Is it possible to punish without incarceration? the possibilities of alternative punishments to imprisonment in the brazilian legal system

Abstract

Data from the National Council of Justice indicate that 60% of individuals serving sentences in Brazil are in one of the 1,170 closed-regime establishments, with 75% of these evaluated as terrible, poor, or average, in addition to a deficit of more than 175,000 spots. With a prison population of nearly 700,000 people serving sentences under conditions that massively violate human and fundamental rights, whether due to overcrowding, poor infrastructure conditions, or lack of access to healthcare, education, and work, it is appropriate to question the possibility of punishing effectively without incarceration. In this context, the present study, linked to the United Nations Sustainable Development Goal (SDG) n. 16 – Peace, Justice, and Strong Institutions, has as its general objective to analyze the applicability of alternative penalties and measures to incarceration as a strategy for a more efficient and humane criminal justice system. The specific objectives are defined as: to discuss the reality of the Brazilian prison system based on the state of unconstitutional affairs declared by the Federal Supreme Court when judging the Noncompliance with Fundamental Precept Action n. 347; to list the public policies of decarceration provided for in the Brazilian legal system and their contributions to fulfilling the purposes of criminal sanctions of punishment, education, and resocialization. Based on a qualitative approach, grounded in theoretical and bibliographic research, the compatibility of the applicability of alternative penalties and measures to incarceration is examined in relation to the purposes of punishing, preventing, and resocializing, in observance of the constitutional principle of the dignity of the human person. The analysis highlights that, although provided for by law, alternative penalties and measures still face cultural and institutional barriers that hinder their effective application. It is concluded that the expansion of the use of non-custodial criminal sanctions is essential to overcoming the state of unconstitutional affairs, and that incarceration should be an extreme measure imposed for the most serious crimes, requiring, however, the strengthening of public policies and the deconstruction of the social stigma associated with punishment without imprisonment.