The Relevance of Criminal Courts in the Global South

Abstract

Abstract:The literature on comparative law has a long and robust tradition, but studies comparing courts and judicial systems are scarce. Comparative studies in the Global South, following Shapiro's institutional approach, have aimed to measure the involvement of courts in politics by assessing the power of the judiciary in society, the level of judicial independence, and their role in the context of the judicialization of politics. The focus was on the high courts, including either Constitutional or Supreme Courts. Criminal courts have not received similar attention despite the influence of their everyday decisions on people's lives and their perception of the judicial system. This article argues that developing a comparative approach for criminal courts in the Global South is needed to help understand the role they play in the development of the rule of law and democratic life. This comparative study helps understand the impact of judicial reform programmes in the Global South. These reforms, inspired by a neoliberal paradigm, have focused on improving the efficiency of the courts. The reforms have promoted managerial techniques detrimental to the standards of due process. Any assessment of the impact of the reforms on the courts in the Global South should start by recognising the widely differing settings under which they operate. This context is characterised by serious economic constraints, such as a lack of material and human resources, and a democratic deficit legacy from the past authoritarian regimes, including widespread police abuse and corruption. Given this context, the role of the courts in ensuring due process and the legality of police procedures is crucial. The impact of the judicial reforms promoting managerial rationality in recent decades must be analysed. To examine the role courts are playing in criminal matters, two cases were explored where courts have undergone extensive judicial reforms, Argentina and the Philippines.

Penal state power in Latin America: Cases, concepts and questions for the political sociology of penality

“…Initiatives to remedy these inefficiencies through procedural reforms, however, have ushered in the adoption of a “managerial rationale” (Ciocchini, 2017, p. 5) in different urban court contexts (Fondevila et al., 2016). Amid expanding penal state capacities, mano dura policies, and relentlessly growing court case‐loads, this rationale has contributed to standardizing and expediting case‐processing in ways that have undermined reformists' other goals to increase legal protections for people facing state prosecution (Ciocchini, 2017). Rather than enhancing accountability of police work and scrutiny of collected evidence, court actors' emphases on efficiency has instead contributed to speedier convictions and longer sentences (Bergman & Fondevila, 2021; Ciocchini, 2014).…”

“…The workings of ground level court processes have remained a “black box” for centuries in Latin America; yet recent work has advanced research on court actors in different local contexts (Arrigiada, 2023; Ciocchini, 2014; Godoi, 2023; Ribeiro & Fondevila, 2023). Further in‐depth case studies and comparative analyses (see also Ciocchini, 2017) of these court actors and processes, including through in‐depth ethnographic work, are crucial to understanding the causes and consequences of practical penal court reforms underway across the region. More broadly, this moment of ongoing court reforms in Latin America also offers a dynamic comparative context to further clarify the conditions that shape variation in ground level court routines, procedures and outcomes in contemporary democracies.…”

“…Previously, written inquisitorial court procedures occluded people's access to formal protections from abuse of state power (Duce, 2009; Kant de Lima, 1995); the legal cultures that this cultivated as well as court inefficiencies have historically contributed to indefinite and arbitrary pre‐trial confinement, sometimes even for years (Méndez et al, 1999). Initiatives to remedy these inefficiencies through procedural reforms, however, have ushered in the adoption of a “managerial rationale” (Ciocchini, 2017, p. 5) in different urban court contexts (Fondevila et al., 2016). Amid expanding penal state capacities, mano dura policies, and relentlessly growing court case‐loads, this rationale has contributed to standardizing and expediting case‐processing in ways that have undermined reformists' other goals to increase legal protections for people facing state prosecution (Ciocchini, 2017).…”

“…The transition from inquisitorial to adversarial processes of managing and judging people in Latin American penal courts has taken place within a broader context in which several countries world-wide have increasingly adopted written adversarial procedural mechanisms since the 1980s-from across western and eastern Europe, to different countries in Asia(Ciocchini, 2017;Duce & Perdomo, 2003).4 SeeHathazy and Müller (2016) for elaboration on important differences in the primary driving forces of hyperincarceration in Latin America in comparison to that which has taken place in the U.S. and western European countries. SANTOS…”

Social Representations of Homicide Investigations by Judges, Prosecutors and Police: A Case Study from the Metropolitan Area of Brasilia

“…Violence in Latin America-particularly in Brazil-is a key focal point in numerous fields of research (Caldeira and Holston 1999;Ciocchini 2017;Cruz 2016), with homicide rates evolving asymmetrically in different cities. With respect to Brazil, Waiselfisz (2017) indicates that 830,420 of the homicides committed between 1980 and 2014 involved firearms, representing about 70 per cent of all homicides recorded annually since 2001.…”