Punishing the poor

the positivation of coculpability in the Brazilian Criminal Code as a measure to combat aporophobia

Abstract

This article aims to provide insights for the discussion and eventual lege ferenda proposal for the codification of coculpability within the Brazilian Criminal Code. To this end, it begins by extracting empirical data regarding the aporophobic dynamics (rejection of poverty) that permeate the dynamics of the Brazilian criminal system. In this context, the logic of criminal management of poverty operates under an anachronistic premise of culpability that idealizes the individual through a theory of absolute freedom of action; however, in practice, it results in the selective application of Criminal Law against individuals who possess a more restricted range of life possibilities. The proposal for the codification of coculpability is outlined by attempting to overcome obstacles such as the distorted etiological link between poverty and criminality. Furthermore, it seeks the recovery of the theory of coculpability over subsequent theories—such as “culpability by vulnerability”—which, despite their undeniable relevance, lack compatibility with the material foundation of aporophobia. It is argued that the inclusion of coculpability in the Brazilian Criminal Code as a dogmatic instrument to restrain the jus puniendi stems from the disproportion between the provision of Constitutionally guaranteed social rights and repression through Criminal Law. Ultimately, this is a primary necessity for mitigating the penal selectivity that (re)marginalizes vulnerable groups in society.