Brazilian Journal of Empirical Legal Studies

Apresentação

Thu, 14 Aug 2025 00:00:00 -0300

Apresentação

THE STIGMATIZATION OF FAMILY MEMBERS OF DETAINEES

Alexandra Miranda, Maria Emília De Lima Miranda, Claudio Roberto De Jesus — Thu, 14 Aug 2025 00:00:00 -0300

This article aims to analyze the institution and effectiveness of the custody hearing as an instrument of humanization of criminal proceedings, drawing a parallel with the existing disjunctions between the current legislation and its application. To do so, the legal apparatus 13.964/19 responsible for regulating the custody hearing in the country is explored, in view of the perceptions based on the work done voluntarily, through cooperation between the extension project linked to the Federal University of Rio Grande do Norte named Motyrum Penitenciário and Serviço de Assistência Rural e Urbano -SAR, which performs a work of care and guidance to family members of detainees in the central of flagrants in Natal-RN. The observation and direct contact with the family members allowed reflections as to their stigmatization, evidencing the unconstitutionality of the punitive translation.

“THEY ARE BRUTAL”

Lorena Brandão, Ela Wiecko volckmer de Castilho — Thu, 14 Aug 2025 00:00:00 -0300

The present article focuses on the observation of Custody Hearings in the jurisdiction of Salvador (Bahia) involving women arrested in flagrant situations, from October 2022 to March 2023, emphasizing socioracial and gender markers for both the arrested women and the judges. Considering the dual phenomenon of racism and sexism, and utilizing intersectionality as a theoretical-methodological tool through a categorical approach, the aim of the research was to verify whether the differences in socioracial profiles between the arrested women and the judges produced discrepancies in decisions and treatment during the Custody Hearings. Preliminary results confirmed that the profiles of the judges and the detained women are generally oppositional and that, in addition to these discrepancies affecting the treatment received by the detainees, there is a prior criminalization of certain bodies. However, despite the presence of female judges bringing about a positive change in the treatment of detainees, decisions and positions tend to follow the standard of the institution they represent within the Criminal Justice System.

“PÉS DESCALÇOS” E “PÉ-RAPADOS”

Natália Barroso Brandão — Thu, 14 Aug 2025 00:00:00 -0300

A partir de pesquisa etnográfica realizada no âmbito das audiências de custódia no Rio de Janeiro e com atores do sistema de justiça criminal que atuam nestas audiências, o presente artigo tem como objetivo refletir sobre as representações destes profissionais acerca das pessoas que figuram como custodiados. Durante o trabalho de campo realizado, a questão da seletividade penal ou o fato de os custodiados com muita frequência se adequarem a um determinado perfil socioeconômico foi muitas vezes enunciado pelos interlocutores. Defensores, advogados, promotores e juízes diziam, quando perguntados sobre quem são as pessoas que figuram como custodiados, se tratar de “uns pobres coitados”, de “pés descalços” ou “pé-rapados”, diferenciando-os dos “bandidos” ou “criminosos de verdade”. Esta enunciação, muitas vezes, vinha acompanhada de críticas ao sistema de justiça e, principalmente, ao instituto das audiências de custódia. Desta forma, busco compreender como os juízos morais a respeito dos custodiados se relacionam com as representações sobre as audiências de custódia e o sistema de justiça criminal, de forma mais ampla, principalmente no que diz respeito à distribuição desigual de direitos e à organização hierárquica deste. As reflexões a serem desenvolvidas partem não só da minha observação de audiências realizadas no Presídio José Frederico Marques, como de conversas com atores do sistema de justiça e do acompanhamento de debates realizados por estes em lives e podcasts.

TORTURE AS DANGEROUSNESS:

Natália Damazio Pinto Ferreira — Thu, 14 Aug 2025 00:00:00 -0300

This article aims to analyze the custody hearing procedure in relation to precautionary measures at the Jorge Santana Public Jail, currently under review by the Inter-American Commission on Human Rights. To this end, the article will be divided into four parts: initially, it will examine the position of the Protection System regarding individuals with motor or sensory disabilities who are deprived of liberty in pre-trial detention. In a second part, the recommendations and resolutions of these bodies concerning custody hearings specifically focused on Brazil will be reviewed. In the third part, the compatibility of the internal regulations on custody hearings with established standards will be investigated. Finally, the role that the custody hearing played in the case under review will be analyzed. To conduct this study, an assessment of the positions of these bodies will be made using their jurisprudence compendiums and bibliographies that analyze the standards related to custody hearings and individuals with permanent or temporary disabilities. In the third part, primarily based on documentary ethnography, an analysis will be made of the legal documents that guided the precautionary measure, specifically regarding custody hearings. The research may observe how litigation was important as a tool to influence procedural changes regarding people with disabilities at the entry point, but not in effectively providing a filter that places the right to health and physical integrity at the center of the decision about granting freedom or not, thus proving the judiciary's central role in maintaining violations against these groups.

THE PRODUCTION OF DATA ON CUSTODY HEARINGS

Eduardo Ramos, Eduardo Ribeiro — Thu, 14 Aug 2025 00:00:00 -0300

This article examines the implementation of custody hearings in the state of Rio de Janeiro through the institutional practices of data production and systematization by the Judiciary, the Public Prosecutor’s Office, and the Public Defender’s Office. Drawing on a literature review, document analysis, administrative data, and interviews with legal practitioners, we investigate how these records reflect divergent interpretations of rights and distinct institutional rationalities. The findings reveal tensions in the consolidation of custody hearings as a public policy, marked by underreporting, lack of standardized indicators, and resistance to incorporating fundamental safeguards. We argue that custody hearings constitute not only a mechanism of judicial oversight but also a potential space for social learning and symbolic dispute over institutional responses to rights violations and penal selectivity. The analysis highlights the importance of systematic data production and dissemination for enhancing the criminal justice system.

JUDICIAL DISCRETION IN CUSTODY HEARINGS:

Lívia Bastos Lages, Ludmila Ribeiro, Juliana Neves — Thu, 14 Aug 2025 00:00:00 -0300

This study aims to understand how custody hearings influence pretrial detention. These hearings were implemented in Brazil in 2015 as an experimental project to improve judicial decision-making. From the outset, their primary goal was to enhance the use of precautionary measures other than imprisonment, thereby reducing the number of pretrial detainees and limiting detention to strictly necessary cases. To assess whether custody hearings have effectively led to more release decisions than pretrial detention orders, we analyzed 4.374 judicial decisions from drug trafficking cases closed in 2019. Among them, 2.505 involved custody hearings, while 1.869 decisions were made outside of hearings (in chambers). Three binary logistic regression models were constructed, using the decision for detention or release as the dependent variable. Contrary to initial expectations, custody hearings do not increase the likelihood of release decisions, particularly when the defense is conducted by a private attorney. In both custody hearings and in-chamber decisions, the main factor determining detention is the indication of involvement with criminal organizations. Finally, the detainee’s profile influences outcomes differently in each context. In chamber decisions, Black men are more likely to be detained. In custody hearings, unemployed men face a higher likelihood of detention, which shows how the profile of the detainee can influence the custody hearings.

Lack of maturity or lack of will:

Luísa Sasaki Chagas, Fernando Andrade Fernandes, Ana Julia Pozzi Arruda — Thu, 14 Aug 2025 00:00:00 -0300

The primary aim of this study is to examine the ineffectiveness of custody hearings in Brazil. In this regard, three specific objectives were established: (i) to identify the political-criminal framework and purposes of the institution; (ii) to clarify which safeguards for detainees must be observed; and (iii) to analyze the process of implementing such hearings in the country. Through a comparative analysis of the collected data and applying an empirical data analysis method, it was observed that, although custody hearings serve as a significant instrument for reducing incarceration rates in Brazil, there remains a notable resistance within the Judiciary to their full execution. This resistance is evidenced by the fundamental guarantees frequently violated during the implementation process of these hearings, primarily due to the punitive ideal that pervades criminal proceedings. Thus, although they represent an important procedural tool, the effective realization of the objectives of custody hearings requires measures that challenge the punitive logic, replacing it with a democratic approach.