him in Papuda," de Mattos Júnior told Latin Times, adding that due to health concerns, the execution judge – who is responsible for conducting and supervising the sentence – will most likely then grant Bolsonaro house arrest.