CRIMINAL JUSTICE AND POLICE FORCES
If there is a sector that suffers from severe dysfunctionality in Brazil’s judicial system, it is criminal justice. In theory, however, it does not look very probÂlematic. Its procedure is quite straightforward: once the investigation by the police (and/or the Public Ministry) concludes that there is a crime, the Public Ministry[856] can file a criminal complaint in the judiciary,[857] which can summarÂily accept it or not.
Such a system operates through a triangulation among the police, Public Ministry and the judiciary, but it operates in an adversarial way,[858] that is, the judiciary can issue warrants when needed but does not participate in the investigation. There is also a controversy over the limits of the Public Ministry’s investigation powers and its potential overlap with the police’s.[859] At the trial phase, the defendant must be assisted by a private lawyer or a public defender[860] and be guaranteed due process and a fair trial. Criminal cases in Brazil are decided by a single judge in the first instance, except for cases of wilful crimes against life, when there is a jury of seven citizens whose verdict is taken by simple majority. The procedure occurs normally through a set of hearings of witnesses, the Public Ministry and the defendant, but, as is common in the civil law tradition, the procedure is largely written and formal. After sentencing, the case can be appealed to the State Appellate Court or the Regional Federal Court, depending on whether it is a state or federal matter. It can, in some circumÂstances, even reach both the Superior Court of Justice (STJ) and the Federal Supreme Court (STF).The practice is, however, far less rosy. The Constitution states that â€?no one shall be considered guilty before the issuing of a final and unappealable penal sentence’,[861] but, in reality, roughly one third of prisoners are pre-trial detainees who are left in prison as a precautionary measure.[862] Those who are normally well assisted by lawyers can easily postpone the execution of the sentence through numerous appeals, which in the end tend to foster an even more unequal system.
It is no wonder that those who are normally better-off financially can see their sentences expire under the statute of limitations. The sense of impunity is fundamentally related to inequality and particularly pronounced in cases of political corruption.[863] Moreover, the Constitution establishes special standing (foro privilegiado) in the higher courts for some high-ranking authorities, such as congresspersons, judges, governors, ministers, and, naturally, the president. which normally implies a more condescending treatment.It is particularly at the bottom of the judicial criminal system and in how law enforcement operates that the crude reality of inequality and violence gains evidence. The high rates of social inequality and violence reflect on a vicious circle in the whole judicial apparatus that feeds further inequality through repression and violence. According to the Monitor of Violence, Brazil, in 2021, was the world’s third country in regard to the number of prisoners (746,800),[864] including pre-trial detainees and those on probation, just after the US and China, and features the world’s 26th highest incarceration rate (322/100,000 inhabitants).[865] It is an unfair system in which about one third (31.9 per cent) of prisoners are pre-trial detainees, mostly because of drug trafficking (40.5 per cent), all placed inside overcrowded prisons (54.9 per cent of them operating over capacity). There has also been a significant rise in mass incarceration over the years (from 232,755 prisoners in 2000 to 755,274 in 2019), largely due to an increase in drug law enforcement.[866] It is no wonder that, up until May 2021, over 57,000 prisoners tested positive for COVID-19 and more than 200 died of such a disease (237 prison officers also died of COVID-19).[867] These prisons are known as crime schools since organised criminal groups are de facto controlÂlers of the incarcerated population, preparing them to commit crimes once they leave prison.[868]
According to the Brazilian Forum on Public Safety, in 2020, 66.3 per cent of all prisoners identified themselves as Black,[869] a rise from 58.4 per cent in 2005.[870] Police interventions resulting in death targeted mostly Black people: 78.9 per cent.[871] Moreover, the death rate in police interventions is 4.2 for every 100,000 people among Blacks, compared to 1.5 for every 100,000 people among whites.
In 2020, 50,033 people were violently killed (a rise of 4 per cent in comparison to 2019), mostly Black (76.2 per cent), young (54.3 per cent) and male (91.3 per cent) and caused by firearms (78 per cent).[872] More importantly, 6,416 deaths resulted from police interventions, but police officers are also victims of violent crimes: 194 died in 2020. In 2020, there were 23.6 intentional homi- cides/100,000 inhabitants, one of the highest rates in Latin America.[873] These are all symptoms of a country where inequality and violence have been normalised[874] as tolerable in society.[875]These data point out that the criminal judicial system is itself structured in racism and violence, in a sort of â€?democratic simulacrum’[876] that, despite increÂmental initiatives to combat crime, seems destined to fail in strengthening the rule of law and protecting human rights.[877] Empirical data has shown that Brazil has failed in tackling violence, which has grown significantly over the years.[878] Impunity is a serious issue, and there is a high discrepancy among the federal units. For example, a study revealed that Brazil, from 2006 to 2016, had a clearÂance rate for homicide that is one of the world’s lowest: 92 per cent to 95 per cent of all murders remain unsolved.[879] Some federal units, however, fare much better than others: Sao Paulo and the Federal District, for example, feature a low impunity index of 1.1,[880] which is even comparable to developed nations, whereas, in Bahia, this index reaches 14.7.[881] Also concerning is the length of the investigation: in Sao Paulo, a murder investigation takes an average of two years, but in other states, such as Ceara, only 4 per cent of homicides led to a conviction in the same year according to data from 2017.[882]
The constitutional design of public security forces in Brazil helps explain such a dire scenario.
The Constitution reinforced the division between investiÂgation and repression among the police forces in Brazil. In the vast majority of cases,[883] the investigation is within the competence of the civilian police,[884] but it is the military police (policia militar) that is responsible for ostensive policÂing and repression.[885] It is an authoritarian legacy that gained strength during the civilian-military dictatorship (1964-85),[886] when the military police became the central force for public security.[887] The existence of a police force that is an â€?ancillary [force] and reserve of the Army’,[888] reveals how the country, even though having transitioned to democracy, still suffers from a serious difficulty in establishing full civilian control over the military. As with the Army[889] and the military judicial system, the 1988 Constitution kept the clauses that regulate public security virtually untouched, including the military police,[890] whose strucÂture remained practically identical to the dictatorial period.[891] Even though the military police is an â€?ancillary [force] and reserve of the Army’, the Constitution establishes that both the civilian and military police forces are subject to the governors of the states and the Federal District,[892] but the Union has exclusive power to legislate on â€?general organisation rules, troops, materiel, guarantees, drafting and mobilisation of the military police and military fire brigades’.[893] In practical terms, this means that, despite being subject to the governors, who appoint the commanders and pay the officers’ salaries,[894] â€?the military police has thus two bosses’[895] and the Army has partial control over it, an anomaly for a democratic regime.[896]What is more, the military police is under the military judicial system or, if subject to civil justice in cases of first-degree murder against a civilian (the only exception), the investigation is carried out by the military.[897] The conseÂquence is one of very deficient oversight and accountability. Overall, the internal corrections units (corregedorias), the external oversight by the Military Public Ministry[898] - another authoritarian legacy - and the military judicial system are mostly inoperative.
It is no wonder that the rate of impunity among military police officers, even despite the shocking numbers of police violence, is considÂerably high.Corruption is also a reality, but the degree varies between the states.[899] The association of violence and corruption gained ground with the rise of militias, which are paramilitary groups that illegally control parts of the territory, presumably in exchange for providing security and services with the purpose of profit. This phenomenon is seriously pronounced in the city of Rio de Janeiro, where militias already control over 57.5 per cent of the city’s territory.[900] The growth of militia groups exacerbated even further the entrenched corruption inside the military and also civilian police, severely undermining the rule of law.[901] All this critical diagnosis is aggravated by the vast evidence that President Bolsonaro and his entourage have close connections with militias in Rio de Janeiro.[902] In fact, bolsonarismo is a phenomenon that is intimately connected to the increasing process of politicisation of the police forces, and also the Army, more broadly.[903] Between 2010 and 2020, 25,452 members of the security forces ran for an elective office, mostly men (95.5 per cent) and through centre-right or right parties (87.6 per cent). They were quite successful: 1,860 were elected between 2010-18[904] and at an accelerated pace: in the Chamber of Deputies there were four members originally from the security forces in the 2011-14 legisÂlature, jumping to 19 in the next one (2014-18), and to astonishingly 73 in the 2018-22 legislature (an increase of 1,725 per cent). The intersection between their rise and Bolsonaro’s is obvious.[905]
Nonetheless, there are some more positive institutional developments in other areas. The Federal Police, for instance, has gained significant strength over the democratic years. It is subordinate to the executive and is a â€?permanent body, organised and maintained by the Union’[906] whose role is to â€?investigate criminal offenses against the political and social order’, protect the Union’s assets, interests and services, and control borders.[907] It is also the institution that investigates drug trafficking, counterfeiting, smuggling, federal tax dodgÂing and money laundering, among other things.[908] It is in the spotlight almost daily as it is normally behind investigations on corruption, which receive catchy names such as â€?Operation Car Wash’.
The Federal Police works alongside the Federal Public Ministry and the Federal Judiciary in a triangulation where each institution should work independently but in coordination in order to preserve the due process of law.[909] The Federal Police has autonomy to investigate crimes, but it is overseen by the Public Ministry and, for more intrusive tools such as wiretappings and temporary arrests, it needs prior judicial authorisation.[910] Its autonomy is, however, relative since it is subordinated to the Ministry of Justice and, even though its investigation capacities, personnel, equipment and budget have been improved, there have been attempts to meddle with the federal police by the Bolsonaro government - a fact that led the Supreme Court to approve an investigation.[911] Corruption, though significantly lower than that at the state level (civilian and military police), also occurs, but federal police officers are comparatively more professional, earn better salaries (among the highest in the federal executive), and are more accountable since they are not under observaÂtion by the military. It is therefore the police force that is more in tune with democratic principles, but its role is subsidiary: public security is still mostly a state matter, which implies that it is the troublesome binary civilian/military design of police forces that is prevalent nationwide.Brazil’s judicial criminal system continuously struggles with an authoritarÂian legacy that operates through corruption and violence, whereas, on the other hand, there are some relevant positive achievements in providing new structures and tools to combat crimes, and notably white-collar crimes. The country has adopted strategies to overcome resistance by empowering parallel institutions, such as the Federal Police and the Public Ministry, and providing some degree of liability to sectors that seemed until quite recently virtually untouched. It has not tackled directly the troublesome binary design civilian/military police, but, by creating better structured cross-institutional integration notably at the federal level, it has engendered a sort of institutional bypass[912] that improves law enforcement and weakens potential opposition.
The progress in accountability and transparency through higher coordiÂnation and cooperation among the various players in the judicial criminal system is notable. Congress has also passed important legislation to mainly tackle corruption through criminal, administrative and civil liabilities,[913] even if, more recently, it has moved in the other direction.[914] The growth of task forces and anticorruption operations combining efforts by the police, the Public Ministry and the judiciary to combat specific types of crimes has also shown improvement.[915] Despite the setbacks during the Bolsonaro government, there has also been important coordination with distinct agencies, such as the Central Bank, the Internal Revenue Service, the Financial Activities Control Council (COAF), the Brazilian Institute for Environment and Natural Resources (IBAMA) as well as state agencies, police and the Public Ministry. The rising number of politicians and CEOs and CFOs of Brazilian big companies convicted for crimes are evidence that the criminal system seems to have become slightly less unequal. As Rogerio Arantes puts it, â€?the police-MP[Public Ministry]-judiciary triangle seems to be moving away from being a Bermuda Triangle - where cases get lost - and has become more effective, thanks to the greater proximity among them and procedural speed’.[916]
There are naturally some caveats to this movement. The balance between improved institutional design, on the one hand, and the risk of abuse of such new powers, on the other, has proven very unstable. The media, by showcasing daily the task forces through this improved cooperation, fosters greater transparÂency and accountability[917] but can also help frame the public opinion according to its interests. Daily spectacles also challenge the very capacity of such task forces to be diligent and behave according to strict principles of due process of law and fairness.[918] Abuses have led to a growing debate in society over the need to constrain such operations, and it is no wonder that they have provided the perfect argument for those who have long benefitted from impunity to push for measures limiting such powers. On the other hand, abuses by such institutions cannot be tolerated.
This difficult equilibrium reveals that incremental rather than radical change may be a more suitable development to prevent society from spectacles and public agents who present themselves as saviours of criminal justice. It also reveals that incremental change is a better strategy to overcome backlashes from those who have long benefitted from impunity. Yet it is at the bottom of criminal justice, with its alarming numbers of violence and inequality, that the crude perversity of such a system needs to be urgently dealt with. Brazil’s criminal justice system significantly contrasts with the institutional improvements the country could achieve in many areas, including in the very judiciary. The paradoxical nature of Brazil’s democracy is clearly represented in such contrasting movements: as with the rise of politicisation in the judiciary more broadly, criminal justice is where the country’s past, with its longstanding inequality and violence, merges more visibly with its future in the development of the rule of law. In the end, either at the bottom or at the apex of the judicial system, it is still inequality and a certain authoritarian mindset that prevent Brazil from providing a judicial system that is more in accordance with the expectations of inclusiveness, fairness and soliÂdarity that is the basis of Brazil’s constitutional project.