The Stage: The jury court

The Jury Court, or people’s court, is the body responsible for the trial of one human being by other “equals”, that is, by those who in theory belong to the same community or the same social group. Through this system, the power to judge is removed from the robed magistracy (judges of law) and delivered to the people (jurors), the legitimate holders of sovereign power.

The Jury Court came to be composed of a court judge, its president, and an additional twenty-one jurors, drawn from among those summoned. Among these, seven would be chosen to compose the sentencing panel in each trial process. These jurors were to be chosen from citizens who offered guarantees of solidity, probity, and intelligence in the performance of the function. This is the current composition of the Court, which must be composed of ordinary citizens who represent civil society in the trial.

In practice, however, the Jury Court, equals do not exactly judge equals. The Jury does not encompass the entire population, being formed generally by civil servants and independent professionals. Indeed, the list of jurors selected for the year 2007 in the city of Aracaju is comprised of 64.7% government employees, 29.3% are workers at public banks, and 5.9% are employees of PETROBRÁS.

It is not only in terms of occupation that jurors are far from representing society. In a survey conducted with a representative sample of the total number of jurors summoned for the year 2007 in the 1^st Jury Court of Aracaju, in which 136 jurors were interviewed, it was found that most of them are self-reported as White (43.4%), Darker-skinned (22.8%), or Mixed (15.4%). Only 2.2% define themselves as Black and 0.7% responded as being Mulatto. Almost all live in middle-class neighborhoods, in the B and C Housing Sectors; all have a level of schooling equal to or exceeding the high school level, and 65.4% have a monthly income exceeding U$ 1.000,00 (da Silva, Reference da Silva2009).

The actor and the act: Criminal and crime

Crime invariably assumes a prominent role in modern society, owing to the brutality with which it is carried out, deserving greater attention from the media, or an increase to the discussions on the spread of crime and the reassessment of the effectiveness of public policies in the use of the concerning crime. In concrete terms, both “macro criminality” and “micro criminality” are the social aspects that raise major concerns nowadays, as they jeopardize the public and private safety of the people. This disorder of social relations, in small or large proportions promoted by crime, constitutes a topic of special relevance for the social sciences (Robert, Reference Robert2007).

Young (Reference Young2002) argues that the phenomenon of crime should be examined in the context of social exclusion on three levels: economic and labor-market exclusion, social exclusion, and exclusion from the criminal justice system. Young says that recent modern life causes a state of “ontological insecurity”, due to which repeated attempts to create a secure base arise, reaffirming values as absolute, declaring that other groups do not have values, establishing strict boundaries between what is virtue and what is vice. In the end, being more rigid than flexible, and more punitive and exclusionary than pervious and tolerant in their decisions against other groups.

Exclusion and stigmatization are powerful mechanisms that allow the assertion of superiority between people and between groups. The stigmatized group is seen as different and inferior by the stigmatizing group. The taint of being deviant in relation to laws and rules hangs over its members. The dynamics of stigmatization, generally promoted by groups well-installed in positions of power, can make it possible for an individual to be treated and judged negatively by the mere fact of living in a particular neighborhood. In this case, the image of the group to which he/she belongs becomes a sort of symbolic personal capital that the individual carries (Elias & Scotson, Reference Elias and Scotson2000).

It is in this sense that Misse (Reference Misse and Misse2008) proposes the existence of a “social distance between classes and individuals”, which functions more as a way to maintain, practice, operate, and represent the power relations of a given society than simply as a cultural aspect. Society has a demand for incrimination which makes the mobilization to file the complaint and even to personify and characterize the group as a criminal element publicly justifiable. Identification or indifference in relation to the other will therefore constitute important aspects in social judgments.

The scene: The trial

Social judgment involves a cognitive and social process in dealing with information in a scenario where multiple variables can intervene, often producing results or verdicts that depart from factual reality, to construct a new reality that they validate or legitimize (Kahneman & Tversky, Reference Kahneman and Tversky1982). Social judgments are affected by heuristics or mental shortcuts, and even by other biases, such as beliefs or preconceptions, noteworthy among these are stereotypes and social prejudices. In this sense, false impressions and inaccurate attributions can generate erroneous judgments and result in serious consequences for people’s lives.

Attribution theories try to understand how ordinary people deal with information in order to understand and explain social reality. As Halim and Chew (Reference Halim and Chew2008) observe, it is the attribution of causes or the meaning we give to phenomena, and not the phenomena themselves, that determine our actions at an individual or group level. Attributions are explanations from ordinary citizens for what is happening around them. They are occurring all the time in our daily lives, sometimes consciously, sometimes not, and have a considerable impact on the way we behave and interact with others. In attribution’s theory it is common to commit what Ross (Reference Ross1977) calls “fundamental attribution error”, when judging people’s behavior is confined to dispositional factors, in preference to situational factors.

One of the explanatory principles employed to understanding why, in the processes of explaining reality or attributing causality, so many mistakes and precipitations are committed is called “need for closure”. The need for closure is a motivation to reduce uncertainties in the formation of an attribution. For Kruglanski (Reference Kruglanski and Berkowitz1989), we are motivated in our judgments to seek accuracy and this often leads us to consider as valid only such information that avoids confusions and ambiguities. In this scenario of seeking more concrete elements to form beliefs and judgments, certain “peripheral” cues, such as age, gender, sexual orientation, skin color, education level, socioeconomic status, accent, mode of dress, among others, can have a definitive weight in decision making.

Various studies in social psychology have shown that the jury’s composition and dynamics influences the outcome of its deliberation (Bornstein & Greene, Reference Bornstein and Greene2011; Hastie, Reference Hastie1993; Lieberman, Reference Lieberman2011; Winter & Robicheaux, Reference Winter, Robicheaux, Wiener and Bornstein2011), often lead to a malfunction in jury trials. These factors intervene directly in the three phases of the trial: i) the way jurors use information they obtain before trial; ii) the way they process information during the trial; and iii) how they deliberate, after the evidence has been presented.

In an elitist and racist society, is the case of Brasil, the skin color of those involved in crimes, and their socioeconomic status can be powerful variables in determining what we call a jury malfunction.

Prejudice in social judgments

Researches finds that “dangerous decisions” are often influenced by racism. Several studies show that the decision by police to shoot against a presumably armed suspect is taken more quickly when the suspect is black (e.g., Correll, Park, Judd, & Wittenbrink, Reference Correll, Park, Judd and Wittenbrink2002; Payne, Reference Payne2001). Other studies show that the more pronounced the racism of doctors, the less they diagnose and prescribe treatment suitable for serious illnesses in patients from minority ethnic groups (Green et al., Reference Green, Carney, Pallin, Ngo, Raymond, Iezzoni and Banaji2007). Vala, Pereira, Lima, and Leyens (Reference Vala, Pereira, Lima and Leyens2012) have shown, in a series of studies in Europe, that members of dominant groups spend less time analyzing Black people than Whites in impression formation tasks.

In all these cases, the psychological mechanism underlying the effects of skin color in social and legal judgments is not a simple and direct consequence of individual racism of the people involved. It is something more complex and less controllable.

Several analyses show that our culture associates Blacks with aggressiveness and violence (Guimarães, Reference Guimarães1999; Jahoda, Reference Jahoda1999). This cultural association is reflected in people both consciously and unconsciously, at the so-called “automatic” level (Lima & Vala, Reference Lima, Vala, Lima and Pereira2004a). Studies find that college students, who consider themselves consciously anti-racist, at the level of their private and implicit attitudes (i.e., non-conscious) exhibit negative stereotyping against Blacks (e.g., Lima, Reference Lima2002; Lima, Machado, Ávila, Lima, & Vala, Reference Lima, Machado, Ávila, Lima and Vala2006).

Negative associations against Blacks are culturally widespread, and those. associations which hold influence in every day life because they somehow affect us all become critical when it comes to decisions taken by the court. Systematic investigations demonstrate that the death penalty is assigned more frequently to Black defendants than to White defendants. Eberhardt, Davies, Purdie-Vaughns, and Johnson (Reference Eberhardt, Davies, Purdie-Vaughns and Johnson2006) observe that the more the defendant has traces of the Black phenotype (e.g., darker skin, thicker lips, more curly hair, etc.), the more often they are sentenced to death. There even exists an effect from the victim of the crime, on conviction of the defendants, where this rises from 27% to 41% when the victim is White. So much so that, in cases where the defendant is Black and the victim is White, there is a higher conviction rate in the United States.

It is no wonder, therefore, that in the United States there is a policy of “correctional affirmative action” in reverse. Six in ten inmates in that country are Black or Latino, even though these two groups combined represent no more than 25% of the population. For Wacquant (Reference Wacquant2001), the key trend of the U.S. penitentiary evolution is a continuous ‘darkening’ of the prison population.

In Brazil, racism often appears as a hybrid of color and social class, which includes in its composition, even today, the cult of miscegenation that marked our identity, history and became classic with Freyre (1933/Reference Freyre1983). Another hallmark of our racism has always been, as a function of the non-establishment of a “color line” or of a racialization of color based on descent, the possibility for an individual to change color depending on their socioeconomic status, i.e., the close relationship between color and social class (Degler, Reference Degler1971; Lima, Reference Lima2007; Lima & Vala, Reference Lima and Vala2004b).

Indeed, Fausto (Reference Fausto2001), studying crime in Sao Paulo in the period between 1880 and 1924, finds that criminal prosecutions tended to different outcomes, depending on the color of the accused. Acquittals and dropped cases were the prevalent decisions when they involved a White defendant; the reverse happened when the accused were Black or Mulatto.

Ribeiro (Reference Ribeiro1993) conducted a study on color and criminality in attempted and consummated homicides in Rio de Janeiro in the early decades of the twentieth century. The author found that the absolute majority of criminal cases heard in the Jury Court were Black defendants (60.6%). But this phenomenon did not extend only to the defendants, as Black victims totaled 54.2% of the people injured in a lethal or non-lethal manner, while only 10.8% were Whites.

More recently, Adorno (Reference Adorno, Schwarcz and Queiroz1996) did a study on the color of the defendants in police reports of violent crimes that occurred in 1990 in the city São Paulo (e.g., robberies, rapes, extortion through kidnapping, drug trafficking, etc.). The author notes that there is a tendency toward the “mixed coloring” of the accused and defendant population. As the case progresses, some defendants tend to blacken and others to whiten.

If during prosecution of the case, it is determined that this defendant is a hard-working citizen of a respectable family, a good father and a model husband, who accidentally became involved in the crime, it is possible that in the trial outcome he may come off as slightly dark-skinned; the reverse is also true (Adorno, Reference Adorno, Schwarcz and Queiroz1996, p. 268).

We conducted this study for the purpose of analyzing the impact of skin color and socioeconomic status of the defendants and the victims in the conviction or the acquittal, and in the length of sentence imposed, in the judgments of the Jury Court of a judicial district in a Brazilian capital city, for crimes of homicide. Our working hypothesis states that: black and poor defendants will suffer a higher conviction rate and receive longer sentences than white and rich defendants.