The Punishment Trap

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By DAVID FL GOMES*

What can we also learn from barbarism

On the second day of the year and of the new government, news arrived that members of the PSol had requested the Federal Supreme Court to pre-trial detain former president Jair Bolsonaro. The petition sent to the STF was fragile: in terms of content, its text resumed argumentative lines that helped to support some of the abuses committed in the wake of Operation Lava Jato, especially in the procedural acts against President Lula; As for the formal-procedural dimension, in aspects that also resonate with Lava Jato abuses, it was wrong to ask those people for arrest. In other words, after all, it was as if a criminal law implemented in a hurry and with measures that were not compatible with the 1988 Constitution and with strict penal guarantees had not been one of the pillars of the tragedy that took over the country in recent years and was just beginning to be disposed of on the 1st. January 2023.

Trying to read in the best light what that petition, with so many errors, represented, one can imagine that it intended itself as a political, symbolic gesture, without any concrete desire for legal effectiveness. For that very reason, it was possible to see in her a thermometer of how our punitive fever was going – wow, we spent the last six years living with all kinds of threats and arbitrariness.

The high temperature of our current desire to punish is understandable: the atrocities of Bolsonarism test, at all times and to the point of exhaustion, the non-punitivist commitment of the progressive camp. And that is precisely the reason that led me to write this text, because punitivism always brings with it a dangerous trap for social movements and popular struggles in general that strive to build a new, emancipated world.

January 8, 2023 will be remembered for a long time: barbarism in action, foreshadowed, announced, wide open. And with it, another test of our stance on the punishments that criminal law can impose. Immediately, two categories began to articulate around themselves the hegemonic narrative of what was happening: “terrorism” and “vandalism”. They so hegemonized the interpretation of facts that comments, posts and interviews from people from the center, center-right and left converged on them. Also regarding the necessary consequences, the convergence was broad: state coercion, repressive apparatus, imprisonment. Once again, the trap of punitivism was set.

From a legal point of view, nothing convinces me that "terrorism" is the right name for what happened. Although there are international definitions that could cover the acts of January 8, Law 13.260 of 2016 makes it clear that, in Brazil, the qualification of something as “terrorism” requires “reasons of xenophobia, discrimination or prejudice based on race, color, ethnicity and religion". The forecast of “terrorism” due to “political nonconformity” was enshrined in the former National Security Law (law 7.170 of 1983), repealed in 2021 by law 14.197. That same law 14.197 of 2021 also included in the Brazilian Penal Code a set of new possible crimes, among them the “violent abolition of the Democratic State of Law” and the “coup d’état”.

And this is how the acts of January 08th can be technically interpreted: as acts that attempted to abolish the democratic rule of law and/or as acts that attempted a coup d'état. To insist on legally calling them “terrorism” is to give life, among us, to a law tailored according to the exact needs of the post-1964 military dictatorship.

As well-documented crimes, arrests in flagrante delicto and preventive arrests that followed are, in principle, legal and constitutionally applicable, always depending on the specific case under analysis. But a caveat is essential here: these arrests, as a rule, serve to allow the investigation and process to take place properly, without undue interference. Therefore, they are species of the “precautionary prisons” genre, because they safeguard, ensure a judgment consistent with the democratic State of law, a judgment at the end of which a definitive sentence of deprivation of liberty may or may not be applied. Transforming precautionary prisons into a form of early definitive judgment and summary execution of a custodial sentence has always been a mistake. And it continues to be.

From a political point of view, however, the widespread use of the category of “terrorism” seems to me to be even more serious. First, we have struggled, at least since the 2000s, against the risks that the criminal classification of “terrorism” in Brazil could represent for social movements in general. The partial victory of these struggles was translated exactly into the limitations of Law 13.260 of 2016, which, by defining “terrorism” among us, excludes from this definition the “individual or collective conduct of people in political manifestations, social, union, religious, class or professional category, directed by social purposes or claims, aiming to challenge, criticize, protest or support, with the aim of defending constitutional rights, guarantees and freedoms”.

These limitations have always caused discomfort in the reactionary camp. Therefore, it is not surprising that, in recent years, there has been an increase in attempts to include acts of protest and political vindication as crimes of “terrorism”. A good part of these proposals came from the most backward sectors of politics – one of them, including Anderson Torres. Putting water in the mill of the “terrorism” narrative could be the impetus they needed to approve something they have been trying for years: to criminalize, with the inadvertent support of the progressive camp, popular struggles in Brazil. The post-January 8 political movement already gives clear signs that my fear is much more justified than I myself would like to believe.

With the category of “vandalism”, the picture is not very different. This is a classic term used by the big media conglomerates to condemn left-wing demonstrations and struggles in the country. This was, by the way, the term that served for these large conglomerates to dampen the contesting power of 2013 and channel the June Days into an amorphous mass of supposedly peaceful protests and supposedly against corruption. Today, it is easy to see: that was precisely one of the important moments in the sociological gestation of Bolsonarism. I don't believe that using that term now would take us to a very different place.

How to deal, then, with this present of ours? What can we, despite everything, also learn – who dream of a freer, less unfair and less unequal world – from the barbarism of Praça dos Três Poderes? The way I see it, one of the fundamental learnings, capable of assisting in the reconstruction of our society, is directly related to what I am calling the trap of punitivism, that is, the endorsement of punitive narratives and practices that may, in the medium term, become against democracy and the construction of an emancipated future.

By “punitivism” I understand an exacerbated attachment to penal punishment per se, regardless of whether it is compatible or not with the demands of the democratic State of law erected, among us, with the 1988 Constitution. At this moment, this punitivism is catalyzed in the narrative social conflict with the categories of “terrorism” and “vandalism” and is incarnated in the correlated energetic defenses of using a criminal law transformed into a hero to combat them.

The learning challenge can be described like this: how to demand punishment without becoming punitive, how to demand the application of criminal law without abandoning the Constitution? This is entirely possible: inquiries are opened, processes conducted, responsibilities determined, applicable penalties applied. In short: that criminal law is fulfilled. And point. Any additional adverbs – “strictly”, “quickly”, “exemplarily”, etc. – seems to me to be flirting with the same undemocratic criminal law that has done us so much harm in recent years and which has always been the criminal law defended by the criminal gang that devastated Brasilia on January 8th.

Criminal law may even play a relevant role in a democratic society, but it was not, is not and will never be an adequate response to problems that only politics can address.

To try to avoid misunderstandings: I am not defending any kind of “amnesty” – a term that is also inappropriate for the case. I insist: that the law be fulfilled. But let's not deceive ourselves: criminal law will not save our politics or our society, today more shattered than the glass of the Central Plateau. If anything can pull us out of this abyss, it's exactly what we're able to learn as a society as we go through it.[I]

*David FL Gomes Professor at the Faculty of Law at UFMG.

Note


[I] Thanks to Henrique Pereira de Queiroz, João Pedro Lopes Fernandes, Marina Pompermayer and Pedro Pelliciari for reading the manuscript and for their valuable suggestions for correction and revision. Their precious contribution, however, does not mean that they necessarily agree with the arguments supported here: these are entirely my responsibility.

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