One Justice for wealth, another for poverty – 08/03/2023 – Conrado Hübner Mendes

The rule of law has made the immodest proposal of submitting us to “the rule of laws, not of men.” He promised to apply rules without personalities and whims, to follow the maxim “equal cases are decided equally”, rejecting the particularism of “each case is a case”.

The promise is modern, but it has a whole population of devils living in the details. One of them is that social diversity calls for different solutions to similar situations through the lens of the abstract rule, the lens that does not see color, gender, social place of the individual or history. It does not perceive vulnerabilities that turn the ideal of “Blind Justice” into dumb and cruel Justice. It demands legal intelligence and moral attention. Demand good operator of the law.

Recognizing that vulnerable people deserve different treatment, for example, was an adjustment that took time, conflict and a lot of demands. The special vulnerability of children, the elderly, women, black people, people with disabilities, or consumers vis-à-vis the company and workers vis-à-vis the employer, received various protections from the Brazilian legal system, imperfect or not. There’s still a lot to do.

But the Brazilian rule of law fails more dramatically in the task of dealing with poverty, especially of the poor and black population. Here, exclusion concerns vital expectations of eating, living, sleeping and not dying. At most, to exist socially.

For this, our justice system has institutions such as the Public Defender’s Office, which provides free assistance and defends collective rights (also a function of the Public Prosecutor’s Office); adopts rules for access to justice, such as the free process; and it has at its disposal doctrines about the juridical particularity of poverty (such as the principle of insignificance, which orders not to punish the hungry person who steals sausage).

Despite this attempt to mitigate injustice at entry and exit, the Brazilian State even surpasses itself in the ways of mistreating and distributing violence to the miserable. Instead of mitigating the immeasurable disadvantages of the poor, the census state magnifies them.

An unwritten primer on this lawless state teaches how to treat the poor and black people. Pass by police approach in the streets for the color of the skin; police interventions with free kicks in favelas; violent entry into a home without a court order; recognition of suspects based on stereotypes; presumption of guilt, not innocence; presumption of absence of prejudice in the defense, even when the suspect kept in prison suffers multiple state arbitrariness.

It also goes through spurious theses such as “I was at a point of trafficking”, which may coincide with the street where a poor person lives; demand for address and expropriation of belongings of homeless people; summary execution disguised as legitimate police defense (among other forms of irresponsibility of the State and state agents for crimes).

That’s how the authoritarian magistocracy prays, part of the Justice agents that refuses the political values ​​of the 1988 Constitution. Subliterated in fundamental rights, it coexists peacefully with the abuse of power and the violation of the law.

The STF has the opportunity to annul an important ingredient of the Preto Pobre Preso policy, our criminal PPP. The court judges the constitutionality of the police approach to a person suspected of being black, sitting on the curb.

The Code of Criminal Procedure authorizes a personal search without a court order when the police have objective elements to verify a “founded suspicion” (article 244). A power granted to the police and subject to judicial control.

By “objective elements” we do not mean skin color, but the set of concrete characteristics that indicate the commission of a crime. Nor, in the terms of the arrest warrant, “a black individual who was in a typical scene of drug trafficking”. The police cannot search your backpack because it didn’t match your face or color.

Black people, in addition to being more incarcerated, convicted and murdered by the police, are also, unsurprisingly, more caught in the act. Studies show that cities like Belo Horizonte have had more than 4 black people arrested in the act for every white person arrested in the act. The disproportion is consistent across the country.

Magistocratic complicity in racial violence is informed by profound ignorance of empirical evidence and unspoken prejudice. Or out of ignorance and prejudice not so unconfessed, as the speech of Lindôra Araújo, who said she suffered racism in Portugal, is there to demonstrate.

There is no way for the Attorney General’s Office to get worse. But there is a way for the STF to distance itself from its lack of intelligence and perversity.

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