The Legitimate Construction of Youth Punishment By the Brazilian Superior Court of Justice

Youth justice was created under a rehabilitative banner. Yet, authors from several countries argue that it has recently shifted towards a more punitive approach, going through an “adultification” process. In Brazil, the Statute of the Child and Adolescent (SCA) is deemed to establish youth’s “best interests”. However, incarceration rates and other forms of penal control have skyrocketed. This paper addresses whether the judiciary contributes to this situation. It focuses on 31 landmark cases decided by the Superior Court of Justice (SCJ) since 1990. Unlike other studies on judicial behavior, it addresses both judicial practices and discourse. It employs elements of Bourdieu’s sociology to frame judicial decisions as acts of state, which carry the monopoly of physical and symbolic violence. This construction emphasizes the role of the state in communicating the legitimate penal response to certain situations and the legitimate ways to address these situations linguistically. In order to account for the court’s decision making-pattern, qualitative comparative analysis is employed. The SCJ institutes two youth justice models. In serious cases, it expands penal control and the use of incarceration. In non-serious cases, it behaves contrariwise. Linguistically, the court communicates that some acts are too serious to avoid punishment and incarceration, while others not serious enough as to entail any form of state intervention. Both models rely on rehabilitation discourses, though the punitive goal is mentioned almost exclusively in serious cases. Thus, the Court maintains the SCA model for non-serious offenders, while treating serious offenders more like adults. Other justifications are common to both models. The court promotes a juxtaposition of different ideal types of justice: it is legitimate both to apply adult criminal law and to reject it, to focus on cases’ seriousness and on offenders’ characteristics, to protect offenders and society.