O princípio da humanidade da pena no sistema carcerário brasileiro: hipóteses para uma redução de danos desde o garantismo penal

Abstract

The democratic state ruled by law is characterized by a link between public powers and a guaranteeing project for the protection of fundamental rights. This model is not implemented in the Brazilian prison system, marked by a historical denial of fundamental rights to prisoners. The solution– or at least the mitigation of the damage resulting from incarceration in inhumane conditions – depends on the judiciary branch fulfilling its constitutional function of guaranteeing rights, the effectiveness of international treaties and documents protecting human rights, and the recognition of the internal effectiveness of the Inter-American Court of Human Rights precedents. The Constitution establishes limitations on punishment, which must be recognized at the sentence execution stage. Then, some points should be highlighted: the principle of humanity as the basis and limits of punishment; the strict legality and the necessary intersection with the principle of humanity; the judicial protection, the jurisdiction principle and the recognition of the State's position as guarantor in the face of violations of the principle of humanity. In compliance with the guarantor paradigm, hypotheses to reduce the divergence between constitutional normativity and the Brazilian prison reality are presented. Other issues are emphasized, such as the need to observe strict control over the occupancy rate of prisons (numerus clausus); serving the sentence under an appropriate regime; the mitigation of preventive detention; remission or compensation for illicit punishment; leaving particularly vulnerable groups, such as the elderly, people with disabilities, women and the LGBTI population free from incarceration