Police Killings and the Rule of Law in

Police Killings and the Rule of Law in São Paulo (with a glance at other places) Daniel M. Brinks Government Department danbrinks@gov. utexas. edu

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:

The Process of Adjudication Schematic representation of adjudication in a murder case r o' Not Murder r' o Murder 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) A function of each actor’s position and role in the legal process Ordering of preferences in police homicide cases – São Paulo Claimant/ Advocate Inv. Police Prosecutor Judge Mil. Police Prosecutor Defendant Not Murder Ordering of preferences in ordinary homicide cases Claimant/ Advocate Not Murder Inv. Police Prosecutor Judge Defendant Murder

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) Claimant/ Advocate Not Murder Judge Mil Police Prosecutor Defendant Murder

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

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

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

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

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 r – o' r' o in Buenos Aires Not Murder Informational Normative Shift – o ' (Informal r r' In São Paulo o Institution) Not Murder – Murder o'(no$) r r' shifts o'($) Drastic Informational In Córdoba o Not Murder – Informationalr shifts r' when claimants lack resources In Uruguay Not Murder – Murder o' Little informational or normative shifting, but potential for informational failures r In Salvador o Not Murder o' o r' Murder Normative Shift (Informal Institution)

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 – rr r' r' they benefit from normative shifts Constitution Not Murder rr r' r' Murder Legislation Courts Prosecutors Not Not Murder rr r' r' Murder Not Murder rr r' r' Murder Police, etc. Not 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) r o'r' o Courts Not Murder r o' r' o Prosecutors Not Murder r o' o r' Mil. Police Not Murder

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

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