Coloniality and the Courtroom: Understanding Pre-trial Judicial Decision Making in Brazil

This thesis focuses on judicial decision making during custody hearings in Rio de Janeiro, Brazil. The impetus for the study is that while national and international protocols mandate the use of pre-trial detention only as a last resort, judges continue to detain people pre-trial in large numbers. Custody hearings were introduced in 2015, but the initiative has not produced the reduction in pre-trial detention that was hoped. This study aims to understand what informs judicial decision making at this stage. The research is approached through a decolonial lens to foreground legacies of colonialism, overlooked in mainstream criminological scholarship. This is an interview-based study, where key court actors (judges, prosecutors, and public defenders) and subject matter specialists were asked about influences on judicial decision making. Interview data is complemented by non-participatory observation of custody hearings. The research responds directly to Aliverti et al.'s (2021) call to ‘decolonize the criminal question’ by exposing and explaining how colonialism informs criminal justice practices. Answering the call in relation to judicial decision making, findings provide evidence that colonial-era assumptions, dynamics, and hierarchies were evident in the practice of custody hearings and continue to inform judges’ decisions, thus demonstrating the coloniality of justice. This study is significant for the new empirical data presented and theoretical innovation is also offered via the introduction of the ‘anticitizen’. The concept builds on Souza’s (2007) ‘subcitizen’ to account for the active pursuit of dangerous Others by judges casting themselves as crime fighters in a modern moral crusade. The findings point to the limited utility of human rights discourse – the normative approach to influencing judicial decision making around pre-trial detention – as a plurality of conceptualisations compete for dominance. This study has important implications for all actors aiming to reduce pre-trial detention in Brazil because unless underpinning colonial logics are addressed, every innovation risks becoming the next lei para inglês ver (law [just] for the English to see).