La selectividad jurídico-penal abisal. Análisis crítico desde los delitos contra el patrimonio en Brasil

Abstract

This doctoral thesis investigates the remarkable lack of control of punitive power in Brazil from a critical, reflective and interdisciplinary perspective. For this purpose, in order to present this phenomenon in an adequate way, the present work focuses on the analysis of crimes against property. The central hypothesis of this research work is that in recent decades, and increasingly, due to changes in global ruling power, there has been an advanced growth in what we call abyssal juridical-criminal selectivity. Which is characterized by a particular and profound intensification of the historical selectivity of the exercise of punitive power. Due to the social, political and historical peculiarities of Brazil, this abysmal selectivity operates guided by highly definined stereotypes that synthesize the social disadvantages that are targets of discrimination, related to prejudices historically associated with the most vulnerable people. These prejudices are constantly fed by monopolized media. The negative political effect of this scenario is the progressive deterioration of the Legal Democratic State, whose model has been insensibly replaced by a caste State, which promotes a criminal policy that, under the pretext of violently repressing the outcast caste created by the media, in reality, causes a punitive power with high levels of violence to target vulnerable sectors of the socially excluded. In this way, the exercise of an abysmally selective military power is accelerated, whose numbers of mass incarceration and police lethality are alarming for being massive and because they are preferably directed towards the brown and black youth who are stereotyped as social outcasts, case in which the State institutions – including the judicial ones – do nothing more than contribute by action or omission. Once the situation at hand is diagnosed, it is pointed out that, in order to reverse this phenomenon, an interdisciplinary coordination and cooperation tactic between the ruling powers is essential, to which, as a legal contribution, it is proposed, by lege ferenda, a reform that limits the banalization of pre-trial detention in crimes without violence or serious life threat, which are the most common targets of this abysmal selectivity. As a judicial contribution, it is proposed, as iurisprudentia ferenda, by binding decision of the highest summit of the Brazilian judiciary system, the establishment of the cupos prisionales principle, as a convergent measure to stop the path of uncontrolled incarceration. These measures are punctual and limited to our field, but as a corollary of our research we concluded that they are effective, as long as they remain coordinated with other actions that are beyond our competences. A harmonious understanding of the ruling powers would be the first step to overcome the abyssal juridical-criminal selectivity and, therefore, reinforce the validity of the already deteriorated Legal Democratic State.