The exercise of authority during interactions in custody hearings in São Paulo (Brazil): Building legitimacy through exclusion
| Published date | 01 July 2023 |
| DOI | http://doi.org/10.1177/14624745221087707 |
| Author | Bruna Gisi,Efraín García-Sánchez,Fernanda Novaes Cruz,Giane Silvestre,Maria Gorete Marques de Jesus |
| Date | 01 July 2023 |
The exercise of authority
during interactions in
custody hearings in São
Paulo (Brazil): Building
legitimacy through
exclusion
Bruna Gisi
University of São Paulo, Brazil
Efraín García-Sánchez
University of Granada, Spain
Fernanda Novaes Cruz, Giane Silvestre
and Maria Gorete Marques de Jesus
Center for the Study of Violence University of São Paulo, Brazil
Abstract
In Brazil, the Custody Hearing is a legal device established in 2015 to safeguard the rig hts
of people arrested in flagrante delicto by the police. In an attempt to prevent the indis-
criminate use of preventive detentions in the country, the custody hearings were cre-
ated for the potential effects that an in-person meeting may have on the flow of the
Criminal Justice System. While the recent literature on criminology has produced signifi-
cant empirical data testing the effects of peoples’evaluations of procedural justice during
court hearings for institutional legitimacy, little is known about what happens during
these situations of contact between citizens and judicial actors. Using data from the
observation of 138 custody hearings at the largest Criminal Forum in Brazil, we analyzed
in this work how interaction procedures and ceremonial resources are employed by
judicial actors to exercise authority. By focusing on the quality of decision-making and
Corresponding author:
Bruna Gisi, Department of Sociology, Universityof São Paulo, Avenida Prof. Luciano Gualberto, 315 - room 08,
São Paulo, Brazil.
Email: brunagisi@usp.br
Article
Punishment & Society
2023, Vol. 25(3) 707–724
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14624745221087707
journals.sagepub.com/home/pun
the interpersonal treatment expressed in procedures, we sought to analyze the effects
of the punitive framework for the construction of legitimacy. Our analysis of interactions
in custody hearings indicates the existence of a claim to legitimacy which, counter to
procedural justice principles, develops through the exclusion of the person subjected
to that authority.
Keywords
custody hearings, procedural justice, exercise of authority, legitimacy, degradation
ceremony, São Paulo
Introduction
Contact and interaction between citizens and state agents are decisive for understand-
ing how people perceive the State and how public policies take shape in practice
(Dubois, 2010; Lipsky, 2010). The boundaries of the State rely on regulatory prac-
tices exerted by authorities and on the provision of public services (Das and Poole,
2008). When State representatives interact with the population, they define the citi-
zens’exercise of rights and duties, instructing them about legal authorities and
informing them about their status and belonging to society (Justice and Meares,
2014; Tyler and Jackson, 2014).
These moments of encounter also convey significant effects on the formation of the
population’s perceptions and attitudes towards state laws and institutions. According to
the procedural justice model (Jackson et al., 2013; Tyler, 1990; Tyler and Jackson,
2014), the everyday exercise of legal authority by the representatives of these institutions
–the quality of decision-making and interpersonal treatment –would affect the recogni-
tion of the legitimacy of these institutions. (see, e.g. Jackson et al., 2012, 2013; Sunshine
and Tyler, 2003; Tankebe, 2013).
Among the many possible contacts between citizens and the justice system, court hear-
ings serve as a privileged occasion. Unlike a significant part of legal proceedings, con-
ducted solely through the exchange of legal documents, court hearings involve
situations which demands the physical co-presence of actors during the process and
active interaction between them.
Considering the potential effects of an in-person meeting on the flow of the Criminal
Justice System, Brazil established the Custody Hearing in 2015 as a judicial device to
safeguard the rights of people arrested in flagrante delicto by the police. Rather than
decide exclusively from an analysis of police documents, these hearings provide the
detainee with the opportunity to present themselves before a judge a few hours after
their arrest. Thus, the in-person meeting allows the detainee, the prosecutor, and the
public defender to participate in the judge’s decision regarding the legality of the
arrest and the need for its preventive status.
The creation of custody hearings sought to avoid an indiscriminate overuse of prevent-
ive detentions in the country. In 2021, Brazil’s prison population totalled 682,200 people
708 Punishment & Society 25(3)
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