The black body and racism in the conversion of flagrant prison into preventive:

low cognition of authorship, truth and its limitations – decolonizing the criminal process

Abstract

Due to the fact that in prison in flagrante delicto there is a perspective that the arrested person is the immediate perpetrator of the crime (art. 302, I and II, of the CPP), it brings with it what is doctrinally recognized as an element of evidence. The evidence is responsible for installing an important paradox in the criminal justice system, on the one hand it involves the real truth about the crime and, on the other hand, a system based on the rationality undertaken in the correction of the elements presented by the evidence, with the observance of the course of criminal instruction. In addition to the precariousness of the evidence, it appears that the racism engineered in the criminal justice system is presented as an element of certainty in the practice of crime, making black bodies the preferred ones to be incarcerated. The racial criterion has been used as a decisional means, although sometimes it is not written or even said, but it serves as an element of conviction for the judge, with a preference for converting arrest in flagrante delicto to preventive arrest when the accused is black. In this way, it is questioned: is the low cognition about the evidence, combined with structural racism, enough to decide for the conversion of flagrant arrest into preventive? The racial aspects of decisions will be the object of analysis in this research, in addition to the analysis of the low cognition of authorship by evidence and the limitations of truth in criminal proceedings.