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Email address for updates. Such process is not linear and can be impaired by remains of the previous regime. In the case of Latin America, in the late s and early s, there were no abrupt changes but rather an exhaustion of the authoritarian regimes. The elements that make up the system of criminal justice and the principles that sustain it are distinct. The former include the rules that govern the establishment of forbidden conducts and the institutions that promulgate, reform, and cancel them the Congress, the Presidency, the Ministry of Justice , as well as the agencies in charge of preventive control, investigation, trial, and execution of punishments applicable to the practice of criminalized conducts the police, courts of justice, the prison system.
The principles are those of accessibility of justice, independence of the Judiciary, legality, accountability, humanity, efficiency and moderation. All of them are related to the due process of Law 2.
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Therefore, procedural criminal Law as well as constitutional norms constitute, under the Rule of Law, instruments to minimize and control the State's punitive power in order to ascertain citizen's fundamental rights against arbitrariness and abuse in the use of force by the State.
By and large, the main finding about the situation of criminal justice in Latin America within the context of democratic transition is the large gap between the formal and the real situation regarding principles, between what should be and what actually is. As for accessibility, there is disinformation about laws and procedures as well as the means to pursue one's rights. There is also loss of confidence because of the negative image of the Judiciary created by corruption, tardiness, and inefficiency.
As for independence, legal decisions are often subject to external pressures period to exert functions, variable and low pay, death threats, dismissal from positions and internal higher instances. Judges' impartiality and equity are targeted by pressures, threats and corruption; suspension of legal guarantees; vague expressions in codes that favor authoritarianism; uncertainty about the precise moment when the process begins; deficiencies of defense systems.
As for transparency, deficiencies are found in control of and information about activities as well as inexistence of external control. As O'Donnell reminds,. When an infamous businessman said in Argentina that "being powerful is having [legal] impunity", he expressed a supposedly widespread feeling that, first, voluntarily following the law is something that just idiots do and second, begin subject to the law does not mean enjoying the rights in vigor, but rather a sure signal of social weakness. That is particularly true and dangerous in conflicts that might trigger the violence of the State or powerful private actors, but an attentive eye can also see it in the obstinate refusal by the powerful to subject themselves to regular administrative procedures, not to speak of the scandalous criminal impunity that they usually enjoy O'DONNELL, , p.
During the recent process of democratic transition in the Continent, some legislative reforms have taken place in order to value the fundamental principles, to reduce the action of the Armed Forces in domestic politics, to transform the police and to adjust the administration of justice to the needs and realities of each country, thus abolishing and modifying provisions of authoritarian regimes. In some cases, the aim was also modernizing the justice system by professionalizing each sector, granting stability to judges, prosecutors, and police officers, introducing the judicial career and creating Magistracy Councils and school for training and technical improvement.
It is also noted that in some countries there is a move towards the Anglo-Saxon model, especially that of the United States, by replacing the inquisitive model with the accusatory one in the criminal process, potentiating Public Attorneys by widening the principle of opportunity for criminal action, enforcing legal guarantees, reducing the cases for preventive custody, presence of orality, publicity, and the adversary system during all stages of the process and reduction of time frames.
Efforts are also seen towards demilitarizing the police, its incorporation into civil institutions and its subordination to their control, higher quality in the training of agents; more independence and more effective action by Public Attorneys; creation and improvement of Public Defenders; elimination of special courts for military police officers; depoliticized selection of Supreme Court Judges; introduction of abbreviated and informal procedures; creation of commissions for improvement of justice and protection of human rights.
Lisa Hilbink and Matthew C. Ingram
Such reforms, which in many countries do not even occur, have not solved yet the main problems and difficulties for consolidating a criminal system that guarantees fundamental rights. It is a known fact that abuse of power is an endemic phenomenon in Latin Americ a. Tortures and mistreats inflicted by members of the military, police officers, or personnel in prison centers, often supported by businesspeople, still take place and remain unpunished in the countries of the region. Changes were typically limited to the formal domain, besides the permanence of violations to the fundamental principles and obstacles to modernization and democratization of the system.
And more importantly, that segmented legislation is subsumed in the informal one enforced by privatized powers that really dominate those places. That leads to complex situations, of which we unfortunately know little but that often entail permanent negotiation of the limits between those formal and informal legalities along social processes where it is sometimes literally vital to understand the two kinds of law and the extremely unequal power relations they produce. The resulting dominant informal legal system, punctuated by arbitrary reappearances of the formal system sustains a world of extreme violence, as shown by abundant data both in urban and rural areas.
The main obstacles to democratization have not been removed yet, especially militarism, economic crisis, foreign debt, social consequences from the structural adjustment, permanence of traditional attitudes, partisan bureaucracy, corruption and drug traffic. Those factors increment delinquency and the felling of insecurity. One of the aims of those programs is to "export" the Anglo-Saxon justice model, often uncritically and without deep analyses. There is a trend towards incrementing the gap between the ideal and the real and implementing merely symbolic changes.
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There has not been reflection about the importance of the several sectors of the criminal system in the various countries and there are not precise indicators that measure the development of democratization and modernization in that field. Anyway, the positive aspect to be underscored is an increasing sensibility to the need to democratize and improve political systems and the administration of justice in the continent. Within the framework of the so-called Welfare States established in central capitalist countries in the postwar period, non-punitive mechanisms for inducing conformity, through the incorporation of the population into a highly disciplined system of production and a multifaceted consumption market, as well as a large amount of social institutions for social protection and an inclusive school system, besides a massive media system, guarantee a relatively decreasing concern with penal control.
Within an expanding economy, that set of mechanisms reduced the centrality of the formalized system of punishments for the production and conservation of the social order. Differently from central countries, Brazil and Argentina, located in the semi-periphery of the capitalist system 5 , have never had mechanisms able to replace the roles played by the penal system, both in material and in symbolic terms. In those societies, with a fragmented and ineffective school system that restricts higher college education to small social segments, a production system that is unable to guarantee access to income and social security to large segments of the population, a domestic market where only a small part has access to consumer goods, and societies where almost half of the population lives under conditions of extreme poverty, the criminal justice system becomes crucial to maintain the social order, which is unable to maintain itself through ordinary or traditional procedures for consensus building or primary socialization.
As Virgolini underscores,.
The Judicial Response to Police Killings in Latin America: Inequality and the Rule of Law
Furthermore, with democratization, the new managers of the State, now elected by popular vote, faced a situation of rising crime rates as a result of factors such as population concentration resulting from migration from rural areas towards large urban metropolises, consolidated in Brazil during the period of military governments that restrained several areas of emerging social conflict through an authoritarian rule ADORNO, For the new governments elected in the region, in all administration spheres federal, state, and municipal , the problem of public safety became one of the core demands of the so-called "public opinion" often amplified by the action of the media.
There is an increasing "sense of insecurity" with growing public perception about the several spheres of crime, from the economy of drug traffic in the shantytowns and violent urban crime until the cores of the political and financial systems, where money laundering and embezzlement take place. A response is insistently demanded from the state and placed in the center of the political debate in electoral times. With increasing demand for more rigor in fighting and punishing crimes against the financial system, against popular economy, against public finances, Brazil and Argentina had to introduce in their agenda of political-structural reforms, mechanisms for public control over corruption practices and utilization of the state by private interests that existed much before military governments and made the need to modernize relations between the State and civil society the order of the day.
Acts of discrimination based on ethnicity, gender, or any other nature have also been criminalized in order to guarantee peaceful coexistence in multicultural societies. A higher perception of the dangers related to degradation of the natural environment brought to the agenda the criminalization of environmentally damaging conducts as well as specific structures for enforcing regulations and processing of all those crimes.
In all those areas there has been an increase in the range of facts considered crimes, in a movement of criminalization that seeks to keep up with the speed of the ongoing changes in contemporary societies. Together with internal demands for reduction of risks inherent to social life in a context of rapid change, the criminal system had to respond to the need to repress a new kind of crime that is globally organized as networks for production and traffic of goods without permission to transit in the formal market and that amount at least to two thirds of all volume of capital circulating in the globalized world 6.
As for the police, the debate surrounds its recycling in order to be able act under Democratic Rule of Law to guarantee citizen rights for all the population and not only the elites, also aiming at administrative economy and rationalization of information and prevention efforts needed to face crime at its several levels, with the reduction of selectivity in police activity or its redirecting of more serious crimes in terms of social consequences. Such changes clash with repressive culture that is a result of the role historically played by the police in countries with such social inequality as Brazil and Argentina.
The judicial system is the target of constant proposition of change, which take place in a fragmented way, through laws that are often made according to the demands of public opinion, amplified by the media, without any unity able to guarantee a minimum of legal security and internal coherence KOERNER, In the case of Brazil, the return to democracy came with an unprecedented increase in crime.
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According to Kant de Lima, Misse, and Miranda,. Such change in pattern would consolidate and expand in the s, with the generalization of drug traffic, especially cocaine, and the replacement of conventional weapons with others, technologically sophisticated with high destruction power. The analysis of the evolution of homicide rates in Brazil between and confirms the assertion about the increment in the number of violent crimes in the period 7 :.
Recognizing the complexity of the phenomenon, Angelina Peralva proposes four bases of analysis: authoritarian continuity, disorganization of institutions, poverty, and social change. Authoritarian continuity represents the way the power was transferred from the military to civilians. In , with the end of AI-5 The law that strengthened repression in Brazil , the federal government resisted to transmit powers over public safety to state governments.
While the civil police was controlled by local governments, the military police, since Decree of June 2, , was directly under the authority of the Ministry of the Army, which in practice represented a militarist legacy in the practices of repression to crimes by that institution that lacked the skills to act under redemocratization and the need to respect civil and political rights. The subject of crime was a perfect justification to explain the resistance to any inclination to reform that system. The lack of organization of institutions in charge of public order at the time of return to democracy was due to the continuity between the old authoritarian regime and the fledging democratic regime in terms of public safety, in a context of a long and difficult transition.
While the military created at first legal obstacles that prevented a police reform, they were no longer able to really control it.
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The police gradually became more autonomous from their controlling authorities. Not only there was an increase in violations to the rights of the person, but also crime practices with direct involvement of police officers were diversified. Even though a direct relationship cannot be established between poverty and violence, there is no doubt that the geography of violent deaths shows a concentration in poor outskirts rather than in rich neighborhoods.
The deep inequality that pervades Brazilian society certainly serves as the backdrop to everyday violence and crime. The association between poverty and crime is always first on people's minds when talking about violence. Besides, all data indicate that violent crime is equally distributed and affects mainly the poor.
For an analysis of the international relations aspect of contemporary police reform assistance see Google Scholar. Wolfgang S.
Violent Democracies in Latin America
Charles T. Oakley, Michael J. Dziedzic and Eliot M. For a discussion of this and related innovations in US policing that are increasingly being exported to Latin America, see David H. William Stanley and Charles T. Krishna Kumar, pp. Anthony W. Katherine J. They were the Republican Guard, the most militarized, the Civil Guard with a military rank structure and the Investigative Police, the most clearly civilian. Jorge I.
Dominguez ed. Daniel M. Claudio A.