Sentencing calculation and the duty to give reasons

Abstract

The article examines the duty to give reasons for sentencing calculation, in light of art. 93, IX, of the Brazilian Constitution and art. 68 of the Penal Code, which established the three-phase system of sentencing. The methodology is dogmatic, with historical, doctrinal and jurisprudential analysis. The author argues that the greater the discretionary power granted to the judge, the more necessary is the reasoning, which serves as a guarantee for the convicted person and the parties, besides allowing control of legality and constitutionality by the superior courts. It examines each phase of sentencing calculation, warning about the main judicial errors, such as the prohibition of bis in idem, the impossibility of mitigating circumstances reducing the sentence below the legal minimum, and the correct manner of successive application of aggravating and mitigating circumstances. It concludes that reasoning must be clear and detailed, under penalty of nullity, as it constitutes an essential element of the convicting sentence.