Punitivismo como política criminal: análise de alguns aspectos da Lei 11.343/06 (nova Lei de Drogas)

Abstract

The present work has as its central question the analysis of the punitive criminal policy adopted in Brazil, more specifically with regard to the issue of drugs, indicating how Law 11.343/06 would be founded on a repressive bias of Criminal Law. Such a model of criminal policy has been raising political and popular capital, as well as assuming a leading role in the Brazilian Penal System without, however, where it came to be applied, it has generated significant and sufficient results to outline the guidelines of our Criminal Law, in addition to being considered a “failed model” by several authors. The hypothesis presented is that punitivism as a movement is poor in theoretical bases, lacking proposals and concrete results that result in the effective control of crime, being erected with the discourse of rigid and severe application of the criminal law, which would generate fear in the society and would repay the harm generated to the individual, however it would be responsible for causing damage to our penal system, with the main effects of mass incarceration and mitigation of constitutional rights and guarantees. In order to do so, we will analyze the Drug Law (Law 11.353/06), which, in our view, is a clear example of the excessive use of the State's power to punish under the pretext of combating organized trafficking, but which, in theory, it would be punishing, for the most part, small drug dealers and even users. That is, the motivation for such a reference is to be able to indicate a comparison between the resurgence of such criminal types and analyze whether their impact was effective or not, fulfilling what it proposed to do or going in the opposite direction. For the construction of such an idea, the work goes through the conceptualization of the theme "criminal policy", in order to situate the reader about the importance that this concept has for the Law and, mainly, as the criminal policy is responsible for indicating the directives that will be given to Criminal Law. Subsequently, the theories of the ends of the sentence will be worked, in order to understand punitivism as a criminal policy and what are the foundations of the theory with which it aligns (neo-retribucionism). Having overcome the theoretical foundations, we proceed to an analysis of the link between punitivism and drugs, indicating its origins in the Law and Order and Zero Tolerance movements and their respective influence on drug policy in Brazil. Thus, a historical survey of drug laws in Brazil was carried out from the 60's (heyday of neo-retribucionism movements), until reaching law 11.343/06, where it was possible to point out the speeches and anxieties that founded the law, as well as the main punitive points of the referred criminal law and the results generated. With this, the objective is to point out the failure of this repressive policy and, from that, to propose a remodeling of the criminal drug policy in Brazil, with a guaranteeist bias and that aims to reach only organized crime, in order to resolve the effects of the model. current in our penal system, mainly from an extrication and reduction of criminal types.