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Problems of Lawless Violence:
Defining the Role of the Police
Chair: Tom Farer,The University of Denver
Paper: Paul Chevigny, New York University Law School
Discussant: Jean-Paul Brodeur, University of Montreal
The Helen Kellogg Institute for International Studies
Workshop on The Rule of Law and the Underprivileged in Latin America
9-11 November 1996
The role of the police in many Latin American countries is clearly misdefined. In many of these countries, a semi-military model is accepted in which the job of the police is to "fight" the enemy-"crime." This model has led to a situation in which the police are ill-equipped both for preventative policing and keeping order, and for criminal investigation. Politicians rely on a rhetoric of fear and personal insecurity, shifting the blame to the poor and underprivileged for some of society's ills. This appeal panders to the fears of the middle and upper classes, while at the same time intimidating those most affected by police crackdowns (i.e., the lower classes). Abuses are concealed through a system of impunity. It is necessary to go beyond the assertion of human rights in order to show why, as a practical matter, it is in the interests of both the elite and the poor to subject the police to the rule of law in a democratic society. In order to understand why it is in the interests of all that the police are subject to the rule of law, it is necessary to look at the following problem areas in police work: torture, extra judicial killings, and a system of impunity.
Torture is extremely widespread in Latin America, even in relatively quiet places. For the most part it is used against common criminals. It is used as a method of punishment, not only to extract information. Sometimes it is used against peasants as a method of social control, as is deadly force. Deadly force varies enormously from country to country. In some countries it is used as a method of social control with the aim of repressing unrest. In the cities it is primarily used against those accused of ordinary crimes. In Brazil, the number of people killed is enormous; the police claim that these killings result from "shoot-outs." The most disturbing aspect, here, is that vigilantism is generally accepted and even supported by the public. This vigilantism prevails where governments are at their weakest.
These abuses continue because of a prevailing system of impunity. The systems of administrative discipline are unknown to the public. The judiciary has often not been vigorous either in investigating or in punishing police abuses. Even in cases where abuses are referred to the courts, the police regularly interfere in the investigations. These abuses are not effective, as they do not control or reduce crime. Furthermore, they do not contribute to the safety of police officials.
Conclusions
In conclusion, Chevigny recommended that proper pay and training are needed for the police. The creation of an ombudsman, citizens' commissions, whistle blowers to whom police can turn, and an independent body of investigators are needed. The use of every firearm should be accounted for. Police officials should be removed from duty until investigations against them are complete. There should be no special courts. Care must be taken with the inclusion of involuntary confessions. A tripartite approach to reform should be taken, through the creation and strengthening of complaint procedures, inspection mechanisms, and auditing bodies.
Discussant's Comments (Jean-Paul Brodeur)
Brodeur divided his comments in two parts. The first dealt directly with Chevigny's paper, and the second went beyond it.
Chevigny reviews several mechanisms through which the police are made respectful of the law and accountable. These are not in themselves conducive to fundamental change but are fine-tuning mechanisms. In the United States and Canada, the exclusion of evidence and legal constraints in the admissibility of confessions are powerful tools for making the police respect the due process of law. However, it is of concern that in Latin America, where due process of law is perceived to be an obstacle to be overcome in the war against crime, measures that would be efficient in reducing torture may incite the police to use lethal force more often in order to balance the uncertainty of obtaining a conviction in court.
It is difficult to say whether the argument that it is in their best interest to have a police force which respects human rights will convince the upper class. Firstly, people tend to differentiate between political and criminal law policing-approving of abuse in one area (criminal law policing) and disapproving in the other. This separation is artificial-excess in the one leads to excess in the other.
Secondly, largely depending upon what the media feeds the public, it might be believed by the upper classes that the greatest threat to them comes not from the underclass but from the police.
As long as progressives frame the debate on policing in terms of individual risks and victimization, they are fighting a losing battle. Police corruption is a collective concern; it strikes at the wealth of the nation. Only once collective rights and the collective impact of deviant policing come to the foreground can a more persuasive argument against it be made.
A cautionary word should be offered against believing that the rule of law in itself guarantees that there will be no recourse to massive penal repression.
State Monopoly of Physical Violence
The rationale behind the state having the monopoly on violence is that you will have fewer thugs and those that you have will be in uniform. The monopoly on state violence is epitomized in Hobbes' Leviathan. History revealed that regression might follow from the absence of a contract-i.e., if force lacked legitimacy.
The difference between torture in the seventeenth century and torture today is that in the past it was highly visible. Torture was often publicly inflicted for the purpose of deterrence. Today it is covert. It is contended that it is this shroud of secrecy which makes torture more palatable. If this is true, what needs to be done is to make torture visible. This can be done through the media: by publicizing the testimony of torture victims and recording the results of torture in photographs.
The Social Contract
There are two kinds of democracy:
Firstly, there is rule-based democracy, consisting of the constitutional and institutional framework of laws, customs, and public agencies. This is a necessary condition for democracy, but it may not be a sufficient one. The weakness of rule-based democracy is that it is based on a highly discriminatory definition of citizenship such as those of ancient Greece and the government of the American Republic before the Civil War, both of which, for instance, permitted slavery. In a similar vein it was maintained that, during apartheid, South Africa was a democracy.
Secondly, there is contract-based democracy, resting upon a covenant in which all citizens or those who are legally in the process of becoming citizens are equally protected by the laws and share the same privileges that are granted to someone by virtue of his or her being a citizen.
Conclusion
It is striking that abuses are sanctioned by members of the middle and upper classes (as well as the state), who view the underclass as a threat. Efforts should be made to convince the upper class that the continuance of police abuses threatens it too. This, however, will be fraught with difficulties. Finally, it is clear that the military model is totally unsuited for promoting respect for law within society.
Floor Discussion
Chevigny commented that systems of review are more effective than they appear. Police fear prosecution.
Farer posed the following questions: Can the investigative approach to policing work in a class-polarized society where the police are in a belligerent relationship with an entire community, and there is a lack of resources? Can intellectuals compete with the media in persuading the electorate as to what should be done? Intellectuals seem to try to persuade the elite and not the media: Is this a useful and plausible strategy? He also offered the following comments: In efforts to reduce impunity, there might conceivably be situations in which a "militarized" form of justice-i.e., subjecting the police to special courts-would be more efficient. However, this would be futile where the police and military form a single unit. Not only the middle and upper classes support police brutality, but also the lower classes. Finally, it is clear that torture works where the opposition is organized and clandestine.
Pepe Eliaschev (Corporación Multimedios América), drawing from experience, noted that there is a lack of transparency in Argentina. Paulo Sérgio Pinheiro commented that the use of deadly force is in the interest of the ruling class and that it is not used against all in Brazil. Also, intellectuals should not compete with the media but work with them. In reply, Chevigny stated that although deadly force is not directed against everyone, the system of impunity is so directed. Brodeur added that the idea of competing with the media and trying to convince the ruling class is elitist, as it assumes that the elite are untouched by the media. What is needed is a more precise strategy and knowledge of the media. For the media, what sells is not human rights but horrendous crime.
Ana Tereza Ramos (University of Notre Dame Department of Government and International Studies) stated that it was the poor who were victimized, as the rich were able to pay bribes. She also noted that the rise of organized crime in Brazil is a direct consequence of corruption. The sectors in the upper classes which need to be targeted are the progressives.
Mariclaire Accosta, citing statistics from Mexico, showed that merely increasing the numbers of police officials does nothing to solve crime. Mexico has the highest number of police officials per person in Latin America, but police efficiency is the lowest in the world. Brodeur echoed this sentiment.
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