Institutional disputes and corporate interests in the justice system: Deadlocks in the creation of the public defender’s office in the states

Abstract

Why is an institution more easily established in one location than in another? This question motivates the present work, which investigates in comparative perspective the creation of the Public Defender’s Office (an institution designed to provide legal assistance) in Brazilian states. Although stipulated in the 1988 Federal Constitution, it took many years to forge the Public Defender’s Office in some states. Based on data collected about the establishment of this institu-tion throughout the country and on interviews with pivotal actors, this article presents and empirically assesses the corporate hypothesis that justice system institutions and actors are essential to understand the important changes in the organization and functioning of this system, such as the creation of the State Public Defender’s Office (DPEs, in the Portuguese acronym). The article’s argument, based on historical institutionalism and supported by the empirical evidence analyzed, demonstrates that pre-1988 institutional frameworks in certain states, which assigned the role of providing legal aid to private lawyers or the State Attorney General’s Office, induced the formation of collective actors interested in the permanence of such arrangements, as opposed to the foundation of the DPEs. In other words, the establishment of the Public Defender’s Office faced major constraints in certain states because of the type of pre-existing institutional legal aid frameworks. The approach of the article highlights an important theoretical finding: the political activism of actors from the public administration, who act to implement their own institutional ambitions.