Theory of Punishment - Class 11.1 | Criminal Law Course - General Part

Summary

This lecture delves into the theory of punishment within Brazilian criminal law, outlining the five constitutionally prohibited punishments: death (except in wartime), life imprisonment, banishment, forced labor, and cruel punishments. It also discusses various penalties defined by the Brazilian Penal Code, including imprisonment (reclusão, detenção, and prisão simples), restrictive rights (such as community service and temporary loss of rights), and fines. The differences between penal regimes (closed, semi-open, and open) are explained, alongside conditions for work and study during imprisonment. The talk emphasizes the legal implications and processes surrounding the application of these penalties.

Takeaways

• 😀 The death penalty is constitutionally prohibited in Brazil, except in the case of a formal declaration of war against a foreign country.
• 😀 Perpetual penalties, such as a life sentence without a limit, are prohibited in Brazil. The maximum sentence is currently 40 years, as amended by the anticrime law in 2020.
• 😀 Banishment of Brazilian nationals is constitutionally prohibited. This does not apply to extradition or deportation of foreigners.
• 😀 Forced labor is unconstitutional, and it cannot be used as a punishment. However, mandatory work for prisoners, as part of their sentence, is allowed.
• 😀 Cruel penalties, such as corporal punishment and torture, are strictly prohibited in Brazil.
• 😀 The Penal Code provides for three types of imprisonment: reclusão (imprisonment), detenção (detention), and prisão simples (simple prison).
• 😀 Restrictive rights penalties are alternatives to imprisonment, such as community service, monetary penalties, or temporary loss of rights.
• 😀 Prisoners can be assigned to different types of penal regimes, including closed, semi-open, and open regimes, depending on their sentence and behavior.
• 😀 Inmates in the semi-open regime can work externally, including in private sector jobs, and may study externally as well.
• 😀 Inmates in the open regime must work or study externally as a condition for remaining in the regime, typically leaving a house of detention in the morning and returning by evening.
• 😀 The principle of proportionality ensures that penalties are applied based on the severity of the crime and the individual’s characteristics, with some flexibility for alternative penalties under certain laws.

Q & A

What are the five types of penalties constitutionally prohibited in Brazil?

The five constitutionally prohibited penalties in Brazil are: death penalty (except in cases of declared war), perpetual punishment, banishment, forced labor, and cruel punishment.

Under what circumstances is the death penalty allowed in Brazil?

The death penalty is allowed in Brazil only in cases of declared war with a foreign country. It is not applicable in cases of civil war or internal conflicts.

What is the constitutional limit on the length of a prison sentence in Brazil?

As of January 23, 2020, following the anticrime law (Law 13,964/2019), the maximum prison sentence in Brazil is 40 years, up from the previous 30-year limit. This applies to crimes committed after this date.

What is the difference between the concepts of 'reclusion' and 'detention' in Brazilian law?

Reclusion and detention differ mainly in the initial regime of sentence fulfillment. Reclusion can start with any of the three regimes: closed, semi-open, or open. Detention, on the other hand, begins with the semi-open or open regime and cannot begin with the closed regime.

What is meant by 'forced labor' in the context of Brazilian law?

Forced labor refers to the use of physical violence to compel someone to work, which is prohibited by the Brazilian Constitution. This contrasts with mandatory work, where prisoners are legally required to work but without the use of violence.

What are 'penalties restricting rights' in Brazilian law, and what are some examples?

Penalties restricting rights are alternative penalties to imprisonment. Examples include pecuniary compensation, confiscation of assets, community service, temporary suspension of rights, and weekend restrictions.

What is the difference between a 'simple prison' and 'reclusion' or 'detention' in Brazil?

Simple prison applies only to contraventions (minor offenses), while reclusion and detention apply to crimes. The main difference is that reclusion and detention involve more serious crimes, and reclusion allows for more flexible punishment regimes, whereas simple prison is restricted to lighter offenses.

Can prisoners in Brazil progress through different levels of punishment regimes?

Yes, prisoners can progress from a closed to a semi-open and then to an open regime, but they cannot skip stages. However, regression is possible: a prisoner can move back to a more restrictive regime if they commit a serious disciplinary violation.

What is the rule regarding prison in Brazil when there is no suitable penal establishment available?

If the appropriate penal establishment (e.g., a semi-open facility) is not available, the prisoner may be eligible for house arrest, as established by the Brazilian Supreme Federal Court.

How are penalties applied in Brazil’s 'extravagant legislation' outside the Criminal Code?

Penalties from Brazil’s criminal code apply to 'extravagant legislation' (special laws), unless the specific law provides otherwise. This means the rules for penalties in the Criminal Code generally apply to other areas of criminal law unless stated differently.