Os exames criminológicos na progressão de regime: entre o paradigma da prevenção especial positiva da pena e uma nova expectativa para a execução penal brasileira

Abstract

The criminological examinations has been questioned by many fronts of actions since its incorporation into the Brazilian legal system, which became even more energetic after the exclusion of the possibility of its utilization for regime progression, promoted by the law 10.792/2003. However, the Superior Courts consolidated the understanding that magistrates may request the drafting of the instrument in occasions they perceive it necessary, which is the reason why the practice continue to happen according to the position of each judge. Moreover, different bills seek to establish the exam for all regime progression, mainly PLS 499/2015, whose progression is more advanced. Therefore, the questioning arises: is the affirmation of the use of criminological examinations to measure the subjective requirement in the progression of the regime sufficient to justify its admissibility? Thus, the studies presents part of the hypothesis in which the practice is compromised by two reasons: 1) the conception of positive special prevention of punishment is not supported by the Federal Constitution of 1988; and 2) the criminological exam can’t assure to the Judiciary if the convict will or will not relapse. Along these lines, using qualitative research, under the deductive method, the dissertation is built through the concatenation of a bibliographic leaning, using national and foreign theoretical references on theories of justification of punishment and reflections resulting from the Clinical Criminology of orientation criticism, and an empirical bias, with field observation carried out from the experience of the State of Alagoas. In the end, it is concluded that the use of the criminological examination for the purposes of regime progression, in addition to confronting constitutional precepts, is sterile, requiring commitment and resources (human and material) that could be directed towards the effective minimization of the desocialization promoted on the individual by the imprisonment.