A inconstitucionalidade do regime disciplinar diferenciado e sua análise à luz das teorias agnósticas e de prevenção especial negativa

Abstract

The purpose of this article it is to make an analysis about the Differentiated Disciplinary Regime, a disciplinary sanction contained in the Penal Execution Law, under the optics of the Federal Constitution and from bibliographic and jurisprudential review. In first place, the Law no 13.964/19 it is analyzed, considering that it is responsable for relevant alterations in the regime, following by an analysis of the Law no 7.210/84, main Law related to the penal execution area. Then, it is explored the origins of the regime and the motives that lead to its creation by the Penitenciary Administration of the state of São Paulo, which is followed by an analysis of the forms and caracteristics of the regime, which are exposed and comented based on a constitucional parameter. In next, the regime is studied under the perspective of negative especial prevention, a theory that dispose about the neutralization of the segregated individual as the main focus of the penalty aplication. At last, the regime is analyzed under the optics of the agnostic theory of the penalty, which seeks to put way any kind of legitimation related with the penalty, considering that it lies under a few specific fundaments, which are: political, social control, the penalty as an uncancellable fenomenal and, yet, a fenomenal that needs to be contained in the society.