This article discusses the problem of torture in Brazil through an empirical perspective and a functionalist approach, analyzing the limited effectiveness of the criminal justice system in filtering episodes of police violence. The analysis of 43 criminal cases and interviews with 12 legal professionals revealed a high number of allegations of police violence. Investigations into these allegations according to public defenders, prosecutors, and criminal judges are rare. Based on a comparative analysis, research suggests that structural factors of Brazilian criminal procedure contributed to the inertia of the relevant players. The time gap between a defendant's prison and his judicial hearing is extremely long, reducing the possibility of collecting evidence of torture. The lack of a system of rewards (plea bargaining) and sanctions (perjury) induces defendants to not remain silent, but to present a version of facts that is usually perceived as a fantasy by the professionals. In addition, the absence of an effective mechanism of police control produces a lack of initiative to investigate allegations of torture made by criminal defendants. Our concluding remarks suggest that exhaustive empirical research should investigate this hypothesis about issues surrounding the problem of torture in Brazil and how legislative reforms could transform the Brazilian criminal justice system into a more efficient filter of episodes of police violence.
References
Bogira, S. (2007). Courtroom 302: A Year behind the scenes in an American courtroom. New York: Vintage.
Cavallaro, J. (1997). Police brutality in urban Brazil. New York: Human Rights Watch.
Chemerinsky, E. (2001) The role of prosecutors in dealing with police abuse, Virginia Journal of Social Policy and the Law, 8, 305-320.
Dershowitz, A. (2004) Torture reasoning. In S. Levinson (Ed.). Torture: A collection. Oxford: Oxford University.
Felley, M. M. (1982). Plea bargaining and the structure of criminal process. The Justice System Journal, 7, 338-354.
Felley, M M (1997). Legal complexity and the transformation of the criminal process: The origins of plea bargaining. Israel Law Review, 31, 183-222.
Fisher, G. (2002). Evidence. New York: Foundation Press.
Fisher, G. (2003). Plea bargaining’s triumph: A history of plea bargaining in America. Stanford: Stanford University.
Friedman, L. (1975). The legal system: A social science perspective. New York: Russel Sage Foundation.
Friedman, L. (1979). Plea bargaining in historical perspective. Law & Society Review, 13, 247-259.
Grinover, A. P. (1999). Juizados especiais criminais. São Paulo: Revista dos Tribunais.
Huggins, M., Haritos-Fatouros, M.. & Zimbardo, P. (2002). Violence workers: Police torturers and murderers reconstruct Brazilian atrocities. Los Angeles: University of California.
Kennedy, D. (1997). A critique of adjudication: Fin de siècle. Cambridge: Harvard University.
Langbein, J. H. (1979). Torture and plea bargaining. The University of Chicago Law Review, 46, 3-22.
Langer, M. (2004). From legal transplants to legal translations: the globalization of plea bargaining and the American thesis in criminal procedure. Harvard International Law Journal, 45 (1), 1-64.
Langer, M. (2007) Revolution in Latin American criminal procedure: diffusion of legal ideas from the periphery. American Journal of Comparative Law, 55, 617-676.
Reimann, M., & Zimmermann, R. (Eds.) (2008). The Oxford handbook of comparative Law. Oxford: Oxford University.
Rudovsky, D. (1992). Police abuse: can the violence be contained?. Harvard Civil Rights – Civil Liberties Law Review, 27, 465-501.
Williams, G. H. (1993) Controlling the use of non-deadly force: Police and practice. Harvard BlackLetter Law Journal, 10, 79-104.
Zimbardo, P. (2007). The Lucifer effect: Understanding how good people turn evil. New York: Random House.
