‘Knowledge production, framing and criminal justice reform in Latin America’ Journal of Latin...

COMMENTARY

Knowledge Production Framing andCriminal Justice Reform in LatinAmerica

FIONA MACAULAY

Abstract This commentary surveys some of the trends and gaps in current researchon criminal justice reform in Latin America ndash with a focus on Brazil and on twospecific areas police and prisonpenal reform It explores two principal themes theuneven and thin production of knowledge about criminal justice issues and theimpact this has on policy reforms and on the ways in which these are framed andinterpreted in terms of their relative success and failure Overall it argues that we stillknow very little about criminal justice institutions and the actors within them Wealso need many more finely-grained analyses of the dynamics of reform efforts andof the policy environments in which these take place in order to understand howand why reform initiatives are often derailed or subverted and more rarely flourishand can be embedded and replicated

Keywords knowledge production criminal justice police and prison reform policyformation Brazil

On 12 May 2006 the population of Sao Paulo found itself held captive by a

criminal network that the prison system was supposed to have incapacitated

Transfixed and terrified the city witnessed several days of unprecedented

violence and destruction orchestrated by the statersquos major organised crime

gang the Primeiro Comando da Capital (PCC) The PCCrsquos leaders most of

whom were serving jail terms in high security units used their mobile

phones control of these units and influence over networks of lsquomembers rsquo

outside the prison to initiate a series of co-ordinated riots and hostage-taking

in 82 prisons across the state and in neighbouring states and to attack

criminal justice and economic targets in the city1

Fiona Macaulay is Senior Lecturer in Development Studies at the Department of PeaceStudies University of Bradford

I would like to thank the JLAS editors for their valuable input on this article1 The PCC was responsible for further violence in July and August 2006 A similar attack onpolice installations was ordered by imprisoned leaders of the Comando Vermelho criminal

J Lat Amer Stud 39 627ndash651 f 2007 Cambridge University Press 627doi101017S0022216X07002866 Printed in the United Kingdom

available at httpswwwcambridgeorgcoreterms httpsdoiorg101017S0022216X07002866Downloaded from httpswwwcambridgeorgcore University of Bradford on 13 Feb 2017 at 104748 subject to the Cambridge Core terms of use

The PCC violence demonstrated dramatically the threats that organised

(and disorganised) crime violence and dysfunctional justice systems pose to

economic growth social stability democracy and citizen security in the re-

gion In just one week it had left 170 dead after the gang carried out nearly

300 attacks on property including the homes of police officers banks

ATMs subway stations and bus garages leaving scores of buses burnt or

damaged On the worst day Monday 15 May Brazilrsquos economic and political

hub was virtually paralysed at untold economic cost as the public transport

system ground to a halt causing nearly 200 km of gridlock when businesses

and educational establishments closed early and wild rumours circulated of a

mass gang assault or of a police curfew at dusk

Leading sociologists have identified rising crime as a central feature

of urban society in Latin America associated with growing socioeconomic

inequality since the 1980s2 A 1999 Inter-American Development Bank

(IADB) report put the economic cost of crime and violence at 142 per cent

of the regionrsquos GDP3 More localised studies estimate the direct cost of crime

in Brazilian cities and states at between three and five per cent of annual

GDP4 Why then despite these enormous and multiple costs and the periodic

occurrence of such critical incidents has policy to control crime lagged be-

hind on the radar of external agencies as well as national governments5 Why

did this wave of terror take both state and federal authorities completely by

surprise How could an organisation such as the PCC be incubated within

the very prison system intended to contain and suppress criminal networks

The PCC episode exposes many of the fault lines in the criminal justice

system in Brazil and in the region The first is a paucity of reliable knowledge

network in Rio de Janeiro in late December 2006 aimed at intimidating the incoming stategovernment

2 Alejandro Portes and Kelly Hoffman lsquoLatin American Class Structures Their Compositionand Change during the Neoliberal Era rsquo Latin American Research Review vol 38 no 1 (2003)pp 41ndash82 esp pp 66ndash70 Alejandro Portes and Bryan R Roberts lsquoThe Free-Market City Latin American Urbanization in the Years of the Neoliberal Experiment rsquo Studies inComparative International Development vol 40 no 1 (2005) pp 43ndash82 esp pp 67ndash76

3 Mayra Buvinic Andrew Morrison and Michael Shifter Violence in Latin America and theCaribbean A Framework for Action (Washington DC 1999) See also Pablo FajnzylberDaniel Lederman and Norman Loayza (eds) Crimen y violencia en America Latina (Bogota andWashington DC 2001) esp chapter one

4 World Bank Crime Violence and Economic Development in Brazil Elements for Effective PublicPolicy (Washington DC 2006)

5 Although the Brazilian business sector is alarmed by these costs the legacy of corporatismhas prevented it from pressurising the federal government with a united front That saidbusiness associations in both Rio de Janeiro and Sao Paulo have supported local initiativesto reduce crime and violence supporting the work of Viva Rio and the Instituto Sao PauloContra a Violencia See Paulo Mesquita lsquoPublic-Private Partnerships for Police Reform inBrazil rsquo in John Bailey and Lucıa Dammert (eds) Public Security and Police Reform in theAmericas (Pittsburgh PA 2006) pp 44ndash57

628 Fiona Macaulay


about the criminal justice institutions especially the police and prison

services and about those who work within ndash and are subject to ndash them The

second concerns the way in which partial forms of knowledge that exist

about the criminal justice system influence the active and passive policy

choices made by politicians and public employees sometimes with disastrous

results

This commentary focuses on Brazil in order to explore wider issues

about criminal justice knowledge production and policy formation that

are common across the region6 In some ways the problems that Brazil

faces in criminal justice reform are typical of those of many of its neigh-

bours lack of reliable empirical data (both quantitative and qualitative)

police forces that are institutionally fragmented perform poorly in terms

of crime fighting corruption and human rights protection and yet are re-

sistant to change and a neglected prison system In other respects Brazil

exists at one end of a regional spectrum It is the largest country in terms of

landmass and population has the highest absolute number of police pris-

oners prisons and murders as well as the highest homicide rate for any

country not involved in civil conflict whilst management of its criminal

justice system is complicated by federalism as it is in Argentina and Mexico

However these very challenges have stimulated the growth of a now rela-

tively diverse and extensive epistemic and policy community This has

emerged through different levels of government in which a degree of policy

innovation has been possible7 and through a large and diverse university

system and NGO sector Their research often a reflection of concrete ex-

perience in these multiple policy spaces points both to the potential of

knowledge production to enhance criminal justice policy and to its current

limitations

Justice sector knowledge production

Both Linn Hammergren and Thomas Carothers note that in the rush to

promote rule of law and judiciary reform in Latin America during the 1990s

reformers domestic and international relied on a lsquodisturbingly thin base of

6 This commentary focuses on criminal justice institutions rather than on the etiology ofcrime and violence per se on which there is a distinct and growing literature

7 Brazil pioneered womenrsquos police stations over 300 of these are now in operation and themodel has been copied in Peru Argentina Uruguay Colombia Nicaragua and Ecuador SeeCecilia MacDowell Santos Womenrsquos Police Stations Gender Violence and Justice in Sao PauloBrazil (Basingstoke 2005) It was also the first to set up independent police ombudsmanrsquosoffices (ouvidorias) See Julita Lemgruber Leonarda Musumeci and Ignacio Cano Quem vigiaos vigias Um estudo sobre controle externo da polıcia no Brasil (Rio de Janeiro 2003)

Knowledge Production Framing and Criminal Justice Reform in Latin America 629


knowledge at every level rsquo8 Critical evaluations of judicial reform initiatives in

Latin America over the last two decades whether promoted by domestic

or international actors show that unreflective policy transfer has often

occurred involving inappropriate and imported institutional templates rather

than empirically grounded analyses of identified problems9 The same

problem affects the institutional and operational reforms of the criminal

justice system In the aftermath of the PCC onslaught it became evident how

little reliable information and institutional consensus existed about this

clandestine grouping10 Beyond the established facts of the grouprsquos birth and

growth within the prison system11 much of the systemrsquos lsquo intelligence rsquo about

the gang seemed to be little more than smoke and mirrors12 There were

major disagreements between the state prison authorities and the police and

prosecutors investigating the gang over questions as basic as the number of

prisons in which it had influence the proportion of prisoners supporting it

and income provided by an unknown number of affiliates outside prison13

Such an information gap can be calamitous as it paralyses any possibility of

effective policy response

While it is perhaps unsurprising that knowledge about the operation of

criminal networks remains insufficient knowledge production on Latin

Americarsquos justice systems is also extremely patchy14 In the 1980s the judicial

branch began to attract attention for the first time in decades firstly

in relation to its role in challenging or colluding with the human rights

violations that had occurred under military rule and secondly regarding the

8 Thomas Carothers Promoting the Rule of Law Abroad The Problem of Knowledge (WashingtonDC 2003) p 13 Linn Hammergren lsquo International Assistance to Latin American JusticePrograms Towards an Agenda for Reforming the Reformers rsquo in Erik Jensen and ThomasHeller (eds) Beyond Common Knowledge Empirical Approaches to the Rule of Law (Stanford2002) pp 290ndash335

9 Luis Salas lsquoFrom Law and Development to Rule of Law New and Old Issues in JusticeReform in Latin America rsquo in Pilar Domingo and Rachel Sieder (eds) Rule of Law in LatinAmerica The International Promotion of Judicial Reform (London 2001) pp 17ndash46

10 Available literature is by journalists Carlos Amorim CV PCC A irmandade do crime (SaoPaulo 2003) Marcio Christino Por dentro do crime corrupcao trafico PCC (Sao Paulo 2003) and Percival de Souza O sindicato do crime PCC e outros grupos (Sao Paulo 2006) In additionthe progressive magazine Caros Amigos had been conducting a long piece of investigativejournalism which it rushed onto the newsstands when the riot broke out (Edicao Extra 10(28) May 2006) It sold out in days

11 It began in 1993 inside the Casa de Custodia in Taubate Sao Paulo as an inmatesrsquo union todemand better conditions of detention following the Carandiru massacre

12 Personal communication from a human rights team from Brazil USA and UK investigatingthe PCC episode

13 Estimates of membership ranged from eight to 80 per cent of prisoners in Sao Paulo state14 On the neglect of Latin Americarsquos judiciary branch see Jorge Correa Sutil lsquo Judicial Reforms

in Latin America Good News for the Underprivileged rsquo in Juan E Mendez Paulo SergioPinheiro and Guillermo OrsquoDonnell (eds) (Un)Rule of Law and the Underprivileged in LatinAmerica (South Bend 1999) pp 255ndash77

630 Fiona Macaulay


degree to which its stance in any attempted prosecution of human rights

violators was likely to deepen or destabilise the emergent democracies15 As

the transitions to democracy generally occurred in conjunction with or

subsequent to structural adjustment the modernisation perspective of the

1960s Law and Development movement re-appeared this time led by in-

ternational financial and development institutions pushing for a lsquo second

waversquo of governance reforms aimed at embedding the neo-liberal economic

reforms16 The continentrsquos sclerotic corrupt politicised and incompetent

judiciaries were regarded as a brake on economic growth for failing to provi-

de a stable predictable environment attractive to foreign investment

External actors such as the World Bank IADB and USAID poured money

into certain countries of the region in pursuit of reforms ranging from

computerisation of court records alternative dispute resolution (mainly in

the civil and commercial fields) more independent supreme courts and

strengthened powers of constitutional review that would render the judicial

branch more independent and efficient and offset excessive presidential

power17

From rule of law to policing

Nevertheless this first wave of judicial reform barely touched the criminal

justice arena despite the key role that the judiciary plays both in processing

and sentencing criminal suspects protecting detaineesrsquo civil liberties and

resolving social conflict A second stage of judicial reforms promoted in the

mid-1990s introduced structural changes in order to democratise access to

judicial arenas creating a multitude of small claims courts and mediation

projects to divert minor criminal disputes away from the mainstream courts

Reforms of the penal code and codes of criminal procedure were undertaken

in a number of countries the most wholesale of which was Chilersquos im-

plemented in 2000ndash5 and involving new guarantees for prisoners and the

creation of that countryrsquos first prosecutorrsquos office18

15 Irwin Stotzky Transitions to Democracy in Latin America The Role of the Judiciary (Boulder1993) Mark Osiel lsquoDialogue with Dictators Judicial resistance to Authoritarianism inBrazil and Argentina rsquo Law and Social Inquiry vol 20 no 2 (1995) pp 481ndash560

16 Salas lsquoFrom Law and Development to Rule of Lawrsquo17 Pilar Domingo and Rachel Sieder (eds) Rule of Law in Latin America The InternationalPromotion of Judicial Reform (London 2001) Linn Hammergren lsquoFifteen Years of JudicialReform in Latin America Where we are and why we havenrsquot made more progress rsquo(unpublished ms 2002) Inter-American Development Bank Justice Reform in Latin America The Role of the Inter-American Development Bank Report WP 203 (Washington DC 2003)

18 Linn Hammergren The Politics of Justice and Justice Reform in Latin America The Peruvian Case inComparative Perspective (Boulder 1998) Julio B J Maier Kai Ambos and Jan Woischnik Lasreformas procesales penales en America Latina (Buenos Aires 2000)



However the lsquodirtier rsquo aspects of policing criminal process sentencing

and detention were left untouched for fear of encroaching on the arena of

internal security over which many of the regionrsquos militaries continued to

retain considerable political and operational influence This control had been

protected through the negotiated transitions to democratic rule Civilian

politicians were primarily concerned to return armed forces to barracks and

place them under civilian control Decoupling police forces from the military

organisational structure rarely entered the agenda For the armed forces it

was convenient to retain some control over this fourth branch giving them

leverage over internal security and a buffer against calls to revoke amnesty

laws which also protected militarised police forces from investigations and

prosecution for politically-motivated human rights abuses19 The main ex-

ceptions are the cases of Guatemala and El Salvador where the external

actors in the UN-assisted peace processes of the 1990s added police reform

to the post-conflict reconstruction agenda20 Perursquos 2002 police reform also

took place in the context of democratic transition following the end of civil

war in that country21 Brazilrsquos police forces like many in the region were

subordinated to the armed forces during the dictatorship of 1964ndash84 and

learnt counter-insurgency techniques such as extra-judicial executions death

squad activity torture and lsquodisappearance rsquo which they employed against

criminal suspects or social undesirables The new Constitution of 1988 left

the police untouched with the Military Police (the bulk of the countryrsquos

forces) protected by the Military Courts There was no purging of the ranks

restructuring and re-training ensuring a continuity of operational practices

and culture through the military and democratic periods

That said academic interest in criminal justice matters increased in re-

sponse to the apparent eruption of common crime and violence in the post-

authoritarian period This prompted a new literature focused on policing and

19 Jorge Zaverucha lsquoFragile Democracy The Militarization of Public Security in Brazil rsquo LatinAmerican Perspectives vol 27 no 3 (2000) pp 8ndash31 Anthony W Pereira and Diane E DavislsquoNew Patterns of Militarized Violence and Coercion in the Americas rsquo Latin AmericanPerspectives vol 27 no 2 (2000) pp 3ndash17

20 Charles Call lsquoDemocratisation War and State-building Constructing the Rule of Law inEl Salvador rsquo Journal of Latin American Studies vol 35 no 4 (2003) pp 827ndash62 MargaretPopkin Peace without Justice Obstacles to Building the Rule of Law in El Salvador (University Park2000) Marie-Louise Glebbeek lsquoPolice Reform and the Peace Process in Guatemala TheFifth Promotion of the National Civilian Police rsquo Bulletin of Latin American Research vol 20no 4 (2001) pp 409ndash30 William Stanley lsquo International Tutelage and Domestic PoliticalWill Building a New Civilian Police Force in El Salvador rsquo in Otwin Marenin (ed) PolicingChange Changing Police International Perspectives (New York 1996) pp 37ndash77 and lsquoBuildingNew Police Forces in El Salvador and Guatemala Learning and Counter-learning rsquo in TorTanke Holm and Espen Barth Eide (eds) Peacebuilding and Police Reform (London 2000)pp 113ndash34

21 Gino Costa and Rachel Neild lsquoPolice reform in Peru rsquo Australian and New Zealand Journal ofCriminology vol 38 no 2 (2005) pp 216ndash29

632 Fiona Macaulay


rule of law with Chevignyrsquos comparative study of police violence in

Brazil Argentina and the United States a benchmark text22 Researchers in

the region ndash who were generally located in non-governmental research

centres ndash concentrated their initial efforts on meticulously documenting

systematic gross human rights violations by police in order to make a

political point that was common knowledge yet routinely denied by govern-

ments that the post-democratisation police forces in the region were not

only inept in combating crime and violence but were actively contributing to

these problems23 In the police raids that followed the PCC violence well

over 100 alleged PCC members were shot dead by the Sao Paulo police

whilst in 2007 Rio de Janeiro police responded to New Year violence

unleashed by the Comando Vermelho (CV) gang by reportedly forming their

own Comando Azul death-squad thus further undermining the rule of law and

legality of force In the last two decades in Sao Paulo and Rio de Janeiro

military police killings of civilians most of whom have no prior criminal

records have accounted for around ten per cent of homicides annually

despite fluctuations reflecting periodic reform attempts24

This literature fed into a broad set of concerns about impunity for human

rights violators the hyper-punity suffered by the poor and the marginalised

the long-entrenched duality and discrimination within the justice system and

the threat of unrule of law to fragile new democracies OrsquoDonnellrsquos ideas25

about horizontal systemic accountability and areas of lawlessness within

modern Latin American states inspired a new generation of studies26 The

PCCrsquos apparent capacity to control prisons over a wide territory and coor-

dinate attacks on the state from within the latterrsquos repressive apparatus seems

to confirm the hypothesis of parallel powers filling the lsquogrey rsquo vacuum of state

power This was first developed in relation to the drug barons of Riorsquos shanty

22 Paul Chevigny Edge of the Knife Police Violence in the Americas (New York 1995)23 The pioneering study of military police killings of civilians in Sao Paulo from 1970ndash1992was Caco Barcellos Rota 66 A historia da polıcia que mata (Sao Paulo 1992) Via painstakinganalysis of court and hospital records of civilians Barcellos revealed that 65 per cent ofthose killed in police lsquoshoot-outs rsquo had no prior criminal record a methodology later re-produced in Rio de Janeiro ndash see Ignacio Cano Letalidade da acao policial no Rio de Janeiro aatuacao da justica militar (Rio de Janeiro 1999) Similar documentation was produced by thehuman rights groups-turned-think-tank Centro de Estudios Legales y Sociales (CELS) inArgentina led by Gustavo Palmieri and Centro de Estudios para el Desarrollo (CED) inChile 24 According to data available from the police ombudsmanrsquos offices in both cities

25 Mendez Pinheiro and OrsquoDonnell (Un)Rule of Law26 Daniel Brinks lsquo Informal Institutions and the Rule of Law The Judicial Response to StateKillings in Buenos Aires and Sao Paulo in the 1990s rsquo Comparative Politics vol 36 no 1(2003) pp 1ndash19 Kees Koonings and Dirk Kruijt (eds) Armed Actors Organised Violence andState Failure in Latin America (London 2004) and Fractured Cities Social Exclusion UrbanViolence and Contested Spaces in Latin America (London 2006)



towns but the PCC violence has prompted discussion of a rhizomic spread

of such extra-systemic networks ndash from Colombia to Rio via the drugs

trade and from Rio to Sao Paulo via the prison system and contraband

networks Indeed much of the shock occasioned by the PCC violence was

that it had occurred not in Rio de Janeiro now a byword for crime and

disorder but rather in Sao Paulo27

The majority of studies of the regionrsquos police per se have tended to focus

upon the consequences of institutional dysfunction the roots of which are

generally located in the circumstances ideologies and power relations at-

tending the policersquos formation organisation and subsequent development

Argentinarsquos and Brazilrsquos police forces have attracted much attention for their

sheer dysfunctionality in the mega cities of Buenos Aires Rio de Janeiro and

Sao Paulo They are plagued by a number of ills including corruption

militarised hierarchies organisational culture and training prejudice- rather

than intelligence-led policing practices lack of independent external over-

sight and high levels of human rights abuses under democratic conditions28

The literature on Mexico has tended to be dominated by transnational fac-

tors such as drugs which have shaped the terms of the debate29 whilst

Boliviarsquos police are only now beginning to receive assistance not related to

the lsquowar on drugs rsquo30 Some countriesrsquo police forces have received almost no

attention the absence of egregious human rights violations in Costa Rica and

Uruguay has left them largely unstudied31 Equally the idea of Chilean ex-

ceptionalism was until recently so strong that the Carabineros were con-

sidered fully rehabilitated scoring the highest public approval rating in the

continent Continued human rights abuses in Chile even if at a much lower

27 A key early study is Elizabeth Leeds lsquoCocaine and Parallel Politics in the Brazilian UrbanPeriphery Constraints on Local-level Democratization rsquo Latin American Research Reviewvol 31 no 3 (1996) pp 47ndash85 See also Enrique Desmond AriasDrugs and Democracy in Riode Janeiro Trafficking Social Networks and Public Security (Chapel Hill 2006)

28 Laura Kalmanowiecki lsquoPolice Politics and Repression in Modern Argentina rsquo in Carlos AAguirre and Robert Buffington (eds) Reconstructing Criminality in Latin America (WilmingtonDel 2000) pp 195ndash217 Ruth Stanley lsquoThe Remilitarization of Internal Security inArgentina rsquo in Stanley (ed) Gewalt und Konflikt in einer Globalisierten Welt (Wiesbaden 2001)pp 125ndash50 Mercedes Hinton The State on the Streets Police and Politics in Argentina and Brazil(Boulder 2006)

29 However Diane Davis has suggested that politics not drugs has shaped the recent policereform agenda in Mexico lsquoUndermining the Rule of Law Democratization and the DarkSide of Police Reform in Mexico rsquo Latin American Politics and Society vol 48 no 1 (2006)pp 55ndash86

30 John Bailey and Jorge Chabat (eds) Transnational Crime and Public Security Challenges toMexico and the United States (San Diego 2002)

31 The University of Utrechtrsquos School of Human Rights has a developing research group onpolicing and human rights in Latin America with some focus on the regionrsquos smaller andless lsquoproblematic rsquo police forces

634 Fiona Macaulay


level than during the military regime and in comparison to neighbouring

countries32 were obscured from view by their agenda-setting power helped

by allies on the political right Nonetheless there have been some notable

cases of positive reform even if these have not been sustained over the long

term for example in El Salvador and Peru33 However Colombiarsquos suc-

cessful police reform has gone largely unanalysed due to its incrementalism

and municipal-based character34 and the urgency of other security sector

concerns in a context of civil war and paramilitary activity In Venezuela

equally political upheavals have crowded out interest in the criminal justice

system despite that countryrsquos soaring crime rates in the midst of a pro-

claimed social revolution35

Prisons the final link in the chain

If the judicial branch was for many years the lsquoCinderella of government rsquo36

then the prison system remains the lsquoUgly Sister rsquo of the criminal justice sys-

tem The fourth link in the institutional chain (after the police prosecution

service and judiciary)37 it has elicited virtually zero academic interest Across

Latin America a prisons policy network barely exists38 and the few diagnoses

of national prison systems are generally conducted by the same human rights

groups and think-tanks working on policing issues Much of the substantial

32 The Carabineros are estimated to have committed round one third of the regimersquos grosshuman rights violations See Claudio Fuentes Contesting the Iron Fist Advocacy Networks andPolice Violence in Democratic Argentina and Chile (New York 2004) also research by LucıaDammert at FLACSO and Hugo Fruhling at the Centro de Estudios de SeguridadCiudadano (CESC) at the Universidad de Chile

33 See Call lsquoDemocratisation War and State-building rsquo and Popkin Peace without Justice on ElSalvador Gino Costa lsquoTwo Steps Forward One and a Half Steps Back Police Reform inPeru 2001ndash2004 rsquo Civil Wars vol 8 no 2 (2006) pp 215ndash30

34 Colombia has three metropolitan police forces in Medellın Bogota and Calı35 An exception is Christopher Birkbeck and Luis Gerardo Gabaldonrsquos work on police use offorce and penal policy carried out at the Universidad de los Andes

36 Luz Estella Nagle lsquoThe Cinderella of Government Judicial Reform in Latin America rsquoCalifornia Western International Law Journal vol 30 no 2 (2000) pp 345ndash80

37 This article does not address the question of the prosecution service which is a key insti-tution and interface between the police and courts The literature on this body is relativelysophisticated in Brazil given the institutionrsquos acquisition of greatly enhanced powers andautonomy in the 1988 Constitution However the Ministerio Publico is far more zealous inits pursuit of misdemeanours by public officials and institutions than it is in pursuingcriminal justice system reform because its intermediary role and autonomy bring it intocompetition with the other criminal justice institutions with regard to both policy debatesand power over criminal justice data and alleged offenders

38 Mark Ungar lsquoPrisons and Politics in Contemporary Latin America rsquoHuman Rights Quarterlyvol 25 no 4 (2003) pp 909ndash34 Assisted by the Ford Foundation Ungar has tried to bringtogether a regional epistemicpolicy community



empirical data on the regionrsquos prison systems has been produced by the

international community for example Human Rights Watchrsquos dedicated

prison research unit39 the offices of the United Nations Latin American

Institute for the Prevention of Crime and the Treatment of Offenders in

Costa Rica and Brazil the Inter-American Commission on Human Rights

(IACHR) and by various UN treaty bodies and special rapporteurs40 As a

consequence of the continentrsquos intellectual traditions and civil law system

Latin American writing on prisons has been almost exclusively the province

of academic jurists proceeding from a positivist perspective and musing

over the finer technical and theoretical points of the criminal code criminal

procedural code and the penal execution law even in relation to concrete

policy issues such as prison privatisation Honourable exceptions are a

cluster of empirical studies that appeared in the second half of the 1970s

by people who later became key in an incipient policy community41

These and other early studies42 were the more remarkable for having been

conducted during the military regime when common criminals attracted

the attention only of the repressive police forces of the day and not of

intellectuals who were more concerned with the treatment of lsquopolitical rsquo

prisoners The great irony is that Brazilrsquos first criminal gang the CV was

formed after common prisoners learnt the principles of clandestine network

organisation from these same political detainees with whom they shared

a cell43

The 1990s saw an emerging trend amongst Latin American historians

towards examining the social construction of deviance in the process of

forging modern nations out of heterogeneous populations Studies of the

birth of the penitentiary system in the region44 were inspired by Foucaultrsquos

39 Amnesty International No One Sleeps Here Safely Human Rights Violations Against Detainees(London 1999) Human Rights Watch Behind Bars in Brazil (New York 1998) AmnestyInternational remains ambivalent about researching and campaigning on prisons qua sys-tem rather than individual prisonersrsquo rights

40 See for example United Nations Report of the Special Rapporteur [on Torture] Sir Nigel Rodleysubmitted pursuant to Commission on Human Rights Resolution 20003 Addendum Visit to Brazil 30March 2001 Geneva United Nations Human Rights Commission

41 Augusto Thompson A questao penitenciaria (Petropolis 1976) and Julita LemgruberCemiterio dos vivos analise sociologico de uma prisoo de mulheres (Rio de Janeiro 1983) bothThompson and Lemgruber headed the Rio de Janeiro prison system Also Claudio FragosoYolanda Catao and Elisabeth Sussekind Os direitos do preso (Rio de Janeiro 1980) Sussekindwas appointed National Secretary of Justice under President Cardoso

42 Jose Ricardo Ramalho O mundo do crime a ordem pelo avesso (Rio de Janeiro 1979) anethnography of social order in the Sao Paulo House of Detention (Carandiru)

43 Leeds lsquoCocaine and Parallel Politics rsquo44 Ricardo Donato Salvatore and Carlos Aguirre (eds) The Birth of the Penitentiary in Latin

America Essays on Criminology Prison Reform and Social Control 1830ndash1940 (Austin 1996) Fernando Salla As prisoes em Sao Paulo (Sao Paulo 1999)

636 Fiona Macaulay


European work on the archaeology of disciplinary institutions45 with the

latterrsquos ideas of pervasive governmentality supplanting or supplementing the

marxisant bent among some intellectuals engaged in the contemporary

field46 Prisons finally made it onto the agenda of the human rights com-

munity and into the public consciousness through the weekly riots break-

outs and gruesome killings of prisoners (by guards police and other

prisoners)47 of the late 1990s in a pattern of systemic breakdown evident in

the penitentiaries of Venezuela and Central America In Brazil a doctorrsquos

evocative account of a decade spent working in the Sao Paulo House of

Detention became a surprise publishing sensation48 and was later adapted

into an international feature film49 At the same time the Military Police

Colonel who had commanded the police repression of a riot in the jail in

1992 that left 111 inmates dead was facing trial on murder charges50 and the

state authorities demolished the jail in 2002 at the behest of the IACHR

Despite all this empirical data on the prison system remain remarkably

thin This neglect in part derives from a distaste for the research environ-

ment and in part from the authoritiesrsquo erroneous presumption that these are

lsquoclosedrsquo institutions in other words that the problem of crime ends be-

hind the prison gates The PCC episode demonstrates vividly that prisons

can be an Achilles heel of the criminal justice system more capable of re-

exporting violence to the community than containing it The two-way traffic

in and out of the prisons allowed the gang to obtain mobile phones drugs

and weapons via corrupt lawyers and family members It also facilitates the

spread of physical infections such as tuberculosis HIV and other sexually

45 A similar vein of historical legal sociology has produced a number of important studies onthe history of the police and of the legal profession See Ricardo Salvatore Carlos Aguirreand Gil Joseph (eds) Crime and Punishment in Latin America Law and Society since Late ColonialTimes (Durham and London 2001) Carlos Aguirre The Criminals of Lima and their World The Prison Experience 1850ndash1935 (Durham and London 2005) Sergio Adorno Os aprendizesdo poder o bacharelismo liberal na polıtica brasileira (Rio de Janeiro 1988) on Brazilrsquos law aca-demies work by Laura Kalmanowiecki on the Argentina police Marcos Luiz Bretas Ordemna cidade o exercıcio cotidiano da autoridade policial no Rio de Janeiro 1907ndash1930 (Rio de Janeiro1997) and Thomas Holloway Policing Rio de Janeiro Repression and Resistance in a NineteenthCentury City (Stanford 1993)

46 See for example Martha Huggins From Slavery to Vagrancy in Brazil (New Brunswick 1985) Lyman L Johnson (ed) The Problem of Order in Changing Societies Essays on Crime and Policingin Argentina and Uruguay (Albuquerque 1990) One such group would be the InstitutoCarioca de Criminologia founded by Nilo Batista a criminal lawyer and former head ofpublic security of Rio de Janeiro under Governor Brizola (1991ndash94)

47 In 2002 some 4400 prisoners escaped from Brazilrsquos jails and more than 230 riots brokeout ( Julita Lemgruber lsquoThe Brazilian prison system a brief diagnosis rsquo unpublished ms2005) 48 Drauzio Varella Estacao Carandiru (Sao Paulo 1999)

49 Hector Babenco (director) Carandiru (Brazil 2003)50 Colonel Ubiratan Guimaraes was convicted of the deaths of 102 inmates in 2002 receivinga symbolic prison sentence of 632 years The Sao Paulo appeal court overturned the con-viction in 2006



transmitted diseases through family visits or after prisoner release as well as

social pathologies bred in institutions that are violent crime-ridden over-

crowded and not properly controlled Although the PCCrsquos claim to be

protesting about prison conditions and human rights abuses was nothing but

a smokescreen invoking this very real concern attracted the support of many

ordinary prisoners to its actions Politicians in Central America are equally

deluded in supposing that incarceration is an adequate containment and in-

capacitation strategy for that regionrsquos gangs the maras and pandillas51

Obstacles to knowledge production

Why then is knowledge production on the regionrsquos criminal justice systems

so uneven and poor Much of the work of measuring the negative ex-

ternalities of crime violence and defective penal institutions has to date been

carried out by external agencies ndash the IADB the World Bank and polling

organisations such as Latin Barometer A key reason for poor knowledge

production is that neither the criminal justice institutions nor their political

masters have incentives to produce data that reflect badly on their per-

formance52 At the level of institutions crime data are incomplete and un-

reliable because of fragmentation in the criminal justice system In Brazil

police are divided between the federal state-level military and civil police

and the municipal guards the judiciary is composed of two strong insti-

tutions the state-level and federal courts and the prosecution service and the

prison population is divided between the remit of the secretaries of justice

and public security Each component maintains a separate professional cul-

ture assisted by their hyper-autonomy and lack of accountability In May

2006 the Sao Paulo state prisons secretary resigned over the handling of the

PCC affair alleging that neither the public prosecutors nor police charged

with investigating organised crime would collaborate with his staff in sharing

intelligence on the gang gathered within the prisons Criminal networks ap-

pear to enjoy a greater degree of co-ordination and division of labour across

provincial and even regional borders than do the state institutions charged

with repressing them the CV and the PCC reportedly have agreements on

territorial control of drugs and other contrabands in their own state lsquo terri-

tories rsquo with cocaine supplied by criminal and guerrilla groups in Colombia

51 Dennis Rodgers lsquoLiving in the Shadow of Death Gangs Violence and Social Order inNicaragua 1996ndash2002 rsquo Journal of Latin American Studies vol 38 no 2 (2006) pp 267ndash92

52 The National Penitentiary Department holds no national data on deaths in custody as statesdo not collect or supply it Only reform-minded prison departments such as the Sao Pauloone under Dr Nagashi Furukawa collated analysed and published mortality figures whichcan indicate the degree of state negligence with regard to detaineesrsquo personal safety orhealth

638 Fiona Macaulay


In consequence over the last decade criminal justice analysts in Brazil

have campaigned to secure an accessible national crime database However

they have encountered institutional blockages such as the continued control

of armed forces personnel over crime data within the Ministry of Justice turf

wars between the military and federal police over the repression of narcotics

and the refusal of some state police forces to input data into the national

system or to share data between civil and military police units Without

something as elementary as a national victimisation survey to provide base-

line data on the lsquoreal rsquo level of crime and social violence criminal justice

policy is built largely on a series of prejudices and presumptions53 Data

production has improved ndash slowly and patchily ndash with the installation of

police ombudsmanrsquos offices in some states which monitor police violence

That said certain insulated state bureaucracies such as the Brazilian Institute

of Geography and Statistics and Institute for Applied Economic Research

which have a high level of data-gathering competence and produce sophis-

ticated social demographic and macro- and micro-economic data continue

to ignore the criminal justice sector

Impacts of incomplete information

Incomplete information about crime trends about the effectiveness of the

criminal justice system and about the variety of different approaches to

crime and violence reduction has an impact on the behaviour of citizens of

policymakers politicians and the criminal justice system operators them-

selves

In recent years polls have shown fear of crime and violence featuring in

the top three concerns of Latin Americans54 often precipitated by critical

events such as shows of force by gangs in urban areas or high-profile mur-

ders or kidnappings and fuelled by media coverage and government re-

sponses55 By December 2006 31 per cent of Brazilians polled cited personal

safety as their main anxiety compared to 22 per cent worried about unem-

ployment in a reversal of earlier survey results56 This anxiety constitutes an

important independent variable influencing the actions and choices of both

53 Victimisation surveys in Brazil have been conducted at a city level over different timeperiods and with different methodologies rendering them of limited use

54 The other two are inflation and unemployment according to various surveys by LatinBarometer

55 For example the March 2004 kidnapping and murder of a young middle-class student AxelBlumberg in Buenos Aires His death brought an unprecedented 350000 people into thestreets to protest against crime and insecurity

56 A previous Datafolha survey in March 2004 showed 11 per cent of respondents mainlyworried about lsquoviolencesafety rsquo against 49 per cent concerned with unemployment



individuals and governments However without reliable official data on

crime incidence and patterns citizens lack the means by which to make

choices that contribute to rather than undermine the rule of law or their

own quality of life Even in countries such as Chile with relatively low crime

rates57 fear will often outstrip the actual likelihood of victimisation which is

highly dependent on onersquos social status and geographical location This ad-

ded to distrust of the criminal justice institutions leads citizens increasingly

to attempt to ensure personal safety via individualised privatised strategies

such as choosing to live in gated communities58 purchasing handguns or

opting for extra-legal or illegal forms of lsquo security rsquo ranging from private se-

curity guards to death squads justiceiros and lynchings59

Lack of empirical data also hinders informed public debate about policy

alternatives Such a strategic discussion might have headed off the PCCrsquos

growing control over the prison system The Brazilian prison population

more than doubled in the last decade rising from 148760 in 1995 to 361402

in 2005 This was accompanied by a sharp rise in the incarceration rate from

955 to 190 prisoners per 100000 head of population The problem was

especially critical in Sao Paulo state which had 138116 prisoners and a

shortfall of 49124 places60 In the absence of any coherent prison system

policy from the federal government states built more prisons and either

muddled through with management models imported from overseas or be-

gan to experiment with home-grown solutions around prison privatisation

communitythird sector involvement and separation of offenders into dif-

ferentiated regimes depending on their supposed dangerousness and apti-

tude for rehabilitation61 By 2005 Brazil had 13 prisons run under US- or

European-style privatisation arrangements following Chilersquos lead In Sao

Paulo state prison authorities paid particular attention to the two extremes

of the spectrum the most dangerous prisoners and the low-grade or first

57 Lucıa Dammert and Mary Fran T Malone lsquoFear of Crime or Fear of Life PublicInsecurities in Chile rsquo Bulletin of Latin American Research vol 22 no 1 (2003) pp 79ndash101

58 Teresa P R Caldeira City of Walls Crime Segregation and Citizenship in Sao Paulo (Berkeley2000)

59 Martha K Huggins (ed) Vigilantism and the State in Modern Latin America Essays on Extra-legal Violence (New York 1991) Angelina Snodgrass Godoy Popular Injustice ViolenceCommunity and Law in Latin America (Stanford 2006) Roberto Briceno-Leon AlbertoCamardiel and Olga Avila lsquoAttitudes Toward the Right to Kill in Latin American Culture rsquoJournal of Contemporary Criminal Justice vol 22 no 4 (2006) pp 303ndash23

60 Departamento Penitenciario Nacional Sistema penitenciario no Brasil dados consolidados(Brasılia 2006)

61 There is some local literature largely from the legal perspective of judicial reform ondecarceration strategies such as non-custodial sentences and restorative justice as well asdiversion of conflicts to mediation arenas See for example Rodrigo Ghiringhelli deAzevedo Informalizacao da justica e controle social implantacao dos juizados especiais criminais emPorto Alegre (Sao Paulo 2000) Paulo Jorge Ribeiro and Pedro Strozemberg (eds) Balcao dedireitos resolucoes de conflitos em favelas do Rio de Janeiro (Rio de Janeiro 2001)

640 Fiona Macaulay


time offenders For the latter category of prisoners Sao Paulo state has

pioneered an innovative partnership with local NGOs in running over 20

small prisons that are cheap to run and human rights compliant providing a

rehabilitative regime that reportedly produces very low re-offending rates At

the other end of the scale prison authorities in Rio de Janeiro and Sao Paulo

have copied elements of the US lsquosuper-maxrsquo style of prison in order to

contain the gangs following the first massive PCC-orchestrated incident in

2001 when over 25000 inmates and thousands of family members were

taken hostage in nearly 30 prisons in Sao Paulo state However the strategy

of isolating the ringleaders in high security jails under an especially tough

disciplinary regime failed spectacularly either because it was the wrong pol-

icy or because it was badly executed62 Yet no international governmental or

academic body has to date conducted evaluative research on any of these

policies their design cost or impact thus eroding the potential for insti-

tutional learning or for successful policies to be replicated or transferred and

disastrous ones to be terminated63 The same can be said about policing

where Latin Americarsquos policymakers have been tempted by policy templates

ranging from community policing to zero tolerance to SWAT-team riot

control64

Policy reform can also be skewed by particular professional or epistemic

perspectives ndash whether home-grown or imported through externally-

promoted reform ndash that frame crime and violence within their own disci-

plinary or ideological parameters Where the military retains control of the

criminal justice agenda policy is concentrated around resources ndash such as

numbers of police police vehicles or guns and measured in terms of crude

results such as arrests prison numbers and even in the case of Rio de

Janeiro body counts65 When the economists and public choice analysts take

over reforms are driven by a Weberian instrumental rationality measured

out in targets indicators the economic impact of crime and cost-benefit

62 Cesar Caldeira lsquoA polıtica do carcere duro Bangu 1rsquo Sao Paulo em Perspectiva vol 18 no 1(2004) pp 87ndash102 The lsquosuper-max rsquo model is based on physical containment of prisonersin isolation cells and remote management of the environment However this did notprevent the PCC leaders from corrupting guards The alternative is a UK-style lsquodynamicsecurity rsquo approach based on intelligence-gathering and on careful training and support ofprison guards who work in close contact with the prisoners

63 The first pilot study is Fiona Macaulay lsquoThe Resocialization Centres in the State of SaoPaulo State and Society in a New Paradigm of Offender Reintegration and PrisonAdministration rsquo in Maria Palma Wolff and Salo de Carvalho (eds) Sistemas punitivos naAmerica Latina perspectiva transdisciplinar (Madrid and Rio de Janeiro forthcoming)

64 Former New York Police Commissioner William Bratton was hired as a consultant inMexico City Caracas and the Brazilian state of Ceara to apply his zero tolerance lsquo formula rsquoto crime in those locations with mixed results

65 In the mid 1990s Governor Marcello Alencar instituted a highly controversial system ofsalary rises and prizes for police officers who shot dead suspects lsquo in the line of duty rsquo



analysis of the different policy approaches making it nearly impossible to

reframe debates on issues such as prison privatisation66 Where the lawyers

get control over the criminal justice reform agenda it is inevitably reoriented

around reform of codes and procedures with more consideration for the

benefits to the system (such as efficiency gains tackling the backlog in the

criminal courts) than to the potential users In the mid 1980s a penal reform

designed by a technocratic group of lawyers set up the small claims courts an

innovation that aimed to divert social conflict out of the penal system

However the unexpected and unintended consequence in Brazil and else-

where in Latin America is that these new institutions have been flooded with

domestic violence cases for which they are ill-suited67 In short any ap-

proach can be technocratic in pursuit of narrowly defined objectives fuelled

by circumscribed or reductionist understandings of what is a highly complex

institutional and social system

Knowledge production is also affected by the selection and interpretation

of cases As noted above the national-level literature is already skewed But

where should we look for reform ndash at national or local levels of government

And if we find reform occurring at one administrative level what does it tell

us about the overall climate for reform The last few years has seen increased

attention to citizen security reform at sub-national level In federal systems

such as Brazil where the national-level police force is numerically tiny by

contrast to the state-level forces most analysis has naturally centred on the

major statescities Sao Paulo and Rio de Janeiro have attracted the lionrsquos

share of attention the first as the countryrsquos political and economic epicentre

the second as a city that in its topography neatly seems to symbolise the

lsquoparadoxrsquo of the lsquo two Brazils rsquo the morro and the asfalto capturing the

imagination in a way that less picturesque cities cannot68 Thus criminal

justice issues in other state capitals with much lower crime rates but strug-

gling with the same structural constraints on criminal justice reform such as

Belo Horizonte Porto Alegre and Brasılia have remained understudied This

geographical research concentration means that narratives about crime and

criminal justice in Brazil and Latin America often tend to over-emphasise the

dramatic the exceptional and the extreme We must also be cautious with the

generalisability of findings Due to Buenos Airesrsquo position as a primate city a

study of that cityrsquos police is more lsquo typical rsquo of the national public security

66 Chile might be a case in point67 Fiona Macaulay lsquoPrivate Conflicts Public Powers Domestic Violence Inside and Outside

the Courts in Latin America rsquo in Alan Angell Line Schjolden and Rachel Sieder (eds) TheJudicialization of Politics in Latin America (London 2005)

68 Rio is also the former political and intellectual capital a tourist hub and ndash despite itsreputation for crime ndash a rather more congenial research site than smoggy landlocked SaoPaulo

642 Fiona Macaulay


situation than Riorsquos is of Brazilrsquos Some indeed argue vigorously for Riorsquos

exceptionality69 Studies of criminal justice and violence need to address the

lsquoordinary rsquo as well as the exceptional and to study a range of examples and

situations across national territories and populations

The search for examples of positive reform initiatives has led in the last

couple of years to increased attention to municipal-level initiatives within a

broader context of decentralisation of all kinds of public service delivery

The development of community-oriented policing in Colombiarsquos metro-

politan areas has been one key element in urban violence reduction70 whilst

Brazilian mayors have been able to reactivate a residual police force the

municipal guards and revamp them as community-oriented police turning

into a virtue the fact that they lack full police powers and are generally

unarmed This positive development has occurred because local-level actors

respond to a different set of incentives than the ones constraining national

politicians Mayors can reap electoral rewards from responding to public fear

of crime using much more community-oriented and preventive measures

Environmental measures such as enforcement of traffic laws restrictions on

the sale of alcohol gun amnesties improved street lighting and increased

leisure facilities for young people are as important as policing styles in pro-

ducing drops in crime and violence in cities such as Bogota in Colombia and

Diadema Belo Horizonte and Sao Paulo in Brazil71

Given that reform may occur at different levels of government and in

distinct spaces research needs to be very specific about the underlying

conditions and political opportunities facilitating reform in each context and

locale and also about the connections (or lack thereof) between the various

spheres For example although community policing is now a core compo-

nent of the international security sector reform checklist it is tempting to

overstate the success and relevance of policy experiments that are not em-

bedded in a wider reform process Community policing in Brazil for ex-

ample has occurred in pockets such as in the case of Rio de Janeiro the

affluent beachfront neighbourhood of Copacabana in the early 1990s and

then in the slum of Cantagalo in 2001ndash2 both of these projects collapsed

69 Alba Zaluar an anthropologist and long-time observer of patterns of youth violence anddrug trafficking in the slums argues for such exceptionality see Alba Zaluar lsquoViolence inRio de Janeiro Styles of Leisure Drug Use and Trafficking rsquo International Social ScienceJournal vol 53 issue 169 (2001) pp 369ndash78

70 Gerard Martin and Miguel Ceballos La transformacion de Bogota polıticas de seguridad ciudadana1995ndash2003 (Bogota and Washington DC 2004)

71 Lucıa Dammert and Gustavo Paulsen (eds) Ciudad y seguridad en America Latina (Santiago2005) Allison Rowland lsquoLocal responses to public insecurity in Mexico rsquo in John Bailey andLucıa Dammert Public Security and Police Reform in the Americas (Pittsburgh 2005) Joseph STulchin and Meg Ruthenburg (eds) Toward a Society under Law Citizens and their Police inLatin America (Baltimore 2006) contains a number of case studies



due to the hostility of the military police establishment and specifically in

Cantagalo their contamination by old institutional practices of corruption

and collusion with the drug trade The police have also picked up on the

discourse of democratic policing and are willing to rebrand all kinds of

operational procedures with this label without a corresponding shift in

underlying institutional cultures and structures Research therefore needs to

tread a fine path between on the one hand presenting apocalyptic visions of

a reform-resistant environment ndash often invoking institutional and political

histories and path dependencies overdetermining the failure or absence of

reform ndash and on the other wearing rose-tinted glasses and interpreting

isolated incidents or cosmetic reforms as indicative of a sea change

Explaining state responses

How then do we explain why governments follow lsquoconservative rsquo crime

control policies design paper reforms that they have no intention of im-

plementing or proceed halfway down a reform track before doubling back

Is it due to a lack of information about the criminal justice system Or is

their reluctance to support data production in this field attributable to

ideology lack of resources or political path-dependency with politicians

playing by the rules of a game governed by corruption impunity the absence

of notion of a public sphere or a weak civil society that fails to counter

vested interests within the police and the judiciary

A certain type of political economy approach would interpret all manner

of policy choices in Latin America as moulded and constrained by the he-

gemonic logic of neo-liberalism Here we must distinguish between the im-

pacts of neo-liberalism on the social and economic environment within

which crime takes place72 the policy environment within which politicians

allocate resources to various issues including criminal justice and the

character of specific criminal justice policies per se73 In the latter regard there

is actually no international consensus as to whether there exists a coherent

set of lsquoneo-liberal crime control prescriptions rsquo developed and exported

by the governments and institutions of the global North based on a

privileging of the market and the individual and a reduction of state

responsibilities The shift that started in the late 1970s away from of a penal-

welfarist consensus which viewed crime as a function of social exclusion

72 See for example David Hojman lsquoExplaining Crime in Buenos Aires The Roles ofInequality Unemployment and Structural Change rsquo and Laura Tedesco lsquoA ComprehensivePerspective on Crime and Democratic Governability A Response to David HojmanrsquoBulletin of Latin American Research vol 21 no 1 (2001) pp 121ndash32

73 Fiona Macaulay lsquo Justice-Sector and Human Rights Reform in Cardosorsquos Brazil rsquo LatinAmerican Perspectives vol 34 no 5 (forthcoming)

644 Fiona Macaulay


towards a more volitional theory which interpreted crime as an individual

act has not resulted in consistent penal policies and practices74 Indeed these

have been heterodox to a degree that would be unthinkable in economic

policy This has been attributed to the co-existence of two distinct political

ideologies neo-liberalism with its emphasis on the market and neo-

conservatism with its stress on social authoritarianism These have not fused

into a single rationality but rather have produced pendular swings in criminal

justice policy75 For example it is meaningless to attempt to extrapolate the

dynamics underlying trends in US neo-liberalconservative policies which

has seen treatment of the underclass switch from welfarism to punishment

(with policies such as zero tolerance and lsquo three strikes and yoursquore out rsquo) to a

country such as Brazil where the state has never deployed such a social

welfare approach to poverty and where the ideological character of debates

on penal policy is shaped by a different range of actors and factors76 This

underlines the need for analysis grounded in the specificities of local politics

and local criminal justice systems but with reference to a wider comparative

criminology and security sector reform literature that allows us to see the

Latin American policy environment as distinctive in some aspects but by no

means unique in others

Political explanations for the failure of reform have often centred on

the unavailability of political capital which tends to be absorbed by other

issues on the political agenda ndash such as second generation institutional and

economic reforms as have preoccupied presidents Cardoso and Lula

Others argue that there is merely a lack of political will to leverage available

financial and political resources to deal with crime What however would

explain this reluctance The oscillations in crime control policy globally to

some extent help account for the twin strategies of adaptationdelegation

and denial adopted by politicians who are reluctant both to quantify the cost

of failed policies and to take political risks in implementing potentially more

effective ones Faced with a limited capacity to guarantee citizen security

states engage in one or both of two strategies77 When high levels of crime

become accepted as lsquonormal rsquo as in Brazil the central state rejects full re-

sponsibility for crime control and adapts by delegating responsibility to other

74 David Garland lsquoThe Limits of the Sovereign State rsquo British Journal of Criminology vol 36no 4 (1996) pp 445ndash71

75 Pat OrsquoMalley lsquoVolatile and Contradictory Punishment rsquo Theoretical Criminology vol 3no 2 (1999) pp 175ndash96

76 For such a fallacious analogy see Loıc Wacquant lsquoTowards a Dictatorship of the PoorNotes on the penalization of poverty in Brazil rsquo Punishment and Society vol 5 no 2 (2003)pp 197ndash206 Angelina Snodgrass Godoy lsquoConverging on the Poles ContemporaryPunishment and Democracy in Hemispheric Perspective rsquo Law and Social Inquiry vol 30 no3 (2005) pp 515ndash48 also sees similarities between US and Latin American penal regimes

77 Garland lsquoThe Limits of the Sovereign State rsquo



agencies either non-state actors or actors at lower levels such as state

governments Both the Cardoso and Lula governments realised that the

potential cost of failure in attempting an audacious reform would far out-

weigh the possible electoral rewards The Cardoso government avoided the

issue of criminal justice whereas the first Lula administration forced out a

very promising reform team in under two years when their activities threa-

tened to draw public attention to the governmentrsquos responsibility to deliver78

Delegation is such a tempting strategy in a federal system that it was not until

2006 that criminal justice became a topic for debate between the presidential

contenders as Lula attacked Geraldo Alckmin over the PCC This contrasts

with the hyper-politicisation of crime control in gubernatorial contests in

Brazil and national ones in Central America where politicians engage in

lsquobidding wars rsquo over tough law and order measures promising lsquomano super-

dura rsquo policies79 This is essentially a denial strategy whereby the government

responds to evidence that new police powers or harsher sentencing have not

reduced crime with ever more punitive policies intended as a public display

of state power to mask its failure

An institutional explanation for policy failure is producer capture Around

the region the police have wielded veto power as a corporation and have

frequently helped to scupper reform The Chilean case demonstrates how a

unified national police force with a strong longstanding and singular identity

can use its leverage to block external oversight80 Similarly in Peru police

vested interests in maintaining corrupt practices ultimately prevented

President Toledo from imposing external civilian control81 However police

opposition alone would not be sufficient to stall reforms82 The police forces

of the region have tended historically to suffer from fragmentation and

internal divisions and hierarchies Most countries divide their police between

a militarised uniformed branch and a civilian investigative police The for-

mer frequently mimics military hierarchies in having a two-tier split between

the officer class and the rank-and-file This is further complicated in federal

systems of government Brazil has four separate police forces dispersed

through the three administrative levels of the federation This should suggest

that police lsquo interests rsquo are neither fixed nor monolithic However very little

usable knowledge has been produced about the prison and police system by

78 A talented group from Brazilrsquos policy community with both academic and policy experi-ence and led by Luis Eduardo Soares set about implementing criminal reforms based on a120 page diagnosis they had written for a think-tank close to Lula However after 18months they were forced out by the withdrawal of the Minister of Justicersquos support for theirwork

79 Thomas C Bruneau lsquoThe Maras and National Security in Central America rsquo Strategic Insightsvol 4 no 5 (2005) 80 Fuentes Contesting the Iron Fist

81 Costa and Neild lsquoPolice Reform in Perursquo 82 Hinton The State on the Streets

646 Fiona Macaulay


the actors within them A few ethnographic studies offer invaluable insights

into why reform efforts have been passively or actively resisted Martha

Huggins unravelled a lsquovocabulary of motives rsquo that is various moral and

cognitive justificatory strategies deployed by Brazilian police who tortured

detainees during the military regime83 Mingardirsquos participant observation

study of the Sao Paulo Civil Police in the 1980s delineated the quite distinct

functions that torture and corruption fulfil and Munizrsquos ethnography of the

Rio de Janeiro Military Police uncovered the operational consequences of

policing devoid of procedures and norms other than those of the military

parade ground84 Such studies reveal the police to be influenced by a com-

plex set of motivations that cannot be encapsulated by simplistic notions of

corporate lsquovested interests rsquo or of the police as tools of coercive state power

If they were indeed the latter and lacked the propensity to autarchy that

ethnographers describe85 they would be much easier to rein in if govern-

ments so chose

Increased attention to the attitudes diverse interests and working and

organisational cultures of justice system operators is crucial if reforms are to

win support from both the managers and rank-and-file members of those

institutions For example studies of the attitudes and professional socialis-

ation of judges and prosecutors by IDESP and others have been able to

pinpoint the sources of their hostility to a key bone of contention ndash external

oversight ndash and track the gradual delegitimisation of that position86 It would

also avoid pinning false hopes on certain reform policies that have become

articles of faith a survey of Rio prison guards discovered that the now

mandatory human rights component in their training was counter-

productive replacing ignorance with active hostility because as was the case

with the police the training was not tied into professional practices and

procedures87 Indeed the complete absence of formalised procedures in the

83 Martha K Huggins lsquoThe Military-Police Nexus ndash Legacies of Authoritarianism BrazilianTorturers rsquo and Murderersrsquo Reformulation of Memoryrsquo Latin American Perspectives vol 27no 2 (2000) pp 57ndash78

84 Guaracy Mingardi Tiras gansos e trutas cotidiano e reforma na polıcia civil (Sao Paulo 1992) Jacqueline Muniz lsquoSer policial e sobretudo uma razao de ser cultura e cotidiano da PolıciaMilitar do Estado do Rio de Janeiro rsquo (unpublished doctoral dissertation 1999)

85 Hugginsrsquo work on death squads shows how state-sponsored extra-legal units quickly takeon a life and purposes of their own See lsquoModernity and Devolution The Making of DeathSquads in Modern Brazil rsquo in Bruce Campbell and Arthur Brenner (eds) Death Squads inGlobal Perspective Murder With Deniability (Basingstoke 2000) pp 203ndash28

86 Luis Jorge Werneck Vianna et al Corpo e Alma da Magistratura Brasileira (Rio de Janeiro1997) The Brazilian and Chilean judiciaries finally accepted external oversight after anumber of corruption scandals affecting senior judges undermined their claims to self-government The Lula administration also used the findings of the UN Special Rapporteuron Judicial Independence to secure the reform

87 Human rights training for criminal justice professionals was taken up enthusiastically by theCardoso government However internal evaluations for Amnesty International and for the



Brazilian police and prison services is something that external advisors find

hard to comprehend88 The exemplary methodology employed by the con-

sultants of the International Centre for Prison Studies in training prison

administrators in Sao Paulo and Espırito Santo states was based on pro-

fessional concepts such as performance review and procedures When

combined with an implicit ndash not explicit ndash human rights framework this

approach is highly successful focusing as it does on the institutional culture

to be changed and the recruitment of agents to the reform process at both

the bottom and the top of the policy chain89

Whilst some Northern approaches to criminal justice seem desirable and

appropriate to transfer such as the British policing-by-consent model others

run counter to the international communityrsquos prescriptions UK and US

incarceration rates are soaring as are Brazilrsquos to which the solution must be

decarceration and diversion not more prisons Reflecting the current lsquo in-

coherence rsquo in global penal debates Latin America has been offered contra-

dictory solutions ranging from lsquozero tolerance rsquo to community policing

Greater contextual knowledge should be able to inform the activities of

externals hopefully preventing the kind of inappropriate policy transfer that

occurred with judicial reform and economic reforms before them

A new epistemic community

In the last few years the research gap in Brazil has begun to be filled by an

emerging epistemic and policy community across government academia

research institutions and inter-governmental bodies producing more reliable

and usable quantitative data about the nature and dynamics of crime and

violence and more textured qualitative empirical data about the criminal

justice institutions and their relationship to local communities and system

users A number of academics are now working within the criminal justice

system developing quantitative methods to fill the data gap bridging the

chasm between crime trends and policing on the ground in a shift towards

International Committee of the Red Cross showed clearly that when disconnected fromprofessional practice such training was not merely ineffective but actually counter-productive On the important issue of professionalization of police see Hugo FruhlingJoseph Tulchin and Heather Golding (eds) Crime and Violence in Latin America CitizenSecurity Democracy and the State (Baltimore 2003)

88 UK police officers sent on a bilateral mission to train Brazilian counterparts revealed thedegree to which police bond over the apparent common professional challenges withoutfully appreciating the huge differences in institutional cultures and histories Centre forBrazilian Studies Police Reform in Brazil Diagnoses and Policy Proposals Conference report 232002 89 There is no published study of their work only internal evaluations

648 Fiona Macaulay


more evidence-based policing and public security policy90 In particular

Brazilrsquos policy community is characterised by the transit of many of its

members between academia independent policy think-tanks and official

posts at all three levels of government providing some of the most insightful

analyses of the dynamics of reform ndash even of failed reform efforts91 Here

due credit should be given to the Ford Foundation for their support of this

new generation of researchers and to the Washington Office on Latin

America for its attention to the lessons of the police reform process in

Central America in terms of normative goals (such as accountability and

reorientation from national to public to citizen security) and the management

of reform across political and institutional arenas92

This new policy community has also brought an increased inter-

disciplinarity to the field as well as a pragmatism that tends to eschew ex-

cessive ideology and focuses on producing evidence about lsquowhat works rsquo (or

does not)93 The Instituto Brasileiro de Ciencias Criminais Latin Americarsquos

major criminology body has made efforts to offset the dominance of the

legal profession in criminal justice debates by encouraging contributions

from anthropology sociology and political science through its annual inter-

national conference academic journal94 and series of published monographs

mainly of empirical studies some commissioned in-house Criminology ndash an

essentially inter-disciplinary enterprise ndash was virtually unknown in Latin

America until a few years ago In Brazil the Centre for the Study of Violence

at the University of Sao Paulo for years the only major centre pursuing

serious research into this area has been joined by several others95 In April

90 This group includes political scientist Renato Lima in SEADE (the Sao Paulo state govern-mentrsquos data analysis quango) and sociologists Claudio Beato who works with the BeloHorizonte Military Police from his university research centre Centro de Estudos emCriminalidade e Seguranca Publica (CRISP) in the Federal University of Minas Gerais andTulio Kahn in the research department of the Public Security Secretariat in Sao PauloBeato and Kahn have pioneered the use of Geographic Information Systems to use com-puterized analysis of crime lsquohot spots rsquo to enable the more rational intelligence-led allo-cation of policing resources

91 See Luis Eduardo SoaresMeu casaco de general quinhentos dias no front de seguranca publica no Riode Janeiro (Sao Paulo 2000) Soares is an anthropologist who worked for a major think-tankin Rio de Janeiro ISER on violence issues before being appointed under-secretary forpublic security first in Rio de Janeiro and then in the national government He was forced toresign from both posts due to a withdrawal of political support for his teamrsquos reformprojects

92 Washington Office on Latin America lsquoSustaining Reform Democratic Policing in CentralAmerica rsquo Citizen Security Monitor October 2002 Rachel Neild lsquoDemocratic Police Reformin War-Torn Societies rsquo Conflict Security and Development vol 1 no 1 (2001) pp 21ndash43

93 lsquoWhat works rsquo became the new orthodoxy of the 1990s in Western crime control circles94 Revista Brasileira de Ciencias Criminais (Sao Paulo)95 For example the Centro de Estudos de Seguranca e Cidadania in the Candido MendesUniversity in Rio de Janeiro CRISP in Minas Gerais federal and state universities in Rio deJaneiro and human rights centres in others such as the Pontificial Catholic Universities



2007 this policy community launched the continentrsquos first dedicated aca-

demic journal on policing and public security96 This process has also been

assisted by Ministry of Justice backing for university-level courses in public

security for law enforcement officials and by significant funding allocated by

public competition for research into lsquobest practice rsquo in criminal justice in-

dicating a more positive attitude on the part of government to the import-

ance of empirical data97

Concluding remarks

I have argued here that if governments and international donors are to de-

velop a lsquo third generationrsquo of reforms aimed at addressing the deficiencies of

the criminal justice system then these must be based on a much more finely-

grained analysis of the criminal justice institutions and their operators of the

dynamics of reform efforts to date and of the policy environments that are

conducive to such efforts flourishing and being embedded and replicated

Criminal justice reforms in the region have by and large been lsquoelusive rsquo98

either absent ineffective counter-productive half-hearted or subject to re-

versals and sabotage The lack of research has meant that until very recently

policymakers have made decisions about criminal justice reform on the basis

of ideological inclination the promises of external actors local political im-

peratives or the path of least resistance when faced with institutional op-

position Lack of datameant governments were not challenged on their failure

to address this crisis as they were able to blame any host of factors other

than their policies It also denied them the tools to adopt policies that could

secure reductions in violence at relatively lower political and economic costs

than they perhaps supposed However a process of institutional learning has

begun often at lower levels of government where municipal policy networks

in the region are trading information on best practice on community policing

and crime prevention The focus of research is now shifting away from the

tactics employed by criminal justice operators ndash most evident in the human

rights-focussed literature documenting how the system itself generated rights

violations Instead there is a growing trend towards uncovering the insti-

tutional histories cultures and practices that have paralysed institutions and

prevented them introducing much-needed strategic changes such as oper-

ational unification of police forces reduction in prison populations and a

more coherent approach to tackling the major challenges of drug-related and

organised crime Brazil may display some of the most dismal tactical errors in

96 Revista Brasileira de Seguranca Publica (Sao Paulo)97 The research reports may be accessed at httpwwwmjgovbrSenasppesquisas_

aplicadasanpocsconcursohtm98 Mark Ungar Elusive Reform Democracy and the Rule of Law in Latin America (Boulder 2002)

650 Fiona Macaulay


its criminal justice system such as the failure of police judiciary and prisons

to contain and neuter forces as toxic as the PCC and CV However it also

has an increasingly sophisticated policy community that is connected to

debates in the international criminological mainstream but also determined

to know more about and work alongside and within the criminal justice

system in order to introduce evidence-based reforms through the access

points they can identify Such developments give cause for hope The pol-

itical strategies of denial adaptation delegation and hyper-politicisation have

served neither citizens nor governments well and ignorance about the

criminal justice system can no longer be seen as rational in contemporary

Latin America



The PCC violence demonstrated dramatically the threats that organised

(and disorganised) crime violence and dysfunctional justice systems pose to

economic growth social stability democracy and citizen security in the re-

gion In just one week it had left 170 dead after the gang carried out nearly

300 attacks on property including the homes of police officers banks

ATMs subway stations and bus garages leaving scores of buses burnt or

damaged On the worst day Monday 15 May Brazilrsquos economic and political

hub was virtually paralysed at untold economic cost as the public transport

system ground to a halt causing nearly 200 km of gridlock when businesses

and educational establishments closed early and wild rumours circulated of a

mass gang assault or of a police curfew at dusk

Leading sociologists have identified rising crime as a central feature

of urban society in Latin America associated with growing socioeconomic

inequality since the 1980s2 A 1999 Inter-American Development Bank

(IADB) report put the economic cost of crime and violence at 142 per cent

of the regionrsquos GDP3 More localised studies estimate the direct cost of crime

in Brazilian cities and states at between three and five per cent of annual

GDP4 Why then despite these enormous and multiple costs and the periodic

occurrence of such critical incidents has policy to control crime lagged be-

hind on the radar of external agencies as well as national governments5 Why

did this wave of terror take both state and federal authorities completely by

surprise How could an organisation such as the PCC be incubated within

the very prison system intended to contain and suppress criminal networks

The PCC episode exposes many of the fault lines in the criminal justice

system in Brazil and in the region The first is a paucity of reliable knowledge

network in Rio de Janeiro in late December 2006 aimed at intimidating the incoming stategovernment

2 Alejandro Portes and Kelly Hoffman lsquoLatin American Class Structures Their Compositionand Change during the Neoliberal Era rsquo Latin American Research Review vol 38 no 1 (2003)pp 41ndash82 esp pp 66ndash70 Alejandro Portes and Bryan R Roberts lsquoThe Free-Market City Latin American Urbanization in the Years of the Neoliberal Experiment rsquo Studies inComparative International Development vol 40 no 1 (2005) pp 43ndash82 esp pp 67ndash76

3 Mayra Buvinic Andrew Morrison and Michael Shifter Violence in Latin America and theCaribbean A Framework for Action (Washington DC 1999) See also Pablo FajnzylberDaniel Lederman and Norman Loayza (eds) Crimen y violencia en America Latina (Bogota andWashington DC 2001) esp chapter one

4 World Bank Crime Violence and Economic Development in Brazil Elements for Effective PublicPolicy (Washington DC 2006)

5 Although the Brazilian business sector is alarmed by these costs the legacy of corporatismhas prevented it from pressurising the federal government with a united front That saidbusiness associations in both Rio de Janeiro and Sao Paulo have supported local initiativesto reduce crime and violence supporting the work of Viva Rio and the Instituto Sao PauloContra a Violencia See Paulo Mesquita lsquoPublic-Private Partnerships for Police Reform inBrazil rsquo in John Bailey and Lucıa Dammert (eds) Public Security and Police Reform in theAmericas (Pittsburgh PA 2006) pp 44ndash57

628 Fiona Macaulay







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Latin America








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ments so chose




















































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Concluding remarks































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Latin America

































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selves
















































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ments so chose




















































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Latin America



















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632 Fiona Macaulay































































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Latin America


































632 Fiona Macaulay































































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a cell43











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638 Fiona Macaulay
























selves
















































640 Fiona Macaulay




















control64























































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ments so chose




















































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Concluding remarks































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Latin America
































































634 Fiona Macaulay


















































a cell43











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638 Fiona Macaulay
























selves
















































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ments so chose




















































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Concluding remarks































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Latin America



















































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638 Fiona Macaulay
























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ments so chose




















































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Concluding remarks































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Latin America




































































638 Fiona Macaulay
























selves
















































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control64























































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646 Fiona Macaulay
















ments so chose




















































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Concluding remarks































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Latin America

























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Concluding remarks































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Latin America




































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ments so chose




















































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Latin America





















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ments so chose




















































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Latin America









































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Latin America












































































644 Fiona Macaulay














































































646 Fiona Macaulay
















ments so chose




















































648 Fiona Macaulay







































Concluding remarks































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Latin America















































































646 Fiona Macaulay
















ments so chose




















































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Concluding remarks































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Latin America

















ments so chose




















































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Latin America


































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Latin America








































Concluding remarks































650 Fiona Macaulay












Latin America













Latin America



‘Knowledge production, framing and criminal justice reform in Latin America’ Journal of Latin...

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Transcript of ‘Knowledge production, framing and criminal justice reform in Latin America’ Journal of Latin...