Daniel M. Brinks. The Judicial Response to Police Killings in Latin America: Inequality and the Rule of Law. Cambridge: Cambridge University Press, 2008. xi + 289 pp. $85.00 (cloth), ISBN 978-0-521-87234-8.
Reviewed by Cesar Seveso (Department of History, University of Houston)
Published on H-Human-Rights (November, 2009)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)
Democracy, Social Exclusion, and Justice in the Southern Cone
In this book, Daniel M. Brinks focuses on the criminal prosecution of police homicides to show how victims of social exclusion continue to be victimized by a flawed, weak legal system. This is an underfunded system, both permeable to political pressure and resistant to institutional reform. Moreover, it is a system that, by not being able to provide the same kind of justice to all those who need it, ultimately calls into question the very idea of democracy and equality before the rule of law. Of course, the idea that “there is one justice for poor people, and another justice for rich people,” as is commonly said in Argentina, should not be surprising even to the privileged citizens of First World countries. But Brinks’s analysis--based on extensive fieldwork and original data on the prosecution of more than five hundred police homicides in five legal systems in Argentina, Brazil, and Uruguay-- admirably shows that the whole story is more complex and nuanced than that saying suggests.
Though there are many reasons to praise Brinks’s work, he could be commended just for venturing into a world where some police officers are nothing more than ruthless criminals who arbitrarily execute the young and the old, but particularly the young and poor, with no remorse and with impunity. If this alone is not enough to justify the author’s contributions, then the reader should also consider the general lack of statistics and other information available to the public surrounding police homicides and their prosecution, something that not only reflects the countries’ crumbling institutional framework but also contributes to the impunity that makes everyday, state-led violence possible. But what certainly makes this work invaluable is the fact that it delves into what is one of the worst maladies of democracies: the intimate relationship between social inequality, police violence, and the fragile rule of law.
The book shows how little the democracies of Argentina and Brazil have departed from the “dirty war” tactics employed by their authoritarian predecessors in the 1970s dictatorships. It shows that indeed democracies can prove even more lethal, as exemplified by the 7,500 police killings that took place in the state of Sao Paulo, Brazil alone during the 1990s in comparison with the almost 600 assassinations in the whole country during the 1964-85 dictatorship. In fact, the Paulista police killed 1,428 people in the single year 1992. The conviction rates are no less chilling: 5 percent in Sao Paulo and Salvador da Bahia (Brazil), 20 percent in Buenos Aires (Argentina), 40 percent in Córdoba (Argentina), and 50 percent in Uruguay, whose population is comparable to the smaller cities of the other two countries. Yet even in Córdoba, the high conviction rate, always in relation to the other cases, is accompanied by the highest degree of outcome inequality along class lines since “a police officer who kills a middle-class individual is more than twice as likely to be convicted as one who kills a lower income resident” (p. 11).
In his contextual institutionalist perspective, Brinks explores the “social foundations for the effective assertion of rights, the political foundations for the effective judicial protection of rights, and the institutional mechanisms that impede or facilitate the process by which formal rights are made effective” (p. 2). Thanks to this approach and a solid cross-country comparative analysis, he can determine why victims are more successful at court in certain cities. To begin with, as he argues, all the cases under study show a specific combination of normative failure and insufficient factual record. This, in turn, contributes to patterns of legal effectiveness, or responsiveness of the legal system, and (lack of) equality with which the legal system treats the victims in relation to their socioeconomic status and many other variables. Among these variables, Brinks analyzes the victim’s connection to previous crimes, class, gender, age, place of residence, the ability to mobilize political resources, the social perception of police violence, the decision to use private legal support to accompany or supplant the prosecution, the structure of the judicial system, and the social legitimacy of the legal system. Each of these plays a role both in terms of an individual’s chances of becoming a victim of police violence and also in determining the outcome of the legal battle in courts. Interestingly, race does not seem to play a very active role in most cases, but this may be a reflection of the racial homogeneity of some of the cities studied. In Sao Paulo, however, race clearly plays a role in the selection of the victims, but it is almost irrelevant in terms of the outcome of court battles.
Another key piece in this puzzle is the quality of the information presented in the courts, a byproduct of the credibility of the witnesses and the available evidence. Interestingly, the system is not only shaped by the laws that judges apply but also by informational failures and procedural truth, which is, in most cases, a “police-crafted reality” (p. 176). Almost invariably, with the notable exception of Uruguay, the lower-class victims, the undereducated, and the marginalized are more likely to become victims and have fewer resources to craft another reality. The legal system is notably impaired by the police, who investigate their own crimes and commit many other illegal acts, from planting guns to manipulating forensic evidence. As Brinks shows, the social and political support for violent police tactics, much stronger in Brazil than in Argentina and Uruguay, also shapes judicial outcomes. In Salvador da Bahia, where the odds of being shot by the police are sixty times higher than in Uruguay, “the laws have been pushed aside to make way for killing the socially undesirable” (p. 223).
What kind of citizenship do these victims enjoy? Where do they turn when the state persecutes them, kills them, and then fails them when they turn to the courts in their search for justice? How do these fragile democracies redress the imbalance of power between victims and the police? Institutional reforms will certainly help, such as securing better autonomy for the courts so that they do not depend on police branches for their investigations. As Brinks also mentions, legal reform should radically change both rule-crafting and fact-finding procedures. In rectifying the imbalance of resources, witness protection programs and speedy trials will surely be welcome. But, he concludes, institutional change will remain ineffective if it is not preceded by a profound political change that challenges social inequalities that corrode democracies. Universal effective citizenship should ensure the enjoyment of rights but also efficient courts that enforce those rights and, finally, the availability of the extra-juridical resources (both socioeconomic and institutional) needed to effectively engage the legal system and address police violence in courts.
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Citation:
Cesar Seveso. Review of Brinks, Daniel M., The Judicial Response to Police Killings in Latin America: Inequality and the Rule of Law.
H-Human-Rights, H-Net Reviews.
November, 2009.
URL: http://www.h-net.org/reviews/showrev.php?id=25242
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