Coloniality, just war & carceral injustice in Brazil
| Author | Omar Phoenix Khan,Sacha Darke |
| DOI | 10.1177/14624745211041849 |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| Subject Matter | Special Issue: Legacies of Empire |
Coloniality, just war &
carceral injustice in Brazil
Sacha Darke
1
and Omar Phoenix Khan
2
1
University of Westminster, UK
2
University of Oxford, UK
Abstract
The Portuguese empire brought inescapable violence to the indigenous communities
of Brazil and to those it enslaved. Throughout the centuries of colonial subjugation,
driven by the Iberian monarchical traditions of hierarchy, militarism and moral cru-
sade, ‘just war’narratives were employed to legitimate the use of violent legal and
extra-legal measures against enslaved peoples and others deemed unruly or rebellious
and a threat to colonial order. Two centuries after independence, Brazil remains at
war with its ‘internal enemies’. Its justice practices continue to be characterised by
colonial rationalisations. This paper illustrates the contemporary coloniality inherent
in the carceral system from the moment of detention pre-trial through sentencing
and imprisonment.
Keywords
coloniality, Brazil, just war, authoritarian oppression, flagrante delicto, judicial internment
Fearsome laws are needed to contain these barbaric people. Two million slaves, all of whom
capable of taking up arms, will not submit to three million free people of both sexes and all
ages. Nothing less than the ‘terror of death’will keep these immoral people in their place.
(Francisco de Paula Souza e Melo, speaker of the lower house of the Brazilian National
Congress 1827–1833, debating the inclusion of the death penalty in the country’sfirst crim-
inal code, quoted in El País, 7 December 2020)
They’re going to die in the streets like cockroaches…and that’s the way it should be…the
outlaw has more rights than the good citizen (President Jair Bolsonaro, discussing 2019
Brazilian legislative proposals intended to extend the law of legitimate defence to all fatal
police shootings with journalist Leda Nagle, quoted in O Globo, 6 August 2019)
Corresponding author:
Omar Phoenix Khan, University of Oxford, Oxford, UK.
Email: omar.khan@Crim.ox.ac.uk
Special Issue: Legacies of Empire
Punishment & Society
2021, Vol. 23(5) 723–740
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14624745211041849
journals.sagepub.com/home/pun
We open with these two quotes from influential politicians set almost two centuries
apart as precursors to the discussion to follow. The dichotomous positioning of good,
moral citizens in need of rights and protection opposed to the barbaric and immoral
people, who require ‘terrorising’and killing, is present in both colonial and contemporary
eras. This paper explores the embedding of Portuguese colonial laws and rationalisations
in Brazilian criminal justice. Inspired by Latin America’s rich tradition of ‘resistance’
(Codino, 2014) or ‘liberation criminology’(Castro, 1987), we draw attention to the
way Brazilian law functions as a barely disguised tool of ‘vertical discipline’
(Zaffaroni, 1989: 23) and ‘extermination’(Zaccone, 2015), thinly justified as necessary
oppression of ‘the hostile’(Zaffaroni, 2006: 11), of the ‘enemies of society’(Zaffaroni,
2006: 4). We will see that Brazilian justice continues to be characterised by authoritarian
and oppressive legal and extra-legal practices 500 years since the first Portuguese settlers
arrived from the Iberian peninsula in the 16th century, two centuries after the end of colo-
nial rule, and nearly four decades beyond the most recent period of civilian or military
dictatorship. While the death penalty was formally abolished with the official end of
slavery in the late 19th century, Brazil’s post-colonial use of ‘fearsome laws’to terrorise
the unruly and rebellious continues in the 21st century in the shape of the country’s nor-
malisation of police violence, celebrated by the current President Jair Bolsonaro.
1
Unlike North America and Western Europe, the Latin American region was not going
through a period of economic modernisation at the time its legal and carceral systems
were formed in the early decades of the 19th century (Salvatore and Aguirre, 1996).
When Brazil gained independence from Portugal in 1822, its economy remained agricul-
tural and dependant on forced labour. Its elites faced neither the threat of a revolutionary
urban proletariat (Batista, 2003) nor rural peasantry (Prado, 1942). Instead, their main
internal security concern was how to contain insurrection among the country’s enslaved
population (Dieter, 2012), much as it had been for the previous colonial authorities.
Enslaved Africans constituted the majority of the population in four of the country’s
five provinces, including 64% in its most populous province, Rio de Janeiro (Pereira,
2020). When Brazil’s newly formed National Congress introduced the death penalty as
necessary defence of society, its purpose was to replace previous violent colonial laws
that had already been used to subjugate its enslaved peoples for three centuries.
In this paper, we focus on two areas of carceral controversy that Brazil shares with
other parts of Latin America. Firstly, the de facto automatic remanding in custody and
inevitability of successful prosecution of people arrested in flagrante delicto, widely con-
sidered a major case of ‘penal illegality’across the region (Zaffaroni, 1989: 27) and often
preceded by torture and punishment beatings. Followed by the lack of any consistent,
legitimate rationale for sentencing and punishment, resulting in prisons serving little
more purpose than ‘judicial internment’(Birkbeck, 2011: 311) in one of the country’s
‘sub-human’prisons (Calich, 2021: 21), described by Waquant (2003: 200) as ‘concen-
tration camps for the dispossessed’. In all cases, we will see that the country’s victims of
such openly oppressive criminal justice practices remain disproportionally young, poor
and black (Alves, 2018; FBSP, 2020; Góes, 2021).
2
Central to our analysis is that, contrary to globally hegemonic conceptualisations of
universal rights, contemporary Brazilian society consists of a hierarchical reality in
724 Punishment & Society 23(5)
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