AFTER ALL, WHY DO WE PUNISH?

THE INCOMPATIBILITY OF THE UTILITARIAN PURPOSES OF THE PENALTY WITH THE BRAZILIAN PUNITIVE MODEL AND ITS CRIMINAL POLICY CONSEQUENCES

Abstract

This article sought to compare reality with the law, regarding the designated criminal sanctions, based on theories of punishment. The research sought to answer which sanction’s objective is compatible with the Brazilian sanctioning model, based on a concrete analysis of the prison reality, aiming criminal policy’s developments. To this end, the methodological construction was structured using the deductive method, developing a broad theoretical plan, through a bibliographical review of the topic, on utilitarian theories - analyzing incapacitation, dissuasion and rehabilitation -, and retributionist theories, in order to, secondly, analyze the scientific findings and apply them to the Brazilian reality. Having established these premises, it was argued that, in Brazil, given the model applied, only retribution can serve as a basis for guidelines of a criminal policy nature, given that the utilitary ends do not have either real application or sufficient concise scientific data to do so. Finally, possible observations of criminal policy matter are glimpsed, derived from the majority prevalence of retribution over utilitary ends, especially with the centrality of the principle of proportionality as a driver of justice in the application of criminal sanctions.