Prisões cautelares por tráfico de drogas: como o direito penal do inimigo colabora para encarceramento em massa no Brasil

Abstract

Raúl Zaffaroni's 2006 work, "The Enemy in Criminal Law," revealed that the incapacitation of "enemies" in Latin America occupied almost the entire scope of the "precautionary penal system," with three-quarters of the region's prisoners being held in pretrial detention. In Brazil, this enmity occurs mainly through the precautionary process of the war on drugs, which promotes the extensive detention of marginalized individuals. Prompted by the increasing complexity of this phenomenon, the research focuses on the collaborative role that the "enemy criminal law" plays in Brazilian hyper-incarceration. Thus, the study analyzes the dynamics of precautionary processes in the war on drugs, considering that statistics from the Brazilian prison system invariably show that one-third of those incarcerated are pretrial detainees, and that a large part of this fraction consists precisely of individuals investigated or accused of drug-related offenses. This is because the ever-expanding criminalization processes within this warlike paradigm directly affect those who are most vulnerable, in addition to exerting constant pressure on the incarceration rate and the growth levels of the prison population. The study is therefore justified by statistics demonstrating the high number of people held in pretrial detention for suspected drug trafficking crimes within the overall prison population, as hyper-incarceration is one of the relevant aspects of the unconstitutional state of affairs experienced by the Brazilian prison system. Therefore, the central hypothesis of the study is that there is great difficulty in reversing the continuous trend of increasing incarceration in Brazil, with the animosity stemming from the criminal process of the war on drugs being a factor that largely explains the inextricable barrier to the effective release of prisoners, even though decarceration measures have been adopted in the last decade. Preliminarily, it could be argued that there has never been a strong trend towards an effective decrease in the prison population in the last three decades. Thus, this research, through a review of the state of the art based on the theoretical frameworks of critical criminology, aimed to identify the figure of enmity in samples of precautionary proceedings, with data extracted from the dynamics of custody hearings since their inception, including hearings held before the Court of Justice of the State of Rio de Janeiro, since this State is the quintessential laboratory of the phenomenon of the war on drugs. To this end, the study collected and then conducted a qualitative analysis focused on the conversions of arrests in flagrante delicto for drug trafficking into preventive detentions by custody judges, which also included the maintenance of custody in subsequent criminal proceedings. Therefore, in order to contribute to strategies for containing hyper-incarceration, the study discusses the effects of pretrial detention on selective criminalization based on markers of race, age group, gender, social stratum, housing, and education – young black and poor men from urban peripheries, with low or no education, whom the pretrial process of the war on drugs chooses as ‘enemies’, under the justification of dangerousness in the punitive control of surplus individuals.