Police Killings and the Rule of Law in São Paulo (with a glance at other places) Daniel M. Brinks Government Department [email protected].

Police Killings and the Rule of Law in São Paulo

(with a glance at other places)

Daniel M. BrinksGovernment Department

[email protected]

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?

The gap:

Average police homicide and conviction rates

0

1

2

3

4

5

6

7

Uruguay Córdoba BuenosAires

São Paulo Salvador

ho

mic

ide

s/1

00k

0.00

0.10

0.20

0.30

0.40

0.50

pro

po

rtio

n o

f ca

se

s t

hat

en

d

in c

on

vict

ion

per capita police homicides Conviction rates

The Process of Adjudication

Not Murder Murder

Schematic representation of adjudication in a murder case

r r'r'o'o' o

1) Normative Shift (Informal Institution)

2) Informational shift

The construction of r' in Routine Policing cases: 1) the starting point is given by endogenous incentives (incentives internal to the legal process)

Inv. Police Prosecutor

Ordering of preferences in police homicide cases – São Paulo

MurderNot Murder

Claimant/ Advocate

Judge Mil. PoliceProsecutor Defendant

A function of each actor’s position and role in the legal process

Claimant/ Advocate

Ordering of preferences in ordinary homicide cases

MurderNot Murder

Inv. Police ProsecutorJudge

Defendant

The construction of r' (cont.): 2) exogenous (career and political) incentives

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)

MurderNot Murder

Defendant

A function of the socio-political context, and the institution’s (actor’s) permeability to that context

Claimant/ Advocate

JudgeProsecutor

Mil Police

The construction of o' in São Paulo

rr'r' o'o'o

Not Murder Murder

Claimants/Others

r r'r'o'o' o

Not Murder Murder

Mil. Police

o'o'r r'r' o

Not Murder Murder

Prosecutors

r r'r'o'o' o

Not Murder Murder

Courts

• 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

Example: Shooting in a bar

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

• 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

Question: Why can’t victims’ advocates correct o'?Informational shifts result from social, political,

economic exclusion of victims

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

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

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

Routine Policing cases in each city/country

– in Buenos Aires

– In São Paulo

– In Córdoba

– In Uruguay

– In Salvador

Not Murder Murder

r o ' r' o

Not Murder Murder

o ' r r' o

Not Murder Murder

r r' o' o

Not Murder Murder

r o' o r'

Not Murder Murder

o'(no$) r r' o'($) o

Normative Shift (Informal Institution)

Informational Shift

Drastic Informational shifts

Informational shifts when claimants lack resources

Normative Shift (Informal Institution)

Little informational or normative shifting, but potential for informational failures

r r'r'

Not Murder Murder

Constitution

r r'r'

Not Murder Murder

Prosecutors

r r'r'

Not Murder Murder

Police, etc.

r r'r'

Not Murder Murder

Courts

r r'r'

Not Murder Murder

Legislation

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 shiftsr r'r'

Not Murder Murder

Constitution

r r'r'

Not Murder Murder

Prosecutors

r r'r'

Not Murder Murder

Police, etc.

r r'r'

Not Murder Murder

Courts

r r'r'

Not Murder Murder

Legislation

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)

o'o'

o'o' o

r r'r' o

r'r'r

Not Murder Murder

Courts

Not Murder Murder

Prosecutors

r r'r'o'o' o

Not Murder Murder

Mil. Police

o'o'

o'o'

o'o'

Not Murder Murder

Courts

Not Murder Murder

Prosecutors

Not Murder Murder

Mil. Police

r

r

r

r'r'

r'r'

r'r'

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

Institutional Map São Paulo

The gap between law and practice

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

Functional Map São Paulo

Effectiveness, Inequality, and Tolls

Return

Index

Snapshot of all cities

Punch Line 1: Informational shift

Punch Line 2: Normative shift

Functional Map Buenos Aires