Information You Can Use: A Bi-monthly Service for the UN and Civil Society
Volume 2, Issue 3, May-June 2005
CIVIL
SOCIETY-STATE PARTNERSHIPS FOR THE PROMOTION OF CITIZEN SECURITY IN BRAZIL
June 2005
By: FIONA MACAULAY
(Lecturer in Development Studies, Department of Peace Studies, University
of Bradford, United Kingdom.)
Source : SUR
Journal
Introduction
The involvement of civil society in social policy delivery has become, in
recent years, one of the dominant tropes of the New Policy Agenda.1 Of course,
there are many points at which ordinary citizens may become included in social
policy – in designing policies, allocating resources, giving advice to
government bodies, delivering services on the ground, monitoring implementation
and giving feedback to state agencies. Citizens, both as individuals and in
groups, may be called upon as lay experts, clients, and end-users of services,
and as more generic stakeholders in the social fabric. In some cases civil
society participation is mere window-dressing, with policy-makers proceeded
unhindered down familiar paths. There have, however, been some very significant
attempts in some policy areas, or in particular geographical locations in
Latin America, to make participation meaningful, a tool as much for citizen
empowerment as for improvement of public services. Insofar as citizens can
exercise a tangible influence on policy outcomes, and have sufficient resources
and institutional stability to resist co-option and maintain autonomy, this
engagement will be termed civil society-state partnership for the purposes
of this paper.
In recent years criminal justice reformers have been attempting to extend
to the criminal justice institutions the principles of civil society participation
already well established in other, “softer”, policy areas. This
reflects in large part the evolution of the human rights community from reactive,
ad hoc protests against institutional violence, to a proactive stance aimed
at analyzing and restructuring the system. This paper examines the fruits
of such attempts in the areas of policing and citizen security, and of penal
policy (prisons and sentencing). It finds remarkable progress and innovation
in some areas, yet few advances and entrenched institutional resistance in
others. I distinguish between two principal modes of civil society engagement:
(1) monitoring and oversight; and (2) of constructive engagement and partnership.
The first mode is inevitably antagonistic to some degree, with the community
performing a watchdog role, and the authorities reacting, generally, with
secrecy and hostility. The second mode is more creative, but requires not
only that civil society is moved to engage in the areas of rule of law and
justice, but also that the state agencies relinquish some of their power and
prerogatives, and provide the institutional infrastructure necessary for this
interface.
Civil society and the state in Brazil
This paper focuses on the case of Brazil, and specifically on the policy area
of crime and justice. On the one hand, Brazilian civil society is acknowledged
to be relatively dense (if patchily so), which in itself is a function of
the many institutional tools for enabling participation that have been made
available since the transition to democracy. The 1988 Constitution was key
in this respect: the drafting process was one of the most participatory in
Latin America with 122 grassroots amendments presented by social movements,
totaling over 12 million signatures, many of which succeeded in altering the
final text.2 In particular, the new Constitution institutionalized various
forms of popular input into governance and policy-making: plebiscites and
referenda, public hearings, people’s tribunals and, most relevantly for
our purposes, the creation of a plethora of state-civil society councils,
at all three levels of government, to advise on a range of social policy areas
(Draibe, 1998; Tatagiba, 2002).3
These mechanisms may be broadly categorized into three main groups: (1) the
public policy management councils (known as conselhos gestores), which are
statutory in character and are charged with overseeing particular ongoing
social policies (health, education, social services, children’s welfare).
They have legal powers to define priorities, set out budgets and monitor policy
implementation; (2) more ad hoc councils set up to deliver special government
policies (for example school meals, employment, housing, food distribution
and rural development); and (3) thematic councils, which tackle issues such
as race, disability or women’s rights. The latter have no statutory character
and may be set up on local initiative.
All three types occupy an institutional space that is enshrined in legislation
of some description, federal or subnational, making these spaces of “invited
participation” (Cornwall, 2002). This guarantees them some level of resourcing
and continuity, although political clientelism and co-option are a constant
threat. All three tend to have a mixed composition, generally half representatives
of civil society and half representatives of relevant government agencies.
The “council” model of civil society-state relations has undoubtedly
deepened the level of civic association in Brazil: it is estimated that by
1999 there were approximately 45,000 members of health councils alone up and
down the country (Tatagiba, p. 48).
In particular, the Brazilian Workers’ Party (Partido dos Trabalhadores
– PT) has been a key player in promoting and consolidating these institutional
spaces and a pioneer in its municipal and state administrations in opening
up the political and policy process to forms of social participation such
as the famed Participatory Budget.4 These participation spaces and processes
have the potential not only to increase the capacity of both civil society
and the state to operate in their separate spheres, but also to bring them
together as joint stakeholders in the effective solution of social problems.
The party has both used the advisory council model as it currently exists,
and also sought to modify it in several policy areas in order to make it less
prone to co-option and more responsive to the opinions and needs of organized,
as well as unorganized, civil society.5
Civil society and the criminal justice system
All bureaucracies tend to be insular and self-serving but their degree of
resistance to external influence varies, and not all policy areas are equally
open to civil society engagement. The criminal justice system has traditionally
been the most closed as it is composed of institutions that constitute part
of the state’s monopoly (in theory at least) of coercive power. Operators
of the criminal justice system tend to possess a marked esprit de corps, based
on their professional training and on the social control responsibilities
that they exercise. In consequence they tend to be extremely resistant to
outside scrutiny or interference in the operation of their institutions.6
In Brazil the professional associations of judges, public prosecutors, and
police officers have been able to flex their collective muscle in a number
of ways, with the police blocking long-awaited constitutional reforms,7 and
the judges fending off measures that they regard as an attack on their autonomy.8
Surveys conducted with judges and public prosecutors in the mid 1990s revealed
that 86.5 percent of judges were completely opposed to any form of external
control over the judiciary, whilst prosecutors showed a slightly more democratic
face, with only 35 percent totally opposed to outside monitoring of their
own institutions. Nonetheless, they still felt that any such body should be
composed primarily from their own ranks (Sadek, 1995; 1997). However, a sequence
of subsequent court-related scandals eroded that position and judges now grudgingly
accept the necessity of a mixed judiciary-civil society oversight board as
a means of recuperating lost legitimacy. This measure was finally approved
in December 2004 in a long-awaited judicial reform bill. Similar surveys of
the civil (investigative) police station chiefs revealed that any form of
inspection of their activities was consistently ranked lowest in terms of
contribution to better policing, although the creation of community policing
councils was cautiously welcomed (Sadek, 2003).
This problem of producer capture and corporate mentalities is by no means
specific to Brazil. Indeed it is the product of the very way in which modern
states handle social conflict, crime and deviancy. As many critical penologists
have pointed out, in the retributive model of justice, crime is viewed as
a violation of the state. The justice system therefore determines blame and
administers pain in a contest between the offender and the state, in which
the victim or the wider community are largely absent or silent (Zehr, 1990).
Conflicts have become the “property” of the state (Christie, 1977),
on which logic state agents build their edifice of professional expertise.
This expertise is used both against fellow legal system operators and lay
people, as a means of defending their monopoly over different aspects of the
law and order apparatus.
The Brazilian justice system institutions are marked by atomization and hyper-autonomy
at both an institutional level and individual operator level, with rivalry
and competition between the different institutions of the criminal justice
system – the two branches of the police (civil and military), prosecutor’s
office, courts and prisons – as well as between the different branches
of state government which control them. For example, the civil police in Brazil
are not merely an investigative force, as in other countries, but also have
a quasi-judicial function. The police investigation mirrors that conducted
by the courts, thus making the police chief – who must have a law degree
– a de facto investigating magistrate, and the police station a “registry”
office staffed by a legal “clerk”. Such “lawyerization”
of the police (Cerqueira, 1998) puts the police in competition with the judiciary
and Prosecution Service for control of criminal investigation. It is this
context that shapes the degree and mode of civil society input into the justice
system.
All the above has made it very difficult for groups in civil society to redefine
the terms of the debate about law and order. Neild (1999) points out that
the terminology employed is crucial to how ideas of “security”,
and the relationship between the state and citizen are framed. The concept
of “national security” establishes the idea of force majeure and
effectively allows the security forces a free hand in pursuing, by all means
necessary, some notion of a national interest. The militarized character of
the major police force in Brazil, created in its current form under the authoritarian
regime of 1964-1985, continues to reflect the national security logic of that
period.
The term currently most used in Latin America and in Brazil is that of “public
security”. Here the good being protected is still the interest of the
state and of the public authorities, albeit often at a very local level. Those
who are powerful enough to capture the public sphere and its resources are
also able to access its law and order agencies. However, those who are excluded
by virtue of their social class are left, by definition, unprotected. According
to Article 144 of the Brazilian Constitution, the police’s mission is
the “preservation of public order”, as defined under the section
dedicated to “The defense of the state and of its democratic institutions”,
in which “public order” and “social peace” are paramount
concerns. The figure of the citizen is absent, even in a document that articulates
the fullest statement of civil liberties. On a rhetorical level, at least,
the needs of the state continue to override those of the individual.
The most recent coining, that of “citizen security”, removes the
power to define fear, crime and security from the state and the socio-political
elite and delegates it to members of the public. In this formulation, the
state authorities are at the service of the population, not vice versa. Citizen
security and safety are, in ideal terms, based on policing by consent, not
by repression, on punishment for rehabilitation, not retribution, and founded
on the principles (and constraints) of universal human rights and civil liberties.
All three of these conceptualizations of security have been in currency in
Brazil, and are employed at different moments by the state authorities, by
the mass media, and by civil society. For example, even whilst the current
PT government is clearly an proponent of citizen security, as laid out in
its own policy guidelines,9 it is still under pressure in some quarters to
acknowledge the drugs trade and narco-violence as an issue of national security
(the so-called “colombianization” of Brazilian inner cities). Periodic
calls for “hard line” policing methods and a visible oscillation
at state government level between tough and more “community-oriented”
policing strategies illustrate the dynamism of this continuing debate over
the very terms of reference, and the importance of civil society engagement
with the state in this arena.
Policing
In the area of policing, civil society organizations have been created to
achieve two ends: (1) to monitor the activities of the police, particularly
in relation to accusations of human rights abuses; (2) to work together with
the local police in community-police liaison councils in order to allocate
policing resources according to local needs and priorities.
Oversight
Following the transition to democracy in Brazil, there has been a steady increase
in crime and violence, matched by a similar rise in police abuses – excessive
use of force, summary executions and use of torture on criminal suspects.
This is not the place to rehearse the various analysis of police dysfunction
in Brazil (Chevigny, 1995; Human Rights Watch, 1998; Pereira, 2000); suffice
to say that police inefficiency and systemic abuse of human rights are overdetermined
by underresourcing, corruption, lack of training, procedures and discipline,
impunity inherent in the bias of the military courts (which try offenses by
military police) and the internal affairs units, long run institutional practices,
and a public security mindset that reflects and reinforces social stratification
and inequalities.
It was clear by the mid-1990s that the police needed to be brought under civilian
oversight of some kind. The state government of São Paulo under PSDB
founder Mário Covas pioneered a new institution, that of the Ouvidoria
da polícia, set up in 1995. More followed, initially in states governed
by the left or centre-left.10
The ouvidorias are generally housed in the offices of the state secretariat
for law and order, or equivalent, and are therefore part of the executive.11
Their brief is, literally, “to hear” (from the verb “ouvir”)
complaints about police misconduct, corruption or omission from the public,12
prepare an initial case summary, pass on the complaints to the police internal
affairs units, and track the progress of the investigation. The ouvidoria
may also refer cases to the Prosecution Service. Although generally translated
as “ombudsman’s offices”, they do not possess the independence
and wide powers that such entities have elsewhere. Police internal affairs
units continue to monopolize the resources and remit to carry out investigations
into alleged police misconduct, and often obstruct or refuse to open an inquiry.
Therefore the ouvidorias constitute in institutional terms a form of semi-independent
internal control.
Nonetheless, they have achieved the highest degree of transparency of all
the police oversight mechanisms.13 They broke new ground in publishing the
first reliable figures on police shootings of civilians, as well as on police
fatalities on and off duty. The ouvidorias have also contributed significantly
to breaking the culture of police impunity in Brazil. Members of the public
are guaranteed anonymity, crucial in overcoming the population’s real
and justified fear of police reprisals. Complainants are now increasingly
emboldened to report abuses openly, a shift that must reflect greater confidence
in the state authorities. In 2000 most complaints to the Rio de Janeiro ouvidoria
were made anonymously: from January to July 2001, some 150 complaints were
made in person. Rio, in common with around half the states in Brazil, now
has a witness protection program for use in such cases.14 When the ouvidorias
encounter bureaucratic inertia, obstruction or hostility, they can have recourse
to the media, using a “name and shame” strategy,15 and the number
of complaints against police tends to rise noticeably when incidents receive
widespread media coverage
Strong links to civil society have been crucial for the ouvidorias to maintain
their legitimacy and stance of independence from the administration. The São
Paulo ombudsman is appointed from a list of three candidates put forward by
the state Human Rights Council, and is backed by a board of leading lawyers
and human rights activists. The Pará office is governed directly by
the state police advisory committee (CONSEP) and the most successful ombudspersons
to date have come from a background of human rights activism and hence have
high credibility.
As the police force has traditionally been a closed institution and public
consultation on policing virtually unknown, the ouvidoria is the first government
institution to solicit the views of members of the public and performs an
invaluable feedback function. The notion that the public should have a right
to oversee, control and determine the actions and priorities of the police
represents a significant cultural shift in Brazil of which the ouvidorias
are both a reflection and a constitutive element.
Due to the inherently conflictual nature of oversight mechanisms, which are
obliged to criticize the institutions they are supervising, “partnership”
may seem an odd term to use for the ouvidorias. Certainly the police regard
them more as sparring partners than as collaborators. However, it would be
wrong to assume that the police are simply the instrument of the state authorities,
or under their heel. Often the elected authorities are challenged by autonomous
enclaves within the security apparatus, which they can only undermine with
the active support of civil society.
Community-police liaison committees
One of the primary means of moving towards a model of policing based on consent
and cooperation is to institute spaces in which the police and local community
are able to come together to debate local needs and priorities. Police-community
liaison committees (Conselhos de Segurança – CONSEG) were pioneered
in Maringá, Paraná state, in 1974.16 São Paulo state
followed suit under the progressive, democratic government of Franco Montoro,
regulating these new bodies in 1985 and 1986. By 2002 the state claimed to
have over 800 CONSEG operating in more than 520 municipalities.
Ideally, these bodies exist to encourage cooperation with the local police
force and a “community policing” operational style, to overcome
traditional mistrust and suspicion, and to effectively “municipalize”
policing, that is, make it responsive to neighborhood needs rather than to
priorities set at the level of the state government. The CONSEG could serve,
in principle, as part of an attempt to modernize the police, rendering it
an accountable and responsive public service rather than a repressive state
bureaucracy driven by its own agenda. It is also claimed that the reorientation
of the police combined with the local community’s involvement in monitoring
and reporting crime and undertaking preventive action can reduce crime levels
significantly. For instance, the city of Lajes in Santa Catarina reported
a 47.7 percent drop in theft and robbery following the installation of ten
CONSEG.17
However, as with so many aspects of the criminal justice system in Brazil,
no empirical studies have been carried out on these councils, despite their
impressive numbers. What seems clear from a reading of the extremely bureaucratic
regulation of these bodies is that they still fall firmly under the control
of the police and public security apparatus of the state. The legislation
for Paraná states that “The Community Security Council must give
all necessary support to the Public Security bodies, given that its job is
to cooperate, represent, check up and make demands on the Public Security
authorities and other organized elements of society, but without interfering
in the running of the former”. In São Paulo state the local civil
police chief and military police commander are automatically co-opted members
of any council and take the initiative in seeking out the organized elements
of the local community (“forças vivas da comunidade”) which
are earlier defined as “representatives of the municipality, of local
associations and other bodies providing relevant services to the community”.18
Much of the regulation is taking up with procedures for elections and the
proper use of logos, coats of arms and even an official CONSEG song. Membership
of the CONSEG is numerically small and closed, due to the conduct of internal
elections.
Anecdotal evidence suggests that they are also not all “representative”
of the local community, being mainly composed of local businesspeople. Much
of their activity seems to centre on raising money to buy police equipment
(as basic as new tires for police vehicles) for which generosity they may
expect preferential attention in return. Indeed, the CONSEG seem to present
a good case of “mutual capture”, whereby the police play a guiding
role in setting up, running and finding members for the Council, whilst the
members enjoy privileged access to a public good. This is a problem of which
the state authorities are not unaware, identifying as a common obstacle the
“coming forward of leaders not equipped for community work: people who
want to extract some personal, financial or electoral advantage from the CONSEG”,
and thus undermine their legitimacy. Indeed, there is a very thin line between
this type of capture and the kind of alliance that elements of “uncivil”
society have made with local police, assisting death squad activity aimed
at eliminating those classed as social undesirables.19
An alternative model was instituted in São Paulo City under the administration
of PT mayor Marta Suplicy (2001-2004). The municipal police force was revamped
as an “ideal model” of preventive policing, and new civil society-police
structures set up. The federal constitution allows municipalities to set up
municipal police forces for the purposes of protecting city property. Whilst
this is a limited remit, there have been recent moves in Brazil to “municipalize”
policing, in part to circumvent the enormous structural obstacles to a complete
reform of the state-level policing apparatus.
Benedito Mariano (who had been the first police ombudsman in Brazil, during
Mário Covas state administration), was brought in to head the city’s
new secretariat for public security, and doubled the numbers of municipal
guard from 4,000 to 8,000 (including a 30 percent quota for women officers).
The Guard’s contact with the local community is intended to be a cornerstone
of their preventive strategy – indeed, their work is probably closer
to what might be termed “community” policing than most other experiments
that go under the name in Brazil. The community is consulted on a regular
basis through Community Committees set up in six regions of the city. In this
case, every meeting of the Committee is open to all comers, although a standing
committee is elected. The co-opted members include the Regional Inspector
of the Municipal Guard and a representative of the sub-prefecture, but otherwise
the balance is tipped much more heavily towards civil society than is the
case in the CONSEG.20 The Secretariat claims that 2,870 people participated
in 56 meetings between October 2002 and December 2003, an average of 50 per
meeting, of which two-thirds were civil society representatives. It seems
that the participatory, democratic ethos employed by the PT in its consultation
exercises in other areas of municipal governance has influenced its conduct
of the civil society-state partnership in this newer field of citizen security
(Baiocchi, 2003).
Community policing
Analysis of policing in Brazil since the return to democracy have tended to
emphasis its authoritarian characteristics, its ineffectiveness, and the degree
to which the police actually contribute to criminal activity through corruption
and organized crime, and routinely commit gross human rights violations such
as torture and summary executions of criminal suspects. In particular, attention
has focused on the militarized police, a uniformed state-level force responsible
for carrying out preventive policing, with its military structure, hierarchy,
code of conduct, training and corporate ethos.
Various studies of extrajudicial executions demonstrate the belligerent attitude
that the military police adopt in relation to the community (Cano, 1997) and
suggest that this is a residue of the National Security Doctrine of the military
period by which the civilian population was viewed with suspicion, as the
potential “enemy”, to be controlled and contained. This antagonistic
stance of the police vis-à-vis the citizens whose security they are
supposed to be safeguarding came to be viewed by critics and reformers as
counter-productive, and in violation of Brazil’s commitments to human
rights and civil liberties. It was within this environment that tentative
experiments with community policing have been undertaken.
Community policing theory presupposes a quite different relationship between
police and public. It is based on principles of trust and collaboration, ongoing
interactions with civil society, attentiveness to the expressed needs and
priorities of the population, information sharing leading to intelligence-led
policing, conflict mediation and resolution, and crime prevention rather post
hoc repression. It was pioneered in Rio de Janeiro in the early 1990s by the
then Commander of the Military Police, Carlos Magno Nazareth Cerqueira, backed
by a local human rights NGO, Viva Rio, under the leftwing administration of
Leonel Brizola (1991-1994). The first projects were implemented in a piecemeal
manner in a number of neighborhoods in Rio de Janeiro city. The first major
scheme was set up in Copacabana but lasted a mere ten months, dismantled by
the incoming administration of Marcello Alencar, who adopted a “tough
on crime” stance, giving the new Secretary of Public Security carte blanche
with a shoot-to-kill policy (Musumeci et al., 1996).
In 2001 Rio de Janeiro tried another community policing project, this time
in the small central favella of Cantagalo, run by a military police major
connected with a group of justice system reformers who fell out with the Garotinho
state government. This initiative attempted to counter the mainstream policing
practices in Rio’s favella which in the past have consisted of large-scale
armed “blitzes”, firefights with the drug traffickers, followed
by withdrawal. The police began by taking over a vast community centre and
abandoned hotel at the top of the hill and running cultural, educational and
training activities for the local youths, taking the place of local NGOs who
are too scared yet to operate in the favella.
Similarly, in violent low-income areas in São Paulo, police have ended
up calling in their own institution’s social services: military police
doctors, dentists, and physical education teachers. As police are often the
only agency of the state physically present in the more marginalized neighborhoods,
it is evident that community policing projects require the collaboration not
just of the local population, but also of other parts of the state apparatus
in a multi-service approach in improving, simultaneously, quality of life,
social capital and citizenship trust in and access to justice and rule of
law services.
The core question about community policing in Brazil concerns its still marginal
status. The Cantagalo project was isolated from the mainstream of policing
activity in Rio de Janeiro, and boycotted by the municipal government, for
reasons of territorial possessiveness and electoral competition (a long-standing
rivalry between successive governors and mayors), and thus denied many vital
social services that would have bolstered its legitimacy and effectiveness.21
Although initially the project started well, with 50 police officers purged
on charges of corruption and violence, old habits died hard and police abuses
gradually escalated again (Global Justice, 2004, p. 38).
Some community policing schemes are in name alone.22 In some 100 neighborhoods
in the state of São Paulo mobile police cabins have been set up. However,
as police only leave their post – reluctantly – when approached
by a member of the public requesting assistance, they can scarcely establish
the indispensable, durable and organic links with the local population.23
A comparison of public attitudes to conventional and community police in Brazil
shows that public trust in the latter can only be generated by increased visibility
and outreach (Kahn, 2004). In short, without political backing and an upheaval
in institutional cultures, the “community” will remain the enemy
of the police force, not a partner.
Prisons and the penal system
Although successful crime prevention and resolution requires cooperation from
the local population, this is less evident in the case of sentencing and imprisonment,
for the punishment of offenders has generally been abrogated by the state
as its exclusive prerogative. Nonetheless, this is now being challenged in
Brazil, initially in response to a crisis of state capacity – the rising
concern about prison conditions and the collateral effects of rioting, break-outs
and hostage taking episodes that characterized the late 1990s, and then inspired
by global penal reform movements and radical new ideas such as restorative
justice, that put the victim, offender and community, not the state, centre-stage.
Oversight
It was not until the latter half of the 1990s that public attention shifted
to the fate of those held in police custody or in the prison system. The pioneers
in raising public consciousness were undoubtedly the members of the Catholic
Church’s “Prison Ministry” (Pastoral Carcerária)24 which
had some 3,000 lay and religious volunteers around the country regularly visiting
prisons, offering practical and spiritual support and bearing witness to the
daily abuses suffered by prisoners. In 1997 the plight of detainees was taken
up by the National Council of Bishops (CNBB) as the theme of their Lenten
campaign. They also began increasingly to seek allies in the Bar Association,
in young and enthusiastic prosecutors, and in the judiciary.25 Lobbying of
international organizations resulted in visits and reports by the Inter-American
Human Rights Commission, Human Rights Watch, Amnesty International, the United
National High Commissioner for Human Rights and the UN Special Rapporteur
on Torture, as well as by the Human Rights Committees of a number of state
legislatures.
In fact, civil society oversight of the prison system had already been established
in the 1984 Law on Sentence Serving (LEP), which required the judge of every
circuit with a prison to appoint a Community Council (Conselho da Comunidade),
composed of representatives of the local community, to visit the prison at
regular intervals, inspect conditions, and assist prisoners.
Despite the support of both the Cardoso and Lula governments for this scheme,
relatively few have been set up. The Ministry of Justice holds no information26
as to how many exist and those that do operate generally do so in a vacuum
without institutional support and connections.27 For example, the one in Rio,
which is relatively active, lost its offices in the local Justice Secretariat.
It also stopped reporting to the local judge due to his hostility to their
work.
This case illustrates well a common problem of state-civil society interaction.
One part of the state apparatus (the executive, and the national law) supports
these groups, in principle. However, they can only be brought into existence
by the local judiciary, which either is ignorant or resistant to having others
intrude on “their patch”. Without training, guidelines for their
activity, an established feedback mechanism into the local state and sufficient
autonomy and backup to resist pressure from those officials they may criticize,
these Conselhos have been doomed to be a dead-letter.28 It is perhaps understandable
why some have decided to substitute the state altogether inside some prisons
rather than engage with it as an outsider.
Given the weakness of the Conselho structure and the relative strength of
the Pastoral, local prison administrators were tempted to simply “hand
over” inspection responsibility to the Catholic Church, thus absolving
the state from a degree of responsibility either to set up effective internal
monitoring procedures, or to strengthen the institutional apparatus by which
civil society could properly exercise its prerogative of oversight. Despite
all the activism in this area in the late 1990s, very little progress has
been made on either fronts.29
Community-run prisons
Periodically the capacity of the Brazilian state to run the prison system
– notorious for its overcrowding, endemic violence, appalling conditions
of detention, poor management and inability to alter offending behavior (Amnesty
International 1999; Human Rights Watch 1998) – has been called into question.
The private security industry is, after all, booming in Brazil30 in response
to the deficiencies of the police, yet privatization of the prison system
has been periodically debated since the 1980s but always rejected.31
One of the most surprising features of Brazil’s prison system is the
existence of an innovative partnership between state and civil society in
the area of prison administration. Whilst prisons are generally managed either
by the public sector, or via contracts with the private sector, a third paradigm
is possible.
The first experiment in community participation in running prisons occurred
in the 1970s, in São José dos Campos, São Paulo state,
where a Catholic group took over completely the running of a decrepit and
overcrowded local jail. Dr. Nagashi Furukawa, then a local district justice
in Bragança Paulista, visited the institution in the 90’s, and
thereafter established contact with a group in his town that defended similar
concepts. His initiative resulted in the first cooperation agreement between
the state and a NGO.
The Bragança Paulista jail was completely refurbished, applying a model
that came to draw the both domestic and international attention. Shortly afterwards,
upon being appointed Secretary of Prison Affairs of the state of São
Paulo, Dr. Furukawa, he began to replicate this successful experience. So
far, 20 Resocialization Centers (Centros de Ressocialização
– CR) have been set up, each holding approximately 210 inmates,32 administered
in an innovative partnership between the state prison authorities and a dedicated
local NGO, on the basis of formal co-operation agreements.*
The non-profit organization deals with the day-to-day running of the prison
and rehabilitation of prisoners whilst discipline and security remain under
state control. Most of the CR have been purpose-built to a new architectural
design, but a number, such as the two original public jails in São
José dos Campos and Bragança Paulista, have been upgraded and
converted.
On the basis of field research carried out in four CR in October 2004, 33
they appear to be outstanding in relation to protection of the human rights
of prisoners and staff, elimination of violence and drug abuse in prison,
decent conditions of detention, potential for significantly reduced levels
of re-offending, excellent social, education, occupational and psychological
support given to offenders and their families, value-for-money in terms of
quality and costs,34 increased transparency and checks-and-balances for both
treatment of detainees and use of public resources and improved community
relations with the justice system.35 Recidivism is claimed to be a third of
national levels.36 This is in fact a fairly modest performance, as compared
to other successful measures, within the framework of a model conceived so
as to avoid family breakdown, unemployability, institutionalization, drug
consumption and poor self-esteem that conventional prisons invariably produce.
Another form of cooperation between the civil society and the state with a
view to face the problems of the prison system are the APACs (Associação
de Proteção e Assistência Carcerária – Associations
for Carcerary Protection and Assistance).
Although the original APAC model is essentially faith-based, reliant on “saturating
the prison environment with religious programming and instruction” (Johnson,
2000), the CR rely principally on two factors for rehabilitation: work (in
some CR 100 percent of prisoners work) and rebuilding family relations (the
CR only take offenders whose families live in the vicinity).37 Visiting hours
are generous and most families spend several hours each Sunday on the visit,
and the money earned in prison is often of assistance to the low income families,
which the NGO’s social work staff go to great lengths to support whilst
their relative is in prison. The families form a bridge to the local community,
helping it overcome hostility and demonization of the prison and its inmates.
Equally, both the CR and APAC units deliberately subvert the construction
of a “prison culture”. Local business also benefits materially,
as the NGOs have much greater flexibility than the state to purchase goods
and services locally. The APAC founders from São José dos Campos
have now sought out new partnerships in Minas Gerais, mainly via the judiciary,
not prison authorities, and currently run a number of units with prison guards
within the perimeters (the CR allow prisoners to unlock internal doors, but
prison guards monitor all activity).
The NGO and the state authorities also provide an excellent system of checks
and balances for one another as the contract makes very careful stipulations
in relation to accounting and transparency. This is perhaps the truest partnership,
or “co-production” (Joshi & Moore, 2004; Masud, 2002) of all
the cases analyzed, and the one in which the balance is tipped most heavily
toward civil society. As in the case of the community police councils set
up in São Paulo, two factors were crucial: the presence of a committed
change agents, and the political-institutional space and backing in which
to trial a new model. It also highlights how spaces within a rather fragmented
justice system may be partially appropriated by civil society. This may be
due to fragility and neglect of the state but may also constitute a case of
the state “inviting participation” on grounds that are much more
equal and collaborative.
Nonetheless, they remain invisible within the prison system as a whole. There
is no mention of them in the planning and policy documents and statements
that issue from the Ministry of Justice, nor any empirical evaluation studies.
It seems perverse that the state would not actively claim ownership of successful
facilities under its aegis.
Conclusions
The unevenness of the fabric of local civil society affects the capacity for
all these partnerships in public policy to succeed. Even the police are conscious
of the degree to which it is actually creating social capital. The São
Paulo state founding policy document on the CONSEG cites Putnam’s seminal
work38 on the relationship between social capital and social development and
notes “the police will tend to be more effective when they help communities
to help themselves”.39
The regulation of the CONSEG in Santa Catarina lists as one of the core objectives
“to develop civil and community spirit in the area”.40 Thus any
state entity that wants to build in community consultation as part of its
practice inevitably ends up attempting to foment and build the civic groups
it wants as its partners. How to do this without co-option has been the perennial
challenge facing all the areas of public policy in Brazil in which the “council”
model is employed for civil society input.
Alongside the capacity of civil society to articulate its needs and interests,
the other major problem lies with the receptivity of the state agencies. For
example, at present the CONSEG and prison community councils will only be
as successful as the local police commanders and judges allow them to be.
The resistance of state agencies to change may be cast in many ways –
as path dependency, as bureaucratic cultures, as territorial defensiveness
– and I have argued that the very nature of the policy area of crime
and violence exacerbates these tendencies. Nonetheless, change agents, both
individual and collective, have proven adept at finding spaces and places
within the state apparatus where the state authorities are indifferent and
exhausted (the APAC prisons), have escaped the dominant institutional vices
(the municipal guards), or are looking for radical new policy approaches (CR).
Where there is local political support, these spaces offer valuable arenas
for forging new forms of state-civil society partnership.
In the cases I have examined, partnership takes different forms depending
on the role of civil society (critical watchdog, advice and support, or co-production),
and this in turn affects the power asymmetries at play.
The example of the CONSEG is the clearest case of state actors capturing civil
society – but this turns out to be a mutually beneficial arrangement
due to the exclusionary design of the councils. The failure of the prison
councils to make any progress must be attributed to inertia on the part of
the judiciary. The local judges most likely see no benefit to themselves in
setting up the councils (whereas the police get quite tangible goods from
setting up the CONSEG) and thus have been boycotted this provision in the
law, despite all exhortations from their superiors.
While it is to be expected that the state, with its superior resources, might
always have the upper hand, this is not the case in the APAC and CR prisons,
where the local community has managed to mobilize human capital resources
that have made significant improvements both to the human rights and treatment
of the detainees, and their prospects for rejoining their families and not
reoffending. Where these partnerships work, they can make considerable contributions
to improvement of citizen security in Brazil.
Notes
* See <http://www.sap.sp.gov.br/
common/cidadania.html>. Last access on 14 March 2005. [E.N.]
1. For a critical discussion of the idea of “participation” in development
policy circles see A. Cornwall, 2002.
2. For example, women’s organizations estimated that around 80 percent
of the amendments they put forward had been retained in the final version.
3. The first two national advisory councils, in health and education, were
set up in 1937 with the overhaul of the state under Vargas. There are now
25, most set up in the 1990s. The 1988 Constitution also provided for municipal
and state-level councils.
4. There is by now a huge literature on the participatory budget process,
but for a good critical overview see Baiocchi, 2003.
5. For an analysis of the PT’s modification of the women’s council
model see Macaulay, 2003a.
6. For details of other civil society initiatives for transparency in the
justice sector see documents on the website of the Due Process of Law Foundation
<http://www.dplf.org>. Last access on 15 March 2005.
7. The state-level Military Police, which constitute some 80 percent of the
force in Brazil, used their lobbying influence among senators to block proposals
put forward under the Cardoso government to “deconstitutionalize”
them, that is, to remove all mention of the military police in the constitutional
text, thus allowing state governments to retain, abolish, or merge them with
the Civil Police.
8. On the debates about accountability and the judiciary see Macaulay, 2003b.
9. In 2002, the PT-linked think-tank Instituto da Cidadania produced a 120
page set of recommendations for reform of the justice system, drawn up by
leading policy experts. This became the basis for the Lula government’s
Integrated Public Security Plan.
10. Rio de Janeiro, in March 1999 under Anthony Garotinho (PDT); Minas Gerais
in 1997 (Eduardo Azeredo, PSDB); Pará in 1997 (Almir Gabriel, PSDB);
Rio Grande do Sul in August 1999 (Olívio Dutra, PT); and others in
Pernambuco, Espírito Santo, Rio Grande do Norte, Mato Grosso, Bahia
and Ceará.
11. Exceptions are those in Pará, subordinated to the state council
on law and order (CONSEP), and Minas Gerais, linked to the governor’s
office.
12. They receive all manner of communications from the public in relation
to the police. Priority is given, however, to serious allegations regarding
the right to life, and police corruption.
13. See Lemgruber et al. (2003) for an in-depth study of the ouvidorias; and
Macaulay (2002) for a comparison with other forms of police oversight.
14. However, individuals with a criminal record are excluded from the program,
thus depriving a good number of police torture victims of this protection.
15. It is noticeable that the successors to the first ouvidor in Rio de Janeiro
and São Paulo, Julita Lemgruber and Benedito Mariano, use the media
a lot less. In 2001 the then Rio ouvidor rejected what he dismissed as work
“just to get newspaper coverage”. On the other hand, media coverage
gives a degree of visibility and protection to the ombudsman – he was
forced to resign shortly afterwards due to lack of political backing.
16. In 2004 the state of Paraná had 280 CONSEG with 46 in Curitiba
and 74 in the metropolitan region.
17. A Notícia, 16 May 2002. As of May 2002 Santa Catarina had 31, but
planned to install one in every municipality. The law authorizing them was
only passed in March 2001. Similar levels of crime reduction are cited for
Embu in São Paulo state.
18. Regulamentação dos CONSEG, Resolução SSP n.
47, 18 March 1999; and Decree n. 25366, 11 June 1986.
19. Similar problems are reported for Chile by Frühling (2003, p. 38).
20. “Projeto do Programa das Comissões Civis Comunitárias”,
unpublished internal document, Prefeitura do Município de São
Paulo.
21. Interview with Major Antonio Carballo, Cantagalo, July 2001.
22. For details of other projects see Mesquita & Loche, 2003, pp. 193-199.
23. Information from Guaracy Mingardi, July 2001.
24. Much of the Pastoral’s effectiveness must be attributed to the inspired
leadership and political savvy of its longtime leader, Father Francisco “Chico”
Reardon, an Irish-American priest and naturalized Brazilian who, sadly, died
in 1999.
25. Other human rights groups did visit places of detention intermittently,
generally following some violent episode. None, however, had the consistent
presence of the Pastoral.
26. I have data only for São Paulo state where there are 54 court districts
with a functional Council, 23 with a dormant Council, and 62 with no Council.
No qualitative data are available.
27. Interview with Tania Kolker, vice-chair of the Rio de Janeiro Conselho
da Comunidade, July 2001.
28. There is also minimal interaction with the state authorities responsible,
on paper, for prison inspection: the local prison judge, the internal affairs
department of the state prison administration, local Penitentiary Council
(essentially a parole board) and public prosecution service.
29. That said, there is currently a UK government funded project aimed at
setting up a prisons inspectorate in Brazil, at state level initially, and
discussions are ongoing concerning capacity building for the Conselhos.
30. According to data from the Private Security Companies Union in 1985 the
ratio of police to private guards was 3:1. By 2000 this had reversed. Some
1,200 private companies were employing 400,000 registered guards plus 600,000
unregistered guards, making the industry worth U$ 4.5 billion in 2000.
31. Brazil has six semi-privatized prisons in Paraná state.
32. The United Nations recommended that prisons have no more than 500 inmates,
as authorities tend to lose control of large units.
33. Funded by a grant from the UK Socio-Legal Studies Association.
34. The NGO receives a per capita allowance for each inmate for food, building
maintenance and so forth. As the purchase of goods and services is being done
by a private, not public body, the NGO is not tied into government supply
contracts, and can sack staff for poor performance. The cost per prisoner
in a CR is half that in a state-run prison, and one third of that in the few
semi-privatized units.
35. The warden of Bragança, a civil police officer, admitted in a conversation
in 1999 that he had staffing problems “two are drunkards, two are nuts
and the other two are ok and have to keep an eye on the others”. Clearly
local civil society input here far outweighs that of the conventional prison
staff, who must adapt the CR’s unusual ethos.
36. There is no systematic measurement of recidivism, either by facility,
by state or nationally. The national databases required to track repeat offenders
have not yet been put in place.
37. The APAC prison in Caruaru, Pernambuco, organized father-child art workshops
and escorted day trips to the zoo.
38. David Putnam, Comunidade e democracia: uma experiência da Itália.
Rio de Janeiro: FGV, 1996.
39. See “Informativo Institucional” at <http://www.conseg.sp.gov.br/conseg/downloads.aspx>.
Last access on 15 March 2005.
40. “Regulamento dos Conselhos Comunitários de Segurança”.
Secretaria de Estado de Segurança Pública de Santa Catarina,
Conselho Superior de Segurança Pública, May 2001.
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