The failures of criminal prevention and its relation with the impunity in Brazil

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Public safety is a subject of great importance and has been widely discussed in the most diverse segments of contemporary society, being a concern from the state organs and non-governmental organizations to educational institutions and forums dedicated to public safety and social development.

The debate about public security is made from various points of view, through sociological, philosophical explanations, statistics, doctrinal discussions of the field of law, among other forms. These efforts are carried out, therefore, always with the scope of provoking positive changes in the chaotic scenario in which the indices of violence and crime are, aiming, therefore, the reduction of criminality through “Criminal Prevention” as directed by the United Nations.

Prevent the occurrence of crime by reducing opportunities, increasing the risks of seizure and minimizing benefits, even through environmental changes, and providing assistance and information to actual and potential victims (situational crime prevention). (UN, 2013, p.11)

Despite the movements that the state organs and other institutions of civil society undertake to understand the criminal phenomenon and reverse the current ranking of violence, the result has not been reached objectively. On the contrary, it is noted that there is a progressive and negative increase of criminal indices in general, which reinforces even more the idea that the path currently followed is not the ideal to establish the social peace so desired in our society.

The general understanding of what is the criminal phenomenon and its causes, as well as the criminal dogma for mitigating the problems of violence in Brazil, comes from foreign theories conceived under the analysis of socioeconomic realities of their place of origin. Basically, four theories based on Bentham’s utilitarianism (1962) are widely used by state and civil society entities charged with the task of explaining the phenomenon of crime around the world.

This theoretical set includes the following propositions: Theory of Routine Activities, Theory of Opportunities, Theory of Rational Choice and Theory of Criminal Pattern. This theoretical body is called the Theoretical Set of Situational Crime Prevention. It was formulated by the researchers Marcus Felson, Ronald Clark and Donald Cornish and deals with a group of theories that examines the phenomenon of environmental delinquency, that is, the analysis of the criminological phenomenon is promoted based on circumstantial data such as routine activities, absence Vigilance, vulnerability of the victim, value of the object, risks and benefits, proposing the idea of delicts practiced with rationality and standardization, characterizing the interaction of predators and victims in the world of criminal practices.

Regarding this, Felson said:

A new pattern of crime comes with the growth of cities, with predatory offenders hidden in the crowd, who attack and then hide again not to be arrested. Illegal sales and consumption as well as fights can more easily survive within an urban environment (Felson 1994, p 49)

The concept of Situational Crime Prevention is present in most of the world’s police doctrines, as part of the teaching of basic police techniques, in order to support strategic actions based on analysis of data on criminal incidence in time and space. However, what has been called “preventive policing” emerged. That is, police operations are structured as the criminal incidence in a given region is identified, and ostensible police action will be employed in the areas of highest incidence, in order to prevent new crimes from arising.

As an example of this conception, the Directive for the Production of Public Security Services, №30101/2016, of the Military Police of Minas Gerais State brings the following text:

Preventive patrolling, based on careful planning, based on scientific criteria, through the analysis of spatial and temporal information, inhibits the opportunity to commit a crime, interrupting the cycle of violence. (MINAS GERAIS, 2016, page 30)

The Theory of Routine Activities deals with elements that are necessary to give rise to a criminal event, that is, for Felson and Cohen, a crime will only occur if there is convergence in time and space of three basic elements: motivated offender, available victim and Absence of surveillance. Only with the interaction of these elements can a criminal act occur (FELSON, 1979).

The second theory deals with rational criminal choice, in which the offending individual exercises several decision-making processes, comparing liens and bonuses, in order to determine if the offending act compensates the investee. According to theorists, during the decision-making process, every offender performs fraudulently calculations to convince himself that he will not be harmed by the crime (CORNISH, 2003).

The Theory of Opportunity defines the criminal event as a result of a sum of circumstances that contribute to the emergence of a crime, for example, when someone leaves the car key in the ignition and the windows open. Such an opportunity encourages a potential offender in the vicinity to enter the vehicle and steal it. These are situations that contribute to the victim’s own fragility and increase the success of offenders. (CLARKE, 1998)

The last theoretical foundation is the Criminal Standard, which seeks to define criminal practices as actions arising from a pattern, a behavioral model, usually linked to a specific geographic area, which has its own characteristics and facilitators for the infraction, A certain region known for the lack of policing, in which steals and vehicle thefts constantly occur to passers-by.

The Criminal Standard Theory also establishes that offenders usually act with the same modus operandi, which is economical for offenders, influenced by the absence of burdens in the infraction practice, leading to criminal recidivism (CLARKE, 1998).

These theories set forth a number of arguments about ideal methods for avoiding the occurrence of criminal events, as well as explaining the processes of criminal patterns, in order to allow their results to serve as a reference for actions to combat the escalation of violence and crime. However, over time, these theoretical foundations have proved inadequate to explain in a satisfactory way what actually happens with the criminal phenomenon in the Brazilian and also Latin American scenario.

If these four foreign theories were really adequate to understand what happens with Brazilian criminality, then how to explain extremely common facts in our country, where an offender decides to commit a crime in the presence of a guardian or a police authority? According to Situational Prevention, the presence of vigilance should avoid delinquent practice, but, how to answer the reason why the ostensibly police presence does not effectively produce criminal prevention? What leads an offender to criminal practice, even knowing that he will be surprised by agents of punitive power?

For example, a real case occurred in the city of Contagem/MG, on April 13, 2017, when a man with a white gun entered a perfumery located in the Petrolândia neighborhood. Just below, about 15 meters, there was a blitz from the Military Police of Minas Gerais State. The thief announced the assault, taking away various belongings, threatening the victims not to shout, because he knew that there were police officers nearby. In the bulletin the fact is described as follows:

He took out a knife from his backpack, announced the robbery, and told the girls, attendants, that he knew there were police officers performing a blitz down the street and that if they shouted or called the police, he would stab them […] (PMMG, 2017, 03) (1)

When observing this case, it becomes clear that the police presence was not spare being insufficient to prevent him from committing the crime, and ineffective to make him give up his intent, as attested by Theory of Routine Activities.

In fact, in addition to the circumstances of routine activities pointed out by researchers, as a predominant factor for the incidence of opportune and prosperous moment for criminal practice, it can be inferred that the chaotic picture of Brazilian legal and penal reality through failures in criminal prosecution, Influence on the decision-making plane of the offender, leading him to conclude that the presence of the guardian or a possible arrest are acceptable “burdens” and consequently irrelevant to the disincentive to commit crime.

According to Denilson Feitosa (2010), criminal prosecution in Brazil presents a system failure, resulting in two dichotomous characteristics. The first refers to the punitive function of the persecution, which seeks to identify, prosecute and prosecute the offender. The second aims to provide the guarantee of fundamental constitutional rights, which deals with ample defense and contradictory.

The professor emphasizes that the more criminal prosecution engenders efforts in its punitive bias, in order to find evidence and solid elements for the identification and conviction of the perpetrator of an offense, the guaranteeing function of the persecution would be prejudiced, Would be the work of guaranteeing fundamental rights. On the contrary, the more energy is expended to ensure the promotion of individual constitutional rights, the more difficult it is to obtain concrete evidence to substantiate a conviction. As a result of this drama, a “sense of impunity” emerges in the social sphere, which is nothing more than a reflection of the failures of the criminal prosecution system. (2010)

When there is an ineffective criminal justice system in the investigation and conviction of criminals, resulting in an early return of the offenders to society. The guarantees of a law whose principle is imprisonment as an exception to the rule (2). The individuals released, end up returning to the same environment from where they came, returning to repeat. As a result, it promotes in the social mentality the thought that the criminal practice does not have punishment the height of the damages caused in the victims (3).

This conception of reality radiates in the social fabric, especially in the areas where delinquency is habitual, the certainty that every criminal practice in Brazil results in impunity. This factor can be understood as a motivational element in the decision-making process of the individual who engages in delinquency, so that he impelled to regard the police presence as something derisory. Thus, police ostensiveness loses its inhibitory effect, ceasing to operate in the psychological domain of criminality.

Intrigued by this disparate reality, I decided to investigate further the criminal incidence before the police presence in Minas Gerais State (click here to access the study). It analyzed 100 criminal cases in which the crimes were consummated before a law enforcement official. In the data obtained, surprisingly, in 77% of the cases, the authors premeditated to carry out their crimes before the police presence. See the chart:

Prepared by the author

The ostensivity, in Brazilian reality, only informs the existence of a police officer (4). However, this mere presence does not necessarily influence the discouragement of delusional action, the appearance of a guardian only interferes in the calculation made during the offender’s planning (rational choice theory), as regards the choice of means for the consummation of the act.

This indicates that the understanding of police action, in respect of ostensiveness, which is the competence of the military police assigned in article 144 of the Federal Constitution of 1988, is conceptually mistaken. (5)

Ostensible policing can not be understood as a factor that will inhibit the delusional practice, simply because there is a police officer on the corner, or construct a point of observation in the places of greatest incidence. In order for the police presence to constitute some detriment to the criminal activity, only repressive actions remain. In other words, police agencies must be equipped with information to identify criminals, in order to anticipate eventual criminal action.

Despite the inefficacy of preventing the occurrence of crime, it was observed that the police presence was fully efficient for arresting the perpetrators, culminating with a high repressive index. See the graph:

Prepared by the author

In this way, as shown in the figure above, the existence of street policing is an important tool to repress the occurrence of crimes.

It is clear that routine activities are behaviors that make people more fragile and propitious for a criminal approach, however, as demonstrated, the vigilance factor is insufficient to inhibit the occurrence of the offending episode. It follows, therefore, that in order to emerge a criminal event, a convergence in time and space must occur, only two factors: a motivated offender and an available victim.

Talking about crime prevention through police presence is a fallacy, crime will always occur in the most diverse forms and ways, in the most propitious or inhospitable places. Although the presence of surveillance is irrelevant to avoid a crime, police presence is essential for the repression of criminals.

Such repression must be qualified integrated with coordinated intelligence. The focus can not only be on eliminating environmental circumstances, but attention should be focused on the agents of the crime, with a view to their identification and imprisonment. It is without a shadow of a doubt the best way to reduce crime. However, this change is not restricted to the actions of the police, but of the entire justice system. This involves a new posture of the three powers as to how to view the criminal phenomenon as an endogenous and exogenous factor.

In order to understand the reasons that lead people to commit crimes in the presence of a guardian, we must look at exogenous factors, as previously said about “impunity.” The belief that leads individuals to the illicit, to take the presence of the police as irrelevant can be understood when analyzing the theory of criminal subcultures (6), of which a portion of society ends up sharing similar ideas and values, which diverge from the general view Of society adopting a kind of culture in the internalization of these values, in order to build their behavior based on these ideas, as Larry Siegel points out in his book Crimonology. (2011)

The “certainty of impunity” is a common value to these subcultural groups. Its origin has roots in the diverse interpretation that make of the means of social reaction that the State applies to the control of the criminality. For example, the adoption of surrogate surrogacy to prison (Brazilian Law 12403/11), which aims to provide a fairer criminal prosecution, is seen by subcultural groups as a positive reinforcement to continue criminal life. That is, when they perceive that a person caught red-handed, instead of being kept in jail, receives the benefit of responding in freedom during the process, this measure is understood as a “bonus” resulting from an unlawful act.

According to Skinner (1974), this mental process is called operant behavior. When individuals receive a “bonus” after having committed a delict, they understand that the offending practice is rewarding. And consequently, they repeat the same practices.

For Geertz (1989), the man defines his behavior by assimilating the “web of meanings” present in his culture. In this sense, the effect of precautionary measures produced in subcultures, sediment as conceptual values, giving meaning to the deviant conduct of subcultures.

To demonstrate this aspect more clearly, we can take as a basis the following chart that deals with the result after the arrests carried out by the police:

Prepared by the author

According to the sample analyzed, the data show a large number of individuals sentenced to community services (37%), followed by bail (25%) and provisional release (23%), and in a few cases, Maintenance of the prison (15%). This result, analyzed from a legal point of view, strengthens the understanding that the Judiciary, in order to implement the basic principles of a Constitutional and Democratic State of Law, has complied with the legal mandate.

However, in an observation based on Skinner’s theory of operant behavior, how individuals involved in criminal practices interpret the legal treatment applied at most criminal events can lead them to the conviction that the practice of the offense compensates.Professor Larry teaches that in criminal involvement decisions:

People who decide to get involved in crime estimate the chances of arrest (based on their past experiences), plus the subjective psychic rewards of crime, including the excitement and social status they can acquire, as well as opportunities for easy gain. If the rewards are great, the risk is small, and the excitement is high, the likelihood of new crimes increases. (SIEGEL, 2011, p. 106)

Siegel claims that the offender’s mental process calculates the chances of arrest. However, in Brazilian reality, it can be inferred that the mourner does not care about the prison itself, but with the chances of being trapped for a long time. Because they have the “certainty” that penalties for certain crimes are not “heavy”, they end up pursuing their criminal activities.

The Ministry of Justice itself, through the National Penitentiary Department (DEPEN, 2001), has published a survey on criminal recidivism, pointing to a 70% index, with failure factors in convicting inmates as well as deficiencies in rehabilitation and control processes. House arrest, in addition to presenting a 30% rate of prisoners in temporary custody (7).

All these factors cooperate to increase the “sense of insecurity and impunity”. This way of understanding social reality is not a contemporary feature, it is also reported in Montesquieu’s classic, “The Spirit of Laws” (1995, p. 70, our translation) in which, analyzing the criminal phenomenon, The crimes originate from impunity (8). Impunity can be understood by the absence of punishments, negligent authorities, substitution of penalties that do not equate to the offensive power of the crime committed. Impunity is not simply revealed by the lack of enforcement of the penalty, in the sense of declaring it, it also means the execution of the sentence declared at an intensity lower than the offensive potential of the offense practiced.

Therefore, when a delinquent is not punished for practicing his atrocities, justice becomes discredited before society, therefore, this circumstance assumes a positive reinforcing character (9), that is, it becomes a reinforcement of conduct, as Is defined by psychology, from which it increases the frequency of offense, by the stimulus that the great mass of people prone to crime receive reinforcement. (MAYERS, 1999)

An important point to be made is how this “belief” is constructed in the social fabric and how it gains strength in subcultures through the early delusional experiences of individuals. Generally, criminal initiation occurs in increasingly younger individuals, from early adolescence to early adulthood. This characteristic can be found in studies such as Map of Violence (2016) and in the National Survey of Penitentiary Information (2014). In my study, this was also observed. See the following chart:

Prepared by the author

In the data, the predominant range is people aged between 15 and 20 years (38%), followed by individuals between 20 and 25 years (28%) and between 25 and 30 years (13%). These three combined bands comprise 79% of all crimes analyzed. This reveals that delinquent individuals are mostly teenagers and early adulthood people.

According to Jean Piaget, from the age of 12, every human being develops his cognitive structures in a process called Formal Operations, in which the way of understanding the world will follow him for the rest of his life. That is, at this stage young people are able to “form abstract conceptual schemes […] such as love, fantasy, justice, democracy,” so that the way they see the world will persist from this time forward. (RAPPAPORT, 2006, p.18)

In this sense, by the ability to discern substantially abstract concepts, such as law and morality, it can be inferred that every person, from adolescence, has full faculties of knowledge. Even if it does not have practical experience, the science assimilated of moral norms and behavior, guarantees this faculty. In this way, there is no need to talk about young people who do not understand what they are doing.

For Piaget, this period, too, is marked by the volatility of cognitive construction. That is, individuals, despite understanding abstract notions, constantly change their opinions about everything. In his words he states that “[…] they build and rebuild their own structures of knowledge.” (Piaget, 1976)

This constant change opens the way for the “webs of meanings” of criminal subcultures to be assimilated more easily. Article 228 of the Federal Constitution prohibits persons under the age of 18 from being criminally charged. Thus, the force and effects of the Criminal Law can not reach individuals who commit crimes, whose ages are under 18 years. Only the ECA (Statute of the Child and the Adolescent) ends up governing the conduct of these individuals.

However, the ECA does not allow such offenders to be handcuffed, arrested or convicted in the same way that individuals are subject to the Penal Code regulations. The Statute defines that adolescents “in conflict with the law” may, at most, be admitted to a custody institution for a period of 3 years. This is for the most burdensome cases.

In light of the theories exposed here (operant behavior, formal operations, meaning webs and criminal subcultures) one can understand that these individuals will certainly have a different view of punishment and criminal application. For them, the condition of “underage” acts as a positive reinforcement to their delinquent practices, because they know that if they commit a crime, heinous or not, the penalty that will be imposed, will not have the same force as that applied to people “Of age”.

The theory of pen states that criminal enforcement has a deterrent in the collective mentality that has the purpose of convincing people not to commit crimes. (FILHO, 2012)

However, when confronted with a large number of people who are not under the influence of the criminal law, it is evident that the means available to the state to control the criminal incidence are not effective in achieving its objective. This is because, while the criminal phenomenon is composed of agents from adolescence to adulthood, control of this phenomenon is focused only on individuals considered adults.

For example, a teenager who is first brought to trial for committing an offense may interpret socio-educational measures (new external stimulus) as an irrelevant punishment, since his concept of pen (preexisting knowledge) is based on Penalties imposed on those who fall into the criminal majority. Since he will not be penalized in the same way as an ordinary individual, the young person believes that the socio-educational measure does not bring onus (assimilation of new knowledge). Thus, this new concept is established in the structure of the adolescent, who becomes convinced about this new fact. (MARQUES, 2009)

The understanding of the merits of this phenomenon reveals its indispensability to establish an understanding that the application of the penal sanction and its purpose must reach, equally, both criminal and minor.

Therefore, it understood all the aspects narrated in this article about the inefficacy of the preventive effect of ostensive policing, the failures of criminal prosecution, the inefficiency of criminal application regarding age, the force of criminal belief in delinquent subcultures originating from the inoperative means of social reaction, Reveal that the Brazilian criminal dynamics is not only a phenomenon linked to exogenous but also endogenous issues. That the way the state acts to control the criminal incidence is based on misconceptions about the criminal reality. This creates a smokescreen to hide what actually exists behind this curtain.

Since all criminal public policies are based on a scientific basis that serves as the north, it is necessary that this base be adequate with the Brazilian reality, avoiding, consequently, misunderstandings in the application of the state actions of administration and management of the criminological incidence.

Therefore, it is imperative that the scientific investigation investigates the subject, examining all the peculiarities of the criminal phenomenon, especially in the criminological vision in question, in order that the result of the scientific exploration be foment of new public policies of criminal control, for then contributing to reduction of crime.

Thanks for reading.

ALAN FABIANO CAETANO DE SOUZA
Technician in Public Security. Academic Law. Member of the Public Security Study Group.

Notes:

1Fact occurred on 04/13/2017, registered by the Military Police of Minas Gerais, under the number of REDS: 2017–007851569–001.

2Statement by Superior Court Justice Rogério Schietti, member of the 6th Court of the Court, in an interview with the journalist Beatriz Bulla, of the newspaper Estadão, on February 22, 2015.

3Affirmation by the prosecutor André Luis Alves de Melo, of the State of Minas Gerais, about the Brazilian prison system and the ideology of resocialization.

4According to Rogério Ferrigo, in his article dealing with the competence of the Military Police in Brazil, he says the following: “ostensible policing, according to the legal definition of decree 667/69 can be understood as a police action carried out solely by the Military Police, in which the Military personnel are identified at a glance, whether by uniforms, equipment or vehicles in order to maintain public order. “ Available at <http://www.egov.ufsc.br/portal/conteudo/competência-residual-de-policies-militar-na-constitui%C3%A3o-Federal 1988> Accessed on 05/23/2017.

5Concept defined by the Code of Conduct for Law Enforcement Officials (CCEAL), a standard established by the United Nations for the standardization of police conduct in signatory countries.

6Criminal subcultures are groups of individuals who have the same moral vision in common, as well as adopting specific symbols and a kind of behavioral code divergent from the dominant culture in society. Generally, these subcultures give different interpretation to points that the rest of the society considers relevant, as, for example, the obligation to comply with the law, of the good customs and etc. For these groups, the norms and laws that must be obeyed are those derived from their own culture. A real example of this type of culture is the establishment of execution courts in criminal organizations, which impose parameters of conduct on its members (SIEGEL, 2011).

7Data from 2001 for Brazil and 2006 for State of Minas Gerais, State of Alagoas, State of Pernambuco and State of Rio de Janeiro. National Prison Department, Ministry of Justice.

8Consecrated book of Montesquieu, with original title denominated L’esprit Des Lois. Published in 1748.

9Positive reinforcement is the stimulus to a behavior, which increases the frequency of a behavior that is positive for the agent, even if it is negative for the others. Myers, D (1999) in “Introduction to General Psychology”, Rio de Janeiro: LTC — Technical and Scientific Books Editora S.A.

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