Court delay, a comparative study on the US and Brazil

INTERVIEW / Ludmila Ribeiro

It is an unhappy pairing, that of the media and the criminal justice system in Brazil. Each directs a critical eye toward the other. The justice system is wary of the rash judgments, the spectacularization of crime and jumbled concepts that mix different legal traditions in news and entertainment media. The media depicts the Brazilian criminal justice system as hopelessly overrun by lengthy processes and class privilege that “mire” the criminal justice system in impunity.

Taking a novel approach, Ludmila Ribeiro, from Brazil’s Getúlio Vargas Foundation carried out a comparative study of the legal literature in Brazil and in the United States of America, with an eye on what it is exactly that is at play when criminal justice proceedings take “too long”.

“They are different justice systems and contrasting how each works can be helpful to make key components more evident”, said Ludmila about her study: “O tempo da justiça criminal: Estados Unidos e Brasil em uma perspectiva comparada”. Ribeiro states in her introduction that the goal of her study was to “look at the possibilities and difficulties of replicating studies based on the literature in the US and note issues that, despite their relevance, have not yet been approached in the Brazilian setting.”

Professor Ribeiro, coordinator of the FGV's Center for Research and Documentation in Contemporary Brazilian History in São Paulo gave an exclusive interview to Comunidad Segura on the contributions of a comparative approach to her study of criminal case processing time for homicides.

Among the contrasting and similar points in both legal systems, Ribeiro’s paper points out that in these distinct legal traditions, (Common Law in the US and Civil Law in Brazil) defendants prefer a speedy trial in the US with the goal of getting a lighter sentence, while the same objective leads defendants prefer a lengthy trial in Brazil, and in both systems case processing time is faster if the suspect is under custody, and the presence of private lawyers increases court processing time.

Ribeiro also notes the complex challenge that is the attempt to guarantee abbreviated processing time in the justice system. In the US the enactment of the 1974 Speedy Trial Act led to a wealth of studies on case processing time over the past 40 years.

The issue of Case processing time and court delay really struck public opinion in the US in 1970’s, leading to the Speedy Trial Act. Could you comment?

A landmark ruling determined that there were grounds in the US Constitution to guarantee a speedy trial for defendeants, as I put it in the paper: the Speedy Trial Act de 1974 set a 30 day period for determining the authorship, identifying a suspect and producing evidence of an offence. Once the accused is indicted, the length of the trial should run no longer than 30 days. That is to say 100 days were established as the given average processing time for criminal procedures.

This “magic” solution was criticized by lawyers, prosecutors, judges and social scientists. To change the daily practice of the courts of law and not to threaten the credibility of the justice system, criminologists then focused on designing public policy that could make it possible to uphold this new requirement.

This article comes out of your doctoral research, at what institutions?

It comes out of my PhD thesis defended last year at the IUPERJ and research I coordinated at the CESeC last year entitled: “Os novos procedimentos penais: uma análise empírica das leis 11.719/08 e 11.689/08” (New penal procedures: empirical analysis of the laws 11.719/08 e 11.689/08).”

In the two different legal systems defendants have in some respects, contrasting interests. That, for example is the case of defendants in the US and Brazil, correct?

Yes, in the US the defendant is led to agree to a speedy trial so that he may obtain a lighter sentence. In Brazil the defendant is interested in a lengthy penal procedure in hopes of obtaining lighter sentencing or even that the case is dropped because it expires.

Is what we call “morosidade” in Brazil, or lengthy penal proceedings, associated to impunity?

Morosidade or to translate it as 'protracted court delay' in the penal processing period can be directly associated to impunity when, because of excessive processing time it becomes impossible to process and punish someone for committing an offence. This is what happens, for example, when a case expires (prescrição do delito) , in this event the State loses the right to punish the accused since it was unable to carry out the activities that are necessary to process and sentence the defendant in a reasonable period of time.

Does this delay in procedings consitute a breach of civil rights?

Again Morosidade, infringes on the constitutional right to a reasonable period of time for judicial proceedings, as stated in art. 5º. Inciso LXXVIII. The big issue is how to define what is a reasonable period of time for such proceedings. If we have proceedings run too quickly, we run the risk of there not being enough time for the parties involved to present evidence, and thus lose the right to a full defense (ampla defesa).

On the other hand, if it runs for too long, we run the risk of the losing the evidence or even of witnesses dying. The great question is, therefore, to find a point of equilibrium, away from the two extremes.

Many of the American studies on case processing time were motivated by landmark cases, and entered into American judiciary. Among us studies are still few and far between. Is it correct to state that the

Brazilian judiciary does not foster this kind of analysis?

On the whole, the Brazilian judiciary does not analyze the length of criminal processing time. Few courts use the database they themselves produce to monitor the duration of case proceedings, or even adopt programs to provide incentives or punishment for members of the judiciary able to close a case in a reasonable period of time.

Perjury: If a defendant can lie in his own defense, this makes the police procedural and the investigation of the prosecution much more important -  is this the reason behind slow moving police inquiries? Has any interest been shown in changing this in the Brazilian judiciary?

The factors that conspire to slowing down the pace of the police enquiry cannot be reduced to the fact that the suspect is not forced to produce evidence against himself, or even to the fact he is able to lie (and it must be noted that perjury is the crime of providing false testimony and therefore applies only to witnesses). In part police enquiries are slow because unfortunately the police are not adequately prepared to carry out these activities, and thus, often start with the offender and move to the case and not the other way around. In Michel Misse’s recent book “The police inquiry in Brazil” he shows that taking 5 major cities in Brazil, only Brasília seems to have a modern police force capable of solving over 20% of the homicides that are notified to the Civil Police Force.

Private lawyers in Brazil and the US are associated with slowing down penal proceedings. In the US it has been found that a defendant’s wealth is a more significant factor in defining proceedings than race. How can one compensate for this?

Private lawyers are generally hired to provide a more precise use of the resources available in the penal processing system, so as to guarantee that their client obtains if not an absolution, at least the lightest sentence possible. Protracting the proceedings over a reasonable period of time is a strategy they use to attempt to have the case expire. This, unfortunately, is not a crime. If the courts had a monitoring system that would alert them of those cases that are running in excess of time, it could, possibly serve to minimize the problem.

Our penal code dates from 1941, and there is a new one being considered in Congress. One popular argument says that the main cause of delay in the justice system are the possibilities of appeal prior to sentencing, and that the new penal code would grant even more grounds for appeal, and make court delays even worse. How do you see this?

The Brazilian Penal Code was reformed by laws 11.689/08 e 11.719/08. Among the many innovations, there is the possibility of having a number of different hearings held at the same time: the hearing of instruction and judgment (trial). Thus the judge has to listen to witnesses, analyze evidence, question the defendant and issue the sentence. This brings a number of steps that were held apart, together. The “CESeC study Pensando o Direito – Os Novos Procedimentos Penais” showed that in the opinion of the members of the judiciary, these changes made simple and quick cases run even faster but complex slow cases still require more time. The issue seems to be, therefore, how to guarantee that complex cases, in which compiling evidence is a slow process, can be made to run in shorter periods of time.

Another factor that accelerates the length of proceedings is if the offender is held in jail, but how does this relate to the large number of pre-trial detainees in Brazil?

Offenders held in prison often result from arrests made in flagrante delicto. This also helps the process move more quickly, since there is no need to include the discussion of whether the suspect is guilty in it. This also makes it more likely that he will be sentenced (and not absolved) which leads often to prolonging his detention in police stations. On the other hand, since we have little in terms of crime prevention policies, new criminals will be arrested in flagrante, and processed more quickly than offenders who weren’t arrested in those circumstances and will stay in detention. The result is a vicious cycle, and a reasonably constant number of people in detention at any given time.

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Fundação Getúlio Vargas' CPDOC: Centro de Pesquisa e Documentação de História Contemporânea do Brasil