Brazilian Post-1988 Constitution Criminal Policies: Comparing Law-Making with Impacts on Incarceration

Abstract

This article seeks to discuss how criminal reforms in Brazil, occurring in the post-1988 Constitution period, constitute an increasingly expansionist criminal policy, alternating, nevertheless, between legitimate and illegitimate punitive tendencies. The illegitimate criminal expansion is one of the main causes for the unsustainable mass incarceration in progress in Brazil. Based on an empirical survey of the criminal laws passed in Brazil between 1940 and 2017, it was noticed that Brazilian criminal law reacted intensely to the “criminalisation mandates” contained in Constitution, producing criminal and criminal procedural laws in response to the guarantee of a “Citizen-Oriented Constitution”. The problem tackled by this paper involves understanding national criminal policy tendencies, particularly their effects and criminological legitimacy, identifying them as couched in punitivism or left realism. In order to assess the complexity underlying Brazilian political movements after the 1988 Constitution, this article is based on quantitative data and a qualitative analysis of the criminal policies guiding the criminal laws intended to tackle crimes committed based on race and gender. This research method has led to the conclusion that law-making does not necessarily result in increased incarceration, contrary to the common theoretical-criminological belief that assumes that all neo-criminalisation equates to incarceration and penal populism, thereby suggesting the need for delimiting another criminal policy tendency for this phenomenon, referred to as left realism.