Different legal systems assign different rolesto the various actors in the process, thus affecting their normative tenden-cies. State Department Human RightsReports for the 1990s simply state, There were no reports of political orother extra-judicial killings. Even in the extremely unlikelyevent that every single one of these suspects was a police officer, that wouldsuggest an arrest rate of less than 10 percent in police cases and arrests,as we saw, only infrequently translate into convictions. Even considering the immensepopulation of the state of Sao Paulo around thirty-six million thisongoing pattern of violence produces an astonishing number of casualties. About 82% of the 167 victims for whom relevant informa-tion is available I classified as lower class based on their employment, income, 15 Se e preto e favelado, a gente atira primero, para perguntar depois. Clearly, it is not enough to create a legal system that will equi-tably receive those claims of right that are brought to it and dispassionatelydecide them.
According to the Argentine sociologistEduardo Blaustein, the percentage of the population of the Buenos Airesmetropolitan area that lives in villas is only about 3. The response by the courts tothis situation suggests a problem if not exactly a paradox: precisely in thoseplaces where the police use lethal force most indiscriminately, the justicesystem punishes police homicides least often, as shown in Figure 1. Finally, as we will see, the model graph-ically shows how normative shifts at any stage in the process can affect thecapacity of subsequent actors to produce the correct result, even if the latterare applying the right rule of decision. Indeed, the system assigns them this task and depends for its effectivenesson their investigative zeal. In both cities, among thosevictims for whom I have this information, two-thirds were classified as eitherlower class a classification based on employment, dwelling, and incomeinformation or a slightly higher category my interviewees agreed to calllower working class people who worked steady jobs but fell well belowmiddle class. This book examines the effect of social inequality, political influence, and institutional design on the effectiveness of legal systems in Argentina, Brazil, and Uruguay. One of thegreatest benefits of this project has been the opportunity to learn from him.
BothCordoba and Buenos Aires show the important effect of the presence of aPrivate Prosecutor to accompany the judicial investigation, while Cordobashows a much higher level of socio-economic inequality, despite its higherlevel of average effectiveness. This book will make fascinating reading for anyone interested in judicial behaviour, the rule of law, public security, and Latin American politics and society. Still, while most observers of Latin American politics point out the impor-tance of the issue, there is very little work that combines close theoreticaland empirical attention to the subject. This category may be larger,therefore, than what these figures reflect, and it is possible that some of these cases mighthave led to a conviction. While state action was not completely spontaneous, as Gamarras motherhad to resort to a lawyer to trigger the investigation, it is noteworthy that acase with these characteristics was treated so aggressively. I explore the way institutional design interacts with political currents andsocio-economic structures to modify actors capacities and incentives. Even inthis select group of cases, then, targeted for special treatment by various stateand non-state actors, the conviction rate is a mere ten percent.
Thisensures that different locations do not produce different conviction ratesbecause of different rates of armed and violent crime leading to shoot-outs with the police. Conversely, the percentage of bystanders killed by stray bullets inBuenos Aires about 15% is almost three times higher than in Cordoba andSao Paulo, and five times higher than in Uruguay. To measure inequalities in the probability of an initial violation, I com-pare the extent to which members of a particular group, say, shantytowndwellers in Buenos Aires or Afro-Brazilians in Sao Paulo, are under- or over-represented within the victim population as compared to the groups shareof the total population. Outcomes must be phrasedin formally legal terms, and possession of a formal right is important. One of theissues of quality that is repeatedly mentioned in these more recent writ-ings is the failure of the courts or, more generally, the absence of the ruleof law. Abroad, the Nucleo de Estudos da Violencia of the Universidade de SaoPaulo especially Beatriz Azevedo Affonso, Sergio Adorno, and Paulo SergioPinheiro made Sao Paulo a slightly less imposing place and introducedme to many of the people I needed to know. This chapter will compare judicial outcomes in the five locations that arethe subject of this study.
No te metas con la cana. It is in large measure the workof the legal system to change this balance of power, to moderate the behaviorof those who exercise the states monopoly on the legitimate use of force. See Brinks 2003 for an elaboration of how Luhmanns theory might apply in this context. The book describes judicial, prosecutorial, and police structures and operation, as well as the nature of and response to lethal police violence in each location. This makes it easier for o tofall in that category, and thus easier to convict the defendant.
The courts are the one place where we might expect the rule oflaw to be strongest, and the criminal process is the place where the stateis supposed to be most clearly behind the enforcement action. We should see little or no effectiveness where the imbalance affects the entireclass of victims and there is little or no attempt to solve it: when the victimsare poor, the police are strong, and there are neither institutional devices thatallow claimants to effectively engage the legal system nor political incentivesfor state actors to pick up the challenge. These casesled Amnesty International, for example, to say in a 1996 report on humanrights in Uruguay that the vast majority of human rights violations commit-ted in past years remained uninvestigated. Buenos Aires, espe-cially toward the end of the decade, has achieved a similar level of violenceto Sao Paulos, but the violence appears to be more widely distributed per-haps not among the truly middle class, but at least beyond the very poorestsectors. A youth shot in thehead while kneeling with his hands in the air was almost certainly murdered,while one who was shot as he attempted to kill a police officer was almostcertainly killed in self-defense. Once engaged, these venues are all arenas of contestation between thosewho claim rights and those who deny duties. The first task, of course, is reducing the frequency ofviolations.
Thatwas the year of the notorious Carandiru massacre, in which the MilitaryPolice killed 111 inmates of the Sao Paulo House of Detention. The probability of a violation is calculated simplyby applying the rate of violations for the entire period under study, per hun-dred thousand of population, giving the likelihood that any average residentof the cities in question will be killed by the police over the ten years ofthis study. Is thisan overly narrow focus, then? Statement recorded in witness interview filesrelating to the case of Eneas da Silva, obtained from the Centro Santo Dias, Sao Paulo. Public demonstrations and polit-ical support for particular prosecutions, for example, should have a greaterimpact where these links are stronger. Brinks's innovative use of the notion of 'legal tolls' is particularly compelling.
Surely theywill find in my conclusions a lot to criticize; I hope that they will also findsome encouragement and useful information, from someone who is one stepremoved from that reality. For nearly two days, Ana and her daughter and son-in-law,armed with a homemade, handwritten, habeas corpus petition, franticallysearched for the young man, checking morgues and police stations. In fact, the greater the dependence ofjudges and prosecutors on the police for their routine operation, the morepermissive their rule of decision, and, ceteris paribus, the lower the con-viction rate overall. His books Courting Social Justice: The Judicial Enforcement of Social and Economic Rights in the Developing World co-edited with Varun Gauri , and The Judicial Response to Police Violence in Latin America: Inequality and the Rule of Law were both published by Cambridge University Press. First I compare the likelihood that the courtswill, on average, successfully prosecute violations across jurisdictions.
And the number of middle-class victims even in the small num-ber of cases I examine in Salvador exceeds the total number of middle-classvictims in the larger Sao Paulo sample. Crafting responsive legal institutions in a context of social inequality andmarginalization, on issues that raise powerful and conflicting emotions, isa complex, if not intractable, project. It shows how marginalization prevents citizens from effectively engaging even the best legal systems, how politics creeps into prosecutorial and judicial decision making, and how institutional change is often nullified by enduring contextual factors. Theannual number of killings rose gradually over the decade, without any dra-matic changes from year to year. In any event, although thelegal system is only one arena, and a peculiar one at that, some of the lessons to be derivedfrom analyzing it are relevant to the entire process of constituting effective rights. Even as it contemplates that lived law will continue to reflect social power,this approach presupposes a certain degree of autonomy for the written law.