Custody hearings and proposals for restriction: an empirical analysis based on data from Araraquara/SP

Abstract

Bill No. 1,286/2022 proposes to restrict the holding of custody hearings to repeat offenders and individuals with prior criminal records, based on four main justifications: (1) the claim that custody hearings have become an overt mechanism of disrespect toward law enforcement officers and of undue protection of offenders, insofar as they call into question police conduct; (2) the argument that custody hearings undermine the credibility of the criminal justice system as a whole, fostering a sense of impunity; (3) the assertion that, regardless of the custody hearing, judges are able to determine whether the case allows for the application of non-custodial precautionary measures; and (4) the contention that a large proportion of detainees brought before custody hearings are repeat offenders. However, given the absence of any scientific evidence supporting these justifications, this study seeks to address the following questions: is it possible to identify a significant proportion of repeat offenders? Do custody hearings “call into question police conduct” and “undermine the criminal justice system”? Are legal formalities duly observed? To answer these questions, the authors collected data on custody hearings conducted over a six-month period in the municipality of Araraquara, in the state of São Paulo, focusing exclusively on cases of in flagrante arrest for crimes committed in the context of domestic violence. The choice of this municipality is justified by the fact that all cases of this nature are recorded at a single police station. The decision to examine domestic violence cases is further justified by the increase in reported incidents of this type of offense. In addition, the study includes a review of empirical research addressing the same subject matter. Finally, the authors present the results of the collected data and compare them with the findings of the reviewed studies. On this basis, the study concludes that the justifications put forward by Bill No. 1,286/2022 are insufficient to support the proposed restriction of custody hearings.