In good conscience, no one advocates any leniency towards crime, much less towards criminal factions or femicide, but it is important to ask ourselves what are the effective means of containing these crimes.
The state’s response has been consistent and disappointing: new crimes and increased penalties. This recalls Foucault’s old criticism (“to monitor and punish”) of the doctor who, for all ills, had the same remedy.
Cornelius Prittwitz, professor of criminology at Goethe University in Frankfurt, warns in his lectures that there is no cause and effect relationship as simplistic as that of someone increasing the dose of an analgesic to reduce pain and believes that by creating new crimes and increasing the penalties for existing ones, in addition to worsening compliance with them, crime will decrease. Brazil already tried this with the Heinous Crimes Law in 1990, and it didn’t work. He repeated the dose of femicide. And it’s frustrating.
Rapes and kidnappings have not decreased with the increase in sentences and the imposition of a total closure regime for their execution. But more effective police action has virtually extinguished the hostage kidnapping industry, which reached its peak in the 1990s. The number of rapes, despite stricter law, has even increased.
Even the crime of femicide, the penalties for which have been increased from 20 to 40 years in prison – and which the bill from MP Guilherme Derrite (PL-SP) takes as a model – remains on a terrifying rise. It must be said: the law, on its own, acts with little effectiveness if it is not accompanied by the action of other social (family, school, work, religion, etc.) and state (police, access to education, housing conditions, etc.) organizations.
Realizing that we live in a society which presents, as the German sociologist Ralf Dahrendorf said, an alarming “inability to create fidelity to its fundamental values” (“Law and Order”, ed. Instituto Tancredo Neves), and that it will not be the penal system which will establish or reestablish them, is a necessity. Sanctions and the rapid procedural system help to reaffirm values, but not to create them.
In the case of femicide, in which deep-rooted sexist sentiments emerge, associated with brutality and cowardice, turpitude and other wickedness, the harshest law has not contained it. The question is: will we fall into the illusion that it will contain the actions of criminal factions?
The jurist Miguel Reale Jr., with his extensive experience in higher education (USP) and former Minister of Justice (FHC government), in an inspiring article published in the newspaper O Estado de S. Paulo (“Penal Populism”, 6/12), emphasizes that the certainty of punishment and the effectiveness of investigations are essential in the fight against crime. Furthermore: “the reoccupation of areas abandoned by state power and the implementation of a criminal policy of a social nature that promotes solidarity, as well as confidence in public administration,” are essential.
The response provided by Derrite’s draft, although considerably improved by the work of critic Senator Alessandro Vieira (MDB-SE), presents a well-known recipe: it creates new crimes and imposes very high penalties. This is a sort of “alibi model” which exempts the legislator from the obligation to go beyond the most simplistic and practical solution, by resorting to increased sanctions.
In this Leaf (11/22), columnist Elio Gaspari puts forward an interesting hypothesis on the significance of intelligence in the fight against crime: “Admitting that each of the 121 ‘suspects’ victims of the Penha massacre was a criminal who moved R$10 million per year, these dangerous citizens trafficked R$1.21 billion per year. And, with beautiful irony, he concludes: “The government of Cláudio Castro can be proud of its good objective.”
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