Deterrence and Incapacitation of criminals

Applying force in sufficient quantity and quality to discourage crime is what controls the “crime industry” and protects society from criminal victimization. The answer to the attractiveness of the high profitability of the illicit markets is to associate cost with criminal activity, in the form of increased deterrence and disabling, to discourage recurrent crime and especially adherence to criminal gangs and networks in the illicit economy. This association of cost to crime must occur effectively, that is, legal, continuous and proportional: the more profitable and violent the market is, the greater the risk of imprisonment and the time / level of isolation in prison.

Dissuading and disabling means performing sequential activities, with considerable frequency, such as: seizing illicit products, especially the most dangerous ones, and money earned from crime; investigate and arrest criminals, especially the violent and illicit market operators; sue and judge them quickly; keep them imprisoned in isolation from their cronies and in adequate sanitary conditions; prevent them from enjoying the money earned in crime, especially the most sophisticated ones.

They are elementary activities for any criminal justice and public security system (CJPSS), however, the current Brazilian regulatory framework that regulates these activities, after three decades of misguided legislative production, makes it difficult and even prevents the necessary productivity and efficiency gains for contain and balance the attractiveness of easy and high profit from the illicit economy. In these conditions, we have the “perfect storm”: incentive to crime, frustration and discouragement from law enforcement officers, and above all, unprotected society and neglected victims. Without correcting this structural anomaly and recovering the enforcement capacity of the Brazilian CJPSS, updating it to the challenges of 21st century crime, with its transnational illicit markets, we will continue to be unable to control crime and the illicit economy, and our best agents will continue to complain that they are “wiping ice with the tap running”.

Complex problems require equally complex solutions. After three decades of criminal policy, the recovery of the criminal justice and public security system requires agendas for structural and incremental solutions.

Structural solutions: updating the Brazilian criminal law framework – matching the level of enforcement structure and cost of crime in Brazil to that of the main developed democracies and the main nations in the region is the objective of this agenda. In consolidated democracies, the criminal justice and public security system (CJPSS) must be capable of promoting deterrence and disabling while guaranteeing three principles: the State’s duty to protect society; right of justice to victims, who had their protection violated; ensure due process for criminals. Despite being simultaneous they are hierarchical: the supremacy of the right to protection of society and justice of the victims, must prevail.

We will act in the National Congress, contributing with empirical arguments and evidence for the public debate on how to modernize the criminal, police and penitentiary legal framework, so that it promotes deterrence and incapacitation against crime, protects society and controls illicit markets. In this sense, we aim to put crime victims at the center of the public debate as users and recipients of the system.

Incremental solutions: new security governance – the correction of structural anomalies in the legal regulatory framework, will allow the expansion and institutionalization of management models between agencies, which result in a significant increase in police productivity. They are based on models already implemented in the country in recent years, which resulted in actions to recover from deterrence, and are the product of courageous leadership initiatives within control institutions, such as: task forces at the border and continuous control at junctions in foreign exchange, logistics warehouses and metropolitan centers; apprehension and arrest operations in retail centers for illicit products (drugs or contraband); actions against logistical and financial operators, occurring within the operations of GAECOs (State Public Ministries, with the Military and Civilian Police) and Car Wash Task Force (Judiciary, Federal Public Ministry, Police and Federal Revenue, mainly).

Policies and programs to recover the disabling effect of prison will gain strength when they are institutionalized and complemented, such as the expansion of the Differentiated Disciplinary Regime (DDR); of collegiate decisions (courts), the maintaining in a closed regime of criminals arrested in these operations; the expansion of the maximum security prison system.

In addition to structuring the production of deterrence and disability, the new regulatory framework should encourage efficiency in controlling crime, assisting victims and resolving problems raised, transforming them into objective criteria of meritocracy and career progression within institutions. In order to legally and institutionally connect public service objectives to society’s expectations.

Structural and incremental agendas are co-dependent and depend on an adequate level of diagnoses to achieve their objectives. The diagnosis of the victimization group allows us to know where there is low criminal risk and to evaluate the efficiency of control policies. The knowledge about the logic of the illicit economy and the operation of illicit chains allows agencies and society to improve deterrence and disabling mechanisms to control more profitable and violent illicit markets and gain efficiency by focusing on strategic illicit chains that connect illicit markets between themselves and to illicit service networks (security, information and communication) based on corruption and money laundering. Providing this data, information and knowledge is the main purpose of the creation and maintenance of the Census of Illicit Markets, by JHM Research, with support from the PMI Impact program to combat global illicit trade.

This moment requires unity between the public and private sectors, mainly in 1) the definition and maintenance of a regulatory framework that protects people, companies and public goods (structural agenda); 2) in information management with complementation of data from the private sector on criminal activity and 3) in the use of the logistical and commercial structure, in addition to the co-management of the storage, custody and destination of illicit products that increase the efficiency of the CJPSS (incremental agenda).

The reversal of this situation is imperative for the survival of Brazilian democracy. Without enforcement there is no democracy. The democratic rule of law needs to demonstrate efficiency in protecting society and providing justice to victims, to ensure adherence and prevent illegal solutions, motivated by fear and risk, from taking their place, deepening the problem and destabilizing the country. Restructuring the cost of crime is an urgent issue in the country because it is through recovering the capacity to provide protection and justice that the institutions recover and maintain society’s trust and adherence to the democratic regime.