The gears of the jail
Since February this year, when the pilot custody hearing project in São Paulo began, criminal alternatives have been identified as an important strategy to combat overcrowding in prisons. Arguing that alternatives would be provided for the judge not to keep every person in custody in jail imprisoned, the pilot project model predicted that structures would be created for the application of criminal alternatives. Although bodies such as the National Council of Justice (CNJ) and the National Penitentiary Department (Depen / MJ) are increasingly talking about criminal alternatives, this is still a poorly understood and data-depleted subject that proves the potential of planned alternatives actually face the scenario of overcrowded prisons.
In this sense, the initiative of Depen and the Institute of Applied Economic Research (IPEA) to investigate the application and execution of alternative penalties and measures by the Brazilian justice system was very well received by civil society interested in strengthening public policies that high current incarceration rate. The research was initiated in 2011 and developed quantitative and qualitative diagnoses on the flow of criminal justice, including the observation of hearings and interviews with magistrates and criminal justice system officials.
Part of the results of this research came to public on November 26, 2014, during the National Seminar of Criminal Alternatives, held in Brasilia by Depen / MJ. At the time, the executive summary of the survey was distributed and a discussion table on the results was held, of which the ITTC participated. On March 25, the full version of the report was finally released.
In general, the most compelling conclusions of the research reveal the mechanisms by which our massive system of imprisonment operates. Firstly, we have that the main gateway into the penitentiary system is the arrest in flagrante. According to the IPEA, 59.2% of the criminal complaints received by the courts concerned police investigations opened only after the arrest in flagrante, ie that they were not based on previous investigations. This problem of untying between arrest and prior investigation is reinforced by the fact that most of the investigations initiated and concluded were conducted by circumscription offices (77.3%), which are responsible for a particular region, and not by specialized police stations. In other words, in general the investigations were carried out by police stations whose competence covers a very large number of responsibilities, in which, due to the shortage of personnel and resources, work is essentially reactive to the occurrences reported by the population. In these units, much of what is done is the search for people already known to the police.
Policing by suspicion
The prevalence of so-called “policing by suspicion” is still fundamental to problematizing the data on recidivism, often widely publicized to denounce the failure of the re-socializing mission of the prison system. Since most of the investigations conducted by police stations for which investigation is synonymous with relating reported incidents to persons with criminal records, it is not difficult to conclude that the fact that a person (or a family member) has already had contact with the justice system makes her a very strong candidate to go through a new criminal procedure, regardless of her individual conduct. Thus, this IPEA survey suggests that high recidivism rates say less about the prison’s ability to modify behaviors and more about the corrupt gears of the criminal justice system.
Arrest in flagrante is so explanatory of the functioning of criminal justice on the grounds that the dominant position of the Judiciary is that of chancelling the police, turning pretrial arrests into flagrant custody. Although many judges allege that they have released defendants for grievous felonies with low sentences, the analysis of criminal cases by the IPEA team has revealed that there are cases involving petty theft commits by primary defendants in pre-trial detention, defendant was in a street situation.
The selective action of the criminal justice system that privileges the point of view of police repression was noted by IPEA researchers also because of the massive presence of police officers as witnesses in different locations. For judges, both civilian and military police should be heard because it is the pros who are on the cutting edge while judges in the criminal justice “production line” look like the last part of the treadmill.
Imprisonment as a penalty
Imprisonment as a penalty moves on the logic of legal proof that a person is responsible for a particular crime, while pre-trial detention is directed primarily at the protection of an abstract public order, for which the most threatening figures are persons young, black or brown, and socially vulnerable. The way in which the judiciary merely stamps the political choice of the police on whom to suppress is clear from the IPEA data which shows that the conduct of almost four out of every ten persons held in custody was not considered to be liable to imprisonment at the end of the proceedings. Projecting this number to the number of provisional prisoners in December 2013 (Infopen), this means that there are about 90,000 men and women kept incarcerated even though a conservative judiciary may be able to conclude that there is no basis for imprisonment for these people.
Despite success in demonstrating the abusive way in which pretrial detention has been applied, the results of the research are insufficient to specifically problematize the development of the national policy of criminal alternatives. Contrary to the survey carried out by the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD) in 2006, the data produced by the IPEA started from the assumption of the validity of the expansion of the use of criminal alternatives, leaving aside the questioning on the suitability of alternatives to reduce incarceration rates. For the ITTC, the defense of criminal alternatives as a tool of criminal policy is conditional on its ability to reduce imprisonment without, therefore, generating expansion of other criminal control mechanisms.