Coloniality and the Courtroom: Understanding Pre-trial Judicial Decision Making in Brazil

This thesis focuses on judicial decision making during custody hearings in Rio de Janeiro, Brazil. The impetus for the study is that while national and international protocols mandate the use of pre-trial detention only as a last resort, judges continue to detain people pre-trial in large numbers. Custody hearings were introduced in 2015, but the initiative has not produced the reduction in pre-trial detention that was hoped. This study aims to understand what informs judicial decision making at this stage. The research is approached through a decolonial lens to foreground legacies of colonialism, overlooked in mainstream criminological scholarship. This is an interview-based study, where key court actors (judges, prosecutors, and public defenders) and subject matter specialists were asked about influences on judicial decision making. Interview data is complemented by non-participatory observation of custody hearings. The research responds directly to Aliverti et al.'s (2021) call to ‘decolonize the criminal question’ by exposing and explaining how colonialism informs criminal justice practices. Answering the call in relation to judicial decision making, findings provide evidence that colonial-era assumptions, dynamics, and hierarchies were evident in the practice of custody hearings and continue to inform judges’ decisions, thus demonstrating the coloniality of justice. This study is significant for the new empirical data presented and theoretical innovation is also offered via the introduction of the ‘anticitizen’. The concept builds on Souza’s (2007) ‘subcitizen’ to account for the active pursuit of dangerous Others by judges casting themselves as crime fighters in a modern moral crusade. The findings point to the limited utility of human rights discourse – the normative approach to influencing judicial decision making around pre-trial detention – as a plurality of conceptualisations compete for dominance. This study has important implications for all actors aiming to reduce pre-trial detention in Brazil because unless underpinning colonial logics are addressed, every innovation risks becoming the next lei para inglês ver (law [just] for the English to see)

Judges as Agents of Coloniality:Understanding the Coloniality of Justice at the Pre-trial Stage in Brazil

This paper exposes how colonial ways of knowing and being shape judicial behaviour in Brazil, where pre-trial detention is excessively used against racialised groups. I argue that judges continue to conceptualise and operationalise justice according to colonial logics and thus reveal the coloniality of justice. Drawing on decolonial theory from across South America and from interviews and court observations in Rio de Janeiro, I reveal how judges understand themselves as heroic crime fighters, acting beyond the law in a modern moral crusade. I examine how violence remains a central component of justice and consider how judges deal with the contradiction of neutrality and aggression. I argue that judges, by endorsing or tolerating violence, become agents of coloniality

The Coloniality of Justice:Naturalized Divisions During Pre-Trial Hearings in Brazil

Custody hearings were introduced in Brazil in 2015 with the hope that prompt in-person presentation of detainees before a judge, rather than merely a police report, would de- crease the excessive use of pre-trial detention. However, the use of pre-trial detention remains high, especially for young Black men with low to no income. This chapter con- tributes to the literature by highlighting the coloniality of justice as manifested within ju- dicial decision-making at the pre-trial stage in Brazil. Analysis of twenty-six interviews with judges, prosecutors, public defenders, and specialists in Rio de Janeiro reveals the divergent treatment accorded to those on either side of the dichotomous notions of the bandido1 (criminal) and the cidadão de bem (the good citizen). A thematic framework analysis leads to a discussion of the white-centred nature of citizenship and justice and how stigmatized spaces are considered criminogenic. The chapter traces how colonial white-supremacist logic has persisted in naturalizing inhumane treatment of racialized groups in the collective consciousness of the gatekeepers of justice in Brazil

Introducing a gender-sensitive approach to pre-trial assessment and probation: Evaluation of an innovation in Kenya

This paper evaluates a pioneering project to introduce a gender-sensitive approach to working with women completing probation and community service orders in Kenya. The intervention consisted of context-specific research with women throughout Kenya, leading to adaptations to existing probation tools, followed by pilot implementation of a gender-sensitive approach. The evaluation explores the relevance, effectiveness and sustainability of the intervention and presents opinions of implementing probation officers and sector experts. Findings suggest that the project genuinely broke new ground in terms of research on gender-sensitivity and quality of pre-trial reporting for women. Close adherence to the UN Bangkok Rules means the model and lessons are applicable both domestically and globally

Judges as Agents of Coloniality:Understanding the Coloniality of Justice at the Pre-trial Stage in Brazil

This paper exposes how colonial ways of knowing and being shape judicial behaviour in Brazil, where pre-trial detention is excessively used against racialised groups. I argue that judges continue to conceptualise and operationalise justice according to colonial logics and thus reveal the coloniality of justice. Drawing on decolonial theory from across South America and from interviews and court observations in Rio de Janeiro, I reveal how judges understand themselves as heroic crime fighters, acting beyond the law in a modern moral crusade. I examine how violence remains a central component of justice and consider how judges deal with the contradiction of neutrality and aggression. I argue that judges, by endorsing or tolerating violence, become agents of coloniality