Full transcript
0:17Welcome to another podcast discussing
0:19theses . We start from a premise in the
0:24development of this project , that
0:26without science , these programs . There
0:30is no quality of life . And if truth
0:34exists , it is a problem posed by
0:36science , by knowledge . Common sense ,
0:42unlike knowledge , is characterized by
0:47being spontaneous , vulgar , unmethodical
0:53, unsystematic ; that is , it has a point
0:59here , a point there , without
1:02connections , without consequences ,
1:05without a naturalistic or rationalist
1:08relationship , in which the concepts of
1:11cause and effect become expendable in
1:15the final analysis . It is also
1:21uncritical , empirical , and
1:23substantially intuitive . We , contrary
1:30to all of this , bring the best that the
1:33intellectual system , the academic
1:36system , rationalism , research , and the
1:39scientific method produce . We bring men
1:46and women of science , particular
1:48sciences , sciences that have
1:51differentiated themselves within a
1:54critical process , within a delimited
1:57field of research . The sciences are
2:02particular in that each one deals with
2:05distinct sectors . To speak of medicine
2:08is not to speak of dentistry . To speak
2:10of dentistry is not to speak of law .
2:12And even within these areas , today we
2:14already have sub-areas . Science has ,
2:19among many characteristics , objectivity
2:24, verification , precision , and it
2:28possesses a rigorous language where
2:33concepts define objects and are defined
2:38by them , rather than simply being
2:42something placed as definitive . The
2:49fundamental difference is that truths
2:51in science are always provisional .
2:56Within this , we are bringing today a
2:58giant of science , a giant of studies .
3:03We are bringing the professor , doubly a
3:06doctor , doubly a master , with three
3:11undergraduate degrees , not counting
3:13extension courses , not counting
3:16specialization courses . By the way , a
3:19curriculum vitae that , if you allow me ,
3:21we would spend hours reading . The
3:25professor Dr. Francisco Alves
3:28Crangerana Neto . This man , he is a
3:33graduate in police sciences . Within
3:37this concept , he ended his career as a
3:41full colonel of the Military Police ,
3:45being today a reserve officer . He holds
3:50a bachelor's degree in law and a
3:53bachelor's degree in literature from
3:57USP , the University of São Paulo . He
4:01is a master in administration from
4:04Insper . He is a master and doctor in
4:09police sciences , as I have already
4:12mentioned , and a master and doctor in
4:15law . That is , and the theme today , his
4:20doctoral thesis at USP within the
4:23sub-area of criminal procedure , brings
4:26as its theme criminal policy and
4:29criminal procedure , relationships with
4:33restorative justice in comparative
4:36studies with the systems of Portugal ,
4:39Canada , Chile , and Argentina , and also
4:42bringing it to the Brazilian reality .
4:48Within this , a vast research , including
4:51international trips for interviews , in
4:54search of materials to define concepts
4:57such as criminal policy , criminal
4:59procedure , criminal law , the
5:01conjunction of criminal law and
5:04criminal procedure in the formation of
5:07a penal system , the penal system
5:09communicating with criminal policy as a
5:12set of practices aimed at security . The
5:17concept of public security ,
5:19encompassing the preventive , the
5:21judiciary , and bringing in , beyond all
5:25of this , restorative justice , bringing
5:28in beyond all of this , uh , restorative
5:31justice . So , Professor Dr. Francisco
5:36Alves Cangerana Neto , an honor for this
5:39program , a man who is a luminary , this
5:43man of absurd brilliance , pure
5:46intelligence , a born researcher . So , it
5:50is a pleasure to hear your explanations
5:52. You are very welcome .
5:55Greetings to everyone . Thank you very
5:57much , Dr. Wagner , our colleague , our
5:59coordinator . Uh , I am very honored to
6:02be here and speak about my thesis .
6:05There are few opportunities where we
6:07get to talk about research , about
6:09science , right , with this depth , with
6:12this ease . This theme was born from
6:17explorations basically with Portuguese
6:21law . It started with Portuguese law and
6:24it actually began at an event with
6:26Professor Manuel Valente , who came to
6:29Brazil . We talked about it informally
6:32over coffee , and from there I began to
6:34dwell on the subject . Subsequently , uh ,
6:39we wanted to talk about how the world
6:42is treating these systems that involve
6:47criminal policy and criminal mediation ,
6:49criminal procedure , right ? We want to
6:52have a limit to this . A doctorate has a
6:53time limit , right ? It is not a
6:56permanent research , although we
6:58continue to research the topic and , uh ,
7:00the work , in fact , always moves forward
7:02, right , the ideas always evolve , right
7:04, but we have a time limit . So , the
7:08research method we found was to locate
7:11a target country , a seed country to
7:13research , and from it , locate sources
7:16of another law from another country ,
7:18going to seek them out from that other
7:21country , right ? So , it started in
7:24Portugal . Chile is a very cited country
7:28, a country with a modern criminal
7:30process , and there is no way not to
7:32mention Canada when talking about
7:34restorative justice . Everyone cites
7:36Canada , right ? Uh , a strong
7:39contribution , even because of their
7:40culture there . Ah , in Chile , it was
7:44suggested that I research Argentina ,
7:46right ? Here we are slightly reducing
7:49mediation , we are in restoration ,
7:51restorative justice , and it had a peak
7:53of use , then it reduced . Go see in
7:56Argentina , right ? Oh , and then we also
7:59went to Argentina ; we were very well
8:01received and managed to find some
8:03important contacts there , notably an
8:06appellate judge from the city of
8:08Córdoba , from the state of Córdoba ,
8:10right , which is a very peculiar state .
8:13We'll talk about that . Ah , and just to
8:21give a taste of the topic , my theme has
8:24to do with a metaphor , which is : when
8:26you look at a painting , you view it
8:29from a distance and you see a harmonic
8:32whole , right , with the figures there ;
8:35you get an impression of that painting ,
8:38don't you ? Wow , that's cool . I look at
8:41Guernica from a distance , I look at the
8:44painting of independence from a certain
8:47distance , I will see there a harmonic
8:50set . When I get closer to this painting
8:53, I start to see individual figures
8:56inside it , right ? I start to see an
8:59explosion there , I start to see a horse
9:02, a character within the painting that
9:04has all of its particularity . And this
9:07metaphor illustrates what we see as
9:09criminal policy and criminal procedure .
9:12Criminal policy is a harmonic painting
9:15within social harmony , always under
9:18construction , always in development .
9:22And criminal procedure is a figure
9:24inside it , a large figure , a central
9:26figure , a figure that at first glance
9:29might even be confused with the
9:30painting , but it is just one figure in
9:33the painting you are looking at , right ?
9:36But if you step back , you see criminal
9:38policy . So , we stepped back from
9:41criminal procedure to reach criminal
9:43policy , and then we started writing the
9:45paper , right ? Still on the methodology ,
9:49a methodology that we use a lot for
9:51quantitative research , and eventually
9:54qualitative too . And here it was
9:58qualitative , legal research , which is
10:01to look at a sample of an individual
10:05you want to research and , from this
10:08sample , you locate the other similar
10:12characters within it . So they call it
10:17snowball sampling ; it's more or less a
10:20snowball , it starts small , it's a
10:23sample , you keep rolling it , it grows
10:26because new figures appear , and your
10:30work grows in this way , where you
10:33locate others similar to it starting
10:36from a seed .
10:39Figures that would often be hidden , as
10:42your excellency makes very clear .
10:44Without a doubt ,
10:45that this is also the majesty of this
10:47research . It begins
10:50to reveal vectors and factors that
10:52often do not appear .
10:55No doubt . The great example was
10:56Argentina . We weren't going to go to
10:57Argentina , weren't going to research
10:58Argentina .
10:59And the research there was very rich .
11:03Córdoba , mainly , right ? They have
11:05mediation there for any type of crime .
11:06It is possible to make an agreement
11:07with the Public Prosecutor's Office .
11:09And even today I still receive court
11:11rulings from Argentina for us to
11:13analyze . and continue these studies . It
11:17was very interesting . Another
11:20observation I make , which has to do
11:22with the research and is in our
11:24introduction , is a factionalized view
11:26of the law . Well , anyway , on one side ,
11:30I want punishment for everyone . I want ,
11:34uh , a police state , I want , uh ,
11:36discipline , I want prison , I want , well
11:39, the death penalty , violence , whipping
11:43, this and that . On the other , I want
11:46legal protection , a selfish
11:47individualism , as they say , right ? That
11:51philosophy that , uh , it is forbidden to
11:54forbid , I can do anything , I , I , that
11:58exacerbated legal protection , uh , total
12:01decarceration , uh , even the absence of
12:04criminal law , a , a , well , an analysis ,
12:08uh , to the other side . These are two
12:11extremes . And today in modern society
12:15with algorithms , you engage in the
12:18extreme very easily . It is an emotional
12:21discourse that is pushed onto you very
12:23easily . And what we saw in the research
12:28, which we will discuss today , is that ,
12:31in fact , science is outside these
12:34extremes , but it is dealing with the
12:37side effects of ideas from both sides .
12:43For example , I don't worry about the
12:44victim of a robbery , I worry about the
12:46accused , if he will have rights , if he
12:48will have a hearing , if he will have a
12:50custody hearing , and so on . In fact ,
12:54the modern trend today is to recognize
12:56the role of the victim . The victim has
12:59returned to the heart of the debate ,
13:00right ? What used to be criminal
13:04proceedings as an affirmation of a
13:06state , of state power , public criminal
13:08action , the state's concern against the
13:11individual criminal , the victim merely
13:13as a source of evidence , right ? It's
13:17not really like that anymore . The
13:20victim is returning to the core of the
13:22issue , notably for certain crimes ,
13:24where they act as a party in mediation ,
13:26in an agreement in restorative justice ,
13:28or even in criminal mediation . In which
13:32, in a civil conciliation , they can act
13:35as a protagonist , as a party . So , this
13:39came , this emerged , right ? The role of
13:42the victim has returned and it is no
13:44longer just the state against the
13:46individual . Another issue is
13:50decriminalization , diversification ,
13:53which very clearly comes with the idea
13:56that crimes are different . There are
13:59many types of crime , right ? Stealing a
14:02chocolate bar is one thing , stealing a
14:05dress is another , right ? A robbery
14:08using explosives at a bank , at a vault ,
14:11using rifles , using a series of devices
14:14, that's different . Uh , a robbery is
14:19different from a felony-murder , uh , a
14:21homicide under intense emotion is
14:24different from a premeditated homicide .
14:28Anyway , this difference in crimes is
14:31also bringing differences in treatment
14:34within criminal policy . In Chile , for
14:39example , manslaughter can be dealt with
14:42through a restorative agreement . The
14:45person didn't mean to commit that act .
14:47They committed a homicide . Homicide is
14:49a serious crime , but manslaughter is
14:51different from a premeditated homicide .
14:54The solution approaches it differently .
14:58So , this other issue of the gradation
15:00of crimes , right ? Punish , but punish
15:04which crime ? Incarcerate , but
15:06incarcerate for which crime , right ?
15:08Contempt of authority . Contempt is a
15:11minor crime , right ? Uh , uh , now ,
15:13violence , the practice of violence
15:15against a police officer , against an
15:17individual who represents the state , is
15:18very different , right ? So , these are
15:21situations that have to be looked at ,
15:23are being looked at by modern science ,
15:25by modern criminal policy , right ? They
15:28are reverberating in laws . So , the same
15:31, the same norm of the Brazilian
15:33criminal package in particular that
15:35introduces a guarantee judge , it raises
15:37the Brazilian base sentence to 40 years
15:40. It brings other figures that increase
15:44punishment for some crimes and reduce
15:47it for others , a non-prosecution
15:49agreement , uh , uh , for a non-violent
15:52crime , right , for fraud , right , and the
15:55increase of the penal sanction and ,
15:57evidently , of the punishment for other
16:00crimes .
16:04No , perfect . I see that your work is
16:07based on some assumptions . You even use
16:11this intellectual , Miré and Delma
16:13Marti . Her point is impressive when she
16:17talks about restorative justice versus
16:20this traditional penal accusatory model
16:22. So , our penal system , in Your
16:26Excellency's view — and I agree
16:28entirely — is static , and what it
16:30presents in terms of dynamism is
16:33perhaps not very well explored , that
16:35which is concentrated within the sphere
16:38of criminal policy . And its
16:42relationship with criminology , insofar
16:45as the latter , criminology , will study
16:47social facts , will study the figure of
16:50the delinquent , will study the figure
16:52of delinquency , will seek causal
16:54factors . So , within this , criminal
16:59policy seeks to identify everything
17:01linked to the exclusion of criminogenic
17:04factors and what would be the best
17:06policies that should be developed .
17:11Within this context , what is Your
17:14Excellency's take on restorative and
17:16reparative justice within a State like
17:19Brazil , so disproportionate , so
17:21disfigured , so fragmented , where there
17:24is one reality in the North and another
17:27in the South ? How would it be possible
17:31to apply this justice , this penal
17:33system * lato sensu * , which is already
17:35critical in its own right ? It is , just
17:40complex . It involves a series of
17:46prerequisites . For example , a person
17:49qualified to handle such sensitive
17:51topics . A victim facing an offender ,
17:53right ? There could be revictimization .
17:57Uh , face to face .
17:58Batista talks about this .
17:59Yes , for sure . Yeah , definitely . Uh , in
18:03Canada , it came with a Canadian culture
18:04different from ours here in Brazil . Uh ,
18:09although we believe that the indigenous
18:12people here had some type of group
18:15justice , right , where the group
18:17discussed the fate of the criminal ,
18:20today Brazil is very much linked to the
18:23European inquisitorial system of
18:26continental Europe . Yes .
18:29In our minds , the State goes in and
18:30punishes the aggressor . We expect the
18:33state to deliver justice . We submit to
18:36the state , we accept the authority of
18:38the State , as is the only way it
18:40happens here , our culture , we feel it
18:42this way . When we say there will be a
18:45restorative circle , in which people
18:47will be inside a circle , the symbolism
18:49of a circle is that everyone has the
18:51same stature in there . So there is no
18:54judge , there is no accuser , you have
18:56people of equal stature discussing a
18:59fact , an imperfection in a relationship
19:02that caused damage to a number of
19:04people in there . Notably greater damage
19:06to the victim , but damage to everyone
19:08present . Including the harms that the
19:10cause of the crisis , who is also in
19:13this circle , may have suffered , which
19:15may have even been a determinism for
19:17their behavior , will also be discussed
19:20in there . It is not something simple to
19:22do . Uh , I participated in a restorative
19:25circle in Barueri . Uh , the connection
19:29is very strong , it creates strong
19:31empathy between the participants , but
19:33it is not so simple to do . And the
19:37research trend , we researched Chile ,
19:39Argentina , Canada , and Portugal , in
19:42addition to Brazil , is that mass
19:45mediation does not utilize restorative
19:50justice . It is a trend , even due to the
19:52complexity of the subject , the need to
19:54have trained people for this . Our
19:57tendency is a more bureaucratic penal
20:01transaction . Public Prosecutor on one
20:04side , the accused's lawyer on the other
20:06, in a more practical way , just like
20:08non-prosecution agreements , without lay
20:10judges .
20:13Evidently , yes , this mediation is
20:16possible , but with legal professionals
20:19involved .
20:21In other words , it is not as open as
20:22the current system , where anyone can
20:24participate in a transaction — or
20:26rather , in a settlement .
20:28Perfect . It is possible to be a
20:30mediator without a law degree . We are
20:33also reaching civil mediation , right ?
20:36But the trend in criminal proceedings
20:38is for the state to be a key figure in
20:40this mediation , to participate .
20:43Not to give up this prerogative .
20:45The non-prosecution agreement and the
20:47penal transaction , their great leading
20:49role lies with the Public Prosecutor's
20:51Office . It's not just here , is it ? In
20:55Chile , for example , you have a
20:57restorative agreement between victim
20:59and offender , with a legal mediator
21:01there , and this has reduced the
21:03suspension of the process which is
21:05between the Public Prosecutor and the
21:07offender , which has increased . So , for
21:10minor crimes , as I said , the trend for
21:12minor crimes in all these countries has
21:15been to increase this state-offender
21:17mediation figure , the state on one side
21:19through the Public Prosecutor and the
21:22offender on the other . And everyone
21:25also has the figure of the
21:27victim-offender agreement , but in all
21:29of them , the victim-offender agreement
21:31has a lower percentage , a lower
21:33tendency to occur , given the complexity
21:36of this in criminal law , evidently . And
21:42in Brazil , we have Law 9099 , perhaps
21:44what comes closest to the models
21:47studied by Your Excellency . In 9099 we
21:51have civil settlement , we have the
21:54penal transaction , we have the
21:57procedural suspension there in article
22:0089 , where the process is suspended —
22:03that is , it starts from different
22:06assumptions than other models studied
22:10by you . Is this fruitful ? Should this
22:13be deepened ? Is Brazil ahead or behind
22:16in relation to this justice ? Reparative
22:20in relation to this restorative justice
22:23. What are we falling short on ? What is
22:27missing ?
22:28Well , Brazil is also very peculiar ,
22:30isn't it ? It has a criminal process
22:33that was very different in the 40s . It
22:36introduced some figures there . It was
22:39already accusatory in the figure of the
22:41process itself , and had the police
22:43investigation as the instruction . And
22:47our penal transaction , our civil
22:49conciliation , hit here like a wave that
22:52hit all countries in Latin America . We
22:57followed this Latin American trend with
23:00our own peculiarities , right ? We are
23:04still very concerned about crime , with
23:07the serious crimes that have the
23:09criminal process with all its figures .
23:14Ah , we are accepting , we are entering
23:18into this global trend of mediation
23:21figures for medium crimes , minor crimes
23:25, right ? Although , this is a major key
23:29to our process , today with plea
23:31bargaining , which is much more of a
23:34source of evidence than mediation , but
23:37it is also mediation , right ? It ends up
23:40applying to organized crime and serious
23:42crimes , very serious crimes , right ? And
23:45through it , you have a mediated
23:47solution , a negotiated solution . This
23:51changes the way legal professionals ,
23:54criminal law professionals , start to
23:56view their professional practice . There
24:01must be specific preparation to have a
24:03procedural strategy , right ? One can no
24:06longer ignore that an agreement must be
24:09considered , right ? The lawyer can no
24:12longer just perform that traditional
24:14defense . They will always have to think
24:16about an agreement now . And an
24:18agreement is strategy , because in an
24:20agreement you have to foresee what the
24:22future will be if that agreement is
24:24reached , right ? So , this professional
24:27profile and universities have been
24:30preparing for , facing this ; it has been
24:32undergoing this change in civil law ,
24:35for sure , for many years , right ? People
24:38already talk about negotiation ,
24:40settlement of the process , they already
24:42talk about agreement , they already talk
24:44about conciliation , but in criminal law
24:47, it is now emerging , it is a global
24:49trend , not just in Brazil . And the
24:53legal professional now starts to have
24:57this profile of negotiator , conciliator
25:01, mediator that the new legislation
25:04requires ,
25:07given that our criminal process is
25:09retributive . They also speak of it
25:12being preventive , but it is essentially
25:14retributive ,
25:16with a focus on guilt , as you clearly
25:18express in your work . By the way , a
25:20brilliant work . It always aims at the
25:24imposition of pain , suffering ,
25:26punishment , even from a Christian view
25:29that he who does evil receives evil . So
25:33, if you are a good boy , you will have ,
25:35par excellence , paradise . If you are a
25:39bad boy , you deserve the worst , you
25:41deserve punishment , you go to hell ,
25:43which perhaps our prison system
25:45approaches quite closely . In other
25:49words , the goal is suffering for the
25:50sake of suffering . When it comes to
25:54restitution , when it comes to
25:55restorative justice , Your Excellency
25:57always points to dialogue , always to
25:59dialogue . But is dialogue possible
26:03between the one who suffered violence ,
26:06even if we take the car example where
26:09the person later makes an agreement to
26:12either wash the car or perform
26:14maintenance ? How would that fit within
26:18the Brazilian mindset , which is a
26:20mindset — I would even say violent due
26:22to the media , imprinted by this media
26:24— how would that look ? How would you
26:26resolve this ? Exactly . Look at the
26:29difficulty of a restorative cycle for a
26:32serious crime : rape , a homicide , a
26:35serious bodily injury — having that
26:38person sit in a circle to talk to the
26:40other , right ? Today in Brazil , that
26:45isn't possible ; you have the figures of
26:48the non-prosecution agreement and the
26:51criminal transaction as possibilities
26:54for having a restorative cycle , right ,
26:57for minor crimes , non-violent crimes ,
27:00even medium crimes , right ? Our culture
27:05is not different , it's not so different
27:08from Chilean culture , from Argentine
27:10culture , right ? In Chile , for example ,
27:15you also have these agreements for
27:17minor crimes . And for greater crimes ,
27:21where they have something similar to an
27:24American guilty plea , a confession
27:27agreement , and up to 10 — the
27:29punishability is up to 10 years , notice
27:32, right ? The Chilean system accepts
27:35that a person confesses to the crime
27:37and makes a plea deal with the Public
27:39Prosecutor's Office , exactly like the
27:42American guilty plea . However , even
27:45having made an agreement and confessed ,
27:47the Chilean criminal process requires a
27:50trial hearing , it requires an analysis
27:52of the evidence by the judge . And , even
27:56if the person has confessed and agreed
27:59to a sentence of 5 , 6 years of
28:01deprivation of liberty , if the judge
28:03does not find proof of the crime in the
28:06evidentiary body , they acquit the
28:08individual , unlike the American system ,
28:10where if they confessed , made the deal ,
28:13and it's ratified , they go to prison .
28:18In Chilean culture , as in Argentine
28:20culture , in Brazilian culture , where
28:22the truth is an important value for us ,
28:25if this truth is not formalized in the
28:27evidentiary set , the individual is not
28:30incarcerated , they are acquitted . Even
28:33if they made a deal , even if they
28:35confessed , they are acquitted . So ,
28:38notice how the cultures connect , right ?
28:43Now , on the issue of violent crime in
28:46all these countries , these Latin
28:49American countries , the concern is to
28:52punish . And evidently , the process is
28:55guarantor-based ; the process allows for
28:57a defense because we are talking about
28:59physical punishment , we are talking
29:01about a person inside a prison . So , we
29:03want to put this person there , provided
29:06they are effectively the one
29:08responsible for the crime . So much so
29:12that the crime package increased the
29:15incarceration sentence amount to 40
29:18years . And the big question there
29:21If I may interrupt , Your Excellency ,
29:23what did you think about this , this
29:24particular point ?
29:26Well , I understand that for us , it is
29:29what we accept as correct . I accept it
29:31that way . I would even like to state my
29:35own position here ; looking at Argentina
29:37, for example , a homicide crime , a
29:39serious crime , there it is life
29:40imprisonment . And why life imprisonment
29:43? Because we don't like people , because
29:46we aren't humanistic , right ? Because
29:49they know that person may be a risk to
29:52society , so they will be monitored for
29:54the rest of their life . They committed
29:56something violent , something dangerous ,
29:58and they are monitored for the rest of
30:00their life . In Brazil , a life sentence
30:02is constitutionally prohibited , an
30:04entrenched clause , right ? Uh , and for
30:09us , the great dilemma — I will pose a
30:12dilemma here of a serious murderer who
30:15has served , say , 30 years , 40 years ,
30:18whatever it may be — today , with
30:20longevity , the guy leaves physically
30:23fit after a penal sanction like that ,
30:26right ? A person in whom a
30:29predisposition to violence is mapped ,
30:32who is going to be released , right ? How
30:36do we get out of this dilemma ? The
30:38Supreme Court ruled on something
30:39similar . An individual with a mental
30:42illness who practiced violence , who
30:44committed homicide , was undergoing a
30:46security measure that has no time limit
30:48in our law ; they could be treated for
30:50the rest of their life , right ?
30:52The Supreme Court understood
30:54that there is a time limit , yes . It is
30:56a figure with a legal nature similar to
30:58a penal sanction
31:00and it had already reached 30 years and
31:02now they will be set free , right ? And
31:05so the decision was somewhat Solomonic .
31:09They will be set free , yes , but the
31:11Public Prosecutor's Office will say
31:13whether or not civil commitment is
31:14appropriate for the treatment of the
31:16mentally ill person . And if they took
31:19the position that there is a need for
31:22treatment , for commitment due to the
31:25individual's mental illness , they would
31:28remain civilly committed , right ? Ah , so
31:32how do we move past this — the
31:34individual who has this violent
31:36predisposition and , on the other hand ,
31:38the guarantee of that individual's life
31:41, the recognition of their humanity ,
31:43their dignity , right ? Countries like
31:46Argentina , Italy itself , well , they
31:49have life imprisonment and Brazil has
31:52this limitation to deal with it . So I
31:56see it this way : violent crime is one
31:58thing ; society needs to be protected .
32:02We need to have solutions without
32:03wounding people's dignity . On the other
32:07hand , minor crimes must have a
32:09diversified , differentiated treatment .
32:12We are talking about an extremely
32:14complex criminal policy here , with
32:16several alternative solutions that are
32:18already on the horizon , right ? It won't
32:21stop there . Research has shown it won't
32:23stop there . The first wave was in '95
32:25with the plea bargain , and it was a
32:27revolution . It is still criticized
32:29today . Some say , but the guy writes a
32:33poorly prepared incident report ,
32:34doesn't attach evidence , and the person
32:37accepts the plea bargain just to avoid
32:39paying a lawyer or facing a trial ,
32:41right ? Yeah , that is an effect , isn't
32:44it ? Now , the non-prosecution agreement
32:47requires a confession , but what if I
32:49didn't commit the fraud , but if I
32:50confess I'll go free , right ? Yeah ,
32:52that's another dilemma , isn't it ? Yeah ,
32:55yeah , anyway . I'll tell a story here
32:58about an individual who committed
33:01contempt during a seizure at a
33:03neighbor's house . The neighbor was
33:05having her property seized by a bailiff
33:07. He went over there , I don't know if
33:09properly or improperly , to see what was
33:12happening . He had an argument with the
33:14bailiff , an incident report for
33:16contempt was filed , he went to the
33:17police station , etc. , right ? He went to
33:21the first hearing and was told he could
33:23enter a plea bargain , maybe spend a
33:26weekend reading a book , a very simple
33:28thing , really . And the person said : " No
33:31, I don't want to , because I didn't
33:33insult the bailiff . She insulted me , I
33:35want to prove that , but I didn't insult
33:37her . " That is the question , right ? Dr.
33:41Saulo participated in this process
33:42until the end . Then this individual
33:44ended up having a heart attack and
33:46couldn't participate in his own defense
33:47in the trial he wanted . He wanted to
33:49defend himself , wanted to prove he
33:51didn't commit the insult , right ? There
33:53was even a conviction in his absence ,
33:54which was later annulled by the São
33:56Paulo Court of Justice . However , there
33:59was no longer enough time to continue
34:01with the contempt case and eventually
34:04reach the truth of whether or not the
34:06offense occurred . So , that's it . The
34:08dilemma of the plea bargain , right ? A
34:10person might want a trial , that is
34:12possible , but a trial carries a burden .
34:14Sometimes it is impossible to prove the
34:17truth due to time , due to the burden a
34:21trial carries , right ? Yeah , just like
34:24the non-prosecution agreement . So , we
34:26see this evolution , the simplification
34:29of procedures for minor crimes , the
34:31victim-offender agreement , which is
34:33something much more complex , the public
34:36prosecutor-offender agreement , which is
34:39something that is happening , the
34:41mechanization of this agreement ,
34:43sometimes without looking if there was
34:46evidence or not , sometimes confessing
34:48because it's easier , even confessing to
34:51what they didn't do just to get it over
34:54with . Anyway , this is done , this was
34:58seen , this was observed , but , uh , this
35:01diversification is a trend . Uh , we see
35:07that , through our justice system ,
35:10through the special criminal courts , uh
35:13, by Law 9099 of '95 , it brings civil
35:17composition , it brings the criminal
35:20transaction for crimes that have a
35:23maximum penalty of up to 2 years , with
35:26that 2006 revision . And there is the
35:31procedural suspension under article 89
35:35and the possibility of application for
35:37those crimes that have a minimum
35:39penalty , this time different , of up to
35:41one year .
35:44Should these deadlines , based on your
35:47position , your vision , your experience ,
35:49and everything your work has delved
35:52into in terms of restorative justice ,
35:55be extended ? Well , we also have to
35:58start looking at what type of penalty
36:00we attribute to crimes , right ? Uh , I
36:03remember a time when carrying a weapon
36:05was more serious than robbing someone
36:07with that weapon , right ? And in some
36:09places , they said : " If you have a
36:11prohibited weapon in your waistband ,
36:12you know , a defaced gun , uh , and you're
36:14about to be arrested , draw it and try
36:16to rob someone because the penalty
36:18would be lower . " Today that has already
36:20been adjusted . So , the criminal
36:21sanction must be reviewed . What is the
36:24penalty that will be assigned to each
36:26crime , right ? Uh , and in response to
36:29this , the non-prosecution agreement
36:31emerged in an anti-crime package .
36:32Notice , an anti-crime package whose
36:35marketing is to punish , to chastise , to
36:39lock up , right ? Along comes a
36:42non-prosecution agreement for medium
36:45crimes , let's say , for example , fraud ,
36:47right ? So , when we talk about fraud ,
36:51which is a property crime , right ? No
36:53one is saying that the person won't
36:56have to indemnify the victim , that they
36:58won't face a civil lawsuit arising from
37:01the crime , that they won't have all
37:04their liability regarding the property
37:06indemnity issue . We are talking about
37:09punishment , less punishment , they won't
37:11be punished , they will make an
37:13agreement , there won't be a criminal
37:15trial , a non-prosecution agreement ,
37:17right ? With the burden in our culture ,
37:20a very heavy burden for us , right ? to
37:22our inquisitorial culture of confessing
37:25to the crime . I will confess to the
37:28crime , a , an important burden , which is
37:30to compensate the victim , right ? And I
37:33won't have to go through the trial . And
37:35a trial , we mapped this in our work , a
37:37trial is also punishment itself . Uh , ah
37:41, I am innocent , but if I am sued , by
37:43being sued , besides the media pressure
37:46on top of it , I am already previously
37:49punished , right ? Ah , Cerana was
37:52acquitted , he , anyway , but he was put
37:55on trial . Being put on trial is being
37:57punished , being punished morally , being
37:59punished in the media . Uh , so the trial
38:02itself is a punishment . This even
38:05explains the adherence to these
38:07agreements by many people who perhaps
38:10didn't even commit it or or anyway or
38:12who have no evidence against them , but
38:15they accept it because they don't want
38:17to be sued . They know the social burden
38:21, the moral burden , eh , the burden on
38:23their image that this can cause . Eh ,
38:28and even today with the intensification
38:31of information sharing on the internet ,
38:35on social media , right ? The impact that
38:39a trial has in the post-truth era . I
38:41create a whole truth on top of this
38:43trial , I share it with thousands ,
38:45millions of people all over the world .
38:48And that is a is a punishment perhaps
38:49even greater than being imprisoned ,
38:51than being segregated in a room , in a
38:52cell . Does restorative justice
38:56accelerate social pacification , or is
38:59it one of its mitigators ? Which one ?
39:02Does it have a central role , would it
39:04have an accessory role ? Could it have a
39:07central role , or does that depend on a
39:10social culture ? I see it as difficult
39:15to apply , but it absolutely
39:20in Brazil , it absolutely seeks
39:22pacification . A well-done circle ,
39:26well-applied , with several sessions , it
39:29will bring healing to an imperfect
39:32relationship , right ? uh
39:35presupposing dialogue ,
39:36presupposing dialogue , presupposing
39:39maturity from those people through this
39:42relationship process in a restorative
39:44cycle , anyway , right ? Eh , it is applied
39:50in in criminal execution , as seen in
39:53Portugal , among others , right ? eh to
39:57apply justice in criminal execution ,
40:00that is , the prisoner who has already
40:03committed a crime , who is already being
40:06punished , already incarcerated ,
40:08participating in a restorative cycle is
40:11a way to re-educate this individual , to
40:14restore this individual to society . Ah ,
40:17and this , as it was observed , eh , was
40:20extremely beneficial . And then you no
40:23longer have that worry of having a
40:25criminal trial on your heels , that you
40:28could be punished , so you participate
40:30in the restoration , in the restorative
40:33process to avoid a criminal trial . No ,
40:36you’ve already been convicted ,
40:38you’re serving your sentence , and now
40:41you’re participating in a restorative
40:43session to effectively heal that
40:45imperfection of yours , and when you
40:47finish this , you return to society as a
40:49better person . But I repeat ,
40:52restorative justice is difficult to
40:55implement . I’ll make a distinction
40:58regarding Canada , because this
41:00restorative justice in Canada has roots
41:02in the indigenous people , in the native
41:04people , not only in Canada , but also in
41:07some places in the United States . So ,
41:10for them , it’s more natural to act in
41:11this way . But we are talking about
41:14different cultures . When the European
41:16arrived there , they brought a different
41:17way of social living . There is an
41:21emblematic example mentioned in the
41:24work about an indigenous woman who
41:26killed her husband , who treated her
41:29badly , humiliated her , and cheated on
41:32her . She was given a light sentence
41:36within the Canadian justice system , the
41:39traditional justice system , considering
41:41a series of mitigating factors . However
41:46, it was later understood that no , she
41:49should participate in a restorative
41:52process and that her reaction , from the
41:55native perspective , was legitimate . So ,
42:01notice the difference in worldview , in
42:04society , where you respect the
42:06indigenous culture , and there in Canada
42:09, this emblematic process , why ? If I
42:13live in a in a native group , I have my
42:20norms there , but if I go to the city ,
42:23even if I am a native , I begin to
42:26operate within that society , right ? In
42:32a mitigated way , it was understood that
42:35this native woman living in the city ,
42:37being acculturated , should still have
42:39her right to have her culture
42:41recognized respected , even for judgment
42:44and for the punishment or
42:45non-punishment of what she committed .
42:49Something we talk about a lot here
42:50regarding the indigenous person who is
42:52unaccountable . And then the indigenous
42:55person goes and commits a homicide , and
42:57we say : " Gosh , but the guy did it . " So ,
42:59one must analyze where this person
43:02comes from . Remember that we had
43:05indigenous people here who even
43:08practiced cannibalism , which was a
43:12cultural thing ; they even only killed
43:15and ate people they deemed worthy to
43:19try and obtain that person's virtues ,
43:23right ? It is a different culture from
43:25the European one , for whom this is a
43:27heinous crime , just as for us today
43:29homicide is heinous , right ? I’m not
43:32talking about forgiving those who
43:33committed homicide , nothing like that ,
43:35just analyzing it in this way . The
43:39acculturated indigenous person ,
43:42evidently , has all the social
43:44conditioning to understand their
43:47responsibility . And our criminal
43:52process assumes this sense that people
43:55have of choice . If I , if I understand
44:00that there is absolute determinism in
44:02people's choices , I have to throw out
44:04the criminal process , right ? On the
44:07other hand , if I understand that a
44:09person absolutely has their choice
44:12absolutely , uh , uh , preserved , uh , they
44:18can choose , uh , uh , without any
44:20influence from either the environment ,
44:23biology , or any other factor . Uh , uh ,
44:27I'm also being radical . I have to
44:30understand that a person has free
44:32choice , but there are factors that
44:34influence , mitigate , or aggravate that
44:36free choice , right ? If not , I have to
44:40throw out the criminal process or , uh ,
44:43start living in a world of , uh ,
44:45survival of the fittest , or law by the
44:48impulse of social or biological
44:50determinism , among others . Your
44:55Excellency's work is remarkable ; it is
44:57profound . There was a passage where
45:01Your Excellency cites Ferrajoli , in
45:04which he would cite Plato , where it is
45:07said that we punish , we chastise , we
45:10create suffering in the condemned so
45:12they become good again . In other words ,
45:17they suffer to become good again . And
45:21then the nature of the punishment ,
45:22which is a contradiction . I mean , and
45:26then there's a maxim from a professor
45:28we both know , whom he uses a lot ,
45:30Professor Dr. Flávio Catinscas . He
45:34says : " You don't open a safe by kicking
45:37the doors . " Meaning , if you want to
45:42restore a situation of social
45:45pacification , of a status quo , where
45:49mediation , restoration , and dialogue
45:52presuppose valid paths for that , then
45:56we have to change our model of
45:59punishing to heal , which is somehow
46:03ingrained in Brazilian society . We , we
46:09see this in different social systems ,
46:11not just in the traditional criminal
46:13procedural system and in those other
46:15countries . Uh , did Your Excellency see
46:21this more pertinently than in Brazil ?
46:24I , I noticed , actually , Chile is the
46:25country that incarcerates the most
46:27proportionally , right ?
46:28Oh , is it ? I noticed this in Latin
46:31America ,
46:32hmm ,
46:33this , this incarceration as punishment
46:35itself . And there is a very interesting
46:37question , right ? If I want to heal the
46:39person who committed a crime , it's
46:41because I love them , right ?
46:43Hmm .
46:43And in reality , no , we don't like the
46:45criminal , do we ? The aggressor , the
46:48thief , the robber , right ? We actually
46:51have a complete objection to them ,
46:54right ? As a policeman for 37 years , we
46:57... I usually say in the classes I
46:59taught at the Military Police : a
47:01policeman cannot like the thief . It
47:04doesn’t mean he will mistreat the
47:06thief while enforcing the law , but he
47:08cannot like the thief ; he must enjoy
47:10enforcing the law , right ? And , and
47:13protect people . So , what we see here is
47:17punishment . Punishment in Chile is
47:21proportionally greater than in Brazil .
47:23Brazil has far more people incarcerated
47:25, obviously ; I think it’s the third
47:27country that incarcerates the most ,
47:29behind China and the United States ,
47:30right ? If my memory serves me right , a
47:33little over 600,000 incarcerated ,
47:34perhaps less . Anyway , Chile has more
47:37proportionally . And what is happening ,
47:41and I’ve seen a lot of this , is okay ,
47:44but what crimes are we arresting them
47:47for ? And if you look at the Brazilian
47:51prison population today , practically 30
47:54, 40 % is drug trafficking , another 30 % is
47:58robbery , and the rest are all other
48:01crimes . So , there is , the law did have
48:05these effects . Our criminal policy went
48:09after the war on drugs and our criminal
48:13policy combats robbery , which is the
48:16abundant crime that should be or is
48:19being combated this way , right ? This
48:23indicates our inclination ,
48:25it has known social causes ,
48:27it has known social causes , evidently ,
48:29what is being strongly discussed now is
48:32the issue of trafficking , because
48:34trafficking is very plural . I have the
48:38trafficking by a student from a
48:40renowned college who brought a bag full
48:43of marijuana to celebrate with
48:45classmates . It’s still trafficking ,
48:49it’s still punishable , and there is
48:51the trafficking by the individual who
48:53is part of a crime tribunal , who has a
48:55rifle slung over his shoulder , who has
48:57there
48:58organization
48:59all their organization behind it , their
49:01network of organization
49:03that makes this drug trade massive . And
49:09it must be analyzed that way ; one
49:11cannot simplify these 40 % of
49:13incarcerated traffickers as being the
49:16same stereotype as that trafficker with
49:19his rifle slung over his shoulder . It
49:22cannot stay this way anymore . And ,
49:25going further , even much more serious
49:27than drug trafficking is arms
49:29trafficking , where the individual
49:31receives a weapon , a rifle , which is a
49:33territorial control weapon , has a range
49:36of up to 5 km , right ? That it is much
49:38more serious to carry a rifle than to
49:40sell drugs , right ? And using a rifle
49:43against society is even worse . So this
49:45has to be looked at . These 40 % , maybe a
49:49percentage of that are people who
49:50don’t have a rifle slung over their
49:52shoulder , by the way . This can be seen ,
49:56and this isn't , um , it won't impact
49:58society as much as the radicals are
50:01making it out to be . What impacts
50:04society are thieves , murderers , drug
50:08traffickers using assault rifles ,
50:11traffickers who cause all this impact
50:14and disrupt people's lives , you know ,
50:18using those as territorial control
50:21weapons . I'm not saying not to punish
50:25traffickers in general , but to look at
50:28this difference through the lens of
50:30criminal policy . We need to map out
50:35this difference , you know , between
50:37individuals who are in one situation or
50:40another . Within restorative justice ,
50:47it's assumed that crime is defined as a
50:50violation of relationships that causes
50:53harm to the victim . And so , within this
50:59view of relationships , the victim and
51:01the offender are both parties to the
51:02process . That is , keeping the
51:07interpersonal dimensions in mind ,
51:09obviously . And the harm caused , as is
51:13being well noted , to the offender is
51:16important , obviously , but in seeking
51:18this solution , what happens to the harm
51:21? It must be repaired , first and
51:24foremost . It can be addressed through
51:29dialogue and restoring that negative
51:32intersubjectivity as much as possible ,
51:35rather than just focusing on what the
51:38injury caused . So , in this first moment
51:41, is that possible ? Are there limits ,
51:44does it depend on creativity , how does
51:45it work ?
51:46Well , look at how complex it is to
51:48repair harm , isn't it ? Because it's not
51:50just material damage . Suppose I stole a
51:52car , I'll return the car . But what
51:55about the trauma of having a gun
51:56pointed at your head ? Oh , and the
51:59feeling of helplessness ? And the
52:01humiliation .
52:03How do I repair that ? How does that
52:05person see their aggressor ? How is it ?
52:07It's not simple to be in a restorative
52:10circle to address this , right ? On the
52:14other hand , let's go back in human
52:16civilization . Looking first at Europe ,
52:19which is our cultural benchmark , but
52:21anyway , we're talking about the whole
52:23world , right ? Before the absolute state
52:27, people walking , wandering through
52:30towns , cities , eventually fiefdoms , and
52:33how was justice handled then ? What
52:37interested the feudal lord , he judged ,
52:38he exercised power ; what didn't ,
52:40concerned the people themselves . So ,
52:43this victim-offender agreement is an
52:46early form of justice , right ? Without
52:51looking at the classics , without
52:52looking at the Greeks , the Romans ,
52:54which was obviously a much more complex
52:56and refined form of justice than this .
52:59But this victim-offender agreement is
53:01something that has always happened in
53:02society . Uh , this inquisitorial
53:05criminal process emerged in continental
53:08Europe for the affirmation of absolute
53:12states , where I take the harm done by
53:15one person against another and make it
53:18my own . This harm is against the state ,
53:21and now I will punish you in front of
53:24everyone to show my power .
53:26Originating a retributive system .
53:28Exactly . So it is also very functional
53:30as an affirmation of power .
53:33Yes . Yes . And in a certain way , a a way
53:39for people to buy into that power by
53:42also being protected by it . So , if I
53:45get robbed , the powerful will punish
53:48the one who robbed me , and I will feel
53:50protected in a way , but I am subject to
53:53the powerful who can create criminal
53:55charges there . Then there is a great
53:58debate about how conduct arises as a
54:00crime or not , right ? Uh , anyway , but
54:02they can criminalize something I do
54:05that bothers them , right ? Uh , and then
54:08you get punished all the same . So , this
54:12public punishment of crime was a first
54:15manifestation of criminal procedure in
54:18continental Europe to reaffirm the
54:20power of the absolute state . Then that
54:26was impacted by scholars , by legal
54:29science , which has always evolved ,
54:32right ? To the point of applying this
54:37criminal sanction in secret inside the
54:39penal establishment , right ? It's no
54:43longer the affirmation of the absolute
54:46state ; it is already established , there
54:49is already an entirely different way
54:52for people to exist within a society
54:54than by the power of the absolute
54:57sovereign . But it continues to be a
55:01punishment that the state applies to
55:04the individual . And Foucault describes
55:06this , Fouv —
55:07Perfectly .
55:08He talks about the construction of this
55:10process ,
55:10writing in detail
55:11about that ,
55:13an execution in Belgium , a torture ,
55:16right , of a parricide . Uh , notice
55:20and there comes the issue of harm . The
55:23harm , in truth , is not against the
55:25state . The harm that the thief commits
55:27is against the victim . And restorative
55:32justice , which predates this idea ,
55:35wants to heal this harm . Can this
55:39person live with us or not ? Should we
55:42expel them from society ? If they are to
55:45continue living in this social
55:47environment , that relationship must be
55:50restored , because we live in a
55:52community , right ? Now , we are talking
55:55about a smaller community , a less
55:58complex environment , where , uh , an
56:01agreement was reached : you stole my
56:03horse , you will return it ; you killed
56:06my horse , you will give me a new one ;
56:09you took my harvest , now you will make
56:12restitution ; uh , you committed an act
56:15of aggression , anyway , you will , uh ,
56:18resolve it in some way so that we can
56:20keep living in the same space ,
56:23otherwise I will send you away . And in
56:27a world where , if a person is a
56:29wanderer , they would have a hard time
56:31surviving until they found a new group
56:33that would accept them . The physical
56:37marking itself , right , that the person
56:39is a criminal , is a way of releasing
56:41them into a world outside that society ,
56:43and they are recognized as a criminal
56:44in another and are not accepted
56:46anywhere .
56:47And having to survive alone , right ? Uh ,
56:51uh , in society , outside of society ,
56:54right ? So , restorative justice is a
56:58composition of a relationship . Now , in
57:01a city like São Paulo , with 20 million
57:03inhabitants , it is possible that the
57:04aggressor will never live with that
57:06person again . We are talking about this
57:09necessary impulse of having to live
57:12with that person , but in a city , a
57:14society like ours today , it is possible
57:16you will never see that person again .
57:20So , there isn't this stimulus for
57:21restorative practice in that sense . On
57:24the other hand , uh , this old
57:26restorative practice that was reborn
57:28there among the Americans with Eglash ,
57:31right , when he tried to deal with
57:34in the 50s ,
57:35in the 50s , of of of the adolescent ,
57:37right ?
57:38And when it was for adolescents , you
57:40imagine a developing being and you are
57:42imagining that they can be educated
57:44within a society , right ? Uh , uh , it was
57:48reborn with these principles of a
57:50society in which people are forced to
57:52live together . But it is for a society
57:56where this is not pressing . So I need
57:59to encourage this person to participate
58:01. And that is where the question
58:02mentioned here about criminal
58:03proceedings comes in . It simulates
58:05because perhaps I won't have a trial if
58:07I participate , perhaps I won't be
58:09punished if I participate . This , uh , uh
58:12, will , uh , encourage me to participate
58:15in a restorative process . From then on ,
58:20I have to adhere to this process and
58:22this must , uh , permeate my will . On the
58:26other hand , when I speak of restorative
58:28justice for the convict who has already
58:30been punished , who is already in prison
58:33, we are talking about their effective
58:35re-education without that stimulus . So
58:38he could stay there , he could work to
58:40remit [ his sentence ] , he could join a
58:43criminal organization , join a criminal
58:45group , anyway , or participate in a
58:47session like this one and try to
58:49restore his life in society . So ,
58:52restorative justice in our work was
58:55seen as an absolutely very interesting
58:58system for the social reeducation of
59:00the individual within a society with
59:03values , right ? On the other hand , it is
59:08difficult to apply , difficult to apply ,
59:12because you need to have qualified
59:15people to handle this restorative cycle
59:19for the listening that Your Excellency
59:21speaks of .
59:22Listening , I participated in one , and
59:24you have an object there that you hold
59:27in order to have the floor . You don't
59:30speak without that object in your hands
59:31, and when you pass it to another
59:32person , you have to be silent and
59:33listen to what the other person is
59:35going to say . So this is a way to force
59:38those who have that habit of
59:40interrupting others from cutting in and
59:43ending up drowning them out , ending up
59:46preventing greater participation . So ,
59:50everyone has the same right to speak .
59:52The circle indicates that you are in
59:54the same position as everyone else .
59:58Anyway , it is a very interesting way .
1:00:02In Canada , a phenomenon occurred , an
1:00:05important phenomenon in this sense , of
1:00:08some judges using restorative justice
1:00:10within the trial proceedings and some
1:00:13police officers also , when responding
1:00:15to incidents , using restorative
1:00:18processes . Because , and now I'm going
1:00:21to bring up an interesting side . The
1:00:23police officer ends up mediating
1:00:25conflicts on a daily basis . He already
1:00:28does this .
1:00:28Without the figure of the ... he already
1:00:29does this .
1:00:30And depending on the skill of this
1:00:32officer ,
1:00:33the military police officer ,
1:00:34military police officer ,
1:00:35very , very much .
1:00:37By the way , he ends up mediating this
1:00:40and resolving this imperfection on the
1:00:42spot , locally .
1:00:44He does it a lot , a lot .
1:00:45And at the police station as well . At
1:00:49the station , it is also possible for
1:00:51these people to arrive there
1:00:53belligerent in a conflict , and the
1:00:54station chief mediates something that
1:00:56is not subject to an inquiry or an
1:00:58arrest in the act . Anyway , this also
1:01:01happens a lot . So , this filter that the
1:01:05police officer provides is not harmful .
1:01:10Evidently , it has its limits within the
1:01:13law .
1:01:13And it is not malfeasance . We still
1:01:17have the mandatory nature of the
1:01:19investigation process , but there are
1:01:22situations where a crime is not
1:01:24foreseen a priori , but rather a
1:01:26conflict that could result in a future
1:01:29crime . And you manage to resolve this ,
1:01:33either on the spot or within a police
1:01:36station , without ... having , evidently ,
1:01:39the skill for it , without this need for
1:01:42formalization , for applying a system of
1:01:46punishment , of a punishment process . I
1:01:50am not talking , obviously , about
1:01:52dereliction of duty , much less that , or
1:01:54releasing a thief , etc.
1:01:58And one can see that , deep down , police
1:02:00and public security systems are seeking
1:02:03this as they demand and look for
1:02:05increasingly qualified people . It is
1:02:10hard today not to see , among members of
1:02:13both the military and civil police ,
1:02:16people who are more highly educated ,
1:02:18more trained within a system , and more
1:02:21capable of this work of social
1:02:24pacification . And let's be frank , quite
1:02:29frank . The work of a police officer
1:02:32today is more of a deterrent and
1:02:35resolution-based role than strictly
1:02:37combat-oriented .
1:02:38Perfect .
1:02:39It’s just that the media explores ,
1:02:41and explores very poorly , what
1:02:43resonates . So it takes a part of the
1:02:46whole and shows it , creating this
1:02:48inversion of values , implying that the
1:02:50police officer's reality is that they
1:02:52must fight , they must kill , they must
1:02:54shoot . When the reality of a troop , for
1:02:58example , is not this . The police
1:03:02officer today is a vital figure ; just
1:03:05through an ostensive patrol , think of
1:03:07how much conflict they prevent from
1:03:10breaking out . Now , a question for Your
1:03:13Excellency , feel free as always . Uh ,
1:03:16does the prisoner , the convict , have
1:03:19dignity ? Perfect . I , I , even while
1:03:23visiting prison facilities with
1:03:25students ,
1:03:26yes ,
1:03:27right ? we observe a São Paulo system
1:03:30in evolution , clear evolution , right ?
1:03:35Uh , but still , with capacity above the
1:03:41expected , right ? The women's prison in
1:03:44São Paulo today has less occupancy , it
1:03:47has vacancies , but the men's is
1:03:49overcrowded , right ? Uh , and you see a
1:03:54management effort so that the person
1:03:58who is there has support so they can
1:04:01work , so they can study , so they can
1:04:04practice their faith , right ? I was at
1:04:09an evangelical church inside the prison
1:04:11with the students . A service was very
1:04:13well conducted in there . Anyway ,
1:04:14which prison , if you please ? The José
1:04:17Parada Neto prison in Guarulhos , near
1:04:20NIP Tatuapé , actually , right ? Uh , and
1:04:24we were able to see a model prison
1:04:27there that was very well kept , but with
1:04:29capacity above what was planned . Even
1:04:32with this excess capacity , there is a
1:04:35great management effort to ensure the
1:04:38prisoner works , studies , celebrates
1:04:40their faith , and practices their art or
1:04:43music ; we were able to see this on-site
1:04:46. We know the difficulties , we know
1:04:50about criminal factions inside the
1:04:53prisons , we see this as a very
1:04:55important issue . I also see fair
1:04:59treatment as something to be applied
1:05:01within the prison system , as an
1:05:03important way out , but not a simple one
1:05:05. We are talking about 200,000
1:05:08incarcerated in São Paulo , a little
1:05:10over 700,000 in Brazil , right ? Eh , it
1:05:13is not something simple to do . São
1:05:16Paulo arrests , arrests the criminal ,
1:05:19protects society , eh , but , eh , eh , the
1:05:22problem is much bigger , evidently ,
1:05:25right ? Eh , I wanted to take the
1:05:29opportunity also to look at the
1:05:30criminal policy framework , moving away
1:05:32from criminal proceedings and looking
1:05:34at the big picture , as Dr. Wagner
1:05:36himself mentioned here , seeing the
1:05:37police , there is a figure there that is
1:05:39the police , military police , civil
1:05:41police , civil guards , they are in this
1:05:43framework . And they are taking care of
1:05:46those who may eventually commit a crime
1:05:48or may be committing a crime , right ?
1:05:51And resolving it within the criminal
1:05:53policy . And then let's talk about
1:05:55something recent in the recognition of
1:05:58our scientific framework , which is
1:06:00police sciences . Today it is understood
1:06:04that police activity is permeated by
1:06:08its own science , a science that has an
1:06:11object . The object of police sciences
1:06:15are the actions that the police officer
1:06:17commits in their day-to-day life to
1:06:18exercise their craft . Everything the
1:06:21police officer does is an object of
1:06:24scientific study . They stop someone ,
1:06:26let's study that . They talk to someone ,
1:06:28let's study that . They park the patrol
1:06:30car at a specific point . Let's study
1:06:32that . The corporation has such a type
1:06:35of architecture . Let's study it . This
1:06:37is all an object of a generic object of
1:06:40police science . These are police
1:06:42actions . The method of this science is
1:06:45plural . I can look at it from the
1:06:47perspective of sociology , from the
1:06:49economic aspect , from the aspect of
1:06:51administration , and from the legal
1:06:53aspect . And still on the legal aspect ,
1:06:56police science finds an important
1:06:58milestone in this study , which is
1:07:00fundamental rights . Everything I look
1:07:04at that the police officer does , I need
1:07:06to understand the following : they are
1:07:07doing that to guarantee rights and are
1:07:09doing that while respecting rights . So
1:07:13they have limits in that action and
1:07:15have a purpose in that action , which
1:07:18are rights , social rights , individual
1:07:20rights , and also protecting the public
1:07:23interest , right ? So this police science
1:07:27was found in our work , evidently , even
1:07:30by the nature of our career . Eh eh , but
1:07:34it has to be part of this criminal
1:07:36policy framework . It is part of this
1:07:40framework , it is within these mediation
1:07:42practices , it is within the criminal
1:07:44prosecution itself . It is the police
1:07:48that bring the evidence of the crime so
1:07:50that this crime has its conclusion , has
1:07:52its process . This evidence must be
1:07:56obtained in a lawful manner . This is
1:08:00the big issue for modern policing . The
1:08:03police must obtain evidence lawfully
1:08:06and provide it so that the judiciary
1:08:09can carry out their role , and the
1:08:12Public Prosecutor's Office can perform
1:08:15its institutional function as accuser
1:08:18and guardian of the law , allowing
1:08:21justice to reach a resolution in that
1:08:24case . Evidently , by issuing a judicial
1:08:28decision . So , this figure of the police
1:08:31officer we know so well is a figure
1:08:33integrated into the work being
1:08:35developed . I was able to look at the
1:08:38police in Portugal ; there are three
1:08:39police forces there : the National Guard
1:08:41and the Public Security Police . The
1:08:43Portuguese define it by the concept ,
1:08:44right ? So , the National Guard , which is
1:08:47a military police ; the Public Security
1:08:49Police , which is a uniformed civil
1:08:50police ; and a judicial police that
1:08:52investigates complex crimes . An
1:08:54extremely well-prepared police force
1:08:55for investigating complex crimes with
1:08:57sentences exceeding 5 years . And that
1:08:59is where you see the complexity of the
1:09:00crime by the sentence , right ? For
1:09:03crimes with sentences of 5 years or
1:09:05less , you have these uniformed police
1:09:08forces acting : the National Guard and
1:09:10the Public Security Police . Manuel
1:09:13Valente is an officer with the Public
1:09:14Security Police , currently on leave to
1:09:16practice law . But he is part of this
1:09:20context of police operations . And these
1:09:23police forces investigate and act
1:09:25within these minor crimes . And for
1:09:28these crimes , it is possible to use
1:09:30that entire framework of mediation and
1:09:33alternative exits from the criminal
1:09:35process , which remove all that stigma
1:09:38and the issue of punishment , right ? If
1:09:41you look at Chile , you have the
1:09:43Carabineros of Chile , a military police
1:09:45force that carries out all its
1:09:47operations throughout the national
1:09:49territory . It is a national police
1:09:52force , but Chile is small , including in
1:09:54terms of population , right ? You have a
1:09:58national police force in Chile , a
1:09:59uniformed one , but also an
1:10:00investigative police for certain types
1:10:02of crimes . Crimes where you don't have
1:10:05a known perpetrator , right ? For crimes
1:10:08where the perpetrator is known , the
1:10:09Carabinero records it and forwards it
1:10:11to the Public Prosecutor's Office . For
1:10:12crimes with an unknown perpetrator , the
1:10:14Public Prosecutor's Office sends it to
1:10:16the Judicial Police to investigate ,
1:10:18right ? And looking at Brazil , we have a
1:10:22complex system , but a quite interesting
1:10:25one with a judicial police for criminal
1:10:27investigation , which has a strong
1:10:30intersection with the Military Police ,
1:10:33who handle patrolling . Both complement
1:10:36each other . This complementarity is
1:10:39very important to map out and
1:10:42understand . Managers must understand
1:10:45this and be encouraged towards
1:10:47integration , and they cannot forget the
1:10:49civil guards who are part of this
1:10:52ecosystem , right , and are also
1:10:54complementary . So we cannot forget that
1:10:56this system is not antagonistic , which
1:10:59is what we see a lot ; the Brazilian
1:11:02press itself sometimes sees this
1:11:04antagonism , right ? Or you have some
1:11:07ideology seeking this antagonism that
1:11:10really shouldn't exist ,
1:11:11if not political manipulation ,
1:11:14political manipulation , and it
1:11:16shouldn't exist , because these police
1:11:18forces are complementary , these forces
1:11:20need integration , they must always
1:11:22integrate , it's a permanent process . In
1:11:27Portugal , Chile , Argentina , and Canada ,
1:11:30and , uh , well , they also have their
1:11:32flaws , but these integrations must
1:11:35exist . Our system is complex , but I
1:11:38repeat , it is a very interesting system
1:11:40, a system where criminal procedure has
1:11:42been adversarial since the 40s , with
1:11:44the presence of a lawyer during the
1:11:46investigation . I'm talking about a time
1:11:48when in Europe and other Latin American
1:11:50countries , there was an investigating
1:11:52magistrate , where you didn't have an
1:11:54adversarial process in the production
1:11:56of evidence , and Brazil already had
1:11:58that in the criminal procedure of
1:11:59Francisco Campos , who looked at Vicente
1:12:01Ráo , right ? Uh , uh , but they changed ,
1:12:04they didn't copy
1:12:05Minister of Justice . Yeah ,
1:12:06perfectly , they didn't copy the
1:12:08inquisitorial Italian criminal
1:12:10procedure . They created a unique system
1:12:13here , uh , which needs to be talked
1:12:14about , because
1:12:15they copied the Penal Code .
1:12:16They copied the Penal Code , for sure ,
1:12:19right ? But the Code of Criminal
1:12:21Procedure , although inspired by the
1:12:22Italian Code , has the figure
1:12:25of evidence production in an
1:12:27adversarial context , notably witness
1:12:30testimony . Right , uh , done in the
1:12:33presence of the lawyer and the Public
1:12:36Prosecutor before a judge . So , uh , our
1:12:39system is also very complex , and
1:12:41there’s no need to have a " mongrel
1:12:44complex " and see , uh , uh , only the
1:12:46imperfections of our system . Let's
1:12:49start looking at the perfections , the
1:12:51complementarity , the complexity of our
1:12:53police system , the complexity of our
1:12:56criminal procedure , and how it evolved ,
1:12:58how it is positioned today , and how
1:13:01other countries have perhaps moved
1:13:03closer to us in criminal procedure .
1:13:07Uh , no . And Your Excellency addressed
1:13:10it , as you have many times , uh , with
1:13:13absolute pertinence . Our military
1:13:17police , especially our civil police ,
1:13:19are natural mediators . How many
1:13:23problems do they solve when responding
1:13:25to incidents ? And that is what must be
1:13:29validated ; that is also what must be
1:13:32placed within this idea of restorative
1:13:35justice , empowering these officers to
1:13:37record the fact and resolve it . And
1:13:41today we are fully capable of preparing
1:13:44them for this . Your Excellency pointed
1:13:47this out very well here , identifying in
1:13:50the approach , identifying in the work
1:13:52of this approach among people and how
1:13:55this would be excellent for society . I
1:14:00mean , we wouldn't need to create new
1:14:02structures , we wouldn't need to
1:14:04generate new costs for the public
1:14:06sector , for the treasury . Not to
1:14:09mention the municipal guards are
1:14:10sensational . Look at how much they
1:14:13contribute to this process of social
1:14:16peace . But , Your Excellency , for your
1:14:21final considerations , for what your
1:14:25research so well developed , so
1:14:27brilliantly developed , pointed out and
1:14:31for whatever else you would like ,
1:14:34please . Perfect . We conclude this very
1:14:38fruitful chat , this very pleasant
1:14:41morning we had here . Uh , seeing the
1:14:48following : the system is alive and is
1:14:50in constant evolution , in constant
1:14:52transformation . I will use the word
1:14:55evolution , constant transformation . So
1:14:59this work is permanent , it had a
1:15:01milestone , evidently it had a temporal
1:15:04mark where it was concluded for the
1:15:07findings and for , evidently , the
1:15:09analysis by the thesis committee , but
1:15:12that doesn't mean it ended there ; it
1:15:15continues , it remains permanent , it
1:15:17must be encouraged . Uh , we continue
1:15:21looking , researching , evolving our
1:15:24observation of the system . Uh , I
1:15:28highlight here that what we observed in
1:15:32Brazil does not leave us behind any
1:15:35system . Our culture is very uh
1:15:40sophisticated . Our justice , uh ,
1:15:43reaffirms here my ... I always look at
1:15:46the glass half full , but in this case I
1:15:49see , looking at everything we have seen
1:15:52, uh , I see the Brazilian system as a
1:15:55very evolved system and I believe it
1:15:57follows trends , logically , as all
1:16:00countries have followed , but it has its
1:16:03own DNA and , in that sense , I view our
1:16:06social evolution , our criminal law and
1:16:09criminal procedure with optimism . Ah , I
1:16:14reaffirm here my optimism regarding
1:16:17Brazil as a whole and our criminal
1:16:20policy system . I also believe in the
1:16:23evolution of police sciences . The
1:16:26initial step has been taken , it is
1:16:28recognized today as a science . Now ,
1:16:30what's left is for scientists to emerge
1:16:32with their publications , with their
1:16:34considerations , with their research ,
1:16:37and that will greatly enhance our
1:16:39country . So , thank you very much ,
1:16:41Wagner . The morning was very pleasant .
1:16:44Uh , let's do this more often . I am
1:16:47truly very happy to have participated .
1:16:50Uh , and may we continue our debates on
1:16:53varied topics , there is so much we see
1:16:56out there . Thank you very much .
1:17:02I just want to make it clear to our
1:17:04viewers that all of my interventions
1:17:06were exclusively based on Your
1:17:09Excellency's work . So , nothing more
1:17:13than that . So , look at the complexity
1:17:16of the work , look at the richness of
1:17:19the work , the vision of criminal policy
1:17:22, the vision of criminal procedure , the
1:17:25relations with restorative justice ,
1:17:27this restorative justice in comparative
1:17:30studies with the systems of Chile ,
1:17:33Portugal , Canada , Argentina , and Brazil
1:17:36. A fantastic piece of research , and we
1:17:39are waiting ; this work must already be
1:17:41in press . In press . I am already
1:17:43letting out some information here .
1:17:45Certainly .
1:17:47And so we will pay tribute to this
1:17:49brilliant intellectual , to this
1:17:52professional whom I highlight here , who
1:17:55knows both theory and practice
1:17:57profoundly . As well as practice . And it
1:18:02is these people that the system needs
1:18:04to listen to . That is the great truth .
1:18:08And not people who have a partial ,
1:18:11incomplete , or immature view of the
1:18:15social system or the police system , who
1:18:18often cause more harm than good . Anyway
1:18:24, that is still something in Brazil .
1:18:29But thank you very much , and look , I
1:18:31thank Your Excellency ; always a guest ,
1:18:34always a friend , always a brother . And
1:18:38thank you very much to you , the viewer ,
1:18:41who supports us , who watches us , and
1:18:44who leaves there , if it pleases you ,
1:18:47your like , your , your , your worldview
1:18:50in relation to everything that was
1:18:52presented . Thank you very much .