Deciding Strategically: Lessons From a Brazilian Supreme Court Decision


Judges, just like “ordinary people,” are subject to routine incentives; i.e. according to Benjamin Barton, they are driven by the same combination of incentives, experiences, and cognitive biases that drive the rest of us. This includes the justices of the Supreme Court. Therefore, justices presumably strive to reduce the difficulty, the sameness and the amount of legal workload. In order to achieve that end, they adopt strategic postures, which means that justices take into account not only the best legal solution of the case, but the solution that also best serves their particular interests. That is, they choose the course of action that best serves their medium- and long-term purposes.

In the recent judgment of Habeas Corpus nº 126.292 (In re Dantas), the Brazilian Supreme Court (STF) ruled that criminal sentences may be enforced after a challengeable appellate court decision, from which convicted defendants are no more presumed innocent and may be immediately arrested. Nevertheless, according to most commentators, the Court’s non-unanimous ruling departs from the most appropriate interpretation of article 5, section LVII, of the Brazilian Constitution. The provision establishes that no one shall be considered guilty before the issuing of a final and unappealable penal sentence. It is defiant to interpret the constitutional clause no one shall be considered guilty until a final and unappealable sentence as until a conviction by an appellate court. This interpretive solution doubtless goes much beyond its “possible literal meaning.”

This decision has also explicitly overruled the Court’s 2009 decision in Habeas Corpus nº 84078 (In re Vitor). In Vitor, the STF ruled by a broad majority that imprisonment before a final and unappealable penal sentence may only be admitted as a preventive detention and anticipation of a criminal sentence execution, in addition to being incompatible with the Constitution, could only be justified in the name of convenience of judges—and not in the name of criminal proceedings. It has also stated that the so-called “defensive case law”, designed to reduce the number of appeals to higher courts, reduces the scope or even suppresses constitutional guarantees.

Many scholars criticized Dantas decision, claiming that the Constitution should have prevailed, Brazil is going against history, the overruling was a resounding historical mistake and citizens are paying for judicial delays. In an official statement, the Brazilian bar association (Ordem dos Advogados do Brasil) reaffirmed its historic position of defending individual rights and against impunity, in the sense that the constitutional principle of the presumption of innocence does not allow the imprisonment as long as there is a right to appeal. These opinions and the dissent of Justices Lewandowski, C. J., de Mello, Weber and Farias Mello, affirming the Court’s prior decision in Vitor, are very much the same.

Not to mention the unpredictable systemic effects that the decision may have on lower courts’ case law, since it is not a binding decision: statutes of limitation applied to execution sentences, criminal lawsuits filed before the STF—since it is within its competence to institute legal proceeding an trial of major authorities in common criminal offenses—and compensation for wrongful conviction.

Under Vitor, a precedent many considered to be the controlling precedent, Dantas should have been an easy case, notably because both the Congress Explanatory Memoranda and the Presidential Issuing Statement for a 2011 reform in the Criminal Procedure Act (Dec.-Lei nº 3.689 of 1941) affirmed that any imprisonment before a final and unappealable penal sentence may only be admitted as a preventive detention. Therefore, Dantas contravened not only important clauses of the Constitution, but also the Court’s own case law and the other Branches’ official statutory and constitutional interpretations.

To use a term coined by University of Chicago philosopher Brian Leiter, the Court thus acted as a superlegislature i.e. it has not simply decided on the basis of legally binding standards. Notably, the holding seems to be based on good strategic reasons, notwithstanding the cost of important individual rights and diversion from precedent. Permitting the execution of a criminal sentence after the decision of an appellate court encourages the reduction of appeals, or, according to Justice Roberto Barroso, discourages the procrastination of appeals, given the small chances of a reversal of a lower court’s decision.

In 2015, the STF heard more than 6,000 writs of habeas corpus—not including petitions for en banc rehearing—and denied them in 92 percent of the cases. It is noteworthy that the STF does not have a procedural filter akin to certiorari: all appeals are almost automatically included in its yearly docket.

Furthermore, the decision serves to better define the issues to be tried by the Brazilian Supreme Court, which progressively intends to abstain from its cour de cassation assignments to focus primarily on its role as guardian of the Constitution. It may serve also as an incentive for legislative discussions, since, without the prior decision of the Supreme Court, Congress would be unlikely to approve a constitutional amendment that promotes this kind of change in the Constitution, particularly for the purpose of abolishing—rather than simply narrowing—a fundamental guarantee (article 60, paragraph 4º, section IV, of the Brazilian Constitution).

There was, moreover, no other reason to change the previous case law of the Brazilian Supreme Court: there were no societal changes, no changes in the case law of lower courts, no recent modification of criminal procedure. Nor was there a formal change in the constitutional text. The possibility that a mere change in the composition of the Court is the sole cause for the recent jurisprudential shift despises extremely important aspects of institutional order: six new Justices are now sitting on the Bench, but as Justice Roberts of the U.S. Supreme Court once said during his Senate confirmation hearings, you always have to take into account the settled expectations that have grown up around the prior precedent.

The decision may already be considered one of the biggest gaffes of the STF: it is undoubtedly strategic, but a cost-benefit analysis would reveal that it has disastrous consequences.

  • Alexandre Laranjeira

    First of all, it’s simply not true that there were no societal changes concerning criminal procedure in Brazil. Brazilians in general are sick and tired of the panoply of judicial appeals put at the disposition of defendants already proven guilty, especially our corrupt professional politicians.

    Impunity, not the lack of constitutional rights, is the major problem in our society these days.Just to give an example, a Brazilian entrepreneur (and also a former Senator), Luiz Estevão, was convicted in 2006 in a major criminal case involving the bribery of a Labor Court of Appeals Judge, only to be arrested today (ten years later).

    It’s true that the Brazilian Constitution has a very lofty formulation concerning the presumption of innocence. But it’s also true that no civilized nation would admit that convicted felons could postpone indefinitely their lawful imprisionment.

    Therefore, there will be no “disastrous consequences” due to the judicial decision under scrutiny (except regarding the fees of the criminal defense lawyers).

    Finally, t’s not idiomatic to say ” it is within its competence to institute legal proceeding an trial of major authorities in common criminal offenses—and compensation for wrongful conviction”. It would be better to say that the Brazilian Supreme Court has original (or trial type) jurisdiction concerning criminal lawsuits filed against high office incumbents _ and the power to rule about compensations for wrongful convictions in those cases.

    • Carina Castro

      Dear Alexandre Laranjeira, let me argue two or three points of your comments.

      First, the analytical approach of the text is in the institutional perspective. As I can see in your comments, you just not reached this idea.

      “Impunity, not the lack of constitutional rights, is the major problem in our society these days.” And that is your opinion. I don´t understand why your idea makes more sense instead of the authors idea.

      At last, the authors used the english translation of official version of Brazilian Constitution, made by Supreme Court. . As you can see: “Article 102. The Supreme Federal Court is responsible, essentially, for safeguarding the Constitution, and it is within its competence: I – to institute legal proceeding and trial, in the first instance, of(…)”

      Well, I did not quite understood your comments. They differ from the theoretical perspective used by the authors and do not necessarily cancel each other. They are also not well justified, which leads me to believe that they are inappropriate.

      • Alexandre Laranjeira

        Why inappropriate?True, I didn’t choose the same analytical approach. My perspective is the political perspective. The authors say the STF decision will have catastrophic consequences. I say the decision is good for the country. We just have different opinions.

        As to the translation, according to Wikipedia, “In United States law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts”, whereas “original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court’s decision”.

        The official translation of the Brazilian Constitution is simply incomprehensible to native english speakers.

        Got it now?

        • Carlos Bolonha

          I say, a quick comparative law analysis reveals that “institute legal proceeding” is commonly used on legal statutes e.g. section 54.5. of Quebec Civil Code (Code Civil Québécois) states that “if the improper use of procedure results from a party’s quarrelsomeness, the court may, in addition, prohibit the party from instituting legal proceedings except with the authorization of and subject to the conditions determined by the chief judge or chief justice”; section 512 of UK Merchant Shipping Act states that: “no person shall be entitled to bring any action, or institute any suit or other legal proceeding in the United Kingdom, ‘until the completion of the inquiry”.

    • Carlos Bolonha

      First, impunity goes back many decades in Brazil and the STF decision in Habeas Corpus nº 84078 did not consider it a relevant legal argument on criminal proceedings, as pointed in the article.

      Neither has it in its recent decision in Habeas Corpus nº 126.292, as a quick reading of the rapporteur opinion suggests.

      Furthermore, any civilized nation respects its own Constitution: as affirmed by Justice Celso de Mello in his dissent, “the presumption of innocence as a fundamental right of every person should prevail until a final and unappealable criminal sentence, as a deterrent to the early imposition of any measures that affect or restrict the legal rights of people in general”; “the Constitution establishes very clearly limits that can not be overcome by the State (and its agents) in criminal prosecution… That is why it is inappropriate to invoke the experience registered in the United States and France, and in other democratic states, whose constitutions, unlike ours, does not require the final and unappealable criminal sentence”.

      The disastrous consequences are obvious. The main one: Brazilian jails and prisons are severely overcrowded and plagued by violence (just consider UN report on Brazilian criminal system – “conditions of detention often amount to cruel, inhuman or degrading treatment. Severe overcrowding leads to chaotic conditions inside facilities, and greatly impacts the living conditions of inmates and their access to food, water, legal defence, health care, psychosocial support, work and education opportunities, as well as sun, fresh air and recreation”).

      Finally, Brazilian Constitution Official English Edition states that:

      Article 102. The Supreme Federal Court is responsible, essentially, for safeguarding the Constitution, and it is within its competence:

      I – to institute legal proceeding and trial, in the first instance, of:

      b) in common criminal offenses, the President of the Republic, the VicePresident, the members of the National Congress, its own Justices and the Attorney-General of the Republic; c) in common criminal offenses and crimes of malversation, the Ministers of State and the Commanders of the Navy, the Army, and the Air Force, except as provided in article 52, I, the members of the Superior Courts, those of the Federal Audit Court and the heads of permanent diplomatic missions;

      It is not idiomatic… It is literal…

      • Alexandre Laranjeira

        In idiomatic American English (that is, the language as actually spoken by its American native speakers), there is no such thing as “competence to institute … trial”. There is “original jurisdiction” or “trial type jurisdiction”.

        The translation is simply wrong. But I’m not blaming the authors, now that I’ve seen the official translation. I blame instead the official translator.

        Concerning the overcrowded prisons in Brazil, it is more than time to solve the problem, but it shouldn’t be used as an excuse to allow defendants to indefinitely postpone their due imprisionment.

        Impunity, on the other hand, is bound to cause a civil war in Brazil.

        Right or wrong in legal terms, the Brazilian Supreme Court is not trying to save its docket; it’s trying to save the country. As Robert H. Jackson once wrote, “the Constitution is not a suicide pact”.