Oxente! Preventive detention, concrete gravity, and the goddess Aphrodite

Abstract

This article investigates the growing use of the argument of the “concrete gravity” of the fact as a basis for ordering preventive detention in the Brazilian criminal justice system. It starts from the premise that preventive detention must have an instrumental purpose and be subject to the requirements of Article 312 of the Code of Criminal Procedure (materiality, evidence, need to guarantee public order, economic order, investigation, or application of the law). It argues that recent decisions replace concrete risk with mere considerations of abstract gravity or social outcry, violating the principle of presumption of innocence and transforming preventive detention into anticipation of punishment. In this context, “public order” becomes a changeable and subjective concept, comparable to the mythological figure of the goddess Aphrodite, whose form adapts to the gaze of those who contemplate her, illustrating the arbitrariness of the adopted rationale. A critical reflection on the effects of this pattern on mass incarceration and the erosion of procedural guarantees is proposed.