THE VALUATION OF JUDICIAL CIRCUMSTANCES IN THE DOSIMETRY OF THE PENALTY IN BRAZIL AS A MECHANISM FOR THE REPRODUCTION OF HISTORICAL SOCIAL INEQUALITIES

Abstract

According to the latest report from the Brazilian Penitentiary System Statistical Information System,
Brazil has already surpassed 700,000 people in prison. This is even more relevant as mass
incarceration is marked by racial selectivity. People deprived of their liberty in Brazil experience
conditions of overcrowding and extreme unhealthiness, which make the Brazilian prison system the
subject of recurring complaints. This paper aims to discuss the criteria for setting the custodial
sentence based on bibliographical, doctrinal and jurisprudential analyzes of Brazilian positive law.
We intend to demonstrate that judicial circumstances, by having a subjective dimension, end up being
determined almost exclusively by personal convictions of the magistrates, which generates reckless
consequences when defining certain people as delinquents just based on personal conceptions. The
first chapter seeks to detail the technical and legal criteria for setting custodial sentences and fines.
The second chapter deals specifically with the first phase of the dosimetry of punishment as a fertile
ground for arbitrariness, in which the agent is often punished for the social place he occupies and not
for the fact actually committed. We will also address the risks of attributing to the Judge the analysis
of concepts from other sciences. Finally, we will deal with the moral judgments made when setting
the base penalty. The final chapter examines the extrapenal effects of condemnation and its
interaction with Brazilian social and regional inequalities, and presents considerations of critical
criminology. In conclusion, we will demonstrate that, despite the legal provision of criteria and limits
for the setting of the sentence, the subjectivity conferred on the judge often turns into arbitrariness,
reinforcing structural inequalities in Brazil. Thus, it is proposed to depart from this criterion in order to
preserve the achievements and guarantees of the Democratic Rule of Law