O que está dado não precisa ser dito: os racismos e a dosimetria da pena no direito penal das drogas

Abstract

This study analyzes the disproportionality in the application of sentences established for the crime of drug trafficking, as set forth in Article 33 of Law No. 11.343/2006, focusing on the criteria employed by judges in the different stages of sentencing. The research examines 113 cases, resulting in 133 valid observations of first-instance decisions issued by the Court of Justice of Rio de Janeiro in 2023, and is guided by the hypothesis that structural and institutional racisms naturalize and normalize the defendant as the ultimate target of drug criminal policy. The theoretical framework, grounded in critical criminology, penal garantismo, and critical race theory, enables the analysis to move beyond strictly procedural variables, revealing how penal selectivity is already established in the choice of who is approached as a “suspect.” The findings indicate that the majority profile of those convicted corresponds to young, Black, first-time offenders, residents of peripheral areas, apprehended with small amounts of drugs and unarmed, which demonstrates the historical continuity of racialized repressive practices. The study identifies the centrality of police testimony as the sole evidence in 91% of convictions, legitimized by Precedent 70 of the Rio de Janeiro Court of Justice, in clear violation of constitutional principles. Regarding sentencing, it was observed that the base penalty was set above the legal minimum in 56% of cases, mainly justified by the quantity (43.6%) and the nature (36.8%) of the drug, legally indeterminate categories that broaden judicial discretion. The intermediate stage revealed the restrictive effects of Superior Court of Justice Precedent 231, which neutralizes mitigating factors such as minority (age) and confession, while recidivism operates as an automatic and criminogenic aggravating factor. In the final stage of sentencing, the refusal to apply the mitigating factor provided in §4 of Article 33—often based on the vague notion of “dedication to criminal activities”—emerged as the main reason for increasing penalties, including for first-time offenders. As a result, the average sentence amounted to 4.87 years, with more than 60% ranging between 5 and 8 years, and 51% set to begin in the closed regime, despite being a crime without violence or serious threat. The study concludes that judicial decisions mobilize metajuridical and discretionary criteria that reinforce racial selectivity and legitimize the mass incarceration of the Black population, demonstrating that racism, already embedded in the process, functions as a structural element of the criminal justice system and is consolidated in the sentence, conferring an appearance of legality on disproportionate punitive practices.