Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy


July 21th, 2017

The right debate about institutional racism in the justice system was highlighted last Wednesday, July 12. Through the initial provocation of Criola, the Justice Forum and the Brazilian Institute of Criminal Sciences (IBCCRIM), the invitation was extended to actors from various civil society organizations, academics and the Public Defenders of Rio de Janeiro and São Paulo for a meeting. strategic.

The Workshop System of Justice and Institutional Racism is at the heart of a discussion that has arisen since the 100 Brasilia Rules on Access to Justice for Vulnerable People were approved. This document, approved at 2008 by the heads of the judiciary of the countries meeting at the Ibero-American Judicial Summit, in providing for so many political guidelines for addressing vulnerabilities, does not allude to racial issues. If this gap demonstrates the invisibility of the issue vis-à-vis such power actors, it provides for bottom-up mobilization so that black actors themselves can put the terms of this discussion without the opposition of pre-established guidelines in the document.

Vilma Reis, sociologist and Listener of DP / BA, opens the workshop with the reading of the poem Vozes-Mulher, by Conceição Evaristo.

Vilma Reis, sociologist and Listener of DP / BA, opens the workshop with the reading of the poem Vozes-Mulher, by Conceição Evaristo.

It is in this context that Criola accepted the consultancy proposal aimed at monitoring and supporting actions of participation, recognition and redistribution in the essential institutions of the justice system, focusing on the Public Defenders, aiming at the production of data and conceptual reflection and strategic practices. specialized organs of the justice system dedicated to the fight against racial inequality. Alongside this broad objective, there is the need to produce a diagnosis of the Public Defender's institutional role in the fight for racial equality and against discrimination.

To support this complex action, the workshop was designed to gather the theoretical contribution of experienced actors to subsidize the next. The institutionality of the justice system was represented by Vilma Reis - Ombudsman of the Bahia Public Defender, Livia Casseres and Rosane Lavigne - public defenders in Rio de Janeiro, and Vinicius Conceição and Isadora Brandão, public defenders in São Paulo. From organized civil society were present: Caroline Bishop (They Exist - Incarcerated Women), Lucia Xavier, Lia Manso and Ana Miria (Criola), Allyne Andrade, Haydee Passion, Dina Alves, Luciana Zaffalon, Tainara and Willians (IBCCRIM), Esther Horta (Collective Adelinas) and Rodnei Jericó (GELEDÉS), as well as Élida Lauris, Vinícius Alves (Justice Forum), Alex Vítor (lawyer) and Natália (sociologist). From the academic field, Felipe Freitas, PhD in Law with research on the Police; Poliana Ferreira, from the UNEB Criminology Research Groups and a researcher at FGV; Nataly and Barbara, USP Public Policy and Social Inclusion researchers; Silvio de Almeida, professor at Mackenzie University, Evandro Piza, professor at UnB; Ronaldo Sales, professor at UFCG eThula Pires, professor at PUC-Rio.

The initial provocation was based on the finding that black studies and the racial issue in the justice system exist, but are so unclear that they do not. The workshop was an opportunity to make use of this knowledge already produced. On the other hand, it is perceived that there is a resistance in the justice system in general and in the Public Defender's Office in particular regarding the theme of racism. What is the role of the justice system in the structure of racism in Brazil? What would be the right justice system for black women? To be anti-racist, what policies would you adopt?

Racism and Selectivity

These questions already include the problem of thinking racism from the criminal selectivity. Even when talking about criminal selectivity, the white academy does not analyze it from racism. In this matter, police behavior ends up being the focus of analysis, studies and criticism, but it is also important to identify the responsibility of other silent institutions, such as the Judiciary itself and the Public Prosecution Service. The need to requalify the debate on criminal selectivity was pointed out from the perception that there is no non-selective penal system. And that one can only understand selectivity if it is combined with the question of racism and the economic question. In the context of economic crisis, the penal system and selectivity turn to the extermination of the black and poor population.

And despite the specifics and consequences of selectivity in the criminal justice system, participants pointed out that racism and selectivity are present in the justice system as a whole, and are not unique to the criminal system. The race category covers family and labor issues. For example, there is great difficulty in discussing the concept of single-parent family in justice as it follows the concept of white and bourgeois family. The single-parent family is seen as a non-ideal and problematic family, opening the door for state interference in the family context. The issue of maids also involves race and to date there has been no equalization in terms of labor law.

Beyond selectivity, the justice system operates on the theme of racism from the legal definitions of racism and racial injury, which does not encompass the institutional and structural approaches that are sought to make a deeper discussion of the issue. There is therefore the initial challenge of building this narrative beyond the law in dealing with institutions of the justice system. In developing an institutional analysis, one looks at structures, meanings, and relationships. If we stick to the legal definition, it's no wonder we're more restricted to the penal system.

The confrontation of racism

Researchers, public defenders and activists from social organizations and movements collaborated with theoretical contributions and strategies.

Researchers, public defenders and activists from social organizations and movements collaborated with theoretical contributions and strategies.

How to proceed against concrete situations of racism? For some, the confrontation with racism within the penal area is against what is envisaged as a project of just and equal society, which leads to the task of thinking how to punish these discriminatory actions. What would be the appropriate penalty? What alternative measures? Is restorative justice a solution? These questions brought different positions. For some of the participants, the aim is the criminal punishment of the perpetrator of racism, without any alternative measures, while others pointed out that the racial issue through the civil and labor routes brings a slightly more satisfactory result than the criminal route and that perhaps this differentiation passes through the sensibility of the judge in each sphere. In defense of restorative justice, it has been argued that criminal logic does not deal with institutional racism but personalizes racism. Restorative logic thinks of other coping strategies; The participation of all those involved in conflict resolution is part of this philosophy. Criminal law restores the broken order, which is a racist order. In any case, the importance of international embarrassment in the face of episodes of racism was highlighted. The effect of this international litigation is enormous and directly affects individual cases.

Brazilian racist institutionality

The racist character linked to the republican project of nation, derived from positivism and social Darwinism, must be pointed out. This historical and social diagnosis, which continues today, points to the need for an institutional refounding. On the other hand, it is clear that this racist institutionality is tributary of a racist structure.

Institutions are the result of structures, which are the mode of organization of social life: politics, economics, and the constitution of subjectivity. The institutions reproduce the regular functioning of these three elements. The theme of structural racism poses the problem of how to understand racism as a central point of operation and structuring of social relations in Brazil. Institutions that do not reproduce these elements lose their functions and cease to be institutions. According to this perspective, in the institutional field the most to be done is a harm reduction policy. The justice system is measured by its ability to institutionalize conflicts. In a crisis, however, there is no possibility of institutionalizing conflicts, and when it does not, the system turns to extermination. The Ombudsman was made not to serve class interests in the justice system, but to reproduce the process of structuring society.

On the other hand, there is a dispute over what is institutional rather than institutional. The idea that there is an outside of the institution does not work for certain groups, since all sides are sides of dispute. The concepts of structural and institutional racism are built in the USA after the civil rights struggles, which brings the problem of its importation to the Brazilian reality. It represents the elimination of the segregating legal system, but the permanence of racism. The instrumentality of this concept for the Brazilian reality was questioned, a society that did not live its moment of social catharsis. We live in a stratified society via race in a social, albeit silent, apartheid.

What is the point of a democratic justice system in a society still far from democratic? It was argued that the main task might be to promote the collapse of these institutions. Worse than selective, the system is genocidal. Genocide not only operates with physical elimination, but also leaves the black population without self-esteem as the living dead. Black people need to talk about themselves, for themselves and for themselves, eliminating the mediations that go through white institutions.

It was stressed that the justice system does not think of itself as a public service, but that it feels like an upper class. It is not used to horizontality. Has a speech of charity, priesthood. The policy of affirmative action and the intervention of black women was defended.

Understanding the functioning of the justice system means breaking the ladder that the public service has created with the population. These servers must be challenged by the codes they operate with the population. Name the racist treatments performed by these actors, taking them out of the abstract. What makes the naturalization of racism possible is that these actions are diluted and the agents are not compromised. This coexists with the lack of data, the management of extermination and a justice system in which we only lose. Therefore, a pedagogy of embarrassment is needed. It has been argued that when we emphasize popular participation in the justice system, it serves to challenge the choices of institutions and constrain them to effectively derail the functioning of some of them in the management of extermination and thus build institutions in other terms.

The theme of racism must be extended to the expanded justice system, which is the faculties and organizations, which also shape how the bad manners of the justice system in general are constructed. What contribution does advocacy make to composing racial hierarchies in the justice system? Another issue is the law faculties, which have not implemented matters related to Law 10.639 / 03 and reproduce the structures of racism in the formation of justice actors.

The Workshop was a partnership between CRIOLA, the Justice Forum and IBCCRIM and was dedicated to thinking about the role of the justice system in the reproduction of racism and the possibilities of incidence.

The Workshop was a partnership between CRIOLA, the Justice Forum and IBCCRIM and was dedicated to thinking about the role of the justice system in the reproduction of racism and the possibilities of incidence.

Race and class

Different views on the relationship between race and class were held. A first position was that class debate distorts the theme of race. The opposite was more widely argued, which class is an analytical category and in Brazil it is articulated with the racial issue, especially in a country of peripheral capitalism. From this perspective, it is necessary to articulate the myth of racial equality with the theme of the national and economic project. Ideologies have materiality. Gilberto Freire, for example, would have argued, in Order and Progress, that Brazil did not need to import elements of foreign democracy and social rights into the countryside because it would spoil Brazilian racial democracy. Therefore, to talk about race, it is important to go beyond the racial issue, making the big debates about economics and politics. Race would be a form of naturalization of inequality in Brazil and without talking about it, there would be no way of talking about economic development and industrialization.

In this sense, it would also be racism to restrict blacks and blacks from debating only the theme of racism. This would result in black and black organizations only getting funding to talk about blackness. Other themes end up harmed.

The difficulty in obtaining information

When faced with institutions, we deal with silence in the face of the variable race in the justice system data. Accessing data to account for racism in the justice system is a challenge. Three elements were scored: a) absence of consistent data on deaths resulting from police action in Brazil; b) the confidentiality of administrative processes in the police offices, so that no diagnosis or control over them, their criteria, the procedure adopted and its outcome can be produced; c) the lack of clear and easily accessible identification of the judicial process resulting from the resistance or police intervention. The record of race in the proceedings is not that obvious. There is a lack of protocol to include race / color in the case file and in police approaches, but also in court proceedings. Notaries of the judiciary nor the prosecutor know how to report data on these cases. There is an ideological (dis) knowledge of racism. This (un) knowledge has to do with what is relevant or not to be known. On the other hand, it was argued that even when information is available, there is a devaluation of race / color in the justice system.

Affirmative Actions

The political conjuncture and its consequences for the fight against racism were the backdrop of reflections on the black movement and leftist organizations.

The political conjuncture and its consequences for the fight against racism were the backdrop of reflections on the black movement and leftist organizations.

The indication was to think of affirmative actions as institutional reform and not just as reserve for vacancies. If we think only of reserving vacancies, it could be said that the police have the black population represented, given the number of black policemen. One has to think at the institutional level and affirmative actions are important as a way of reconfiguring institutional spaces, altering the interpretive horizon and social representation within the space. However, there is a danger that quotas will not be effective if they do not exist since the first phase of tenders.

A controversy arose around blacks occupying spaces of power and acting in favor of the continuity of order. If on the one hand some prefer the presence of blacks in power spaces even defending order, others point to the need to prevent this action, being the task of blacks and blacks to take a counter-hegemonic posture.

The black movement and the left

The distrust of leftist parties set the tone of some speeches. For some present, parties and the left cannot dialogue. They call to their meetings without realizing that the black movement has an extensive agenda. The institutionalities and the subjects behind the left do not recognize these longings. He wondered why we continue to dialogue with these agents. There are several small democratic experiences that can bring alternatives to these leftist institutions.

It has been reported that the white left is staging the participation of black and black people in academic and political spaces, even in a very subtle way. Black people serve to participate in space as a representation, but not to effectively compete for space. Racism is transformed to control the entry of black trajectories into these spaces.

The concept of performative action for the understanding of the behavior of the left, which makes shows of reaffirmation of political identity that only serve for consolation, but which are not dedicated to really transformative actions, was punctuated. There is a need to train leaders, think about the role of political education and decentralize theoretical production on criminology, leading to the neighborhoods.

For the "progressives" it is necessary to counteract a state of incommensurability, in which there are no bridges or alliances. The incommensurability is that one begins to think of something that holds. Black intelligence lost a lot of energy to find bridges that were never established. It makes no sense, for example, to think of African religions from religious freedom, because it was thought of in the Republic under a Christian matrix. There is no bridge between being and nonbeing. There was also the cowardice of the white left, which had the power to change the picture of the police and the prison system, and they did not.

6 RaceThe accumulation of black movement

It was noted that the action in the justice system is not new, that there are offices and networks set up. Since the Durban Conference there has been a great production on racism and the justice system that has to be recovered. There is a history of reflection, study and political action. The movement would have set aside brave lawyers and academics, whose texts have been marked and misinterpreted by the bias. It is important to use the theses of blacks and blacks in petitions. It was remembered that today it is black and black who say what racism is and that it is necessary to base the categories that are then used and developed. In this sense, it was argued that what informs gender and class is race, and that it must be from there. The story that the black woman is unaware of being black does not hold. Who was born in Brazil, knows what it is to be black.

Public Defender

Regarding the Public Defender's Office, it was noted that the institution has limits and difficulties in working with race and gender. There is no recognition that this is a fundamental issue and that the focus seems to be on the category of the economy class. Although some progress has been made in moving from hypo- sufficiency to vulnerability as a category of care, it appears that this has only resulted in a specialization of the Defensoria's work, which is not at all connected with structural issues in social relations. There is no reflection on the methodology of action to think structural changes. How to think new methodologies to understand the subject in a more complex way beyond the class question?

For many, it is not seen how to change the institutional configuration of the Defender from within if we are not black and blacks are not inside. Whites will not make this transformation. On the other hand, the incidence in the External Ombudsman is a collective and necessary response. It is noticed that the incidence of blacks in the justice system is irreversible and that without this intervention, the system cannot be sustained. A Public Defender's Office is defended in which the population has decision-making power. Affirmative action policies are this form of incidence.

Advocates were indicated to build an institutional policy of affirmative action, not only access and data production, but a complete policy. Question race / color in the Defensoria service registry. Quotas in the Defensory Schools. Specific classes or vacancies for quota holders. Evaluation of bidding policies. In the Public Defender's Office of Rio de Janeiro, it is assessed that the reservation of vacancies has no effectiveness. Insert study of race relations in the contest notices and related courses of the Defensory School. In addition, there is the indication of producing a diagnosis of institutional racism.

1 Race