A inconstitucionalidade da prisão obrigatória perante decisão do plenário do tribunal do júri

Abstract

This study considers the inconstitutionality of provisional criminal execution as found in both Article 492, I and the Criminal Procedures Code. It discusses verdict sovereignty in opposition to the presumption of innocence. The analysis is based on Jury Court history, its internalization into our legal system, and also how it became part of our Constitutional text through wording found in Article 492, I, “and”, in the Criminal Procedures Code as rendered in Law 13.964/2019 (The Anti-Crime Law), allowing for sentencing (provisionally executed) to imprisonment for more than 15 years. The constitutionality of this device is questioned. Subsequently, this study will address convictions before the Plenary Jury, and the possibility of provisional criminal executions thus arising. It will present the jurisprudential evolution of provisional criminal execution in light of the Federal Supreme Court, and it will follow the evolution of the Court's understanding of habeas corpus 84.078-7. Consequently, it will investigate the inversion of that understanding with the advent of habeas corpus 126.292. Further, the game changer being an understanding of the “Ações Diretas de Constitucionalidade” 43, 44 and 54, it will present the fundamental right to the presumption of innocence in its constitutional and infraconstitutional aspects. Finally, it will address criminological aspects involving populist criticisms, punitive practices, and mass incarceration, situation which affect many, especially blacks, the poor, and those who survive only by subsistence at the margins of society.