Direito penal juvenil: bases para a conformação constitucional do modelo de aplicação e execução das medidas socioeducativas privativas de liberdade

Abstract

This study highlights the need for a reform in the Brazilian socio-educational model, given the verification of its incompatibility with postulates of limitation to the state’s punitive exercise extracted from constitutional provisions. Three points receive special attention: a) The dynamics of application of juvenile detention – which highlights the existence of imprecise criteria in the legislation, that defines the adolescent's personal characteristics as a central element for the definition of the reprimand to be applied; b) The dynamics of juvenile incarceration serving – carried out for an indefinite period, based on a system that conditions the restoration of the adolescent's freedom to the achievement of moralizing objectives that are forcibly imposed on it; c) The legal nature of reprimands and its objectives - the attribution of punitive and pedagogical objectives serve, respectively, to justify speeches in favor of the prolonged perpetuation of the reprimand, under the pretext that it represents an asset for the adolescent, and the increase in the rigor of incarceration conditions as a way of effecting the distressing bias of reprimand. In addition to identifying to what extent such characteristics are incompatible with the current constitutional paradigm, at the end, solutions are proposed to equate the inconsistencies of the model in question or at least mitigate them. The proposed reforms contemplate the definition of criteria linked exclusively to the adolescent’s conduct for the definition of the measure to be applied in the concrete case, the proposition of determined deadlines for the fulfillment of the incarceration (maintaining the possibility of dismissal at any time) with the abandonment of the model of periodic reassessments, and the redefinition of the punitive and pedagogical dimensions of the measures, in order to prevent them from serving as justification for the arbitrary maintenance of juvenile detention and state imposed moralization.