Prepared for delivery at the 2001 Meeting of the Latin American Studies Association, Washington DC, September 6-8, 2001
The paper examines the relationship between police criminality and impunity for gross human rights violations. It argues that police criminality is rooted in the overall pattern of the illegality of police work as a consequence of its politicization and its control by the executive in the long run. It examines the history of the police of the state of Bahia, Brazil, since its creation in the 1830’s to the present to make clear its function of political control and the development of patterns of unaccountability. Further, it investigates the response the Civil Police Review Board to citizen complaints of gross human rights violations in the period of democratic transition (1989-1997) and shows that impunity is used to the construction of an informal “law of the police” that is contradictory to the democratic legal framework. While the police as an institution is constructed as dual, authoritarian and contradictory, it isolates itself, loses citizen respect and becomes highly ineffective in combating crime. Recently, these factors give rise to internal movements of rebellion that adopt the human rights discourse as their own and claim for changes to restore police dignity and professionalism. These movements, however, still have to face the reluctance of the executives to relinquish the control of their private armies to the democratic law.
Keywords: police criminality, human rights violations, democratization, accountability, political change
1.Introduction: Gross Human Rights Violations by the Investigative Police in Brazil
This paper investigates the relationship between police criminality and impunity as to what concerns gross human rights violations allegedly perpetrated by the investigative police – improperly called judiciary police in Brazil – and its consequences for the deepening of the democratic rule-of-law and the development of participating citizenship. Although impunity is frequently considered as one of the main factors responsible for the perpetration of torture and summary executions (Human Rights Watch 1987, 1997/2, 1999; Pinheiro 1991/2; Aguero and Starks 1998; Chevigny 1995; Ferreira 1997; Huggins 19991/1; Lemos-Nelson 2000, 2001; Machado and Taparelli 1996; Méndez 1998/1; Méndez, Pinheiro and O’Donnell 1998; Oliveira, Ribeiro and Zanetti 2000; Rodley 2001; Stotszky 1993) there are few specific studies that adequately evaluate the institutional channels through which these violations disappear before they reach the courts and turn to constitute the “black cipher” of criminality in the country. This absence negatively influences the planning and implementation of reform policies for a democratic public security.
This paper contributes to throw light in these corridors of the justice system as it analyses the treatment given to the complaints of torture and summary executions by the investigative police  of the State of Bahia, Brazil, by the Police Review Board (Corregedoria da Policia Civil) in the period 1989-1997. This is the period of the democratic reforms initiated by the Constitution of 1988. We argue that police impunity is a complex phenomenon. It is due both to systemic variables that affect the entire production of justice and of specific institutional problems that impact the accountability of the police, that is, the way it reports to the citizenship (citizen accountability, Smulovitz and Peruzzotti 2000) and other constituted powers (horizontal accountability, O’Donnell 1999/1).
At the systemic level, the problem of gross human rights violations by the investigative police is marked by two theoretical problems: the general illegality of the police work and the historical weakness of the democratic elements of the political regime face to the authoritarian residues. In other words, police criminality is rooted in police illegality as a consequence of the politicization of the police institution and its use as an instrument of the executive in the long run. At the institutional level per se, the Review Board produces patterns of disciplinary and criminal decisions that tend to institutionalize these violations and incorporate them as internally legitimate procedures. Both problems frame the paradoxical nature of the police institution as divided, dual and contradictory, unable to mediate conflicts both within itself and in the society.
The case study of the state of Bahia is particularly interesting because of authoritarian continuity: Bahia has remained under the control of the same political leaders for almost forty years. Political machines still impair the representative process. Consequently, the police in the state have not undergone any significant process of reform despite the changes at the federal level. The authoritarian repressive institutions are still in place, and the police have recurrently been used against organized labor, opposition parties and all movements of protest. The press and TV are also under conservative control. Democratic accountability has not had a chance to reframe social and political relationships despite the vigorous and often passionate organization of the social and racial minorities. Just recently this authoritarian structure started to collapse as the main conservative leader, senator and ex-governor Antonio Carlos Magalhaes, was forced to resign under the weight of corruption charges just three months ago. We will examine the effects of this downfall on the organization of the police, as Bahia is having a chance to deepen its transition to democracy now.
2.The world upside down: the illegal police
The issue of the illegality of Brazilian police work has been pointed out both by historians of the imperial period, as Thomas Holloway (1993) and authors that study the contemporary investigative police, as Kant de Lima (1986), Mingardi (1992) and Cano (1997/1, 2000). Holloway, for example, in his study of the civil police of Imperial Rio de Janeiro makes sure that we are
clear that this is not a study of what is called, in the Anglo-American euphemism of law-enforcement. There were many laws that the police system used to justify its actions, and there were occasional discussions within the system of the legal basis for one or another police practice. But the police also took repeated and acknowledged action for which there was no legal basis (Holloway 1993:8).
While during the Empire police action was not necessarily legal, it is now illegal most of the times. The reports on the contemporary police practices acknowledge the deepening of the separation between police work and the law. The profile of the action of the police in Rio de Janeiro analyzed by Kant de Lima (1986) shows a deep disagreement between the legal theory and the judicial practice. This gap is related to the very inquisitorial system of justice in which the presumption of innocence and the universality of the system of justice are seriously compromised. The police ethics informs a semi-autonomous practice. Mingardi (1992), in his sui generis study about the police practices in São Paulo, shows from inside the system the different schemes of fraud and corruption that make the legal goods into objects of negotiation that is financially rewarding for the police operators in the daily routines of the police precincts. These authors refer to wide socio-political informal institutions, as patrimonialism, and to the pattern of hierarchical relationships among classes to explain the autonomy of the police in the social control activities.
I claim that the activities of social control as a function of class domination although relevant cannot fully explain the illegality of police work. The examination of the history of the police in Bahia brought into light the function of political control, a problem that had not been examined in its relationship to the illegal framework of police practices. This function of the police developed under the command of the executive especially after the conservative reform of 1841 that placed the chiefs of police under the direct control of the Province presidents (equivalent to the contemporary governors) and who were directly nominated by the emperor. From that time on, the reproduction of the political system was closely associated to the schemes of electoral fraud that developed during all the parliamentary empire and survived intact through the republic until 1930.
It has been said that from 1841 to 1889 Brasil went through its most stable period of parliamentary monarchy (Carvalho 1987, 1990). Contradictorily, the reading of the provincial presidents’ reports to the Legislative Assemblies brings a different view. After brief references to the health and whereabouts of the Imperial family, these reports unfolded the political drama of the elections and their unavoidable violence. These elections were very frequent and concentrated much of the community energy, with their qualification boards, electoral colleges and the several procedures through which fraud was allowed to return the desired results to the conservative elites. Fraud could happen at the qualification of electors, during the voting process or in the counting of votes through the techniques known as mapismo or bico de pena. The actual control the factions had over the police was crucial for the final decision. For this reason, there was a tendency of outgoing factions to be able to win the elections and reproduce themselves, since they were in charge of the police forces. However, in some cases the provincial presidents and the central government could interfere by sending their own troops. The other authorities of the system of justice were also under the ultimate executive control. João Lins Vieira Cansanção de Sinimbu, provincial president of Bahia and later Minister of Justice and Prime Minister of Brazil in the second half of the nineteenth century, then a liberal in a conservative government, complained in one of his speeches before the Legislative that “this is a sure truth, Sirs, that while the Justice and the Police are mixed up with electoral interests, we will have neither one nor the other”(Presidential Message, Sept.1, 1857). His perception of the detrimental effects of politicization on the police professionalism was constantly repeated as he attempted reform, without success. The reproduction of the political system as such was an unavoidable straightjacket on police professional development.
The problem continued into the republic and until 1930 the elections were kept violent by the absence of a legitimate process of alternation in power. When stalemates happened, the political system was immobilized. For several times the rift was so radical that each party elected its own set of candidates and two groups of “winners” were set to work simultaneously in the Legislative, as no faction would admit defeat (Sampaio 1960; Sampaio 1979). On one occasion the capital city of Salvador was hit with bombs from federal troops. This electoral conundrum between the police and the executive was organized as a mutual process of rendering services that guaranteed authoritarian prerogatives for both and victimized law enforcement. For the politicians, electoral reproduction, for the police, free bounty. The main source of advantages to the police was their free reign over the enforcement of misdemeanors law that allowed them to inspect the unemployed, prostitutes and gambling autonomously. Their access to the extortion that this surveillance allowed was assumed as pay, and for decades most of the investigative police jobs were formally unpaid.
This conundrum is also at the roots of police lack of accountability, since they were answerable to no one but the executive. In Bahia, the governors until today refer to the judicial authorities and the police as “my judge” and “my police chief” (Magalhães 1995). The existence of this power structure dominated by the executive corrupted not only the electoral system but also law enforcement and the other social control activities. Until today, it is the authorities who are closest to the top executive who are entitled to bend or break the law with more freedom, in this way destroying any merit-based criteria through which to achieve professionalism to the institution as a whole (interview, 1997).
Politicization has been the main obstacle. Until 1930, while new criminal theories were intensely debated, it was impossible to achieve effective reform. Plans existed that were half-hearted because executives never gave up the control of their private armies, and never allowed judiciary or legislative control over them. Although grandiose reformist discourses were articulated, the state budgets show that these reforms never took off from the paper and no resources were ever allocated to produce new structures. After 1937, dictatorial government deepened police cruelty and lack of accountability, but some observers liked it better and were happy to get rid of the violence of the elections. The 20th.century dictatorships (1937-1945 and 1964-1985) increased the roles of political intelligence collection of the investigative police, and allowed them to include kidnapping, torture and sabotage as their dutiful tasks.
4.Police criminality and the dual authoritarian reason
It is important to retain here that while the police is usually believed to be a legal bureaucracy, in Brazil the tradition conforms the police as a political bureaucracy, as a private army of the executive, therefore incapable of universalism in its practices. While police illegality is a function of its political control, police criminality pertains to two main categories: the involvement of the officer as a private citizen in criminal activities, as drug dealing, robbery and illegal arms sales, and the involvement in crimes in the exercise of the public function, as torture and summary executions. The distinction, however, is often blurred, as torture might be used for extortion, and summary executions as a means of controlling the drug trade, for example. These were the patterns that emerged in the cases examined, and this section concentrates on the links between police illegality and police criminality. It argues that the political use of clandestine policing is at the roots of the large scale devolution of police illegality into police criminality.
This criminality might have been a constant phenomenon that grew as a result of the trade-off between the executive and the police, and the consequent unwillingness and incapacity of the executive to exercise police accountability. However, specific and relatively recent phenomena have deepened the possibilities for police misconduct. The reduction of demands for legal accountability of the police operators in all Latin America was a direct consequence of the Cold War security regime. The clandestinization of the security forces was directly linked to the appearance in large scale of kidnappings and elimination of suspects as current practices that became usual in the contemporary social cleansing pattern of gross human rights violations and a major problem for democratic public security reform.
It is widely accepted that it was characteristic of the Cold War security regime the identification of the enemy no longer with aggressor states but with subversive societies, internalizing its repressive objectives and criminalizing dissidence. Another distinguishing feature was that policies of organizing clandestine paramilitary units conceived after the commando model used in WWII were stimulated through training of leadership from most countries under the U.S. influence as means to the execution of internal operations that could benefit from the “plausible deniability” clause. This training provided by a host of military and police academies in the U.S. and its assimilation to social and political formations with a long history of authoritarianism and state terrorist practices (Campbell 2000) generated the appearance of death squads and other paramilitary units (Klare and Arnson 1981; Huggins 1991, 1998, 2000/1 and 2000/2).. Most of Latin America faced a syndrome of clandestinization of public security characterized by deep deregulation of the security agencies and the growth of kidnapping, forced disappearances, summary executions and police and military torture . This syndrome is at the roots of the main patterns of gross human rights violations (GHRV) of the last three decades of political life in Latin America (Lemos-Nelson 2000, 2001). We claim that the growth of a clandestine capability formed dual police forces as to legal responsibility and accountability.
Conceptually, GHRV are identified when three basic human rights are simultaneously violated for a period of time long enough to allow those expectations to rise among actors. These are usually considered the rights of the integrity of the person and have a strong physical connotation. As a multidimensional concept. It involves the right to life, freedom and security of the person (Article 3 of the Universal Declaration of Human Rights, UN), the freedom from torture and other cruel, inhumane or degrading treatments (Article 5) and the freedom from arbitrary arrest, detention or exile (Article 7) (Schmid 1989).
We consider GHRV to be this specific relationship between the state and the citizens that involve the legal system, the judicial practice and the handling of the violence of the state that systematically violate the protections established in the national and international laws and covenants of human rights. These relationships of power, rights and violence occur in specific contexts of conflict in which the actors inside and outside the state apparatus articulate their demands. A socio-political pattern of GHRV has at least two dimensions: the violations per se involving actors and actions, and a specific dimension related to the issues involved in the conflict. A third dimension is time: the patterns are revealed as the violations are systematically repeated, producing expectations in the actors directly or potentially involved (Lemos-Nelson 2000).
PATTERNS OF HUMAN RIGHTS VIOLATIONS IN THE AMERICAS, 1980-2000
Abuse of force
Occasional police brutality
crime-prevention agencies, including private security
Costa Rica, Uruguay, Argentina, Chile, Venezuela, Panama, U.S.A.
Open, semi-clandestine and clandestine
Assassinations ,sweeps, summary executions, arbitrary arrest,
torture, police/military brutality
Landless peasant families and leaders, squatters, and involved human rights lawyers and activists
On and off-duty police and military, hired guns- including officers, private gangs
Brazil, Mexico, Guatemala, Colombia, Costa Rica
Civil war and/or civil unrest
Open, semi-clandestine, clandestine
Guerrilla, battles and ambushes, sweeps, extrajudicial executions, torture, kidnapping, siege, massacres, explosions, bombings
Civilians, military and guerrillas, opponents and suspected opponents, informers or presumed informers, politicians, members of the judiciary, human rights activists
Military, police, guerrillas, other radicals, paramilitary
Colombia, Peru, El Salvador, Guatemala, Honduras, Argentina, Chile, Panama
Assassinations, kidnapping, bombings, guerrilla, territorial conquest, corruption
Economic opponents or competitors, police and judiciary, politicians, peasant and periphery populations, journalists
Narcos, mercenaries and paramilitary, guerrillas, police and military
Colombia, Mexico, Peru, Bolivia, Ecuador, Brazil, Argentina, Panama, Guatemala, Venezuela, Costa Rica, Chile
Open, semi-clandestine, clandestine
Police/military brutality, sweeps, evictions, torture, summary executions, arbitrary arrest, torture, massacres
Minorities, the poor, “undesirables” including
children, informal market workers, periphery inhabitants, petty thieves, prisoners and detainees, groups of support of the disadvantaged
Repression agencies, death squads, vigilantes, paramilitaries, mercenaries
Brazil, Guatemala, Mexico, Peru, Venezuela, Colombia, Honduras, Ecuador. El Salvador, Dominican Republic
Sources of the data: Amnesty International; Human Rights Watch, Global Reports at www.hrw.org; U.S. State Department, Human Rights Country Reports
In four of these patterns, the role of clandestine and semi-clandestine tactics is central. I define as clandestine the tactics used to avoid responsibility for an action – be it by the use of proxies or other forms of delegation of power, by the cover up of the identity of the perpetrators, by the manipulation of proof, documents or other bureaucratic instruments, by the denial to investigate or any other device that might guarantee the impunity for the perpetrators. Clandestine tactics are opposed (but often complementary to) official state business. They are not just secret: they are purposely covert. In the table above, I use “semi-clandestine” do describe the ambiguity of the violations perpetrated by off-duty state agents.
The clandestinization of public security operated a deepening of the separation between the formal and informal practices of policing and increased the contradictions between the legal and the illegal apparatus. Under the umbrella of new internal justifications for the covert behavior, the increase in the privatization of the benefits of such a disguise for the operators of public security was immediately perceived as an advantage to be used. Devolution followed fast (Huggins 1998, 2000/2). A factor to further complicate the scenario was the increase of the drug trade that allowed for enormous financial profits, as it grew in most countries under the informal and well-paid protection of the police.
It is beyond the purposes of this paper to discuss these patterns in detail, but it is necessary to comment on the phenomenon of “social cleansing” because this pattern is what appeared more often from the primary data of the complaints that I investigated in Bahia. In Latin America, this pattern of elimination of criminal suspects and even innocent individuals from the destitute populations emerged in the 1980’s when the welfare states started to disintegrate as a consequence of the debt crisis and the progress of market reforms. The context created perverse civil effects because the citizenship lost important positions in the formal economic system. Informal work, in general, represents a loss in civil rights as citizens are not protected by valid contracts. In countries with a tradition to classify unemployment as a misdemeanor, the incapacity to prove formal work represents an assumption, on the part of the police, that the individual is suspect of illicit gain and makes him or her a valid target for elimination. The profile of clandestine practices on the part of the security agencies, allied to the previous patterns of racial and social discrimination as criteria for suspicion, functioned as a real license to kill. In this context, “social cleansing” appeared as a new form of social control characterized by the selective and organized physical elimination of members of the most socially, culturally and economically vulnerable sectors of the citizenship. They were perceived, identified and made responsible for the disruption of the patterns of security and well-being that resulted from the legal, moral and economic crisis of the post-dictatorial state. Theoretically, we could say that the so-called “social cleansing” is the historical combination of three types of violence: direct terrorist violence (Campbell 2000) on the part of the agents formally and informally related to the state, structural economic violence related to the informalization and delegitimation of work (Castells and Portes 1997) and cultural structural violence (Galtung 1985) that victimized discriminated against groups. I emphasize the complexity of the phenomenon because its elimination in the context of democratic reformist policies will have to take into account and address the clandestine behavior of the security agencies, will have to find ways to acknowledge as legitimate the informal market worker and will have to abandon racial and social discrimination as criteria for suspicion.
The policies of democratic reform in Latin America are faced with the challenge of bringing accountabiity to a system that is split in half with a formal and an informal face, legal and illegal procedures, official and clandestine actions. The examination of the investigative files of the Civil Police Review Board in Salvador revealed that the police institution had developed organizational procedures to systematically cover the police’s informal, clandestine and illegal practices. As we will now show, these procedures amount to an informal law that preserves the dual authoritarian reason face to pressures for reform.
The syndrome of clandestinization of public security has as main consequence a crisis of accountability (O’Donnell 1999/1, 2000; Schedler, Diamond and Plattner 2000). The concept of horizontal accountability allows the scrutiny of the actual workings of democracy. It places the problem of state responsibility in the context in which electoral democracy becomes insufficient to achieve the democratization of the public bureaucracies that do not directly depend on the vote and the power enclaves in the state that evade horizontal control between agencies and powers. Although there are usually legal provisions for these controls to take place, in a context of transition the survival of some of the previous authoritarian structures creates conditions that prevent their activation.
The issue of how police forces are disciplined is crucial for any democratic project of reform but its study has not been sufficiently developed in Brazil. One of the main reasons for this neglect has been the continuing secrecy allowed to the Review Boards as they have succeeded in protecting their records from public scrutiny. The first case studies have just appeared (Zaverucha 2000, Lemos-Nelson 2000, 2001, Cano 2000) and we expect that soon an enlargement of the comparative scope will be able to provide generalizations. Since police work in Brazil falls under the control of the states and their differentiated legislation, cases tend to be very particular even if contained in the same broad constitutional framework.
In a general way, it can be said that the control of the police can be internal or external. The internal control would be this institutionalized in the Review Boards (corresponding to the U.S. Internal Affairs), and the external control would be under the constitutional responsibility of the Public Ministry. Recently, new forms of control have been organized in the form of ombudsmen or Ouvidorias so that citizens can develop their role as they present complaints and activate the accountability mechanisms. In the U.S., where this study is at least four decades old, the debate of the effectiveness of the instances of control is more developed (Bayley 1968, 1985; Chevigny 1969, 1991, 1995; Goldsmith 1991; Geller and Toch 1996; Human Rights Watch 1998/2; Milton 1977). Internal control is believed to have better investigative tools but may be jeopardized by the esprit-de-corps. External control, on the other hand, more exempt and aggressive, may not reach enough effectiveness without the inside cooperation. A third assessment proposes that the best results will be achieved by a combination of external review endowed with legal powers to subpoena, with internal actors who would have an interest in raising the quality of police work according to legal parameters to improve the legitimacy of the police organization in the society (Chevigny 1995). Chevigny stresses the point that in situations of transition from authoritarianism the role of the external control is indispensable. Without outside pressures, the police institution will remain closed in its authoritarian values and rites.
The Civil Police Review Board in Bahia presents particular interest for this analysis of accountability of the agents of the Executive face to the Judiciary and the population because of the ambiguities and duplications of its institutional responsibilities. The Review Board was created during the political opening in the context of a reform of the police that occurred in 1976. Similar to other institutions created during the opening, it was conceived as means to deal with contradictory pressures. It was expected from the left that the growing citizen participation would increase demands for accountability. From the right, the institution had to control the radical opponents of the political opening who were developing terrorist actions to stop the opening. The Review Board’s founding statutes show that the institution was conceived as a tool of mediation between the police, the public and the Judiciary, able to act as a filter of external demands and a cushion to protect the internal action. Another source of ambiguity was its own investigative powers, since the Board was supposed to act on administrative and criminal matters, simultaneously as an administrative and a judiciary agent. (Governo do Estado da Bahia 1975, 1977, 1978). This is an extremely problematic superposition since the due process determined by the Code of Penal Procedures establishes different rules for each of these capacities and their concentration in the hands of the same agent is an invitation to mishandling of the law.
The profile of the actual investigative action during the dictatorship is unknown since the files of that period could not be located. I analyzed the complaints presented after the issuing of the new Constitution in 1988 until 1997, time of my field research. The complaints presented against the police do not necessarily reflect the profile of the actual violations but are biased in favor of those violations that the citizenship is not inclined to accept. Additionally, the profile of complaints reveals the perceived effectiveness of the complaint procedures to generate punishment. A comparison with the profile of the complaints in American cities shows some interesting aspects of these perceptions. In Salvador, Bahia, there are 8.4 complaints for 100.000 inhabitants while in Chicago there are 112.1, in Houston 98.2 and in New York 70.6 while it is in the cities that the police is considered to be the most brutal or unruly that the levls of complaints are the lowest. This is the case of Philadelphia and Los Angesles with 23.1 and 22.4 respectively (Pate and Hamilton 1991). The complaints in Bahia also reveal a relative more serious nature of the violations. From a total of 1140 complaints against Civil Police officers in the period 1993-1997, 275 or 24.12% were related to torture, 64 (5.61%) to beatings suffered by prisoners, 32 (2.8%) to homicide and 78 (6.84%) to death threats, totaling some 40% of reported crimes that were related to direct violence. Despite these numbers, only 174 formal investigations (inquéritos) were opened between 1988 and 1996. Of these, 57% were related to torture and 17% to homicide. This means that all the other complaints were treated as administrative matters and were either shelved or generated recommendation for administrative discipline and were in all cases excluded from examination by the judicial authorities.
The process of investigation generally starts by the victim’s (or his/her representative’s) complaint to the notary office of the Review Board. When it is a case o violence perpetrated, the victim is forwarded to the forensics department (Instituto Medico-Legal-IML) for an examination of the injuries. From this point on, the investigative authority that receives the complaint from the notary can use his/her discretion to do whatever he/she finds fit. They often contact the police chief (delegado titular) in the precinct where the violation allegedly occurred to check the information and obtain further data. Usually, an informal preliminary file (sindicancia) is opened until they make the decision to open the formal process of investigation, and this might take years. The reason for the informal procedures is that by law the police authority cannot shelve formal investigative files and the forwarding to the Public Ministry for prosecution is mandatory. By keeping it informal, they keep their discretion over it. Sometimes the Review Board receives complaints that have been presented to other authorities, as the Public Ministry or other specialized precinct as the ones that deal with complaints regarding violations against children or women. The files showed that these precincts are much more accountable and do protect the rights of their clientele with a lot more resolve. Sometimes they do all the investigation themselves and forward the files to the Review Board only for administrative punishment, while criminal case files are sent directly to the Public Ministry. Another reason for informally investigating a case is that they retain the case as formally non-existent until they make a decision for formalizing it, and when it happens they register an opening date as recent. This makes the impression to the outside examiner that cases remain open in the Review Board for a much shorter period than they really do. We here compare two samples of files to see how this device works:
CIVIL POLICE REVIEW BOARD, SALVADOR, 1997
LIST OF THE POLICE INQUÉRITOS CLOSED AND SENT TO THE CRIMINAL JUSTICE
Feb. 13, 1995
Feb. 06, 1995
Feb. 08, 1995
Aug. 30, 1995
May 23, 1995
Jul. 07, 1995
Aug. 08, 1995
Oct. 17, 1995
The average time of processing is eight months. The second sample includes the cases that I examined in detail, all of them closed either in 1995 or 1996. In this sample, the real date of the complaint was included and the average of duration jumps to around twenty-four months.
PERIOD OF REAL INVESTIGATION OF LIST OF CASES CLOSED WITH THE DATES OPENED AND CLOSED
Aug. 30, 1995
May 11, 1992
At the institutional level, the profile of torture, kidnappings and summary executions by the investigative police became evident. I concentrated in studying recidivism because I understood that these cases could reveal more closely the difficulties to obtain accountability. The problem seems widespread since 56% of all complaints in the period 1993-1997 referred to recidivist police officers. After identifying the officers who had been complained against six or more times in this period, I set out to examine what factors had contributed to the permanence of these officers in the force despite the repeated complaints. I examined closely 45 files (formal and informal investigations) that involved 39 suspects and 54 victims. The sample reflected the general distribution of the formal investigations since 57% referred to torture and 17% to murder. The period of investigation ranged from one to 57 months, with an average of 18.7 months per case. The final destination of nine of the cases is unknown, and of the remaining files 14 had been shelved, 13 were forwarded to the Criminal Justice with indictments, 6 were forwarded to the police high echelons with recommendation for administrative punishment and only 3 were forwarded both to administrative and criminal prosecution. Although these were cases of gross human rights violations, we can see how the superposition of administrative and criminal competencies produced a sub-optimal final result, especially considering that most of the cases had substantial evidence both of the crime itself and of the authorship of the violation.
The evidence from these files showed that the police officers always acted in group both in cases of torture and of summary executions, and pointed to the fact that these recidivist officers formed powerful gangs usually under the leadership or connivance of the more graduated officer at the head of the precinct. The precinct therefore appeared as the basic unit of organized police crime. One of the precincts appeared as responsible for several of the cases of torture and made it evident the systematic way in which it was applied. 14 well-documented cases of torture involved 17 victims, of which only one was a woman and two were minors. Only two of the victims were older than 31, confirming the Latin American pattern of victimization of young males belonging to racial minorities. All the cases of torture happened in a context of illegal arrests, frequently involving the violation of the home of the victim.
The victims reported “arrests for investigation”, a legal category abolished by the 1988 Constitution that aimed at increasing police accountability. The Constitution eliminated “arrests for investigation” since they were widely acknowledged as the source of excessive police discretion and violation of rights. Currently, only suspects caught in the act can be arrested without a judicial order. The files show that the Constitutional changes were not implemented at all and that the authorities entitled to the external control of the police have been so far unable to establish a mechanism of surveillance that would inhibit excessive police discretion. External control is still concentrated at the end of the line of the investigative procedures and the police have all the initiative. The control is reactive only and has been unable to work preventively. The lack of operational capabilities under the Public Ministry curtails their initiative. They are not proactive and work most of the times only on the investigative files that the police chooses to send them.
This ineffectiveness of external control has resulted in the deepening of informal and illegal procedures during the democratization process. Formally, the official statistics show that arrests for investigation were “abolished” after 1987. We can see that before the democratic Constitution, arrests for investigation in Bahia were the main category of police action, responsible for almost half of all arrests. Formally, they are not performed anymore. Informally, they are still the backbone of investigative “technique”, carrying on their tail and harboring in their shade the practice of torture.
BRAZIL AND SELECTED STATES, 1987-1989
PROPORTION OF ARRESTS PER LEGAL CATEGORY IN THE TOTAL ARRESTS
IN THE ACT
RIO DE JANEIRO 1987
RIO DE JANEIRO 1989
SÃO PAULO 1987
SÃO PAULO 1989
Source of the data: FIBGE 1988 and 1990
Furthermore, the files of the Review Board showed that the main motivation for torture is extortion and financial gain. The files suggest a particular relationship that is established between the arrested suspects and the police. The suspects are arrested, tortured usually to confess where a certain stolen good is deposited, and then released without charges. Sometime in the future, the same suspect might be arrested again by a similar reason and forced to produce the goods for the police officer’s own profit. In this way they become the police clientele, assets linking the world of crime to the officer’s own pocket. The two patterns of police criminality – the private and the one in the exercise of the public function – then appear as complementary and as part of the relationship of the police with the surrounding community.
The same thing is valid for the cases of summary executions. Most of the cases of the sample of recidivist officers happened in the same precinct situated in a neighborhood that is nowadays known for the existence of organized crime, especially drug trade. The investigative files of the Review Board reveal that the police action was in fact responsible for the very organization of crime in the area. The officers formed a death squad under the leadership of an officer known as Rambo. Distinguished by his violent and ruthless behavior, he started his career in the police after the death of two of his brothers, reportedly involved with drug dealing. Witnesses testified that he entered the force to avenge his brothers. His first actions were the elimination of the lower echelons of the drug hierarchy in the area. Although complaints were filed since the first broad daylight kidnapping and disappearance of a minor, he continued his operations protected by the police chief in the precinct. This protection consisted mainly in signing “resistance to arrest” reports that simulated armed confrontation with the victims to cover up the summary executions. Under this protection, he proceeded to murder even the top echelons and was able to assume the leadership of the trade himself. The files also suggest that the investigators at the Review Board did try to stop him, but the political connections of the police chief pre-emptied their efforts. It was after many years of running organized crime that officer Rambo was finally arrested by the Federal Police while in possession of a large amount of cocaine. The federal police were effective because they were able to act independently from the interference of the state politicians. The political interest in the maintenance of these ruthless and unruly officers in their positions is often the media circus that result from spectacular actions that are sold to the population as “tough on crime”.
The problem of recidivism appears as two-fold: on the one hand, it is the result of institutional protections given to those police officers that are especially violent, and this violence is seen as a form of bravery. On the other hand, it appears as the direct result of political influence and non-professional criteria of assigning prestige. In both cases, it is a result of the suspension of accountability.
Most of all, the research destroyed the myth that these GHRV are just the result of insufficient training or individual unruly behavior because the evidence showed the institutional support given to these practices. Both torture and summary executions can be seen as institutional practices and the existence of these policies can be deducted from several patterns of decision made by the top echelons of the Review Board:
(a) the pattern of shelving investigations of proven torture when the victim is allegedly a criminal suspect. The reviewers consistently and explicitly argued that “given the suspect’s past at the margin of the law” the investigation should be shelved;
(b) the pattern of analyzing torture as the lesser crime of “bodily injury”, not taking into account the aspects of terror and psychological suffering to which the victim is subjected. The aspects of cruelty performed against a defenseless victim and the aggravating fact that the state agent in charge of law enforcement applies these tortures build the cases as radically different from a street -fight between two equal subjects. This treatment shows not only tolerance but also the institutionalization of torture;
(c) the pattern of not investigating “resistance to arrest” cases that result in the death of the suspect, aggravated by the fact that this often happened to complainants of torture. The absence of investigation stamps a seal of approval to these practices of manipulation of legal instruments. Furthermore, the lack of protection to complaining victims is, in this context, murderous and irresponsible;
(d) the consistent pattern of long delays in the investigation and the failure to prevent the suspected officer from repeating the crime. Moreover, even the few cases that resulted in indictments tend to be either annulled by investigative defects or the statute of limitations;
(e) the general pattern of ignoring the democratic legal framework and let the authoritarian rules to remain alive. Although it could be argued that the so called “torture law” was only enacted in 1997 at the closing of my field research, the UN Special Raporteur found the same pattern still in use this year (Rodley 2001). The federal government of Brazil admitted that so far nobody has been convicted of torture in the country ;
(f) the consistent pattern of totally ignoring the Penal Procedures Code and due process. None of the cases examined presented evidence that the accused officers followed any of its rules in their everyday actions. The arrests were never communicated to the judicial authority;
(g) however, evidence also pointed some level of response to horizontal and citizen external pressures:
RESULT OF CASES OF GHRV COMPLAINTS IN RELATION TO PRESSURES FOR INVESTIGATION
Victim accused and killed
Not followed up
Victim accused and killed
Victim accused and killed
We can observe that presenting a complaint of torture can be a very risky decision, since several of the complainants lost their lives. Although there is no evidence of the relationship between complaint and murder but the pattern itself, especially because the “resistance to arrest” cases were never investigated, the pattern raises consistent suspicions. A “law of silence” imposed by the police seems to have mandatory enforcement when the victim lacks outside support. The complaints are more demands for generally acknowledged human rights than for legally-based rights. Complainants argue in terms of their perceived rights to life, to dignity, to privacy and the protection of family and household. Involved or not in petty crimes as some may be, they see themselves as worthy of basic protections due to human beings. The failure of the state to respond positively to these demands for accountability endangers democratic citizenship.
The conclusion is that the police have institutionalized and informal and illegal law through consistent enforcement to protect their illegal routines. The continuation of this procedure is dependent on the continuation of the institution’s isolation from the other powers and the society. However, this continued isolation has strong detrimental effects on the morale of the police officers and on the respect and compliance they will not be able to command from the society.
5.The limits of the dual authoritarian reason
The illegality of the police action does not validate most of the sociology of law explanatory or interpretive models, or better, points to the huge gap between different models of society. The comparison with Weber’s and Norbert Elias’s models allows for the understanding of these contrasts, and I will briefly refer to them to emphasize the difficulties and challenges that the researchers and policy makers alike face when working with the Brazilian reality.
This acknowledged illegality cannot be clearly conceived in Weber’s model which proposes the state monopoly of legitimate violence and identifies this legitimacy with the belief in the validity of the law that would subject both the governmental authorities and the citizens (Weber 1978,1, 314). For this author, the existence of rights guaranteed by the enforcement of the law creates expectations in the citizens that regularize or normalize their social relations and allows them to develop a rational calculus of the consequences of their behavior. This regularity would be an important motor of social life as these expectations would allow for the creation of habits of life that would tend to be modeled by the law given the certainty of punishment in case of transgression. The objectivity of the law, along with the regularity of its enforcement, would tend to be assimilated in the formation of the subjective behavior.
Norbert Elias (1994/1) presents a theory of the process of civilization that dates back to the formation of Absolutist State. The model suggests that the competition in the form wars among the feudal lords led to the concentration of power of just a few, in a centripetal process allowed by the concentration of land and of the means of war and taxation. The state would be then characterized by these exclusive means of waging war and taxation in a certain territory. The result is that internally the states would be pacified spaces that would in turn allow the growth of the stability of the social organization. This pacification would develop individuals who would conquer over their passions. In the passage from “the social constraint into the self-restraint” the “battlefield would move within” and the stability of the apparatus of self-restraint would correspond to the stability of the society (1994/2).
For our purposes here, it is enough to retain the importance of the role of the legal guarantee and the stability of the patterns of social constraint to the process of taming violence and pacifying human relations. When we refer to the legal guarantee, let’s emphasize once again that for Weber it is the possibility of coercion, perceived as real by the individuals in the form of the enforcement of the law that transforms the written law into a legal order. It is the enforcement of the law by the actual possibility of the application of coercion that transforms the law into law as a social reality. That is what Weber refers to as “guaranteed law”, that he distinguishes from the written law. He acknowledges that the societies can be distinguished by the laws that they enforce and the ones they don’t enforce.
The gap between the Brazilian legal system and the ideal type described by Weber created by the weak law enforcement, or worse, by the reluctance of the authorities to subject their public behavior to the law, brings a series of issues that characterize our societies. They frame the dilemmas of the “real country” as opposed the “legal country” that have occupied the attention of not a few writers. These dilemmas require an approach that understands the system of justice as a combination of formal structures and informal practices. It makes us think, with Benjamim (1996), the multiple relationships between law and violence: the violence that creates law, that enforces law, or that breaks the law. This is especially relevant when we are faced with the illegal violence of the police. We claim that this informal but systematically applied violence is a violence that intends to create law. We have here an informal practice, in opposition to the formal system, that intends to impose rules.
The result of this lack of accountability is the loss of credibility of the police institution face to the population. In turn, law enforcement is not expected and voluntary compliance is most of the times considered to be a foolish behavior. An extensive opinion survey made in Bahia in 1997 (Noronha, Machado et al) showed the low prestige of the institutions of justice:
METROPOLITAN AREA OF SALVADOR, 1997
APPROVAL FOR INSTITUTIONS OF JUSTICE AND SECURITY BY EDUCATIONAL LEVEL
Source of the data: Noronha, Machado et al 1997.
This low credibility is further confirmed by the low support to police illegal discretionary practices. The survey shows that the claim that the police act on a public mandate when exercising illegal violence to be “tough on crime” is not warranted.
METROPOLITAN AREA OF SALVADOR, 1997
SUPPORT FOR STATE VIOLENCE ACCORDING TO EDUCATIONAL LEVEL
IMPRISONMENT OF STREET KIDS
RIGHT TO INVADE HOUSES WITHOUT MANDATE
RIGHT TO DETAIN YOUNGSTERS BY THEIR APPEARANCE
RIGHT TO TORTURE
Source of the data: Noronha, Machado et al 1997.
The reverse of the coin is that the population thinks that it is legitimate to take the law in their own hands. While they do not approve of police violence or expect the institutions of justice to act on their behalf in the mediation of conflicts, direct violent response is assumed to be the correct way to address wrongs suffered.
METROPOLITAN AREA OF SALVADOR, 1997
SUPPORT FOR INTERPERSONAL PRIVATE VIOLENCE BY EDUCATIONAL LEVEL
INSULT LINE BRAKERS
INJURE THOSE WHO TAKE SPOUSE
KILL DAUGHTER’S RAPER
KILL THOSE WHO THREATEN COMMUNITY
KILL TO DEFEND FAMILY
KILL TO DEFEND PROPERTY
JUSTICE WITH ONE’S OWN HANDS
Source of the Data: Source of the data: Noronha, Machado et al 1997.
*Technical education in Brazil usually corresponds to high school.
Other attitudes reflect confusion and ambiguity (Machado and Noronha 2001). Even more radical, some poor communities do prefer the criminals and see them as a lesser evil because they are more connected to everyday life and therefore are more accountable than the violent and always predatory police. (Shirley 1996). Moreover, police criminality supports the legitimization of crime itself as part of a whole unfair and unequal society.
This state of affairs has been maintained through external repression on the citizen demands and internal repression on the police union organization. This low prestige of the police amongst the population and the state government’s attitude of covering up the low quality of justice it is able to provide has had an extremely detrimental effect on the morale of the police forces. Police salaries are very low and the levels of technical support they have to develop their work is dismal. Dissatisfaction with this situation – which is widespread in most of the country – has resulted in continuing police strikes all over the country that broke out since 1997, with mixed results depending on the sensibility of the different state authorities in relation to the legitimacy of police claims. In several cases, police strikes have resulted in deaths and wounded. The power structure in Bahia has been one of the most insensitive of all, and the response has always been more violent repression. The situation of absence of dialogue within the police institution has been aggravated by the perceived prerogatives and the privileges to which the top echelons are entitled as a reward to political loyalty to the conservative rulers in contrast to the harsh treatment offered to the low ranks.
The crumbling down of the power structure in Bahia started in late May when the political boss of Bahia and an ally of the president had to resign his post as president of the Senate after being found violating the voting panel in the Senate. The less than honest way of handling his machine politics was exposed. This shameful conduct and the consequent loss of prestige of the senior Bahian conservative leader were a boost to the long-repressed opposition. A month later, in July, the military police in Bahia started a strike and occupied four headquarters in the capital. The strike was adhered to by all the other police forces, including the firemen who are under the military police command. The policing of the capital was entirely suspended and the effects of this suspension were soon to be felt. The oppressed population reacted with fury and ransacked stores with violence, even carrying away truckloads of goods. Salvador faced days of chaos and fear. Banks and stores were closed, people were afraid of going out and hid in the safety of their homes. Some looters were lynched. The images of the rebelled police officers in the occupied headquarters, wearing masks not to be identified and showing their guns high in the air scared the country. The president sent in two thousand army troops that could not do much since they did not policing training. The state government then decided to negotiate and a settlement was reached a few days later and the strike was over after two weeks. The government also agreed to release from jail the leaders of the movement who had been kidnapped, tortured and arrested.
The federal government, under the influence of the military who still exert behind-the-scenes intimidation (Zaverucha 2000), decided to issue an extremely harsh set of laws to entirely ban and severely punish police strikes. The package went to the Legislative, and the Human Rights Committee decided to call the minister of Justice and the military minister directly connected to the President for questioning. In the meantime, the police associations all over the country started to respond with more organization, research, exchange of information and alternative legislative proposals. On August 18, the united leaders of the Bahia strike organized a colloquium at the Bar Association in Salvador, with support of the Worker’s Party. A complete inversion of the attitudes and discourse took place. Those who had used violence in their strike, adopted a pacifist discourse, and demanded that THEIR human rights be respected. The rights to a life of dignity were the main claim. They argued that before being police officers, they were human beings, and family men and women, with rights not only to a fair pay, but also rights to be respected and honored in their job. The unfairness of the political control they were suffering was exposed and rejected: they wanted modernization and professionalism in the context of broad reforms of the security services. They asked for a separate Ministry of Public Security and the end of a militarized and divided police force. Democracy might not have come to the police yet, however democratic leaders are coming from the entrails of authoritarianism and proposing a new society. Military police sergeant Isidoro, one of the leaders of the rebellion, so expressed himself:
We asked for demilitarization, we asked for unification, we asked to have the discussion of human rights inside the Military Police, since we are not only suffering with the problem of low salaries. It is not just about money, we want respect, we want to be treated as human beings and not like robocops who don’t need to eat, don’t need salaries, don’t have a wife or children. We are not robots, we are real people. The problem is that the human rights cannot penetrate the [police] headquarters, so the headquarters should be transformed into daycare centers, in asylums, should be transformed into community centers…(Speech at Lawyers’ Bar Association, Salvador, August 18, 2001)
This paper showed that the consolidation of democracy is still a distant project. Transition is still under way, as the authoritarian residues have developed their own protective devices. These mechanisms construct the police as a schizophrenic institution, one face looking melancholically towards the authoritarian past, the other timidly with an eye to the possibility of a democratic future.
The costs of these protective instruments are extremely high for the police and the citizenship alike. The inconsistencies, contradictions and ambiguities destroy the possibility of law enforcement as mediation of conflicts. The violence that results is unbearable for all the actors involved. Moreover, by isolating itself and blocking accountability, the police shares with no one the burden of producing justice and carries the heavy weight of its failures alone. The system of false truths and make believe is coming to a point of not being able to accommodate its own tensions.
The most outstanding evidence of this probable implosion is the emergence of the human rights discourse as a discourse of the police articulated by the anger of those who have acknowledged that it is only as full citizens entitled to rights that they will be able to protect the rights of others. For the first time in its history, the lower ranks of the police voluntarily wish to share their destiny with the workers, the discriminated against, the underprivileged. With this strength, they confront the authoritarian ban on their civil and political organization. As officer Agnaldo Pinho put it:
With the same dedication that we combat crime, we will still be stopping [work] to demand and defend the rights of our citizenship (Speech, Lawyer’s Bar Association, Salvador, August 18, 2001.
Adorno, Sergio, «Racial Discrimination and Criminal Justice in São Paulo» in Rebecca Reichmann, ed. Race in Contemporary Brazil: From Indifference to Inequality, University Park, Penn, The Pennsylvania State University Press, 1999, p. 123-138.
Prepared for delivery at the 2001 Meeting of the Latin American Studies Association, Washington DC, September 6-8, 2001