Justice sector knowledge production

Both Linn Hammergren and Thomas Carothers note that, in the rush to promote rule of law and judiciary reform in Latin America during the 1990s, reformers, domestic and international, relied on a ‘disturbingly thin base of knowledge at every level’.Footnote ⁸ Critical evaluations of judicial reform initiatives in Latin America over the last two decades, whether promoted by domestic or international actors, show that unreflective policy transfer has often occurred, involving inappropriate and imported institutional templates rather than empirically grounded analyses of identified problems.Footnote ⁹ The same problem affects the institutional and operational reforms of the criminal justice system. In the aftermath of the PCC onslaught, it became evident how little reliable information and institutional consensus existed about this clandestine grouping.Footnote ¹⁰ Beyond the established facts of the group's birth and growth within the prison system,Footnote ¹¹ much of the system's ‘intelligence’ about the gang seemed to be little more than smoke and mirrors.Footnote ¹² There were major disagreements between the state prison authorities and the police and prosecutors investigating the gang over questions as basic as the number of prisons in which it had influence, the proportion of prisoners supporting it, and income provided by an unknown number of affiliates outside prison.Footnote ¹³ Such an information gap can be calamitous as it paralyses any possibility of effective policy response.

While it is perhaps unsurprising that knowledge about the operation of criminal networks remains insufficient, knowledge production on Latin America's justice systems is also extremely patchy.Footnote ¹⁴ In the 1980s the judicial branch began to attract attention for the first time in decades, firstly, in relation to its role in challenging or colluding with the human rights violations that had occurred under military rule and, secondly, regarding the degree to which its stance in any attempted prosecution of human rights violators was likely to deepen or destabilise the emergent democracies.Footnote ¹⁵ As the transitions to democracy generally occurred in conjunction with, or subsequent to, structural adjustment, the modernisation perspective of the 1960s Law and Development movement re-appeared, this time led by international financial and development institutions pushing for a ‘second wave’ of governance reforms aimed at embedding the neo-liberal economic reforms.Footnote ¹⁶ The continent's sclerotic, corrupt, politicised and incompetent judiciaries were regarded as a brake on economic growth for failing to provide a stable, predictable environment attractive to foreign investment. External actors such as the World Bank, IADB and USAID poured money into certain countries of the region in pursuit of reforms ranging from computerisation of court records, alternative dispute resolution (mainly in the civil and commercial fields), more independent supreme courts and strengthened powers of constitutional review, that would render the judicial branch more independent and efficient, and offset excessive presidential power.Footnote ¹⁷

From rule of law to policing

Nevertheless, this first wave of judicial reform barely touched the criminal justice arena, despite the key role that the judiciary plays both in processing and sentencing criminal suspects, protecting detainees' civil liberties, and resolving social conflict. A second stage of judicial reforms promoted in the mid-1990s introduced structural changes in order to democratise access to judicial arenas, creating a multitude of small claims courts and mediation projects to divert minor criminal disputes away from the mainstream courts. Reforms of the penal code and codes of criminal procedure were undertaken in a number of countries, the most wholesale of which was Chile's, implemented in 2000–5 and involving new guarantees for prisoners and the creation of that country's first prosecutor's office.Footnote ¹⁸

However, the ‘dirtier’ aspects of policing, criminal process, sentencing and detention were left untouched for fear of encroaching on the arena of internal security, over which many of the region's militaries continued to retain considerable political and operational influence. This control had been protected through the negotiated transitions to democratic rule. Civilian politicians were primarily concerned to return armed forces to barracks and place them under civilian control. Decoupling police forces from the military organisational structure rarely entered the agenda. For the armed forces it was convenient to retain some control over this fourth branch, giving them leverage over internal security and a buffer against calls to revoke amnesty laws, which also protected militarised police forces from investigations and prosecution for politically-motivated human rights abuses.Footnote ¹⁹ The main exceptions are the cases of Guatemala and El Salvador, where the external actors in the UN-assisted peace processes of the 1990s added police reform to the post-conflict reconstruction agenda.Footnote ²⁰ Peru's 2002 police reform also took place in the context of democratic transition, following the end of civil war in that country.Footnote ²¹ Brazil's police forces, like many in the region, were subordinated to the armed forces during the dictatorship of 1964–84, and learnt counter-insurgency techniques, such as extra-judicial executions, death squad activity, torture and ‘disappearance’, which they employed against criminal suspects or social undesirables. The new Constitution of 1988 left the police untouched, with the Military Police (the bulk of the country's forces) protected by the Military Courts. There was no purging of the ranks, restructuring and re-training, ensuring a continuity of operational practices and culture through the military and democratic periods.

That said, academic interest in criminal justice matters increased in response to the apparent eruption of common crime and violence in the post-authoritarian period. This prompted a new literature focused on policing and rule of law, with Chevigny's comparative study of police violence in Brazil, Argentina and the United States a benchmark text.Footnote ²² Researchers in the region – who were generally located in non-governmental research centres – concentrated their initial efforts on meticulously documenting systematic gross human rights violations by police in order to make a political point that was common knowledge yet routinely denied by governments: that the post-democratisation police forces in the region were not only inept in combating crime and violence, but were actively contributing to these problems.Footnote ²³ In the police raids that followed the PCC violence, well over 100 alleged PCC members were shot dead by the São Paulo police, whilst in 2007 Rio de Janeiro police responded to New Year violence unleashed by the Comando Vermelho (CV) gang by reportedly forming their own Comando Azul death-squad, thus further undermining the rule of law and legality of force. In the last two decades in São Paulo and Rio de Janeiro, military police killings of civilians, most of whom have no prior criminal records, have accounted for around ten per cent of homicides annually, despite fluctuations reflecting periodic reform attempts.Footnote ²⁴

This literature fed into a broad set of concerns about impunity for human rights violators, the hyper-punity suffered by the poor and the marginalised, the long-entrenched duality and discrimination within the justice system, and the threat of unrule of law to fragile, new democracies. O'Donnell's ideasFootnote ²⁵ about horizontal, systemic accountability and areas of lawlessness within modern Latin American states inspired a new generation of studies.Footnote ²⁶ The PCC's apparent capacity to control prisons over a wide territory and coordinate attacks on the state from within the latter's repressive apparatus seems to confirm the hypothesis of parallel powers filling the ‘grey’ vacuum of state power. This was first developed in relation to the drug barons of Rio's shanty towns, but the PCC violence has prompted discussion of a rhizomic spread of such extra-systemic networks – from Colombia to Rio, via the drugs trade, and from Rio to São Paulo, via the prison system and contraband networks. Indeed, much of the shock occasioned by the PCC violence was that it had occurred not in Rio de Janeiro, now a byword for crime and disorder, but rather in São Paulo.Footnote ²⁷

The majority of studies of the region's police per se have tended to focus upon the consequences of institutional dysfunction, the roots of which are generally located in the circumstances, ideologies and power relations attending the police's formation, organisation and subsequent development. Argentina's and Brazil's police forces have attracted much attention for their sheer dysfunctionality in the mega cities of Buenos Aires, Rio de Janeiro and São Paulo. They are plagued by a number of ills, including: corruption; militarised hierarchies, organisational culture and training; prejudice- rather than intelligence-led policing practices; lack of independent external oversight; and high levels of human rights abuses under democratic conditions.Footnote ²⁸ The literature on Mexico has tended to be dominated by transnational factors such as drugs which have shaped the terms of the debate,Footnote ²⁹ whilst Bolivia's police are only now beginning to receive assistance not related to the ‘war on drugs’.Footnote ³⁰ Some countries' police forces have received almost no attention: the absence of egregious human rights violations in Costa Rica and Uruguay has left them largely unstudied.Footnote ³¹ Equally, the idea of Chilean exceptionalism was, until recently, so strong that the Carabineros were considered fully rehabilitated, scoring the highest public approval rating in the continent. Continued human rights abuses in Chile, even if at a much lower level than during the military regime and in comparison to neighbouring countries,Footnote ³² were obscured from view by their agenda-setting power, helped by allies on the political right. Nonetheless, there have been some notable cases of positive reform, even if these have not been sustained over the long term, for example in El Salvador and Peru.Footnote ³³ However, Colombia's successful police reform has gone largely unanalysed due to its incrementalism and municipal-based character,Footnote ³⁴ and the urgency of other security sector concerns in a context of civil war and paramilitary activity. In Venezuela, equally, political upheavals have crowded out interest in the criminal justice system, despite that country's soaring crime rates in the midst of a proclaimed social revolution.Footnote ³⁵

Prisons: the final link in the chain

If the judicial branch was for many years the ‘Cinderella of government’,Footnote ³⁶ then the prison system remains the ‘Ugly Sister’ of the criminal justice system. The fourth link in the institutional chain (after the police, prosecution service and judiciary),Footnote ³⁷ it has elicited virtually zero academic interest. Across Latin America a prisons policy network barely existsFootnote ³⁸ and the few diagnoses of national prison systems are generally conducted by the same human rights groups and think-tanks working on policing issues. Much of the substantial empirical data on the region's prison systems has been produced by the international community, for example Human Rights Watch's dedicated prison research unit,Footnote ³⁹ the offices of the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders in Costa Rica and Brazil, the Inter-American Commission on Human Rights (IACHR), and by various UN treaty bodies and special rapporteurs.Footnote ⁴⁰ As a consequence of the continent's intellectual traditions and civil law system, Latin American writing on prisons has been almost exclusively the province of academic jurists, proceeding from a positivist perspective, and musing over the finer technical and theoretical points of the criminal code, criminal procedural code and the penal execution law, even in relation to concrete policy issues such as prison privatisation. Honourable exceptions are a cluster of empirical studies that appeared in the second half of the 1970s by people who later became key in an incipient policy community.Footnote ⁴¹ These and other early studiesFootnote ⁴² were the more remarkable for having been conducted during the military regime, when common criminals attracted the attention only of the repressive police forces of the day and not of intellectuals, who were more concerned with the treatment of ‘political’ prisoners. The great irony is that Brazil's first criminal gang, the CV, was formed after common prisoners learnt the principles of clandestine network organisation from these same political detainees with whom they shared a cell.Footnote ⁴³

The 1990s saw an emerging trend amongst Latin American historians towards examining the social construction of deviance in the process of forging modern nations out of heterogeneous populations. Studies of the birth of the penitentiary system in the regionFootnote ⁴⁴ were inspired by Foucault's European work on the archaeology of disciplinary institutions,Footnote ⁴⁵ with the latter's ideas of pervasive governmentality supplanting or supplementing the marxisant bent among some intellectuals engaged in the contemporary field.Footnote ⁴⁶ Prisons finally made it onto the agenda of the human rights community and into the public consciousness through the weekly riots, breakouts and gruesome killings of prisoners (by guards, police and other prisoners)Footnote ⁴⁷ of the late 1990s, in a pattern of systemic breakdown evident in the penitentiaries of Venezuela and Central America. In Brazil, a doctor's evocative account of a decade spent working in the São Paulo House of Detention became a surprise publishing sensation,Footnote ⁴⁸ and was later adapted into an international feature film.Footnote ⁴⁹ At the same time, the Military Police Colonel who had commanded the police repression of a riot in the jail in 1992, that left 111 inmates dead, was facing trial on murder charges,Footnote ⁵⁰ and the state authorities demolished the jail in 2002 at the behest of the IACHR.

Despite all this, empirical data on the prison system remain remarkably thin. This neglect in part derives from a distaste for the research environment, and in part from the authorities' erroneous presumption that these are ‘closed’ institutions, in other words, that the problem of crime ends behind the prison gates. The PCC episode demonstrates vividly that prisons can be an Achilles heel of the criminal justice system, more capable of re-exporting violence to the community than containing it. The two-way traffic in and out of the prisons allowed the gang to obtain mobile phones, drugs and weapons via corrupt lawyers and family members. It also facilitates the spread of physical infections, such as tuberculosis, HIV and other sexually transmitted diseases through family visits or after prisoner release, as well as social pathologies bred in institutions that are violent, crime-ridden, overcrowded, and not properly controlled. Although the PCC's claim to be protesting about prison conditions and human rights abuses was nothing but a smokescreen, invoking this very real concern attracted the support of many ordinary prisoners to its actions. Politicians in Central America are equally deluded in supposing that incarceration is an adequate containment and incapacitation strategy for that region's gangs, the maras and pandillas.Footnote ⁵¹

Obstacles to knowledge production

Why, then, is knowledge production on the region's criminal justice systems so uneven and poor? Much of the work of measuring the negative externalities of crime, violence and defective penal institutions has to date been carried out by external agencies – the IADB, the World Bank and polling organisations such as Latin Barometer. A key reason for poor knowledge production is that neither the criminal justice institutions nor their political masters have incentives to produce data that reflect badly on their performance.Footnote ⁵² At the level of institutions, crime data are incomplete and unreliable because of fragmentation in the criminal justice system. In Brazil, police are divided between the federal, state-level military and civil police, and the municipal guards; the judiciary is composed of two strong institutions, the state-level and federal courts, and the prosecution service; and the prison population is divided between the remit of the secretaries of justice and public security. Each component maintains a separate professional culture, assisted by their hyper-autonomy and lack of accountability. In May 2006, the São Paulo state prisons secretary resigned over the handling of the PCC affair, alleging that neither the public prosecutors nor police charged with investigating organised crime would collaborate with his staff in sharing intelligence on the gang gathered within the prisons. Criminal networks appear to enjoy a greater degree of co-ordination and division of labour across provincial and even regional borders than do the state institutions charged with repressing them: the CV and the PCC reportedly have agreements on territorial control of drugs and other contrabands in their own state ‘territories’, with cocaine supplied by criminal and guerrilla groups in Colombia.

In consequence, over the last decade criminal justice analysts in Brazil have campaigned to secure an accessible national crime database. However, they have encountered institutional blockages, such as the continued control of armed forces personnel over crime data within the Ministry of Justice, turf wars between the military and federal police over the repression of narcotics, and the refusal of some state police forces to input data into the national system, or to share data between civil and military police units. Without something as elementary as a national victimisation survey to provide baseline data on the ‘real’ level of crime and social violence, criminal justice policy is built largely on a series of prejudices and presumptions.Footnote ⁵³ Data production has improved – slowly and patchily – with the installation of police ombudsman's offices in some states, which monitor police violence. That said, certain insulated state bureaucracies such as the Brazilian Institute of Geography and Statistics and Institute for Applied Economic Research, which have a high level of data-gathering competence and produce sophisticated social, demographic and macro- and micro-economic data, continue to ignore the criminal justice sector.

Impacts of incomplete information

Incomplete information about crime trends, about the effectiveness of the criminal justice system, and about the variety of different approaches to crime and violence reduction, has an impact on the behaviour of citizens, of policymakers, politicians and the criminal justice system operators themselves.

In recent years, polls have shown fear of crime and violence featuring in the top three concerns of Latin Americans,Footnote ⁵⁴ often precipitated by critical events such as shows of force by gangs in urban areas or high-profile murders or kidnappings, and fuelled by media coverage and government responses.Footnote ⁵⁵ By December 2006, 31 per cent of Brazilians polled cited personal safety as their main anxiety compared to 22 per cent worried about unemployment, in a reversal of earlier survey results.Footnote ⁵⁶ This anxiety constitutes an important independent variable influencing the actions and choices of both individuals and governments. However, without reliable official data on crime incidence and patterns, citizens lack the means by which to make choices that contribute to, rather than undermine, the rule of law or their own quality of life. Even in countries such as Chile with relatively low crime rates,Footnote ⁵⁷ fear will often outstrip the actual likelihood of victimisation, which is highly dependent on one's social status and geographical location. This, added to distrust of the criminal justice institutions, leads citizens increasingly to attempt to ensure personal safety via individualised, privatised strategies, such as choosing to live in gated communities,Footnote ⁵⁸ purchasing handguns, or opting for extra-legal or illegal forms of ‘security’ ranging from private security guards to death squads, justiceiros and lynchings.Footnote ⁵⁹

Lack of empirical data also hinders informed public debate about policy alternatives. Such a strategic discussion might have headed off the PCC's growing control over the prison system. The Brazilian prison population more than doubled in the last decade, rising from 148,760 in 1995 to 361,402 in 2005. This was accompanied by a sharp rise in the incarceration rate, from 95.5 to 190 prisoners per 100,000 head of population. The problem was especially critical in São Paulo state, which had 138,116 prisoners, and a shortfall of 49,124 places.Footnote ⁶⁰ In the absence of any coherent prison system policy from the federal government, states built more prisons and either muddled through with management models imported from overseas or began to experiment with home-grown solutions around prison privatisation, community/third sector involvement, and separation of offenders into differentiated regimes, depending on their supposed dangerousness and aptitude for rehabilitation.Footnote ⁶¹ By 2005, Brazil had 13 prisons run under US- or European-style privatisation arrangements, following Chile's lead. In São Paulo state, prison authorities paid particular attention to the two extremes of the spectrum; the most dangerous prisoners and the low-grade or first time offenders. For the latter category of prisoners, São Paulo state has pioneered an innovative partnership with local NGOs in running over 20 small prisons that are cheap to run and human rights compliant, providing a rehabilitative regime that reportedly produces very low re-offending rates. At the other end of the scale, prison authorities in Rio de Janeiro and São Paulo have copied elements of the US ‘super-max’ style of prison in order to contain the gangs, following the first massive PCC-orchestrated incident in 2001, when over 25,000 inmates and thousands of family members were taken hostage in nearly 30 prisons in São Paulo state. However, the strategy of isolating the ringleaders in high security jails under an especially tough disciplinary regime failed spectacularly, either because it was the wrong policy or because it was badly executed.Footnote ⁶² Yet no international, governmental or academic body has to date conducted evaluative research on any of these policies, their design, cost or impact, thus eroding the potential for institutional learning, or for successful policies to be replicated or transferred and disastrous ones to be terminated.Footnote ⁶³ The same can be said about policing, where Latin America's policymakers have been tempted by policy templates ranging from community policing, to zero tolerance, to SWAT-team riot control.Footnote ⁶⁴

Policy reform can also be skewed by particular professional or epistemic perspectives – whether home-grown or imported through externally-promoted reform – that frame crime and violence within their own disciplinary or ideological parameters. Where the military retains control of the criminal justice agenda, policy is concentrated around resources – such as numbers of police, police vehicles or guns, and measured in terms of crude results, such as arrests, prison numbers and even, in the case of Rio de Janeiro, body counts.Footnote ⁶⁵ When the economists and public choice analysts take over, reforms are driven by a Weberian instrumental rationality, measured out in targets, indicators, the economic impact of crime, and cost-benefit analysis of the different policy approaches, making it nearly impossible to reframe debates on issues such as prison privatisation.Footnote ⁶⁶ Where the lawyers get control over the criminal justice reform agenda it is inevitably reoriented around reform of codes and procedures with more consideration for the benefits to the system (such as efficiency gains, tackling the backlog in the criminal courts) than to the potential users. In the mid 1980s a penal reform designed by a technocratic group of lawyers set up the small claims courts, an innovation that aimed to divert social conflict out of the penal system. However, the unexpected and unintended consequence in Brazil and elsewhere in Latin America is that these new institutions have been flooded with domestic violence cases, for which they are ill-suited.Footnote ⁶⁷ In short, any approach can be technocratic, in pursuit of narrowly defined objectives, fuelled by circumscribed or reductionist understandings of what is a highly complex institutional and social system.

Knowledge production is also affected by the selection and interpretation of cases. As noted above, the national-level literature is already skewed. But where should we look for reform – at national or local levels of government? And if we find reform occurring at one administrative level, what does it tell us about the overall climate for reform? The last few years has seen increased attention to citizen security reform at sub-national level. In federal systems, such as Brazil, where the national-level police force is numerically tiny by contrast to the state-level forces, most analysis has, naturally, centred on the major states/cities. São Paulo and Rio de Janeiro have attracted the lion's share of attention, the first as the country's political and economic epicentre, the second as a city that in its topography neatly seems to symbolise the ‘paradox’ of the ‘two Brazils’, the morro and the asfalto, capturing the imagination in a way that less picturesque cities cannot.Footnote ⁶⁸ Thus criminal justice issues in other state capitals with much lower crime rates but struggling with the same structural constraints on criminal justice reform, such as Belo Horizonte, Porto Alegre and Brasília, have remained understudied. This geographical research concentration means that narratives about crime and criminal justice in Brazil and Latin America often tend to over-emphasise the dramatic, the exceptional and the extreme. We must also be cautious with the generalisability of findings. Due to Buenos Aires' position as a primate city, a study of that city's police is more ‘typical’ of the national public security situation than Rio's is of Brazil's. Some, indeed, argue vigorously for Rio's exceptionality.Footnote ⁶⁹ Studies of criminal justice and violence need to address the ‘ordinary’ as well as the exceptional, and to study a range of examples and situations across national territories and populations.

The search for examples of positive reform initiatives has led in the last couple of years to increased attention to municipal-level initiatives within a broader context of decentralisation of all kinds of public service delivery. The development of community-oriented policing in Colombia's metropolitan areas has been one key element in urban violence reduction,Footnote ⁷⁰ whilst Brazilian mayors have been able to reactivate a residual police force, the municipal guards, and revamp them as community-oriented police, turning into a virtue the fact that they lack full police powers and are generally unarmed. This positive development has occurred because local-level actors respond to a different set of incentives than the ones constraining national politicians. Mayors can reap electoral rewards from responding to public fear of crime using much more community-oriented and preventive measures. Environmental measures such as enforcement of traffic laws, restrictions on the sale of alcohol, gun amnesties, improved street lighting, and increased leisure facilities for young people are as important as policing styles in producing drops in crime and violence in cities such as Bogotá in Colombia, and Diadema, Belo Horizonte and São Paulo in Brazil.Footnote ⁷¹

Given that reform may occur at different levels of government and in distinct spaces, research needs to be very specific about the underlying conditions and political opportunities facilitating reform in each context and locale, and also about the connections (or lack thereof) between the various spheres. For example, although community policing is now a core component of the international security sector reform checklist, it is tempting to overstate the success and relevance of policy experiments that are not embedded in a wider reform process. Community policing in Brazil, for example, has occurred in pockets, such as in the case of Rio de Janeiro the affluent beachfront neighbourhood of Copacabana in the early 1990s, and then in the slum of Cantagalo in 2001–2: both of these projects collapsed due to the hostility of the military police establishment and, specifically in Cantagalo, their contamination by old institutional practices of corruption and collusion with the drug trade. The police have also picked up on the discourse of democratic policing and are willing to rebrand all kinds of operational procedures with this label, without a corresponding shift in underlying institutional cultures and structures. Research therefore needs to tread a fine path between, on the one hand, presenting apocalyptic visions of a reform-resistant environment – often invoking institutional and political histories and path dependencies, overdetermining the failure or absence of reform – and, on the other, wearing rose-tinted glasses and interpreting isolated incidents or cosmetic reforms as indicative of a sea change.

Explaining state responses

How then do we explain why governments follow ‘conservative’ crime control policies, design paper reforms that they have no intention of implementing, or proceed halfway down a reform track before doubling back? Is it due to a lack of information about the criminal justice system? Or is their reluctance to support data production in this field attributable to ideology, lack of resources or political path-dependency, with politicians playing by the rules of a game governed by corruption, impunity, the absence of notion of a public sphere, or a weak civil society that fails to counter vested interests within the police and the judiciary?

A certain type of political economy approach would interpret all manner of policy choices in Latin America as moulded and constrained by the hegemonic logic of neo-liberalism. Here we must distinguish between the impacts of neo-liberalism on the social and economic environment within which crime takes place,Footnote ⁷² the policy environment within which politicians allocate resources to various issues, including criminal justice, and the character of specific criminal justice policies per se.Footnote ⁷³ In the latter regard, there is actually no international consensus as to whether there exists a coherent set of ‘neo-liberal crime control prescriptions’ developed and exported by the governments and institutions of the global North, based on a privileging of the market and the individual, and a reduction of state responsibilities. The shift that started in the late 1970s away from of a penal-welfarist consensus, which viewed crime as a function of social exclusion, towards a more volitional theory, which interpreted crime as an individual act, has not resulted in consistent penal policies and practices.Footnote ⁷⁴ Indeed, these have been heterodox to a degree that would be unthinkable in economic policy. This has been attributed to the co-existence of two distinct political ideologies: neo-liberalism, with its emphasis on the market, and neo-conservatism, with its stress on social authoritarianism. These have not fused into a single rationality, but rather have produced pendular swings in criminal justice policy.Footnote ⁷⁵ For example, it is meaningless to attempt to extrapolate the dynamics underlying trends in US neo-liberal/conservative policies, which has seen treatment of the underclass switch from welfarism to punishment (with policies such as zero tolerance and ‘three strikes and you're out’), to a country such as Brazil where the state has never deployed such a social welfare approach to poverty, and where the ideological character of debates on penal policy is shaped by a different range of actors and factors.Footnote ⁷⁶ This underlines the need for analysis grounded in the specificities of local politics and local criminal justice systems, but with reference to a wider, comparative criminology and security sector reform literature that allows us to see the Latin American policy environment as distinctive in some aspects, but by no means unique in others.

Political explanations for the failure of reform have often centred on the unavailability of political capital, which tends to be absorbed by other issues on the political agenda – such as second generation institutional and economic reforms, as have preoccupied presidents Cardoso and Lula. Others argue that there is merely a lack of political will to leverage available financial and political resources to deal with crime. What, however, would explain this reluctance? The oscillations in crime control policy globally to some extent help account for the twin strategies of adaptation/delegation and denial adopted by politicians who are reluctant both to quantify the cost of failed policies, and to take political risks in implementing potentially more effective ones. Faced with a limited capacity to guarantee citizen security, states engage in one, or both, of two strategies.Footnote ⁷⁷ When high levels of crime become accepted as ‘normal’, as in Brazil, the central state rejects full responsibility for crime control, and adapts by delegating responsibility to other agencies; either non-state actors, or actors at lower levels, such as state governments. Both the Cardoso and Lula governments realised that the potential cost of failure in attempting an audacious reform would far outweigh the possible electoral rewards. The Cardoso government avoided the issue of criminal justice, whereas the first Lula administration forced out a very promising reform team in under two years when their activities threatened to draw public attention to the government's responsibility to deliver.Footnote ⁷⁸ Delegation is such a tempting strategy in a federal system that it was not until 2006 that criminal justice became a topic for debate between the presidential contenders, as Lula attacked Geraldo Alckmin over the PCC. This contrasts with the hyper-politicisation of crime control in gubernatorial contests in Brazil and national ones in Central America, where politicians engage in ‘bidding wars’ over tough law and order measures, promising ‘mano super-dura’ policies.Footnote ⁷⁹ This is essentially a denial strategy, whereby the government responds to evidence that new police powers or harsher sentencing have not reduced crime with ever more punitive policies intended as a public display of state power to mask its failure.

An institutional explanation for policy failure is producer capture. Around the region, the police have wielded veto power as a corporation, and have frequently helped to scupper reform. The Chilean case demonstrates how a unified, national police force with a strong, longstanding and singular identity can use its leverage to block external oversight.Footnote ⁸⁰ Similarly, in Peru, police vested interests in maintaining corrupt practices ultimately prevented President Toledo from imposing external civilian control.Footnote ⁸¹ However, police opposition alone would not be sufficient to stall reforms.Footnote ⁸² The police forces of the region have tended, historically, to suffer from fragmentation and internal divisions and hierarchies. Most countries divide their police between a militarised, uniformed branch, and a civilian investigative police. The former frequently mimics military hierarchies in having a two-tier split between the officer class and the rank-and-file. This is further complicated in federal systems of government. Brazil has four separate police forces, dispersed through the three administrative levels of the federation. This should suggest that police ‘interests’ are neither fixed nor monolithic. However, very little usable knowledge has been produced about the prison and police system by the actors within them. A few ethnographic studies offer invaluable insights into why reform efforts have been passively or actively resisted. Martha Huggins unravelled a ‘vocabulary of motives’, that is, various moral and cognitive justificatory strategies deployed by Brazilian police who tortured detainees during the military regime.Footnote ⁸³ Mingardi's participant observation study of the São Paulo Civil Police in the 1980s delineated the quite distinct functions that torture and corruption fulfil, and Muniz's ethnography of the Rio de Janeiro Military Police uncovered the operational consequences of policing devoid of procedures and norms other than those of the military parade ground.Footnote ⁸⁴ Such studies reveal the police to be influenced by a complex set of motivations that cannot be encapsulated by simplistic notions of corporate ‘vested interests’ or of the police as tools of coercive state power. If they were indeed the latter, and lacked the propensity to autarchy that ethnographers describe,Footnote ⁸⁵ they would be much easier to rein in, if governments so chose.

Increased attention to the attitudes, diverse interests, and working and organisational cultures of justice system operators is crucial if reforms are to win support from both the managers and rank-and-file members of those institutions. For example, studies of the attitudes and professional socialisation of judges and prosecutors by IDESP and others have been able to pinpoint the sources of their hostility to a key bone of contention – external oversight – and track the gradual delegitimisation of that position.Footnote ⁸⁶ It would also avoid pinning false hopes on certain reform policies that have become articles of faith: a survey of Rio prison guards discovered that the now mandatory human rights component in their training was counter-productive, replacing ignorance with active hostility, because, as was the case with the police, the training was not tied into professional practices and procedures.Footnote ⁸⁷ Indeed, the complete absence of formalised procedures in the Brazilian police and prison services is something that external advisors find hard to comprehend.Footnote ⁸⁸ The exemplary methodology employed by the consultants of the International Centre for Prison Studies in training prison administrators in São Paulo and Espírito Santo states was based on professional concepts such as performance review and procedures. When combined with an implicit – not explicit – human rights framework, this approach is highly successful, focusing as it does on the institutional culture to be changed and the recruitment of agents to the reform process, at both the bottom and the top of the policy chain.Footnote ⁸⁹

Whilst some Northern approaches to criminal justice seem desirable and appropriate to transfer, such as the British policing-by-consent model, others run counter to the international community's prescriptions: UK and US incarceration rates are soaring, as are Brazil's, to which the solution must be decarceration and diversion, not more prisons. Reflecting the current ‘incoherence’ in global penal debates, Latin America has been offered contradictory solutions ranging from ‘zero tolerance’ to community policing. Greater contextual knowledge should be able to inform the activities of externals, hopefully preventing the kind of inappropriate policy transfer that occurred with judicial reform and economic reforms before them.

A new epistemic community

In the last few years the research gap in Brazil has begun to be filled by an emerging epistemic and policy community across government, academia, research institutions and inter-governmental bodies, producing more reliable and usable quantitative data about the nature and dynamics of crime and violence, and more textured, qualitative empirical data about the criminal justice institutions, and their relationship to local communities and system users. A number of academics are now working within the criminal justice system developing quantitative methods to fill the data gap, bridging the chasm between crime trends and policing on the ground, in a shift towards more evidence-based policing and public security policy.Footnote ⁹⁰ In particular, Brazil's policy community is characterised by the transit of many of its members between academia, independent policy think-tanks and official posts at all three levels of government, providing some of the most insightful analyses of the dynamics of reform – even of failed reform efforts.Footnote ⁹¹ Here, due credit should be given to the Ford Foundation for their support of this new generation of researchers, and to the Washington Office on Latin America for its attention to the lessons of the police reform process in Central America in terms of normative goals (such as accountability, and reorientation from national to public to citizen security) and the management of reform across political and institutional arenas.Footnote ⁹²

This new policy community has also brought an increased interdisciplinarity to the field, as well as a pragmatism that tends to eschew excessive ideology, and focuses on producing evidence about ‘what works’ (or does not).Footnote ⁹³ The Instituto Brasileiro de Ciências Criminais, Latin America's major criminology body, has made efforts to offset the dominance of the legal profession in criminal justice debates by encouraging contributions from anthropology, sociology and political science through its annual international conference, academic journalFootnote ⁹⁴ and series of published monographs, mainly of empirical studies, some commissioned in-house. Criminology – an essentially inter-disciplinary enterprise – was virtually unknown in Latin America until a few years ago. In Brazil, the Centre for the Study of Violence at the University of São Paulo, for years the only major centre pursuing serious research into this area, has been joined by several others.Footnote ⁹⁵ In April 2007, this policy community launched the continent's first dedicated academic journal on policing and public security.Footnote ⁹⁶ This process has also been assisted by Ministry of Justice backing for university-level courses in public security for law enforcement officials, and by significant funding, allocated by public competition, for research into ‘best practice’ in criminal justice, indicating a more positive attitude on the part of government to the importance of empirical data.Footnote ⁹⁷

Concluding remarks

I have argued here that if governments and international donors are to develop a ‘third generation’ of reforms aimed at addressing the deficiencies of the criminal justice system, then these must be based on a much more finely-grained analysis of the criminal justice institutions and their operators, of the dynamics of reform efforts to date, and of the policy environments that are conducive to such efforts flourishing and being embedded and replicated. Criminal justice reforms in the region have, by and large, been ‘elusive’Footnote ⁹⁸: either absent, ineffective, counter-productive, half-hearted or subject to reversals and sabotage. The lack of research has meant that, until very recently, policymakers have made decisions about criminal justice reform on the basis of ideological inclination, the promises of external actors, local political imperatives or the path of least resistance when faced with institutional opposition. Lack of data meant governments were not challenged on their failure to address this crisis, as they were able to blame any host of factors other than their policies. It also denied them the tools to adopt policies that could secure reductions in violence at relatively lower political and economic costs than they perhaps supposed. However, a process of institutional learning has begun, often at lower levels of government, where municipal policy networks in the region are trading information on best practice on community policing and crime prevention. The focus of research is now shifting away from the tactics employed by criminal justice operators – most evident in the human rights-focussed literature documenting how the system itself generated rights violations. Instead there is a growing trend towards uncovering the institutional histories, cultures and practices that have paralysed institutions and prevented them introducing much-needed strategic changes, such as operational unification of police forces, reduction in prison populations and a more coherent approach to tackling the major challenges of drug-related and organised crime. Brazil may display some of the most dismal tactical errors in its criminal justice system, such as the failure of police, judiciary and prisons to contain and neuter forces as toxic as the PCC and CV. However, it also has an increasingly sophisticated policy community that is connected to debates in the international criminological mainstream, but also determined to know more about, and work alongside and within, the criminal justice system in order to introduce evidence-based reforms through the access points they can identify. Such developments give cause for hope. The political strategies of denial, adaptation, delegation and hyper-politicisation have served neither citizens nor governments well, and ignorance about the criminal justice system can no longer be seen as rational in contemporary Latin America.