A teoria constitucionalista do delito frente à atual crise do sistema carcerário brasileiro

Abstract

Data from the Sistema Integrado de Informações Penitenciárias (InfoPen) show that, since the last decade, the number of people sentenced to prison have been exceeding the available vacancies in Brazilian penitentiary establishments. The overcrowding verified in many national prisons denunciates not only a selective and un-humanized punitivism but also the fragility of less severe sanctions. The excess of punitivism observed, associated with the degrading situation of penitentiaries, jeopardize the effectiveness of a criminal justice system focused on imprisonment. A system that does not restore victim’s injury and shows itself unable to contain criminality or to encourage individual recovery and social reintegration. Given this perspective, emerges the constitutionalist theory of crime. This concept is based on the assumption that the Criminal Law’s main function would be the defense of the most essentials legal goods from concrete and significant offenses, which should be objectively imputed to a relevant prohibited risk created by a conduct, and also included in the sphere of criminal protection. For this purpose, adds, to the formal criminal offense interpretation, a normative dimension, called material criminal offense interpretation, which demands two valuing judgments: a sense of conduct’s disapproval and a sense of legal effects’ disapproval. In such context, this research aims to reach the comprehension of how this theory of crime could be useful to contain the current penitentiary crisis. That objective intended to be achieved by the study of its theoretical foundations and by the perceive of its practical implications through the analysis of judged cases from the Supremo Tribunal Federal and from the Superior Tribunal de Justiça. The jurisprudential research done allowed verifying that these courts already have precedents involving the application of the doctrine studied, though it’s recent. However, it is still few explored by the classical criminal knowledge. It could be concluded that the task of restraining Criminal Law’s incidence to the transgressions of the most fundamental values according to society is a possible solution to the Brazilian prison system’ crisis against unnecessary incarceration. It’s important to note that this line of action is compatible with constitutional values inherent to a State that claims to be Democratic and for the rule of Law. However, it could be observed that the constitutionalist theory of crime doesn’t have yet the widest acceptance it was meant to have. Nevertheless, it doesn’t discard the importance of its study and application on the national criminal field.