Pós-Constituição de 1988um cruzamento entre produção legislativa e impactos de encarceramento

Abstract

This article intends to discuss how the criminal reforms in Brazil, which occurred in the post-Constitution period of 1988, constitute an increasingly expansionist criminal policy, which alternates legitimate and illegitimate punitive tendencies. The illegitimate criminal expansion is one of the main causes for the unsustainable mass incarceration in progress in Brazil. Based on an empirical survey of the criminal laws passed in Brazil between 1940 and 2017, it was noticed that Brazilian criminal law reacted intensely to the mandates of criminalization based on Constitution, producing criminal and criminal procedural laws in response to the guarantee of a Citizen Constitution. This research involves the understanding of national political-criminal tendencies, especially about their effects and criminological legitimacy, identifying them as punitivism or left realism. In order to verify the complexity behind the Brazilian political movements after the 1988 Constitution, this article is based on quantitative data and a qualitative analysis of the criminal policies that guided the criminal laws approved by reason of race and gender. This research method leads to the conclusion that legislative production does not necessarily result in a prison increase, contrary to the common theoretical-criminological sense that assumes that all neo-criminalization constitutes incarceration and punitive populism, suggesting the need for delimitation of another criminal policy tendency to this phenomenon, which will be called left realism.