Kaufman’s perspective allows for the existing model of the organizational behavior of front-line workers to be expanded in three consequential ways. First, it allows for the existence of internal variation, i.e. front-line workers may still adopt routines and other heuristic devices, but there is no imposition that they all adopt the same routines, even when exposed to the same constraints. Several empirical studies support this view. For instance, at the agency level, Roberto Pires (2006) examines how Attorney General Offices in both Massachusetts and New York strive to enforce labor laws, but while the former adopted a case-by-case approach, the latter targeted sectors as a whole. Similarly, but at the individual level, Rodrigo Canales (2009) examines micro-credit loan officers in Mexico and shows how some of them adopt a legalistic ‘letter-of-the-law” style while others – performing the same task for the same organization – adopt a more flexible ‘spirit-of-the-law’ style. Judith Tendler (1997) shows how Brazilian public health workers find enough room for maneuver within their routines to depart from their job descriptions in ways that ingratiate them with clients and allows them to provide improved services during home visits. Likewise, Richard Locke, Amengual and Mangla (2009) explain how private auditors regularly depart from their assigned roles to help inspected firms comply with labor standards. In the same vein, Catia Aida Silva (2001) reports the existence of two types of prosecutors in the Brazilian MP.
In fact, the existence of internal variation within any given organization might be a good thing. For instance, James March (1991) used computer modeling to analyze this matter and he concludes that the co-existence of ‘exploration’ and ‘exploitation’ modes of action within an organization enhances overall performance. Others have reported that pockets of variation (sometimes called ‘reform fractions’) may serve as breeding ground for organizational innovation.
Second, front-line workers do not have to remain the passive recipients of the environment in which they work. To the opposite, and as indicated by a series of studies, many front-line agents may try to change their own organization (Joshi 2006), the policies that it adopts (Dowbor 2008), and/or the legal framework that legitimizes their action. For instance, they may reinterpret existing laws and precedents (ex: McMaster 2006, Kessler 2002), lobby the legislature to change applicable laws (Carpenter 2001, Macedo 1995, Arantes 2002), or use their status as ‘repeat-players’ (Galanter 1974) to elicit the judicial jurisprudence that they favor.
And third, front-line workers who retain a considerable amount of discretion may depart from mutually exclusive binary relationships with their clients. In other words, these agents do not have to always be ‘serial monogamists’ who interact with one client at a time while no other institution interferes. For instance, and as will be discussed in this dissertation, regulatory enforcement officials may realize that compliance revolves around a collective action problem (i.e. “I would comply if my competitors did…”). In other cases, the binding constraint concerns the available technology (“I would install the required filters if they fit in my plant, or if the did not disrupt my production process so much”). And in other cases, the central bottleneck concerns access to markets (i.e. “I would comply with regulations if I found customers who paid more for a green-seal certified product”). Of course, the list of potential problems is vast, and thus front-line workers may try to adopt a variety of creative and innovative approaches and recruit a variety of allies when trying to perform their jobs.
1.5 – Methodology and research design
The view proposed above suggests that I examine not only the prosecutor-in-action, but also the milieu in which they operate – including the MP and its external environment – and the different ways that these different spheres of action interact and influence one another. To this end, I adopted a three-pronged approach. First, I examined the trajectory of the Ministério Público to understand how it evolved into its current form. Second, I immersed myself in the life of the procuracy to understand how the Ministério Público operates and how its various organizational features influence the way prosecutors work. And third, I examined a set of four concrete cases in which the prosecutors have strived to enforce labor and environmental laws in a way that does not detract from private firms’ ability to compete.
Understanding the Brazilian Procuracy (MP)
To understand how the Brazilian Ministério Público works, how it evolved over time, and how the different features of the organization help determine how prosecutors perform their jobs, I interviewed approximately 50 prosecutors from the state (MPE), federal (MPF) and labor (MPF-T) procuracies , especially in and around Sao Paulo. I selected interviewees with a wide range of experiences, from newly-hired prosecutors to those with decades of practice, some who had already retired. I also interviewed prosecutors assigned to all areas of the organization (i.e. both front-lines and support functions), and made sure to include those assigned to small, medium, and large offices, and those designated to handle criminal, civil, and collective affairs matters. Among those prosecutors performing support functions, I interviewed those assigned to public relations, training (“Escola Superior do Ministério Público”), information systems, and those responsible for providing legal guidance to their colleagues in a variety of fields, including environment, consumer protection, and the rights of individuals with disabilities (“centros de apoio operacional - CAO”). Finally, I interviewed prosecutors associated with the Ministério Público Democrático (MPD), an internal NGO (more about this later), and those elected by their peers to run the Sao Paulo Prosecutors’ Association (APMP) and the National Prosecutors’ Association (CONAMP), in Brasilia.
To complement these interviews, I also consulted with members of the procuracy’s support staff, who provide prosecutors with technical guidance in a variety of fields, including forestry, chemical engineering, biology, building safety, and more.
The majority of these conversations lasted one to two hours, and most of them took place at the individuals’ offices. In some occasions I was invited to visit prosecutors at their homes, and these interviews often lasted longer. All conversations were unscripted, and I took handwritten notes in all of them. When in a prosecutors’ office, and depending on the circumstances, I asked for permission to peruse files and legal cases, and in all cases was granted unrestricted access.
In addition to interviews I also conducted participant-observation, and my objective was to see the organization and prosecutors from as many different vantage points as possible. To this end, I visited the private school that helps candidates prepare for the procuracy’s entrance exam and interviewed the former prosecutor who owns and runs the business. I also attended a range of formal and informal meetings and proceedings at the MP, including a deliberative session of the Conselho Superior (“superior council”) of the MPSP; talks delivered by prosecutors to both legal and lay audiences; formal public hearings (“audiências públicas”); informal meetings with community groups; and a range of sessions in small claims, juvenile, homicide, environmental crimes, and appeals courts (“Tribunal de Justiça de São Paulo”).
The highlight of this participant-observation effort was attending, for 10 hours a day for two full weeks, the prosecutors’ exclusive orientation course in which tens of seasoned prosecutors waded in front of their newly-hired colleagues to teach them about the career, the organization, the tricks of the trade, and the different resources and skills they would need to handle the vicissitudes of the job.
Examining the Prosecutor-in-Action
In addition to understanding the historical trajectory and inner-workings of the organization, I invested considerable time to deciphering the “prosecutor-in-action”, i.e. I wanted to know how prosecutors structure their days, which cases they choose to pursue, which enforcement styles they adopt, the alliances they make, and why. This inquiry was informed to a large extent by Pfeffer and Salancik’s (1978) insight that organizations and the agents within them are influenced by the external environment in which they operate.
During my interviews with prosecutors I often asked them about concrete cases in which they had worked, and what kinds of outcomes they had achieved. As a result of these inquiries, and thanks also to my daily reading of Brazilian media, I identified a series of cases fitting the following criteria: (a) existence of an industry (usually a cluster of firms) that systematically violates labor and/or environmental laws in the course of their normal business activities (for instance, by not registering their workers, or by dumping toxic effluents into the environment); (b) sharp disagreement among stakeholders – including the firms themselves, NGOs, different government agencies, and various activists, on whether these labor and environmental laws should be enforced at all; (c) a long trajectory, including both advances and setbacks; and (d) geographical diversity.
Eventually, I chose to examine four cases into further detail and to understand the context and trajectory of these industries and the role that prosecutors have played in each of them, I visited the localities and interviewed approximately 100 officials representing different government agencies (including labor and environmental inspectorates; trade promotion agencies, business development enterprises, and others), international and Brazilian NGOs, social movements, industry associations, private firms, church groups, research institutions, labor unions, and more.
The four cases are as follows:12
(a) Granite tile production in Rio de Janeiro: In the poorest region of Rio de Janeiro state, in and around the municipality of Santo Antônio de Pádua, there is a cluster of small firms that employ an estimated 6,000 people to produce low-value added granite tiles, which they sell in the domestic market. Unfortunately, the quarrying of granite is wasteful of a natural resource and hazardous to workers. Moreover, the cutting of tiles generates a large quantity of stone powder that is illegally dumped into local rivers, killing wildlife and rendering the water unusable to downstream farmers.
(b) Shrimp farming in the Northeast: In the early 1990s, and after many decades of trial-and-error, Brazilian entrepreneurs found a way to cultivate shrimp in the Brazilian Northeast at a relatively low cost and high productivity. At roughly the same time, a disease ravaged the shrimp industry in Ecuador and thus the Brazilian industry boomed, creating thousands of jobs in an economically depressed region. However, many of these entrepreneurs decided to establish their farms on top of – and thus destroy – the region’s many mangroves, which are environmentally sensitive, legally protected, and publicly-owned areas that replenish fresh- and sea-water fish stocks and provide fuel, food, and a cash crop to dwellers of impoverished coastal communities.
(c) Charcoal production in the Amazon: In the eastern part of the Brazilian Amazon, in a region known as Carajás, hundreds (or even thousands) of small, informal, and highly mobile firms devote themselves to illegally felling native trees and using the timber to produce charcoal, which they sell to 15 pig-iron smelters in the region. These charcoal producers employ an estimated 30,000 people, but labor standards tend to be very low, and reports of health and safety, and wage and hours violations, including many cases of so-called ‘modern-day slavery’, are rampant.
(d) Sugarcane production in Sao Paulo: Brazil is the largest producer of sugarcane in the world. In 2005, it had approximately 320 sugar and ethanol mills that, together, crushed 431.4 million tons of cane, and approximately 60% of which originated in Sao Paulo. According to industry sources, the sector employs approximately 1 million people nation-wide and accounts for 2.4% of national GNP. Brazilian sugarcane production has being growing considerably (50% growth between 1996 and 2006) and it is widely heralded as a source of clean energy. Nevertheless, problems abound and the industry remains associated with environmental harms and widespread violations of labor standards. More concretely, many sugarcane farms rely on manual harvest and thus they burn their fields prior to the workers moving in, causing air pollution and public health problems in nearby cities. Also, many of these farms do not provide their workers with personal protection equipments, adequate housing, or safe transportation to and from the fields as required by Brazilian law. Finally, many do not register their workers and/or illegally deduct certain expenses from their paychecks.
Chart – The location of each of the four case studies
Chart – The harms in context
Note: in grey, the link in the supply chain causing the negative externality
Prosecutors have wide jurisdiction and in their work they confront a wide array of alleged legal violations in a multitude of fields. Some of the most pervasive of these violations, and the type that motivate this study, concern private firms that infringe upon labor or environmental laws in the normal course of doing business.13 For instance, in the realm of labor violations, many sugarcane farms do not register their seasonal migrant workers and do not provide them with legally-required personal protection equipment, housing, access to food and water, bathrooms, and/or safe transportation to and from the field. Likewise, many charcoal producers neglect to register their workers, and do not provide them with a healthy and safe work environment as determined by law.
In the realm of environmental violations, charcoal producers regularly engage in illegal deforestation. Many shrimp farmers establish their operations on top of mangroves, destroying these publicly-owned and environmentally protected areas in the process. And many granite tile producers dump large quantities of stone powder onto local rivers, illegally polluting the water for downstream users.
These are the concrete cases that I examine in this chapter, but they are drawn from a much larger, perhaps endless, pool. For instance, in Sao Paulo, many footwear manufacturers employ children in their production networks, and many orange farmers employ children during harvest. In Toritama (Pernambuco), a group of blue-jeans laundries draw large amounts of scarce water from the local river and then dump noxious effluents back (Lazarte 2005, Almeida 2005). In Bonito (Mato Grosso do Sul), local entrepreneurs have been welcoming an ever growing flow of tourists, but the excessive traffic threatens the environmentally-protected natural beauty of the place. A similar problem afflicts the archipelago of Fernando de Noronha, a fragile ecosystem and a legally-protected national park with a low carrying capacity. In other cases, the problems are intrinsically urban, and they involve the proper disposal of garbage, the renovation and use of historic buildings, the provision of housing for the poor, the control of visual and sound pollution, and countless other similar cases in which compliance clashes with competitiveness and certain rights are left unfulfilled.
When confronted with these sorts of problems, what do prosecutors do? They are lawyers, so they are tempted to sue. As will be analyzed at length in a subsequent chapter, prosecutors have law degrees and are admitted to the MP thanks to their extensive and detailed knowledge of Brazilian law. Because the Ministério Público encourages them to enroll in continuing education and graduate programs, many prosecutors pursue advanced degrees in law. Some even teach in law schools. Prosecutors’ offices tend to be located inside courthouses, and their support staff is trained to handle judicial cases and files. Legal adjudication is a central feature of prosecutors’ professional lives, so upon learning of an alleged violation, their first reaction is to indict or request an injunction. As stated by an interviewee: “the prosecutor’s business is to write briefs and go to court”14, i.e. they crack down on the perceived violation without taking into account any variable other than the perceived illegality of the proximate act. Resorting to Latin legal jargon, they say ‘dura lex sed lex’, i.e. the law is tough, but it is the law.
Naturally, those on the other side of this transaction often complain that prosecutors are exceedingly narrow-minded. A business manager claimed that “prosecutors do as they please; they make up their minds on their own and then come down really hard. There is no discussion or deliberation. They have the final word and that’s it, no room for dialogue.”15A government official I interviewed conveyed the same image. She was trying to convince a prosecutor of the benefits of a municipal program encouraging private firms to restore historic buildings. This official was particularly interested in raising funds to restore an old church and told the prosecutor, “‘if this church is not restored it will be your fault.” She even insinuated that it would be a sin to block this initiative. The prosecutor was unmoved: “If the church is not restored it will be my fault? So what? My job is to enforce the law, not restore churches”.16 Likewise, and upon being questioned about the deleterious effects of his act, a prosecutor who had just filed an injunction blocking the construction of a power plant in the Amazon responded: “I know about rights, not about power plants”.
This attitude – i.e. to dismiss the immediate implications of one’s actions in exchange for a purported higher good – is by no means unique or unreasonable. Very often prosecutors enforce the law without regard for immediate consequences, and are proud and open about it. President Lula recently criticized (again) the Ministério Público and other institutions for blocking important government initiatives. The head of CONAMP, the Brazilian prosecutors’ association, responded:
“We have the duty to verify compliance with legal principles. Our action, even if criticized by the President, has helped to ensure transparency and respect for the rule of law. Moreover, if we do not verify compliance with the law, who will? It is better to stop what is out of compliance now than to let it go on and later realize that the damage to society is of billions of dollars” (Domingos, 2009)
Theoretical backing for the view that prosecutors should enforce the law independent of immediate consequences is provided by Frederic Bastiat (1850). He notes that in the economic sphere, law enforcement produces “not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them”. According to Bastiat, the difference between a good economist and a bad economist, or, analogously, between a good prosecutor and a bad prosecutor, is that the bad one “confines himself to the visible effect” and presumably closes his eye to a blatant violation or bends the law to “pursue a small present good that will be followed by a greater evil to come.” The good economist, or good prosecutor, “takes into account both the effect that can be seen and those effects that must be foreseen”, presumablyenforcing the law strictly to pursue “a great good to come, at the risk of a small present evil.”
Despite the apparent soundness of this argument, many prosecutors, in many occasions, report frustration with this view, particularly when two imperatives collide. In many places, including Brazil, prosecutors define as their mission “to defend the powerless and to protect society.” It is fairly unproblematic to enact this mission when large, wealthy and supposedly greedy or careless corporations are infringing labor or environmental laws. In these cases, the prosecutor indicts and moves on. But the situation gets much more complicated when the infringer is a cluster of small and informal firms that provide much-needed jobs to impoverished and unskilled populations. Complicating things further, these firms often perceive the costs of compliance as a mortal blow to their ability to survive.
When confronted with such a dilemma, compelled to choose between social or economic imperatives, what is a prosecutor to do? There is no set answer to this question. As explained by one prosecutor I interviewed:
“I’m starting legal action against small shrimp farmers, but it is tough. I schedule hearings, they come and some even cry, they say shrimp farming is their livelihood. So I have this conflict on my hands. I’m not keen on bringing lawsuits against small farmers, but what else can I do, if the law mandates that I start legal action?”17
One option is to let a judge analyze the evidence and decide how the prosecutor should proceed. Although this might seem reasonable in theory, in practice this proves to be quite difficult. Prosecutors often complain that courts are sluggish and conservative:
“To bring a case in court just takes too long, it is a lot of work, and takes you nowhere. The courts do not have a body of expert witnesses, and a professional expert will only get paid by the losing party when the case ends. Do you know how long this takes? Half of the experts will be dead by then. So we may try to convince a government agency or public university to send their experts, but they never have any money, so it is a lot of work that rarely pays off. And then, the defendants can appeal in so many ways that the cases never go forward.”18
Another option is to redirect the problem to specialized government agencies that should have prevented or solved the situation in the first place, but this rarely provides any relief. As reported by the manager of a state-level environmental agency:
“We have been telling the prosecutors: you want to halt all action by a public agency? Send it ten thousand requests. We don’t have enough people even to acknowledge receipt, or to say that we will get back to you. We get bombarded with many more requests than we can handle, and then we are forced to drop all these balls”19
“In the end, environmental agencies have lost themselves in paperwork. This is a type of goal displacement, and the prosecutors have definitely contributed to this state of affairs, that public managers end up entangled in a maze of rules and legalisms”20
Faced with these obstacles, some prosecutors try to solve the problems on their own. However, those who attempt this often recognize that they may simply be transferring the problem elsewhere, or even making it worse. One of the prosecutors I interviewed used a map on her office wall to visually explain how she had grappled with this type of predicament. She pointed to the far margin of a large water reservoir next to Sao Paulo and explained: “Let’s say there is an invasion, an illegal squatter settlement, here. If I take legal action, these people will eventually be removed. They may well move here instead,” she said while pointing to a different area on the map. “This is the watershed (“area de nascentes”), so the problem got worse.” She then conceded that she was unable to handle the problem: “Being the prosecutor in charge of protecting the environment in this jurisdiction, I really would like to solve this problem but I don’t know how.”21
Another prosecutor provided two vivid examples:
“The law determines that municipal governments must provide free medicines to patients. At first, it seems like a great achievement, but now there are certain municipalities forced to spend 40% of their budgets on medicines, and these administrations end up without money to do anything else. It is the same thing with the inclusion of certain neighborhoods in the Public Heritage list, you protect certain areas from noxious redevelopment, but you also increase the pressure on other areas.”22
A prosecutor who had just joined the MP grappled with this same challenge in a different context. A group of us had just attended a lecture on juvenile crime, and one of the attendees mused on the dilemma of action:
“Should I allow for the construction of large detention centers [FEBEM] that house 150 juveniles each? The prevailing idea is that smaller, house-like units are better than these gigantic prison-like complexes. No questions about that! But to manage such a network smaller units may be too much for a country like Brazil. But then what? To privatize? In my town, a non-profit runs the detention center, and costs are three times what they should have been. Moreover, this non-profit belongs to a city councilor, so it gets messy. The more I think about it, the less I know what to do.”23
A labor inspector made a similar point when describing how problems are pushed from one handler to the next:
“Health and safety problems cannot be solved by punishment alone. You may go in and dump a truckload of fines on them, but when you go back, nothing has changed. When this happens, I am supposed to send the case to the prosecutors, but this will not do any good. The prosecutors will face the same problem and will send the case back to me. And it is useless to sign a deferred prosecution agreement [TAC] with these people if they won’t implement anything”24
Ultimately, these regulatory enforcement officials are confronting the limits of adjudication as identified by Lon Fuller (1978), and they express their frustration in unmistakable terms. They complain about the pointlessness of “putting out fires” (“apagando incendio”) or trying to “dry ice” (“enxugando gelo”), meaning that it is useless to run from emergency to emergency, and that post-facto punishment will not deter further violations. One prosecutor explained this reactive pattern and emphasized the need for prevention instead:
“We were frustrated, because even though we tried to do a good job and send the criminals to jail, the crime had already been committed and a life had been lost. My colleague used to tell me, we will stay here doing this for years, but nothing will change and we will accomplish nothing. That’s my frustration. I wanted to solve the problem at its root”25
These prosecutors are grappling with the fact that, considering the problems they confront, none of the known “styles” or “strategies” of enforcement are likely to produce the results that they hope to achieve. To send the case to a judge or to a technical government agency is unlikely to provide any relief either.
Yet, in many cases, they find viable alternatives. The next section examines four of such cases to tease out how some prosecutors, on some occasions, roll up their sleeves and try something different; something that has not been recognized, described, or analyzed by the regulatory enforcement literature.