At the same time, reformist prosecutors feared that the organization would embark on a different route. In their own words, “either the MP will act selectively, or it will become another bureaucracy.”123 In plain terms, and tacitly following Lipsky (1980), they were afraid that prosecutors would be overwhelmed by a demand for services that was much larger than what they could supply. If this happened, prosecutors would adopt pre-established routines, stereotypes, and other coping devices, start acting reactively, and entangle themselves and others in a maze of legal formalities. Reformist prosecutors were afraid that the MP would fall victim to what Michael Lipsky (1980) described as the fate of all street-level bureaucracies. They even drew a chart that illustrates this vicious cycle, reproduced below:
Chart 3.2 – The Vicious Circle
Source: Translated from Ferraz et al 2003
The alliance falls apart
By the early 1990s, reformist prosecutors were trying to steer the organization towards a virtuous cycle, as indicated in chart 3.1 above. At the same time, they wanted to avoid falling prey to a vicious cycle, in which an ever growing demand for services would force prosecutors to keep their heads down, concentrate on legal technicalities, and ultimately be unable to pursue the goals they wanted to achieve, as indicated on chart 3.2 above.
Yet, to steer the organization was easier said than done. The group of prosecutors who had successfully lobbied the Constitutional Convention had disbanded, and the temporary alliance between committed reformists and the rest of the organization came apart. Luiz Antonio Fleury, the head of CONAMP (the national prosecutors’ association) during the Constitutional Convention left the MP to be the Secretary of Justice for Sao Paulo State, and was subsequently elected governor himself. He brought several prominent prosecutors to work with him in the government.
The prosecutors who had helped invent the public civil action and were committed into transforming the MP into a relevant problem-solving organization tried to occupy prominent positions with the MP itself, but were unable to achieve much. Without strong support from the top, internal opposition grew and prevented further change. One of the leaders of this group described his surprise when colleagues rebuffed their proposal:
“Our idea was for the MP not to be everywhere and do everything for everybody. We wanted to intervene only in those problems that are truly important. You should have seen the resistance! João Lopes presented this idea in an Annual Congress and was almost booed from the stage. He felt like he was coming down the wrong way in a one-way street, suggesting that we decrease our scope of action when everybody wanted to increase it.”124
The leaders of this reformist movement ended up taking refuge in the research department (Departamento de Estudos Institucionais) of the Sao Paulo Prosecutors’ Association (APMP), and over the past several years they have published a number of studies defending their position. They have scored a few victories (for instance, the MPSP has scaled down its custos legis role), but in their view, their worst fears have come true: “in the end, the MP became a bureaucracy”125, and this means that it became an organization overwhelmed by paperwork, simplifying routines and stereotypes, manned by unmotivated officials, and in which means have replaced legitimate ends.
Indeed, this is the picture painted by many observers of the MP. One federal prosecutor based in Sao Paulo depicts the state-level Sao Paulo MP as “conservative, sluggish, bureaucratized, and gigantic.”126 And he is not alone. At a training held for new prosecutors in Sao Paulo, newly-hired officials were being instructed on the different forms that they had to complete, the departments to which each of these documents had to be sent, and how the various carbon copies should be archived. Being an ethnographer, I was taking careful notes of everything and at the end of the day several junior prosecutors approached me to say, half-jokingly, that they were so overwhelmed with the paperwork that they would call me to ask for help to fill out all those documents. One went so far as to complain that “all the interesting work will be done by my interns while I will be busy handling the red tape.”127 An experienced prosecutor concurs: “the MP still has a lot of credibility, but from within you can see that we achieve less than 10% of the goals we set out to achieve, and this is very disheartening.”128
Despite all this criticism, there is much more to the MP than red tape. As indicated on Chapter Two, some prosecutors, in some occasions, depart from business-as-usual and take extraordinary action to identify important problems and to strive to solve them. Even more important, this kind of action is not a fluke or the sole and isolated initiative of a few unusual individuals. As I argue on Chapter 4, both types of behavior – the conservative, formalistic, and reactive case-by-case, and the proactive, pragmatic, and creative ‘stitching solutions together’ – are rooted in and emerge from an organization that purposefully generates them.
3.4 – A mismatched organization
In this chapter, I challenge the existing account on how the MP evolved into its current form. Throughout most of the 20th century, the MP was a subordinate organization with a limited scope of action. Prosecutors were mostly bureaucrats, who did the billing of those occupying the states’ governorships or the country’s presidency. For many decades, prosecutors strived to raise the profile of their organization and to become professionals; they wanted to be able to exercise their best legal opinion independently of the opinion of others. Success came mostly during the 1980s. Throughout that decade, prosecutors accumulated a series of legislative victories that increased their powers and transformed them into true professionals.
The prevailing account – advanced by prosecutors and a range of Brazilian scholars – suggests that this march had started many years, even decades, back. Over time, prosecutors invoked the attribution to write non-binding legal opinions on a variety of cases involving hipossuficientes: individuals less-than-able to protect themselves, such as orphans, widows, and the legally insane. As prosecutors accumulated this judge-like function, they also acquired judge-like privileges. During the 1980s, prosecutors then expanded their scope of action even more. Instead of representing only individuals, they started to represent whole segments of society, such as consumers, children and youth, and those affected by environmental degradation. Together with this move, a continuation of what came before, the MP transformed from an entity of the state to an entity of civil society.
This account explains both the upward trajectory adopted by the MP and the unified external front presented by the organization. Moreover, it provides prosecutors with a shared language and a shared sense of mission. This is crucial insofar as the organization remains engaged in a constant and bitter fight to prevent its advances from being rolled back. Less visibly, the MP remains engaged in a fight to prevent potential challengers, such as a Public Defenders’ Office, to rise up and dilute MP’s powers. In fact, CONAMP, the prosecutors association, is based in Brasilia and devotes itself to lobbying Congress on behalf of the prosecutorial class.
Yet, the prevailing account of transformation fails on two important counts. First, prosecutors may present a unified external face, but behind this curtain lays some degree of animosity and heated internal disputes. And second, while prosecutors are proud of their lofty mission, they have housed themselves in an organization that favors reactive, conservative, and formalistic case-by-case behavior. To explain these apparent paradoxes, I interviewed prosecutors, read many of the papers, pamphlets, and books that they have written, and ended up seeing a different story of transformation than the one that prosecutors so eagerly repeat.
During the late 1970s and early 1980 a group of reformist prosecutors emerged and proposed something truly new: instead of confining themselves to staying behind their desks, reacting to crimes and other violations that had already occurred, and handling one case at a time, prosecutors started to leave their offices in an attempt to identify important societal problems and solve them. This type of initiative had an immediate impact, and was adopted by many prosecutors throughout the country. Yet, others within the organization disagreed that this was a suitable way for prosecutors to act. Eventually, these two camps reached a compromise. They started downplaying the claim that the MP would be a self-propelled and pragmatic problem-solver, and that it could act through established Judicial channels and also negotiate settlements on the side. Instead, prosecutors started claiming that this new type of action – to protect society – was a natural continuation of the old “custos legis.” This discourse helped unify the prosecutors around a common cause, and ultimately allowed them to achieve an impressive streak of legislative victories. By the early 1990s, prosecutors had increased their powers and jurisdiction, and their professional privileges were guaranteed by a chapter in the Constitution.
Reformist prosecutors were aware that laws are translated into action through organizations. Once the laws had been passed, these prosecutors started advocating that the organization had to be overhauled. In their view, the organization was at a crucial crossroad: either the MP acted selectively, i.e. shed some minor functions so it could divert resources to the areas with larger social impact, or the MP would become, in their words, “another bureaucracy”, meaning an organization concerned with means and that pursues no discernible end. To the reformists’ dismay, the internal alliance that had propelled them to their legislative victories fell apart and the MP ended up not adopting the organizational structures and policies that would allow and encourage prosecutors to pursue their grand goal.
In the end, the process of transformation gave prosecutors imposing ambitions and many of the powerful legal tools they needed to find important problems and solve them. Yet it did not provide them with the incentives or information to do so with success. At present, the reformists are disillusioned and admit that they have failed. Indeed, this pessimistic outlook finds resonance in the literature. First, the fact that the MP became “another bureaucracy” confirms Michael Lipsky’s (1980) prediction that street-level bureaucracies are inevitably overwhelmed by a demand for services that is much larger than what the officials can supply. In response, prosecutors adopt coping routines and end up concerning themselves with irrelevant means while forgetting the valuable ends. Second, this outcome also resonates with Repening and Stearman’s (2001) prediction that organizations operate either in what they call the ‘work-harder loop’, or in the ‘work-smarter loop.’ This outcome confirms a problem originally identified by Mauro Cappelletti in 1975 (as cited by Arantes 2002). Cappelletti listed three main reasons why procuracies should not be responsible for protecting collective interests. First, they tend to be mirror-images of the courts and thus they lack the necessary dynamism to defend collective causes. Second, procuracies tend to be too closely linked to the state – a frequent infringer of collective rights – and thus are not credible defenders of society. And finally, in most cases prosecutors do not have the necessary technical knowledge or support structure to be effective litigators in cases of this nature.
In my understanding, these predictions and interpretations are (partially but significantly) wrong. The case studies depicted in chapter 2 illustrate what prosecutors can do, and those cases are not exceptions. The next chapter explains how the MP is composed of two systems of action that compete for primacy within the organization. More concretely, it is true that prosecutors throughout the country are hard pressed to find, within the MP, the incentives, structures, and support that they need to find important problems and solve them. Instead of succumbing to bureaucratic lethargy, many of them partner with NGOs, unions, social movements, church groups, public bureaucracies, and other public and private entities to create a parallel, covert, and overlaid organization that recruits, supports, and rewards those prosecutors who act proactively, pragmatically, and effectively. Ultimately, these two logics of action not only coexist, but even monitor and reinforce each other.
4 – the organizational basis of creative law enforcement
What do Brazilian prosecutors actually do every day when they go to work, and what determines their behavior? According to the Brazilian Constitution, the mission of the Ministério Público is to “defend the rule of law, the democratic order, and those individual and collective rights that cannot be traded or given away.”129 This mission is admirable but vague, and therefore prosecutors can implement it in a wide range of ways. As stated by James Q. Wilson (1989), “when mission is vague, circumstances become important.” This means that in order to understand what prosecutors do, one ought to examine the setting in which they operate.
All organizations adopt structures, internal policies, incentives, and constraints that make certain actions relatively easy while others are difficult. This chapter reports on the inner-workings of the MP and aims to shed light on the circumstances of prosecutorial work. It is divided into four parts. Part one analyzes how prosecutors are recruited, trained, apprenticed, assigned, and promoted. Part two examines a prosecutor’s typical workload. These chapters show the different ways through which the MP, like so many prosecutorial agencies around the world (Silbey 1981, Davis 2007), encourage prosecutors to act in a narrow, reactive, and formalistic way. Those prosecutors who adopt a tough-on-crime and indict-and-move-on attitudes are likely to minimize both their workload and the probability that they will get into trouble for failing to achieve outcomes that are difficult to measure and specify in advance.
Naturally, not all prosecutors adopt this mode of action. A previous chapter showcased a series of examples in which they have adopted a proactive, pragmatic, and creative problem-solving posture. Those individuals were intensely committed to producing concrete results and did not hesitate to replace standard operating procedures for innovative actions that promised better outcomes. The MP has a cadre of people who regularly leave their offices, identify important and controversial social problems, and strive to solve them, adopting an approach to regulatory enforcement that I have been calling “to stitch solutions together.” Not surprisingly, many analysts, including prosecutors themselves, dismiss this behavior as an exception. Or in the words of Dean Rusk, “organization seldom stands in the way of good people and seldom converts mediocrity into excellent performance” (cited in Warwick 1975).
My examination of the inner-workings of the MP suggests that there is an organizational logic and an institutional foundation to this type of action. The third part of this chapter argues that while striving to solve important societal problems, these prosecutors and their institutional allies, such as NGOs, social movements, and mid-level government bureaucrats, have also been building an informal, covert, and overlaid organization that recruits, supports, and rewards those who engage in ‘stitching’. The fourth part indicates how in the end the MP is composed of two organizational logics or systems that coexist and compete under the same roof. Even more, these systems keep each other in check, and ultimately strengthen the organization as a whole.
4.1 - The formal and explicit organizational environment
This section examines the formal and explicit incentives deployed by the MPSP – its recruiting, support, and reward structures – that help determine why prosecutors behave the way they do. Ultimately this section concludes that the apparent features of the organization encourage prosecutors to act in a cautious, reactive, and formalistic manner.
Who decides to be a prosecutor?It is difficult to delineate the profile of the typical aspiring prosecutor, and to the best of my knowledge there are no comprehensive surveys trying to compile these data. The following arguments are based on my personal observations, and they indicate that few prosecutors were committed activists prior to joining the MP. Instead, most of the prosecutors seem to have chosen this career out of serendipity and through a process of elimination.
In general, incoming prosecutors have been full-time students all their lives, without much professional experiences besides legal internships. It is true that many senior prosecutors express a deep commitment to the MP and claim that they would not consider pursuing any other career. Moreover, in several cases it is a family affair where young prosecutors are the offspring of older prosecutors. But the common career path, represented well in my various interviews, seems to involve a combination of serendipity and process of elimination:
“How did I decide to become a prosecutor? To be honest, I only learned about the MP halfway through law school. First I interned at a law firm, but did not like it at all. Then, I heard about an internship at the procuracy and even though I did not know exactly what prosecutors did, I decided to try it out. In the end I really enjoyed the experience and could see myself becoming a prosecutor. But the admissions exam for all these public careers is incredibly difficult, so I signed up for and tried my luck in all entrance exams that came my way. I would have moved to a different state if I had been admitted to the MP or the Judiciary there. Fortunately I was admitted to the procuracy in my home state, and here I am.”
Also important, starting salaries for judges and prosecutors and to a lesser extent for public defenders and police chiefs (‘delegados’) are fairly high. For comparison’s sake, a junior prosecutor’s starting salary is roughly seven times the salary of a young associate in a prestigious law firm. Moreover, lawyers in public careers have many other benefits that increase the job’s attractiveness. They receive tax-exempt double pay when on assignment outside their home office (‘diárias’), can take paid-leave to pursue graduate studies, have 60 days of vacation per year while most Brazilians have 30 days, can take up to 30 days of paid leave per year to care of a sick family member, and are entitled to a variety of other perks that increase the appeal of the job.
However, it is true that their salary progression is not very steep, i.e. in Sao Paulo a senior prosecutor at the top of the career makes roughly twice what a new entrant makes (MJ 2006), while a partner in a prestigious law firm can make much more than that. Moreover, young prosecutors (and judges) must work for several years in smaller (and therefore less attractive) towns. Still, over a 20 or 30 year span, the prosecutor’s compensation package is exceedingly attractive, not only for those individuals answering a calling, but to anyone that can get such a position.
How are Brazilian prosecutors selected and admitted? In Brazil, prosecutors are admitted through a competitive admissions process, composed of written and oral exams, plus an interview and other tests. In Sao Paulo, the whole process starts approximately one year before the expected admissions date, and over the past several years roughly 7,000 people have been competing for approximately 50 vacancies.130 In practice, two selection criteria stand out: aspiring prosecutors must demonstrate extensive knowledge of Brazilian law and they must conform to a narrow set of expectations on how a prosecutor ought to look, think, and behave.
To be considered for the job, candidates submit their resumes, letters of recommendation, and a negative criminal history report. Then, they take an exam composed of 80 multiple choice questions on Brazilian law. Those who are approved in this first round take a second exam, in which they write a legal motion and an essay. In 2008, the list of subject matter for these exams contained almost 300 items, and most candidates study for more than a year – sometimes even two or three years – to prepare. In fact, a large number of them quit their jobs and study full time. Many also attend a special preparatory course to brush up on their legal knowledge. I interviewed the owner of one of these preparatory schools, and he was upfront with his advice:
“I tell them on the first day of classes. Do you want to be approved in the exam and become a prosecutor? So you will have to change your life style. First thing, no more weekends or holidays.To be approved, you must study all the time. By the day of the exam, you must have full command of at least 30% of all the core legal topics, and have a good command of all the peripheral legal topics. To get there, it takes, on average, two years of study.”131
Successful candidates are then called for an oral examination, in which they answer legal questions, including many that are tricky, controversial, or simply arcane, asked by members of the admissions panel. These examinations are held over several days at an auditorium and many of the other candidates also attend to gauge what is ahead for them. The actual oral examination lasts only 10 minutes, but many describe it as a nerve-wracking experience.
Soon after the oral exam, candidates are invited for a personal interview with the members of the panel, and the official purpose of this private meeting “is to assess the candidate’s personality, aptitude, and cultural, social, and moral values.”132 According to a prosecutor familiar with these proceedings:
“In the interview, they ask very indiscreet questions. Say, ‘if you work and your husband works, who will take care of the kids?’ Or ‘if we transfer you to a small town way beyond the boonies, would you go?’ Or, ‘you are the prosecutor, and a judge hits on you. How do you respond?”133
“The correct approach is not to be defensive, and to give straight, short, and simple answers. For instance, say ‘my mother-in-law will watch the kids.’ Or say ‘I will tell the judge to respect me because I am the prosecutor.”134
Candidates that have made it so far take a psychological exam, and then a physical exam. Most important, throughout this process, candidates are being assessed not only on their command of Brazilian law, but also on their ‘aptitude’ for the job, and whether they conform to tacit expectations on how a prosecutor ought to look like and behave. The owner of the preparatory school confirms that candidates only stand a chance of being admitted if they fully incorporate the prosecutor’s demeanor and mindset:
“I tell them, you are being evaluated from the get-go; you are in line to submit your application and the examiners are watching you. A peculiar gesture, an inappropriate demeanor, the examiners are taking notice.”135
“The admission’s committee is made of prosecutors. And they are looking at your clothes, whether your shoes are shiny; whether your shirt is neat; whether your necktie is nice and not too loud; for women, they are considering whether you are well dressed, but not over the top. Please, do not dress up like a Christmas tree, covered in bling. You will never be approved if you do.”136
In order to be seriously considered candidates must:
Be physically non-descript (e.g. men have short hair, wear conservative suits and ties, and no earrings, unorthodox glass frames or visible tattoos; women wear longer below knee-length skirts and circumspect make-up)
Not be openly homosexual, or suggest homosexual demeanor
Hide political affiliations; and demonstrate unwavering respect for authority and “lawyerly values”, addressing examiners with the proper formalities and titles as the case warrants, e.g. ‘your Honor’ or ‘your Excellency’
Have flawless Portuguese; and pronounce Latin legal jargon with utmost accuracy . For instance, an experienced prosecutor described an episode in which a candidate mispronounced a Latin word during his oral examination:
“He said capút instead of cáput [stressing the wrong syllable]. And he did it twice! It was such a terrible mistake. The room froze, and, needless to say, he was immediately disqualified. Next year, he did it again. It was terrible. He passed on his third attempt, because he mentioned the paragraph. Still, he became known among colleagues as capút, a fact that irritated him profoundly.”137
In the end, and the huge demand for this job notwithstanding, it is not uncommon for several vacancies to remain unfilled. The difficulty of getting admitted to the MP weeds out most candidates who are not thoroughly committed to a public legal career, but the admission process does not select prosecutors based on public-mindedness, relevant prior experience, creativity, “street-wisdom”, pro-activeness, ability to work well with others, or any of the other practical skills or traits that indicate a propensity to engage in ‘stitching solutions together’. Rather, successful candidates tend to be disciplined, fluent in all aspects of Brazilian law, and ready to conform to conservative organizational expectations and utterly blend in.
How are newly-hired prosecutors trained? Prior to being sent into the field, prosecutors hired by the MPSP undergo an intensive, two-week training course, with classes six days a week, for more than 10 hours a day. During this period, they reside in a hotel next to the training center and attend lectures and practical classes from early morning to evening. The course is composed of two modules: during the first week, incoming prosecutors are introduced to the institution. They learn about the history of the Ministério Público, its different departments and internal policies, and receive practical advice from senior colleagues on how to handle the intricacies of the job. During the second week, they are instructed on criminal prosecution, including supervised practical classes in the field. Throughout the next year incoming prosecutors are supposed to go back to training, to learn about civil cases (custos legis / the writing of amicus briefs) and collective affairs (tutela coletiva, including public civil action lawsuits); although in previous years these modules have gone unfulfilled.
In 2006, and inspired by John Van Maanen’s (1973) article on the making of a policeman, I interviewed the director of the prosecutors’ training center and asked for permission to attend the course. Permission was granted, and at that time I expected that newly-hired prosecutors would be encouraged to be proactive, creative, and instructed on how to go about finding important societal problems and striving to solve them. To my surprise, the whole program emphasized formality and officiousness, and the prevailing advice was for prosecutors to be cautious-- they should not trust anyone but their fellow prosecutors. The following quotes and observations, collected during the prosecutors’ training program, illustrate these three points:
(a) Formality - The whole training was rather formal, and students were asked to wear business attire everyday, including Saturdays. They were also asked to stand up whenever a lecturer entered or left the room, and everybody addressed everybody else using “o senhor” or “os senhores.” Even the lecturers addressed the audience using these formalities (or apologized whenever they slipped into the informal “vocês”) and newly-hired prosecutors were directly instructed to make this habit second-nature. As stated by the head of Internal Compliance Office:
“Avoid calling senior prosecutors who are members of the senior committee [Conselho Superior] by ‘você’ or by a nickname. Whoever does that may be hit with a warning. A hefty dose of formality is healthy for our institution, particularly in official ceremonies, events, and hearings.”138
The newly-hired prosecutors also received specific and straightforward guidance on how they ought to behave in a variety of fronts:
“Dress code: men must wear suit and tie, period. Women, drop all the creativity, the audacity, and the avant garde designers. Forget cleavages, naked shoulders, and low cut pants. You are going to visit jails and prisons; can you imagine an inmate chatting you up? If that happens, you are in a bind. Either you punish the inmate for something you provoked, or you ignore the pass and lose face. It is better to avoid the whole embarrassment. Dress conservatively, with skirts that go well below the knees.”139
“Social networks on the internet: Do not expose yourself, avoid jokes of bad taste, avoid acid criticisms or ironies, and avoid foul language. Orkut, MSN, and chat rooms are not the proper media to discuss internal matters pertaining to the Ministério Público.”140
“Your office: it is OK to give it a personal touch, but do not exaggerate. For instance, do not affix a huge crucifix, a massive insignia for your soccer club, or worse of all, the red flag of the Landless Peasant Movement [MST]. Do not let your personal opinions show. Keep your office a neutral space. You may have a flower, a small picture of your family, and that’s it.”141
“Your prosecutor’s ID: its purpose is not to get you into the movies for free. The worst thing that a prosecutor can do is to get himself into a bind, and then use his ID to try to get out. Do not do anything stupid. But if you do, do not try to ID your way out”142
The central thrust of all this advice is for young prosecutors to keep their heads down and blend in. As summarized by one of the lecturers:
“Irreprehensible behavior is not something you save for your court appearances. It is for life. Prosecutors must comply with the highest ethical standards. Remember, to be a prosecutor is not a transient status. It is intrinsic to our identities and public images. We are prosecutors 24x7.”143
(b) Caution - Even if prosecutors kept their heads down and tried to blend in, they would still have to make consequential decisions within their respective jurisdictions, exposing them and the institution to a certain amount of risk. What if a prosecutor makes the wrong decision and tarnishes the reputation of the MP? Senior prosecutors constantly warned their junior colleagues that the world is a minefield; everybody other than a prosecutor is likely to be unscrupulous, and traps and cons are everywhere. Yet, while General Patton reportedly encouraged his troops to embrace “l’audace, l’audace, toujours l’audace”, senior prosecutors insist that junior colleagues avoid all risks, keep their guard up, and be cautious above all else. The following quotes, collected during training, illustrate this point:
“Always be careful when assigned to a new post in a new town. Watch out for praise and compliments, always be wary. You do not know the people. You do not know who is a good lawyer and who is a trickster. You do not know if the judge is friends with the mayor, what kind of interests they are beholden to. So be careful not to get entangled into some major controversy because of a minor slip.”144
“Avoid any proximity with people or enterprises of dubious reputation. Watch out whom you rent your house from. Make sure your landlord is a reputable person.”145
“Avoid having meaningful conversations over the phone, because the caller may be taping you. Always have people come to your office.”146
“Always keep your door open, so everybody can see what is happening inside your office. A defense lawyer came to talk to you about some case? First thing, prop the door open and keep it open.”147
“You will be besieged by people making all kinds of complaints. The right thing to do is to be careful and to make sure you know what is going on, so you are not used by someone without even knowing that it is happening.”148
“Sometimes police officers will ask that you authorize an undercover operation, so they can infiltrate a drug ring. You know what? They may have already infiltrated the group and they may even be in cahoots with the drug traffickers. They are asking for your authorization because something has gone amiss, and either their illegal operation is about to blow up, or they want to extract more bribes from the dealers. Be careful when handling this kind of request.”149
“Organized crime is complicated, it may involve the police, politicians, and other local authorities. Still, do not panic. Invite the whistle-blower to your office, but have a witness next to you. You can tape the conversation, with a tape recorder in plain sight. You are part of the conversation, so you are allowed to tape it. What if someone meets with you in private and then say that you asked for a bribe? You want a witness, and you want a tape.”150
“In your personal life, watch out for the parties you are invited to. Do you want my advice? Do not go. Let’s say you go, and something happens, someone is smoking pot or a minor is drinking alcohol, or whatever. Either you close your eyes, and this is dereliction of duty, or you have the person arrested and ruin the party. So it is better not to go, not even to VIP rooms.”151
“Let’s say you are the prosecutor in some tiny town in the sticks. You play soccer with your subordinates and you are friendly with them. Still, be wary, because they may be tempted to double-cross you. If you are too close, they may use your name to tell other people ‘I’m friends with the prosecutor, and he asked R$15 to dismiss your case’. Always keep your distance.”152
“The Ministério Público is like a big family. Everybody likes everybody else, and everybody gets along. But people are tricky. So when you are assigned to a new post, do not trust your colleagues to tell you what the attributions are. Some prosecutors may try to unload their own backlogs on the new guy. To avoid problems, always read the official job description yourself.”153
Caution was portrayed as a remedy for everything:
“Everything will depend on your feelings, your nose for what is right. There will be an infinite number of unforeseeable situations. So have a good dose of common sense and caution. After all, this is what justice is all about: common sense. You are experts in legal theory, so the only thing you need is common sense and caution. If you have these two, nothing bad can happen.”154
In fact, caution loomed so large that newly-hired prosecutors were instructed to be cautious even when this very attribute was unlikely to prevent the mishap:
“Once a drunkard came to my office and claimed he had been beaten up. I asked, ‘how did they hit you?’ And he dropped his pants to show me the bruises. Oh my. My intern turned green, a police officer came over, arrested the guy for contempt, it was a mess. There was no reason for the whole mishap, he was just drunk. The lesson? Be cautious.”155
(c) Esprit de corps: Interestingly, all of the emphasis on formality and risk-aversion was tempered by a strong sense of camaraderie and identification with the organization. In addition to encouraging prosecutors to be formal and uptight, and to be thoroughly cautious and risk-averse, the training also instilled a strong sense of camaraderie and esprit de corps among the new recruits. In fact, the Brazilian Ministério Público seemed to be deploying practically all the organizational devices that Herbert Kaufman (1960) famously identified as generating cohesion among US forest rangers. Sacrifice was a common theme:
“To work for the Ministério Público is to sacrifice oneself for an ideal; we are engaged in a permanent struggle for justice, and even if we know that there will be setbacks, we will never loose our drive.”156
“You will have a lot of work ahead of you. If you want to be a real prosecutor, you will have to take it personally and call the responsibility to yourself. What we do not need or want are nine-to-five bon-vivant bureaucrats who delegate everything to their interns.”157
As indicated by Kaufman (1960), this type of downgrading of expectations tends to heighten the resolve and motivation of the new recruits. But even more important, this pitch prepared the terrain for the coup de grace that came next: the world is hostile and the work is tough, so prosecutors should trust no one other than their fellow prosecutors. This theme surfaced in various ways. Throughout training, all lecturers insisted on calling newly-hired prosecutors “colleagues.” Senior prosecutors made themselves available in case anyone had questions about the job, and most of them wrote down their personal contact information on the classroom board. As stated by one of the lecturers: “when I joined the organization, I called senior colleagues all the time. Instead of making a mistake, I suggest you pick up the phone and ask for guidance.”158 The general point, as stated by several different prosecutors, is that “the MP is like a family, even if it is inordinately big, it is still a family, in which everybody talk to everybody else, and we all exchange experiences.”159
The MP has institutionalized many of these organizational features that instill and facilitate internal cohesion. For instance, it has a department devoted to Public Relations, so those prosecutors who do not feel comfortable talking to journalists can redirect inquiries to this division. As stated by the head of the PR department (a prosecutor himself): “you are free to talk to the press as you see fit… but if you are not comfortable talking to journalists, you can refer them to us and we will take care of everything for you.”160
Another department, the “Institutional Defense” [Defesa Institucional], devotes itself to protecting prosecutors’ rights and privileges. The individual in charge of this department (also a prosecutor) described this department as follows:
“The MP has a department devoted to protecting prosecutors’ prerogatives, and there is always someone on call 24x7. We are not corporatist fixers. Our goal is to ensure that the rights and powers of the prosecutors are observed by other authorities. If you find yourself in any kind of trouble, call us. For instance, you probably know about that prosecutor who was accused of killing his wife. He was arrested, and we went there, not to get him out, or to tell the police what to do, but to make sure that all rights afforded to prosecutors were respected.”161
Even the Internal Compliance Office [Corregedoria] claims that its role is not to identify and punish infractions, but to instruct prosecutors – especially newly-hired ones – on how to perform their jobs better. As stated by the head of this division:
“Every single one of you will have been visited by the Internal Compliance Office by the end of the year, not only to check on you, but also to provide guidance and answer questions. […]For the Internal Compliance Office, guidance is more important than punishment. ”162
To sum up, the underlying thrust of the training was to ensure that junior prosecutors blend in and avoid doing anything that could tarnish the stellar reputation of the organization. Throughout the course, speakers emphasized three interrelated themes: prosecutors ought to be (a) formal, (b) cautious, and (c) trust no one other than their fellow prosecutors. This setup ultimately generates high levels of cohesion and identification with the procuracy, but instead of encouraging recruits to be bold, proactive, and innovative, it encourages them to avoid risk and to always act in ways that prevent criticism or embarrassment.
How prosecutors are apprenticed:For the first two or three years on the job, prosecutors are considered “alternates” (promotor-substituto), and this means that they have no permanent posting or jurisdiction. Instead, they travel throughout the state to fill vacancies and temporarily replace senior colleagues who go on vacation, take a leave of absence, or need an extra hand. This period acts as an apprenticeship, in which young prosecutors are exposed to a variety of jobs and work environments and operate alongside different senior colleagues. During this period they learn how to issue solid legal decisions on a wide variety of cases while respecting all the applicable deadlines.
Crucially, these prosecutors are being closely monitored by the Internal Compliance Office, and even if it is extremely rare – perhaps unheard of – for a prosecutor to be fired for failing his or her duties during the apprenticeship, newly-hired prosecutors are terrified of committing any slip that could imperil their permanence on the job. In fact, throughout the training prosecutors joked that I was not a researcher but a spy from the Internal Compliance Office (espião da corregedoria) sent by the MP to check on their behavior. Whenever we had drinks after class, the junior prosecutors would teasingly request that I look the other way when they ordered another round, and they regularly asked that I refrain from taking notes on any extravagant behavior.163
Indeed, the Internal Compliance Office is a permanent source of concern during a prosecutor’s initial years. As stated by the head of Internal Compliance on his lecture to newly-hired prosecutors: “from now on, everything that happens in your lives is of interest to us”.164 Yet, this pronouncement cannot be entirely true. No office can check everything, and by necessity some issues will take precedence over others.
Officers, who are themselves prosecutors, from the Internal Compliance Office (corregedoria) read copies of all briefs, motions, indictments, and transcripts of hearings issued by junior prosecutors. They check whether the arguments are solid, use of language accurate, and deadlines met. They also keep track of prosecutors’ vacations, leaves of absence, outside lectures, and whether they are attending mandatory internal meetings.165 They check the log-books registering legal settlements, civil public action initiatives, and criminal proceedings; read the reports of the periodic mandatory visits to police precincts, detention centers, prisons, morgues, forensic departments, and half-way houses.166 And they conduct surprise inspections in-situ to check whether junior prosecutors are keeping all their professional records as mandated by internal regulations, whether their offices are clean, and their clothes are appropriate. In a speech, the head of Internal Compliance related an anecdote that drove this point home:
“In one of our visits we caught a prosecutor taking advantage of that North American habit, the so-called ‘casual day’, not wearing a suit and a tie on a Friday. Can we work without having a jacket permanently on? Of course we can. But a prosecutor’s office is a formal setting, and our job is a formal job, and thus to receive the public and to hold meetings are formal activities that require formal behavior and formal attire. To do it differently is an infringement of the disciplinary code.”167
It makes sense that the Internal Compliance Office pay attention to written opinions and associated formalities, as these are relatively easy to check and assess. Yet, in a type of goal-displacement, this emphasis directs junior prosecutors to pay attention to inputs (such as complaints received) and outputs (such as indictments issued) while ignoring whether they are achieving outcomes and results.
How prosecutors are promoted and how the organization staffs its posts:In Sao Paulo and soon after being vested (vitaliciados), prosecutors are assigned to a small town (entrância inicial), in which they handle all kinds of legal controversies. Over time, they will be promoted to a mid-sized town with more specialized attributions (entrância intermediária) and eventually to a larger town or the capital of the state (entrância final) and be responsible for an even narrower legal topic but in a more densely populated territory.
To award promotions (promoção) and to fill vacancies through horizontal transfers (remoção), the MP relies on a decentralized system in which prosecutors apply for the job. Formally, 50% of these openings are to be filled on merit and 50% on seniority, but in Sao Paulo prosecutors readily admit that in practice, merit is too controversial and difficult to measure so all posting are filled on seniority.168 The decisive variable is that the organization keeps separate seniority lists for each of its three levels, and prosecutors who have been promoted go to the bottom of the new list. This system creates a complex and decentralized game: a prosecutor in an unpleasant but not horrible town may request a promotion to a slightly improved posting and return to the back of the new list, or stay longer at the current posting in the hope that a better posting (at the same or superior level) will open up soon.
This system empowers prosecutors and minimizes intra-organizational conflict, but it practically ensures that talent will be misallocated, i.e. prosecutors passionate for certain areas of the law (such as environment, poverty, or public interest) are likely to end up at postings devoted to totally different areas (such as petty crime or jury trial) in more desirable cities.169
In other words, there is no centralized system trying to maximize the use of in-house talent, or trying to assign the more committed, energetic, and creative prosecutors to postings in which these individuals can have the largest possible positive impact. Even more damning, a select group of the most experienced prosecutors are eventually promoted to a fourth level (procuradores de justiça) in which they stop handling entry-level cases and engaging with facts, and instead start devoting all their time to handling appeals, developing sophisticated legal arguments, and managing the organization. These positions are highly coveted because they grant prosecutors flexibility (many of them work from home), allow them to engage in esoteric legal arguments, and encourage them to engage with high-status appeals and Supreme Court judges. In effect, the organization is identifying some of its most experienced and capable individuals and purposefully removing them from the line of action.
Other incentives and disincentives: Prosecutors are granted a series of constitutional prerogatives that were designed to ensure their independence and allegiance to the rule of law over parochial interests. Yet, if analyzed under an economic prism, these prerogatives seem tailor-made to ensure not creativity or innovation, but apathy and conformity. Prosecutors have a very high-level of job security (vitaliciedade), cannot have their salaries reduced (irredutibilidade de vencimentos), cannot be transferred against their will (inamovibilidade), are promoted on seniority, do not accrue any bonus related to performance, are entitled to act on their best legal opinion (independencia funcional) and cannot have their caseload cherry-picked or diverted elsewhere.
Moreover, the MP has always been tightly coupled to the Judiciary, so prosecutors’ offices are located next to (sometimes inside) a courthouse, the MP provides prosecutors with interns to help them draft legal opinions, and with support staff to shuttle case files back-and-forth from the notary and judges’ chambers. To sum up, the MP provides all the help that prosecutors need to deal with litigious legal proceedings, paperwork and little else.
4.2 – Managing the workload
According to Michael Lipsky (1980), street-level bureaucrats, overwhelmed with a demand for services that is much larger than what they can supply, are destined to adopt stereotypes, coping devices, and simplifying routines that make their tasks more manageable. In many ways, this prediction describes the Brazilian Ministërio Público. As described below, prosecutors must cope with a crushing workload and thus prosecutors often try to systematize, routinized and simplify their practices. The organization pushes them in this same direction, and encourages prosecutors to pay attention to inputs and outputs but not to outcomes.
Throughout their careers, prosecutors are supposed to fill out a monthly report with 250 fields indicating their activities. Although not all of them do it every month, so the data is underreported, the Internal Compliance Office still compiles these data and publishes aggregate figures, as reported below: