A superlotação dos presídios: a massiva lesão dos direitos fundamentais e o cenário de relativização à tortura

Abstract

The present study aims to analyze the crisis in the prison system in Brazil, which imprisons much more than its structure can withstand. The 2019 Penitentiary Information Survey has a deficit of 312,925 thousand vacancies in Brazilian prisons, which demonstrates an intense overcrowding. Throughout the work, it is identified that the overload of the prison system makes it impossible for the detainee to exercise his rights, and forces him to live in an unhealthy and inhospitable environment. In addition, the detainee ends up inserted in a space where he suffers damage to his basic rights to health, education, physical integrity, morals and dignity, with a clear relativization of torture inside the prison. The Federal Supreme Court recognized the degrading situation of prison systems through ADPF 347 and admitted the Unconstitutional State of Things. However, no effective measures were taken to change the reality experienced by prisoners. In this way, some alternative measures to the deprivation of liberty were presented, which, if applied effectively, are able to alleviate the problems experienced. Such measures, despite being present in the legal system, lack greater effectiveness, since they have not yet managed to comply with the objective of reducing the damage resulting from prison overcrowding. Given this scenario, it is important to highlight that the study sought to analyze injuries to the law, with the following considerations: the adoption of the mixed theory justifying the penalty, which aims at retributing the crime committed by the individual through the penalty and its reinsertion in society ; criticism of the maximization of the penal system, which hardens the penalty and undermines fundamental rights and guarantees, through the bias of Cezar Roberto Bitencourt; the antigarantist stance of the Brazilian prison model and the use of the minimum criminal law, guided by Luigi Ferrajoli; and the application of some alternative measures to the custodial sentence, with attention to the burden of the prison system. For that, deductive reasoning was used in order to apply a major premise to a minor one so that a conclusion can be reached.