Sentencing

for a new role of criminal justice

Abstract

The article examines the moment of sentencing as a decisive stage for the limitation, control and reduction of formal or informal punitive violence. The methodology is critical-dogmatic, with analysis of constitutional criminal guarantees and case law, proposing a political role for the Judiciary that recognizes the political nature of the judicial function and commits itself to human dignity. The author defends culpability by the act as the basic criterion for sentencing, with consideration of conditions of subalternization, marginalization and exclusion that reduce the exigibility of different conduct; the abandonment of the institute of recidivism as a ground for aggravation of punishment, due to violation of ne bis in idem and culpability by the act; and the rejection of legal and political mechanisms that deny or restrict the implementation of more lenient regimes for the execution of custodial sentences, including the declaration of unconstitutionality of the rule of art. 2, § 1, of Law 8.072/90 and the solution of house arrest for the inexistence of albergados' houses. It concludes that the democratization of the exercise of power contained in the judicial function requires a new role for Criminal Justice, which moves against the dominant discourse and practice of law and order.