Decision-making profile of the Justices of the Brazilian Supreme Court in pretrial detention habeas corpus cases

a case study under criminal guarantism from 2009 to 2020

Abstract

The study focuses on the analysis of habeas corpus rulings filed with the Brazilian Federal Supreme Court (STF) by individuals held in pretrial detention, using data from 445 judgments issued between 2009 and 2020. Based on an inductive approach, the research begins with the following question: considering the theory of penal guarantism—which aims to limit state power—and based on structured data extracted from STF rulings on pretrial detention habeas corpus cases, is it possible to establish a decision-making profile of the STF justices during the 2009–2020 period? The general objective is to analyze habeas corpus decisions filed by pretrial detainees. Specifically, the study seeks to identify possible decision-making patterns of each justice regarding the granting of release and to determine whether release was granted or denied. The hypothesis is that the posture of the Supreme Court justices has contributed to mass incarceration by denying habeas corpus petitions, thereby contradicting the principles of penal guarantism. The analysis covers six variables: (i) the presiding justice of the session, (ii) the other justices present, (iii) the votes of all members, (iv) the final outcome, (v) whether the decision was unanimous, by majority, or tied, and (vi) the year of judgment. The data were collected and organized into spreadsheets, then analyzed using the Orange software, which applies association rules to identify patterns in voting behavior. By exporting structured data from court records and spreadsheets into the software, several association rules were identified. The results revealed that Justice Marco Aurélio demonstrated a guarantist profile, frequently voting in favor of release. Gilmar Mendes, when presiding over sessions, typically faced no dissent from other justices. Cármen Lúcia, on the other hand, tended to vote for continued detention, suggesting a stance less aligned with guarantism. Dias Toffoli, when voting for release, was often followed by his peers, resulting in the defendant’s release. Ricardo Lewandowski frequently followed the presiding justice and generally voted to maintain detention. Edson Fachin and Teori Zavascki exhibited voting behavior aligned with the presiding justice, with Zavascki showing a tendency toward unanimous decisions. Rosa Weber tended to maintain detention when present in the vote. Fux, Ayres Britto, and Barroso also tended to favor continued detention. Joaquim Barbosa's votes were generally unanimous. Alexandre de Moraes and Celso de Mello did not exhibit relevant patterns.The study concludes that association rules can be effectively applied to judicial decision analysis, particularly in outlining the profiles of justices based on their voting patterns. Moreover, the research hypothesis was confirmed, as the data suggest that STF justices tend to uphold detention, indicating a posture that diverges from penal guarantism and contributes to excessive incarceration.