Blindfolded Dik and the difficulty for a paradigm shift in the Brazilian Criminal Justice System towards elicitive

means of Conflict Transformation Lus Fernando Bravo de Barrosi

As a white male criminal lawyer, graduated from a traditional private law school in the biggest city of Brazil, Mackenzie University, Ive always been in odds with the disseminated social acceptance of the punitive system as a just and exclusively satisfactory response to crime, especially after my professional experience, in the last two years of law school, as an intern of the State Public Defender Office, in the Criminal Court of the city of So Paulo, responsible for personally attend a number of indicteds, many of them provisionally arrested, handle their judicial defense and attend to their family members who were in desperate search of information. This conception has constantly struck me as a very comfortable stance by the politically dominant social elite for the perpetuation of a very unequal social status quo, that, obviously enough, is one of the pillars for the problem of criminality itself, especially in a Country with one of the worst income inequalities in the world1. Besides, pragmatically, the state punitive apparatus has being showing itself, from quite a long while ago, as a very inadequate tool to deal with such a humanely complex issue, namely social conflicts formally considered as a criminal fact as established by law: its propensity to be manipulatively engendered as a political instrument for social control has never been hidden, not only in Brazil2 but around the world, specially through what has been defined in academia as the Enemy Criminal

As of a World Bank report published in 2010, Brazil GINI index rate stands at 54.69. <http://www.tradingeconomics.com/brazil/gini-index-wb-data.html>, World Wide Web site accessed on Sep. st th 21 2013. That would put Brazil in the 13 place out of a rank of 153 countries: <http://www.indexmundi.com/facts/indicators/SI.POV.GINI/rankings>, World Wide Web site accessed on Sep. st 21 2013. 2 There is a Criminal Law public policy transfigured as a security public policy [1]. The lack of public policies effectively aiming criminal repression gives rise to exorbitant crime rates for which only penal measures are presented as capable to immediately satisfy the popular outcry, conveying an important electoral effect as well. In the political stance, than, Criminal Law has become an efficient weapon since it complies with the popular appeal and its ancient notion of vengeance [2] and, at the same time, ensures a favorable electoral outcome for the authors of such bills in elections to come [3]. (MASI, 2013).

Law3, a term forged by Criminal Law Professor Gnther Jakobs, of the University of Bonn. Massive recidivism is routine (around 70% of egresses tend to be criminally prosecuted again)4. In some places prison infrastructures and environment resemble that of a concentration camp5. Resocialization, a theory proposed in the modern philosophy standard clearly to justify a framework already set in full gear motion as a key for the functioning of the laic state, as eloquently put by Foucault in his Discipline and Punish: the birth of the prision, has always been sold as an utopian idealistic public policy, a desired but eternally unattainable future. The fact of the matter is that even in face of those despicable aspects the Brazilian population, fed by a mainstream media fueled by a mythical collective fear and constantly deluded by opportunistic political campaigns, has legitimized criminal punishment as a panacea for almost any social problem6. As of March 2013, the Brazilian penitentiary population is of around 550.000 inmates7, out of a country population of approximately 200 million people 8. Thats the

If repeatedly enacted, repressive measures that seize a place under the shelter of the Criminal Law label (in spite of everything a legitimizing label in our legal-political systems) may trigger a structural change through which something new (not better) substitutes the current Criminal Law normative system. () in old Europe (and in Spain) political agents that promote such measures do it under the flag of an intended and total constitutional normalcy (CANCIO MELI, 2003, Pg. 17). 4 On Sept. 5th 2011, the former Chief Justice of the Brazilian Supreme Court, Justice Cezar Peluso, made a public statement asserting that In Brazil, seven out of ten inmates that leave the penitentiary system go back to crime life, one of the highest recidivism rates in the world. Available at <http://www.valor.com.br/legislacao/998962/indice-de-reincidencia-criminal-no-pais-e-de-70-diz-peluso>. th World Wide Web site accessed on Sep. 9 2013. 5 An International Bar Association report on the prison situation in Brazil, based on several UN issued reports, states it clearly: Severe overcrowding, poor sanitary conditions, gang violence and riots blight the prison system, where ill-treatment, including beatings and torture, are commonplace. (INTERNATIONAL BAR ASSOCIATION, 2010, Pg. 05). On November 13th 2012, the Brazilian Secretary of Justice himself, Eduardo Cardozo, publicly announced that If I was to do a lot of time in some of our prisons Id rather die. Available at <http://www.estadao.com.br/noticias/nacional,ministro-da-justica-diz-que-prefere-morrer-a-ir-para-ath cadeia,959839,0.htm>. World Wide Web site accessed on Sep. 9 2013. 6 90% of the Brazilians that have sent suggestions to a commission responsible for the development of a new national Penal Code have supported harsh punishment for criminals. < http://noticias.terra.com.br/brasil/stj90-do-pais-quer-penas-duras-mas-codigo-penal-serast tecnico,d5abdc840f0da310VgnCLD200000bbcceb0aRCRD.html>. World Wide Web site accessed on Sep. 21 2013. 7 As of a March 2013 report by the Working Group on Arbitrary Detentions of the UN High Commissioner for Human Rights. <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13197&LangID=E>. th World Wide Web site accessed on Sep. 9 2013. 8 As presented by the Brazilian Institute of Geography and Economics (IBGE). <http://www.ibge.gov.br/home/estatistica/populacao/censo2010/default.shtm>. World Wide Web site th accessed on Sep. 9 2013.

fourth highest in the world, only behind the USA, China and Russia.9 Professor Luiz Flvio Gomes, a Brazilian Criminal Law professor, and former judge, has concluded that the rate growth of the prison population in Brazil has been of an astounding 511% in the last 23 years.10 Colonized by the 16th Century Portuguese empire, conquered as a piece of found property, henceforth of the royal family, as formally endorsement by the powers of the Roman Holy Empire for the dissemination of Jesuit missions (RIBEIRO, 1995), and established, during the 19th Century, as a newly independent country rested on a monarchical royalty with traditional European roots (RIBEIRO, 1995), Brazil has glided along to the development of an authority infrastructure of its institutions grounded on a very sui generis combination of moral and modern values, regarding the cultural and historical concepts for the promotion of peace as presented in the works of Prof. Wolfgang Dietrich (DIETRICH, 2012), deeply ingrained in the Brazilian bureaucracy, and naturally influencing the evolution of the Criminal System. On one hand the strong Jesuit catechist approach in the colonization process seeded the religious pillars for the establishment of the catholic moral standards within the social culture of Brazil (RIBEIRO, 1995), currently the largest catholic population in the world11, easily spreading, in the pursuit of an authoritarian notion of justice delivered by a higher superhuman instance, a culture of suffering and nullification of the other as a way to achieve a better heavenly future, very suitable to a moral conception of peace. A concrete example of a notion of peace interposition that goes back to the Aristotelian influence on Christiany, as underlined by Wolfgang Dietrich: In the greek Axial Age, and not least in Aristotle, a structure of thinking thus reveals itself that will enduringly determine the occidental understanding of peace in

International Centre for Prison Studies. <http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=all&category=wb_poprate>. World Wide th Web site accessed on Sep. 9 2013. 10 rd Information promoted by Instituto Avante Brasil, in Jan. 23 2013. <http://atualidadesdodireito.com.br/iab/artigos-do-prof-lfg/populacao-carceraria-cresceu-68-em-apenas-seisth meses/>. World Wide Web site accessed on Sep. 9 2013. 11 As of a July 2013 reports: Barring a major reversal of trends, Brazil, home to the worlds largest Catholic population, faces the prospect of no longer being a Catholic-majority nation within the next two decades or so. <http://www.catholicherald.co.uk/features/2013/07/26/how-the-charismatic-movement-conqueredth brazil/>. World Wide Web site accessed on Sep. 21 2013.

its Christian connotation: the exclusion and persecution of the other who, in dualistic fashion, has to be evil, since the self is good. (DIETRICH, 2012, Pg. 90). On the other hand, the wide acceptance of the modernist thinking nourished in Europe, during the 19th and 20th century, gave way to juridical positivism and its echoes in the construction of Criminal Law in Latin America in general12. Under this context, criminal punishment was conceived and imposed as a mechanical reaction, necessary for the safeguard of the community, disconnected from the socially interrelational aspect of the supposed perpetrator, a trend logically followed by Brazil13. In this regard, I think that Wolfgang Dietrich understands the conception of law, under the modern rationale, as an instrument embellished by the effort of human reason and indispensable for the maintenance of social order and security obedient to the authority of the State: Norms are in effect because, as the best possible forms of shaping society toward common well-being, they are perceived as generally valid. (DIETRICH, 2012, Pg. 156). Not by chance that a much favored symbol for justice in the branches of the Brazilian Judicial Power is the figure of the Roman deity Iustitia14, on the right hand the sword and on the left hand the balance. It becomes easier to understand how this symbolic language not inaccurately portraits the physiology of a criminal system so strongly influenced by the idea of the absolute truth of modernity (the balance representing justice), based in a social reality so much subjected to the catholic idea of morality (the sword representing security). And there you have it, Iustitia the blindfolded Dik. From that I deduct that the criminal justice system of Brazil is an institution clearly influenced by the moral and modern concepts of peace: the sword and the balance flared by Iustitia at almost every courthouse and law school of the Country conveying a very symbolic connotation.
12

The Latin American criminological reasoning was born and has kept itself strictly binde d, up to much recent years, to positivist criminology, more specifically that of Italian origin. The relation with Its ideologically genocidal foundation are much more tormenting then the juridical discourse itself. (ZAFFARONI, 1998, Pg. 47). 13 (...) the penal system as a whole rests on the idea of individual culpability (personal), in total contempt of the context of the social environment or system, since systems, and social structures are ignored, and the blame is imposed on the individual. (QUEIROZ, 2004, Pg, 189). 14 As explained on the World Wide Web site of the Brazilian Supreme Court itself: <http://www.stf.jus.br/portal/cms/verTexto.asp?servico=bibliotecaConsultaProdutoBibliotecaSimboloJustica& th pagina=iustitia>. World Wide Web site accessed on Sep. 22 2013.

Since a rigid monological truth regarding peace demands a unified structure of communication, than any given legal system, through the inflexibly consolidated grammar of law in a certain state, can be easily served for oppressive means for the delivery of an institutionally convenient idea of justice regarding conflicts considered as criminally relevant. With that in mind, the punitive state reaction in face of a criminal act very much falls into the absolute justice model as a bitter social medicine against something logically unjust, since such human act can be perfectly fitted to a previously established legal norm and its correlated sanction, similar to the archaic moral and not so archaic modern schemes of peace interposition based on the need, encouraged by fear, envy and revenge, for the achievement of a future ideal justice. In face of a social environment, probably not too apart from the reigning western standard, much based on fear driven political iniciatives15(phobos) and inspired by greed as a goal within itself16 (thanatos), its easier to recognize the social and political reluctance for the spread of elicitive forms of Conflict Transformation, since that transpersonal aspect in the Transrational approach () is supported by the conscious death of the ego and the I so that a philosophy based on the fear of death in a moral or modern sense cannot arise. (DIETRICH, 2012, Pg. 266). In such societies, a constant fear, in more or less degree, of the next person, the fellow earthling, is very present. Consequently, conflict, specially the ones carrying the derogatory label of crime, is something to be avoided at any price. But now such prices are getting more and more costly and this social inflation is starting to haunt each and every one of us within the pale blue dot 17. The words of John Paul Lederach on his construction of the term Conflict Transformation remind us of the conflict as an invaluable opportunity for social learning and community growth:
15

A 2012 study by the Brazilian Institute of Applied Economic Research (IPEA) on public safety has shown that, on average, 62,3% of the Brazilian population are afraid to be a victim of armed robbery, while 62,4% are afraid to be a victim of murder. (IPEA, 2012, Pgs. 3 and 4). 16 As of 2011: To be happy the most important aspect is to have money, as showed in a research poll entitled Pulso Brasil accomplished by Ipsos Public Affairs, as requested by the Industry Federation of the State of So Paulo (Fiesp). The item was mentioned by 60% of the people interviewed. Available at <http://economia.uol.com.br/ultimas-noticias/infomoney/2012/01/30/felicidade-e-ter-dinheiro-no-bolso-nath opiniao-dos-brasileiros.jhtm>. World Wide Web site accessed on Sep. 22 2013. 17 A term coined by the late cosmologist Carl Sagan in 1994 when referring to Earth insignificance in the vastness of Space, as a reflection upon a photograph taken by the Voyager 1 spacecraft in 1990 from a distance of around 6 billion kilometers away from the planet.

Conflict transformation is to envision and respond to the ebb and flow of social conflict as life-giving opportunities for creating constructive change processes that reduce violence, increase justice in direct interaction and social structures and respond to real-life problems in human relationships. (LEDERACH, 2012, Pg. 27). Regardless of the social background, the path of Conflict Transformation in the direction of Transrational Peaces seems not to be altogether an easy one. However, the assumption that the potential for transformation is not beyond the conflict system itself, should, as it does, encompass an inner propensity within all beings for taking a first step in that direction, as demonstrated by the resilience of the energetic concepts of peace throughout human history, even when shadowed by the distortions of innumerable human undertakings. Now the challenge, as I understand it, in social contexts so deeply affected by a general sense of fear and individuality, is to avoid the boasting of definitive solutions, as the case of law-and-order public policies for instance, so to allow the construction of many peaces through a genuine dialogue of cultures, ideas and experiences. Touching the issue of dialogue, always much appreciated are the lessons of Paulo Freire, one that has always struggled, throughout his life time, with the so unequal social setting of Brazil, most particularly focused on the universe of education: Thats why dialogue is an existential demand. And as i t is the encounter by which the reflecting and acting of the parties addressed to the world to be transformed and humanized through mutual appreciation, it can neither be depreciated to an act of deposition of ideas from one individual to the other, nor simply become an exchanging of ideas to be consumed by those involved. (FREIRE, 2006, Pg. 91).

References

CANCIO MELI, Manuel; JAKOBS, Gnther. Derecho penal del enemigo. Madrid, Espaa: Civitas Ediciones, 2003. DIETRICH, Wolfgang. Interpretations of Peace in History and Culture. Houndmills, Basingtoke and Hampshire, England: Palgrave Macmillan, 2012. FREIRE, Paulo. Pedagogia do oprimido. 44 ed. So Paulo: Editora Paz e Terra, 2006. INSTITUTO DE PESQUISA ECONOMICA APLICADA (IPEA). Segurana Pblica. Brasil: Sistema de Indicadores de Percepo Social, 2012. INTERNATIONAL BAR ASSOCIATION. One in five: The crisis in Brazils prisons and criminal justice system. London, England: International Bar Association Human Rights Institute Report, 2010. LEDERACH, John Paul. Transformao de conflitos. So Paulo: Palas Athena, 2012. MASI, Carlo Velho. O direito penal simblico e a corrupo como crime hediondo. 2013. Available at <http://www.abracrim.adv.br/site/index.php/artigos/427o-direito-penal-simbolico-e-a-corrupcao-como-crime-hediondo#_ftn1>. World Wide Web site accessed on September 21st 2013. QUEIROZ, Paulo. A dimenso (des)humana do Direito Penal. Revista Brasileira de Cincias Criminais, So Paulo, vol. 47, p. 188, mar 2004. RIBEIRO, Darcy. O povo brasileiro: a formao e o sentido do Brasil. 2 ed. So Paulo: Companhia das Letras, 1995. ZAFFARONI, Eugenio Ral. Em busca de las penas perdidas: deslegitimacin y dogmtica jurdico-penal. Buenos Aires, Argentina: Ediar Editora, 1998.

All translations, either from Portuguese or from Spanish sources, have been freely translated by the author of the paper. He is entirely responsible for any eventual distortion from the meaning conveyed in the originals.