A retroalimentação das facções criminosas diante da omissão estatal: uma análise à luz da ADPF 347/2015

Abstract

This work deals with a study of the rise and development of criminal factions based on the omission of the State itself, all by an analysis of the judgment of the Accusation of Breach of Fundamental Precept nº. 347 of 2015. The aim of creating prisons was to build a place to re-educate and reintegrate offenders who had been removed from the community back into society. However, this practice proved to be inadequate, given the presence of recidivism among convicts and, despite this evidence, incarceration and the same modus operandi were maintained, since it conveyed a sense of security to members of society. At no time was this incarceration accompanied by incisive action by the state aimed at satisfying the purpose of the sentence, resulting in the abandonment of these individuals, who were already deprived of their liberties, and their dignity was also suspended. In the midst of this scenario, some individuals who lived in prison, fed up with the inhumane treatment, joined together and formed some of the criminal factions that exist today, such as the First Command of the Capital and the Red Command. Furthermore, in light of the flagrantly degrading situation in Brazilian prisons, in 2015 the Supreme Court declared the Unconstitutional State of Affairs (ECI) of prisons in Arguição de Descumprimento de Preceito Fundamental No. 347, pointing out the failure of all three branches of government and federal entities to safeguard the rights of those deprived of their liberty. Thus, the research problem arises: would the judgment of ADPF 34/2015 and the declaration of the ECI of Brazilian prisons be a capable measure in the fight against criminal factions? To this end, the general objective is to verify the extent to which the absence of the state in certain situations contributes to the creation and development of criminal factions and whether the declaration of the ECI and its consequences could be a viable alternative for changing the paradigm of the Brazilian prison system. Specifically, the aim is to: point out the way in which penal execution is carried out in Brazil and its main discrepancies with the country's legislation; verify the emergence of criminal factions and how they developed due to the state's own omission and; analyze the consequences of the STF's declaration of the ECI after the judgment of ADPF 347/2015. To this end, the hypothetical inductive approach method and the historical and monographic procedural methods are used, as well as documentary and bibliographic research techniques. The conclusion is that just declaring the ECI and maintaining the application of precautionary measures is not enough to effectively improve prison conditions and reduce recidivism, requiring positive action from the state itself and the fulfillment of plans that must be originated by the federal entities