Criminal law of the author in the application of bail

Arbitrary crimes

Arbitrary crimes

In arbitrary crimes, the arbitrated value must be determined by the authority by analyzing the nature of the infraction, the personal conditions of fortune and previous life of the accused, the circumstances indicative of their dangerousness, and the probable importance of the costs of the process, until final judgment. This is what Article 326 of the Code of Criminal Procedure recommends.

Reading the IBCCRIM Bulletin this month, I came across an article that could not be left out of this Channel. The author, Marcus José da Silva Cardinelli (2015), informs the words spoken by Rio de Janeiro Police Delegates about the arbitration of bail. The reports, of course, are nothing new to those who toil in the criminal field. However, when written, read, and reread, they spread a reality impossible to ignore: punitive fundamentalism that is intrinsic in police institutions, eventually establishing essentially subjective moral criteria of punishment (2015, 129). I therefore urge you to reproduce some of the reports, all said, according to the said author, by Police Officers of the PCERJ:

The law does not say that bail is denied in case the inmate does not have fixed residence.

The law does not say that bail is denied in case the inmate does not have fixed residence.

“Beggars, for example, have to be stuck so as not to disturb the order. The victim’s suffering must always be taken into account. Many hardcore criminals do not work. This makes them more difficult to pay these amounts. The criterion used, in the justification is whether the inmate will return is to commit criminal offenses and thus, if it is dangerous. Bail takes into consideration who the person is and what he or she is capable of doing. If you are just a thief of opportunity, you can arbitrate on average bail. But if you’re a bad guy, the chat is different. Bail usually goes unpaid. Generally, those who commit crime are slum dwellers, homeless, have no place to fall dead, have no job, have no money “

“The delegate has tremendous power! It’s the sheriff who says who’s in jail and who’s out. It is the one who takes liberty for any crime, disturbance or contempt. I apply bail high; place theft or theft as I want; any thrashing that would be theft with dexterity, I arrange a qualified robbery; I hold for resistance or contempt; I put it in traffic instead of in use. “

At first glance the question of the criminal selectivity is: “generally who commits crime is a favela resident, homeless, has no place to fall dead, no job, no money”, ie the police authority has already acts with a lombrosiano diagnosis and absolutely mistaken, since it has long been perceived that the individuals of less favored classes of the society are not who practice more crimes, but the ones that are more likely to be criminalized!

It was not enough, it was clear that this punitive selection is, for some Police Delegates, decisive for the arbitration of bail, at which point the author’s criminal law is fully embraced: the fact is ignored, the typical concrete action, in order to punish the accused for his personality and attributes considered as socially negative, in short, for what he is. Thus, the objective is to make it difficult to release them by means of bail, so that “justice” can be done at any cost, which is absolutely unconstitutional, from this point of view.

These are unfortunately commonplace situations in our daily life, but even so, it is worth pointing out how “creepy” the reading of the above-mentioned stories becomes. These are institutional and customary positions that relativize the constitutional guarantees of the accused, resulting in exactly what Zaffaroni (2001, pp. 26-27) asserts when he states that “the criminal system is a real hoax: it pretends to have a power that it does not possess, hiding the true power it exerts. “

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