Police Killings and the Rule of Law in São Paulo: The Gap Between Democratic Laws and Impunity

1. Police Killings and the Rule of Law in São Paulo(with a glance at other places)Daniel M. BrinksGovernment Departmentdanbrinks@gov.utexas.edu

2. The “what happened to the rule of law?” question: How is it that despite democracy despite democratic leaders despite a proliferation of laws despite the investment in judiciaries basic rights guaranteed in laws and constitutions are violated with impunity?

3. The gap:

4. r o' r' o Not Murder Murder 2) Informational shift 1) Normative Shift (Informal Institution) The Process of Adjudication Schematic representation of adjudication in a murder case

5. Inv. Police Inv. Police Prosecutor Prosecutor Defendant Defendant Mil. Police Ordering of preferences in police homicide cases – São Paulo Ordering of preferences in ordinary homicide cases Claimant/ Advocate Claimant/ Advocate Judge Judge Prosecutor Not Murder Not Murder Murder Murder The construction of r' in Routine Policing cases: 1)the starting point is given by endogenous incentives (incentives internal to the legal process) A function of each actor’s position and role in the legal process

6. Defendant Not Murder Murder Mil Police Claimant/ Advocate Judge Prosecutor The construction of r' (cont.):2)exogenous (career and political) incentives A function of the socio-political context, and the institution’s (actor’s) permeability to that context São Paulo: - support for “strong” police and very little political reaction to police homicides - judiciary is relatively independent from political demands, direct influence - prosecutors are relatively independent from political demands - police is responsive to political demand for results (and somewhat sensitive to outcry)

7. Prosecutors Not Murder Murder Mil. Police Not Murder Murder r r r r o' o' o' o' r' r' r' r' o o o o Courts Claimants/ Others Not Murder Not Murder Murder Murder The construction of o' in São Paulo

8. Example: Shooting in a bar • Two men, shot and killed in a bar • Young, from the favela, unemployed • Prosecutor relies on police report to present case to court: • Youths enter bar drunk, with guns in hand • Threaten to kill police officer who kills them first • Conclusion: clear case of legitimate self-defense • But: • Family members claim youths were sober and unarmed • Bar owner is police officer’s relative • Autopsy shows both youths have, in addition to shots in front of body, identical shots to the middle of the back • One of the youths was awaiting trial on charges of killing a police officer • Conclusion: Revenge execution

9. Example 2: Gypsy cab case • Two men, arrested from a gipsy taxicab and killed • Young, from the favela, unemployed • Prosecutor presents no witnesses • Cab driver disappears before trial • Family does not even go to the trial • Jury accepts defense: Shot resisting arrest in a vacant lot

10. Question: Why can’t victims’ advocates correct o'? Informational shifts result from social, political, economic exclusion of victims • Police target claimants with low capacity to respond: • Victims are young, black, poor, males: • 97% are male • 93% are under 35 years old • Only 6 of 219 cases involve middle class victims • 64% live in a shantytown • 72% unemployed • 55% Black (Negros e Pardos) • They and their survivors do not have the political, legal or economic resources to respond • Result: Missing witnesses, no expert reports

11. Informational shifts (cont.): how do they do it? • Common police practices: • Forging confrontations • Planting guns • Intimidating witnesses • Threatening lawyers • Preparing false forensic reports • 85% of cases show evidence of tampering

12. Shifting o': Why doesn’t the prosecutor redress the imbalance? • Institutional design limits Prosecutorial and Judicial oversight capacity: • Military Police is charged with investigating its own violations • Even in its own cases, Civil Police relies heavily on Military Police to do the actual work of investigating • Judges rely on prosecutors • Juries rely on stereotypes • Result: despite evidence of tampering in 85% of the cases, none of the cases include a prosecution for obstruction of justice

13. The antidote to informational shifts: outside support for claimants • The “Private Prosecutor” figure: • Allows by-passing police and prosecutor • All the convictions in São Paulo show the presence of claimant-support NGOs • Examples: Centro Santo Dias and Human Rights Committee of the São Paulo Bar Association • In other jurisdictions: • State-run witness protection programs • Special-purpose prosecutors with investigative resources • Higher conviction rates when claimants have resources

14. o ' r r' o Not Murder Murder o'(no$) r r' o'($) o Not Murder Murder Drastic Informational shifts Informational shifts when claimants lack resources Normative Shift (Informal Institution) Informational Shift Normative Shift (Informal Institution) r r' o' o Not Murder Murder r o' o r' Not Murder Murder r o ' r' o Not Murder Murder Routine Policing cases in each city/country • in Buenos Aires • In São Paulo • In Córdoba • In Uruguay • In Salvador Little informational or normative shifting, but potential for informational failures

15. Legislation Prosecutors Legislation Courts Constitution Police, etc. Prosecutors Police, etc. Courts Constitution Not Murder Not Murder Not Murder Not Murder Not Murder Not Murder Not Murder Not Murder Not Murder Not Murder Murder Murder Murder Murder Murder Murder Murder Murder Murder Murder r r r r r r r r r r r' r' r' r' r' r' r' r' r' r' The punch line: • The rule of law assumes “top down” normative homogeneity (at least for publicly binding decisions) • But for many actors, norm-observance is less desirable – they benefit from normative shifts

16. Prosecutors Not Murder Murder Mil. Police Not Murder Murder r r r o' o' o' r' r' r' o o o Courts Not Murder Murder The rule of law breaks down when these normatively shifted actors have the resources the system needs to function. • Then they can either force informational (or other) shifts (e.g., São Paulo)

17. o' Prosecutors Not Murder Murder Mil. Police r r r o' o' r' r' r' Courts Not Murder Murder Not Murder Murder Or these actors can force a normative shift on decision makers up the chain, so that instead of “top down” normative homogeneity, you have “bottom up” normative homogeneity

19. Index The gap between law and practice Institutional Map São Paulo Process of Adjudication Construction of r': endogenous incentives Construction of r': exogenous incentives Construction of o' Shifting o': police practices Shifting o': Claimant capacity Shifting o': Judicial oversight Snapshot of all cities Punch Line 1: Informational shift Punch Line 2: Normative shift Functional Map São Paulo Functional Map Buenos Aires Effectiveness, Inequality, and Tolls Return