Author’s Warning: This is not a partisan political opinion column that I have, but I don’t want to share it here. On the contrary, it is just my point of view and my contribution to the discussion of ideas related to what concerns me and to which I think I can contribute. Fanatic-haters, abstain!
The national executive has submitted to Congress a draft reform of the penal code, which proposes, among other things, toughening penalties for various crimes, especially the most serious ones: crimes against life, sexual integrity, corruption, drug trafficking. He even suggests it for other cases that are not so historically important – such as theft, simple robbery or possession of weapons. In parallel, it also proposes the inadmissibility of this type of crime of uniquely harmful gravity, the disappearance of the possibility of enjoying conditional freedom for serious crimes and the possibility of minors accused of serious crimes being tried as adults; Creation of new criminals linked to technological advances and the proliferation of criminal organizations – including “mafia law” -, procedural changes aimed at accelerating the “time of justice” – such as the deepening of the adversarial system -, greater consideration of victims’ opinions before important decisions – sentences of conditional execution, early release, conditional release, to name just a few.
Two readings can be made here. One of them is related to the content of the proposed reforms, another to the way in which they were communicated to the public.. In both areas, nothing is valued other than serious engagement – active militancy – with inaction. To put it more clearly: in the 21st century, no serious country committed to the defense of human rights and therefore respecting the constitutional guarantees arising from the necessary limitations that must be imposed on the coercive power of the State could present a reform proposal such as the one proposed.
In this direction, the intention seems to have been implemented, but in reality nothing has the real ability to change reality. Nothing. Zero. And if it’s not zero, it’s 0.1 or 0.2. Practically nothing.
Serious crimes and higher penalties
There is no scientific evidence that increased punishment reduces the commission of serious crimes, since the threat of punishment is not the first counterargument that someone who is thinking about committing a crime considers to avoid committing it. If this were the case, it would be enough to impose the death penalty as a consequence for every crime and that would prevent or at least drastically reduce the commission of these crimes, but such a statement has not been proven.
On the other hand, easy access to technology and its advancements have kept criminal law 2.0 at bay and left it behind, and there is a need to update some criminal laws and create more specific ones. This does not mean that this type of protection of legal rights cannot be the first resource to be drawn upon in liberal, democratic penal systems, but rather the last. For this reason, it is claimed that criminal law is a protective barrier of last resort, that is, forms of protection of these assets must be created through means other than those of prison, and this implies the need to rationalize the processes in general – civil, commercial, consumer protection, administrative procedures related to minors, etc. and of course criminal law – also taking into account that it is the power of the provinces through their respective legislatures that have exclusive powers in this area, and not the National Congress, which can do this, except within the framework of the federal judicial organization. Respect for the powers of the nation and the provinces, in addition to being a legal obligation, is also a strong gesture of republicanism.
Can the state be a fraud?
Finally, the ongoing attempt to lower the age of criminal liability – that is, the possibility that a person can be punished – is, in my view, a mistake because it is based on a false assumption, which is essentially shared by the other points proposed to be changed in this draft Criminal Code: that the penal system has the ability to significantly influence the reduction of the scourge of crime. This idea is patently absurd. And when I say “obviously,” I do so because experience has shown us that this is not the case. I’m really asking: Why don’t you commit crimes? I think that the majority answer would be more or less: “Because I was raised in an environment in which I was taught to value and respect others in all their versions – women, elders, children, etc.; because they taught me the importance of doing no harm, resolving conflicts peacefully, making an honest living, and I have the opportunity to do so; because they showed me and understood that following the rules serves a greater good than my own, namely the good.” common, that of everyone: that of my neighbor, that of my partner, that of my brother and even that of strangers whose humanity I recognize.”
In this sense, all these projects, these ideas and miraculous claims that have affected all governments since the return of democracy in 1983, are, in my view, just a resource that underestimates the citizen and makes him believe that the solution is where it is not. It is the true militancy of nothingness itself.
I have witnessed many efforts in this direction, but I have never seen a common educational and economic policy that penetrates governments, regardless of the color of their flag, and that enables the building of the solid and real foundations of a serious country that offers real opportunities to all, but especially to the most humble and disadvantaged.
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