Punishing well may require punishing little – 02/13/2024 – Bernardo Guimarães

Elections, laws, Executive and Judiciary decisions only affect what happens in the world because people believe that they affect what happens in the world.

At first glance, this observation may seem strange. After all, elections determine rulers and deputies. Stimulus measures direct billions of reais collected from people to benefiting companies. Parliamentary amendments send resources to locations chosen by deputies. Decisions by ministers of the STF (Supreme Federal Court) lead police forces to seize documents and arrest people.

All of this seems to happen almost automatically. In general, we do not need to think about how elections and acts of established powers are enforced.

But behind any measure, there is someone who chooses to execute. There are no extraterrestrial forces granting the power of elections, laws and judicial decisions. It all depends on the actions of other people.

For example, police officers follow the orders of their superiors because they believe they will suffer consequences if they do not obey them. Police chiefs believe that they must comply with and execute court decisions, otherwise they will be punished in some way. Thus, decisions by judges and STF ministers become acts.

In perfectly functioning systems, these observations seem strange at first glance and are of little relevance in practice. Elections and decisions by established powers are enforced and it doesn’t even occur to us that it could be different.

Sometimes these questions become relevant.

Several recent news stories touch on this issue.

The first was the suspension of fines on Odebrecht by STF minister Dias Toffoli, who had already taken similar decisions before.

Back in 2016, Operation Lava Jato demonstrated its power with countless plea bargains and leniency agreements, several arrests of politicians and large businesspeople and billion-dollar fines.

Recently, convictions and fines were overturned. Why did this take so long? Would technically analyzing the cases require so much time?

Could it be. But it seems that it was more costly to go against Lava Jato in 2016.

In part, this was because public opinion affects the interests of those who need to vote in elections, and the operation was extremely popular before politicians like Lula were arrested (and central characters became ministers in the Bolsonaro government or candidates for the legislature). And in part, we can assume, because the more people with power want to punish, the fewer people are left with an interest in carrying out the punishment.

Therefore, it is possible that paradoxically, if fewer people had been convicted, more convictions would exist today – regardless of the legal merit of the convictions. Just because there would be more interest in maintaining the punishments, or less force to annul them.

The second involved Minister Alexandre de Moraes, former president Jair Bolsonaro and meetings about a coup d’état.

There are legal questions about what constitutes a crime and who broke the law.

An argument I frequently hear is that generals and deputies who knew about the meetings and did not report or actively act to expose what was happening are to blame.

In my opinion, as in the previous case, wanting to punish too much is a sure way to avoid punishment.

Finally, there has been discussion about why a coup did not happen. An explanation suggested by many is that foreign countries would recognize as president whoever was declared winner by the TSE (Superior Electoral Court). The boss is who we think should obey. If the outside world doesn’t believe you’re president, you’re not.

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