From de duty of protection of criminal law to the public (in)security's sanctions: the false dicotomy in crisis

a crise da falsa dicotomia

Abstract

Does the softening or easing of penal sanctions violates state’s duties of protection? Starting from this problematic, the present article aims to subsidize practical and theoretical perspectives tending to decarceration. It also ensures to look at the mistaken contraposition between public security premisses and fundamental rights or individual freedom underlying criminal law. This effort demands that, starting from the analisys of the current panorama of Brazilian prisons and entering into a bibliographic review, the penal system’s goals are questioned as limits of punitive power or a mechanism of social protection, and so the normatives that support particular or general decision-making. All this, togheter with notes on native jurisprudence, allows a critical analysis and concrete proposals or measures aligned with social and historical reality in the legal field, either in relation to pre-trial detainees, or in relation to citizens with definitive convictions, both in relation to material and overcrowding conditions, and also to the legality of the emprisionment.