The health crisis caused by COVID-19 exposed some of the structural weaknesses of Portuguese prisons, forcing politicians to implement emergency measures that allowed the immediate release of two thousand prisoners. Prison overcrowding is an old Portuguese problem, posing complex challenges to the penal system. According to data from the Council of Europe, in Portugal the prison population was 12,867 in January 2019, corresponding to a prison rate of 125 prisoners per 100,000 inhabitants, which is above the European average of 106 prisoners. In the list of 43 countries, Portugal was the 14th country with the highest incarceration rate, part of the small group of countries that were the exception to the general trend of a reduction in prison population. The excessive rate of imprisonment revealed by these figures highlights the paradox of prison establishments overcrowded with citizens with low social and economic resources, serving prison sentences for low- and medium-severity crimes, as shown by the relevant indicators. Prison overcrowding intensifies other structural problems, such as poor hygiene, health and safety conditions in the buildings and the definition and implementation, for all prisoners, of credible programmes of social reintegration, including work, education and relations with the outside world. This jeopardises prisoners’ fundamental rights and has led to the mobilisation of European courts against the Portuguese prison system.

The increase in prison population depends on a wide range of factors – such as the volume and structure of the crimes reported, accused and tried, the perception citizens have of safety and the seriousness of the crimes –, but above all it depends on the public criminal policies. There are two main challenges to which these policies must respond effectively. The first concerns the creation of conditions conducive to a broader use of penalties and measures that may function as an alternative to imprisonment, be they of a legal nature (by removing obstacles from the law) or organisational (by providing adequate resources to the institutions monitoring the execution of penalties and measures and by promoting integrated responses with regard to health, employment, education, social security and community). In this strategic agenda, the training of judicial actors must play a central role, not only as a way of providing them with technical and legal skills, but also as a space for critical reflection on criminal and penitentiary systems. The second, upstream, focuses on policies of conduct criminalisation/decriminalisation. It is essential to generate a debate on whether we are transferring to the penal system complex problems requiring measures of a political and social nature. The fundamental principle that imprisonment – either as a sanction or as a measure of coercion – is the last response must be fully put into practice.