This Wednesday, March 1, the Supreme Court will vote on a case of habeas corpus with a collective dimension on police stops conducted without objective criteria or based only on skin color, otherwise known as racial profiling. To reinforce the analysis of the justices, eight human rights organizations filed an amicus brief arguing that the practice, as it occurs today, is discriminatory.
The local organizations Black Coalition for Rights, Conectas, Educafro Brasil, Black Initiative for a New Drug Policy, Defense of the Right to a Defense Institute (IDDD), Peregum Black Reference Institute, Land, Labor and Citizenship Institute (ITTC) and JUSTA Platform asked the justices to recognize the non-existence of a crime given the illegality of evidence resulting from a personal search carried out based on racial profiling.
The origin of the request is a habeas corpus filed by the São Paulo Public Defender’s Office on the specific case of a crime with evidence taken from a police search justified exclusively by what is called ‘reasonable suspicion’, a vague concept that enables racist criteria to be used in the selection of who will be stopped on the streets. In the document, the group points out that the defendant, convicted of drug trafficking in both a lower court and the Superior Court of Justice for possession of 1.53 grams of drugs, was stopped and searched by the police because he was black. “And this is not something assumed afterwards by the Judiciary, as it was confessed beforehand by the police officers themselves,” reads the document.
The organizations were included in the case as amici curiae (friends of the court) by the rapporteur, Justice Edson Fachin, and they note that, despite this being an individual case, the discussion has a collective dimension. “This is because its scope is to tackle the systematic and structural violation of fundamental rights that occurs through the use of racial profiling in police stops and detentions,” primarily of black people. As a result of this, agents of the State reproduce the institutional racism that is evidence of a structure of maintenance of inequalities anchored in racial hierarchies.
According to the United Nations, racial profiling is “the reliance by law enforcement, security and border control personnel on race, color, descent or national or ethnic origin as a basis for subjecting persons to detailed searches, identity checks and investigations”. The UN noted in a report published in 2020 that there is in Brazil “an overrepresentation of Afro-Brazilians in the prison system and a culture of racial profiling and discrimination at all levels of the justice system”.
This practice in Brazil is closely connected to the history of enslavement of the population of African descent which, since the formal abolition of slavery, has been the main target of police surveillance. One of the serious results of this practice is the mass incarceration of the black population, the correlation with police lethality, which affects the same group, in addition to the way in which the police stops occur within the scope of public security, targeting black people from the poor urban outskirts.
A study conducted by IDD (Defense of the Right to a Defense Institute) and data_labe in São Paulo and Rio de Janeiro, published in 2022, found that a black person in both states are 4.5 times more likely to be stopped by the police compared to a white person. The study, entitled “Why me?”, also revealed that black people had their race/color expressly mentioned by police officers during stops at a much higher proportion: 46% compared to 7% for white people.
According to data from the Annual Report on Brazilian Public Security from 2022, there are 820,689 people in prison in Brazil, of whom 67.4% are black. In practice, race has been the main marker for black people to be criminalized by the Criminal Justice System, initially during police stops and later in court decisions.
The authors of the document submitted to the Supreme Court note that the court has already taken on an important role in enforcing constitutional and international guidelines on the combat of racism and all forms of racial discrimination. It has demonstrated this position in several precedents, such as the habeas corpus that recognized that racial slurs constitute a form of racism; the Case of Violation of a Fundamental Precept that guaranteed public policies aimed at increasing access to higher education; and the case that required the creation of a plan to reduce police lethality in the state of Rio de Janeiro to guarantee the right to life in the favelas.
In the amicus brief, the organizations reinforce that “if the court recognizes the non-existence of the crime on account of the illegality of the evidence found in a personal search conducted based on racial profiling, it will once again enforce an important guideline on the matter”. And they added: “It is important to bear in mind that the ruling could be instrumental in reducing racial inequalities produced within the scope of the Criminal Justice System in Brazil. There is an opportunity here to reinforce the precedents set by this Court in the strengthening of democracy.”