BEYOND THE PROCESS

the implementation of restorative justice in brazil based on the political speech inherent to the criminal procedural reform in latin america

Abstract

Based on comparative law methodology, this article examines the extent to which the Latin American political speech inherent to the criminal procedural reforms can contribute to the effective implementation of restorative justice in Brazil. First, the “beyond the process” discourse related to Latin American reforms of the end of the 20th century is associated to the creation of a wide “menu” of alternative ways, among which restorative justice, that initially appeared only as a mere possibility between many others. Then, the directions taken by the reforms in their most recent generation are presented, in order to prioritize the resolution of the “primary conflict” and the adoption of compositional models of justice. From this framework, the perspective of a dialogical construction of restorative justice is envisaged for Brazil, taking as its starting point the Latin American experience to raise a debate about the purpose that the penal system should have in a democratic state. Thus, despite Brazil's inertia in democratizing its criminal justice system, the renewed and current “refoundational” movement of the criminal procedural law can convert into impetus what today presents itself as an obstacle, with the purpose of projecting the effectiveness of restorative justice in the country.