According to Reale, legal life in society is in line with the cultural evolution of humanity, with a gradual shift in the resolution of conflicts through physical force becoming less reliant on legal norms.

This scenario becomes evident when we recall the successive phases in which punishment has manifested itself throughout human history, from the period when private revenge was a means of conflict resolution to the humanitarian period, evolving into contemporary concepts of the markedly purposeful content of punishment.

Notably, in Brazil, the current scenario presents a culture originating from the colonial period, in which an authoritarian and inquisitorial system prevailed, as evidenced by the level of punishment, especially regarding prison sentences.

The Brazilian Supreme Court has recognized that the Brazilian prison system is in a "State of Unconstitutional Affairs," characterized by the massive, continuous, and widespread violation of the fundamental rights of people deprived of their liberty. This situation stems from the inertia, as well as the repeated and persistent inability of public authorities to promote structural changes capable of overcoming this situation. 

Added to this is the fact that the Brazilian state maintains an incarceration policy that systematically exceeds its actual custody capacity, resulting in chronic overcrowding and worsening of the degrading conditions in the prison system.

According to the Parliamentary Commission of Inquiry into the Brazilian prison system, conducted in 2008, it was found that the Brazilian recidivism rate was above 70%, although there are discrepancies regarding this number, since Ipea (Institute for Applied Economic Research), in conjunction with the CNJ (National Council of Justice), published research in 2015 with a recidivism rate of 24,4%.42

Regardless of statistical discrepancies, it is possible to state that the Brazilian prison system fails in one of its main objectives: the resocialization of the convicted person. The custodial sentence, as currently applied, proves to be largely ineffective in the social reintegration of the offender, often functioning as a factor in the reproduction of crime and the strengthening of criminal organizations.

According to Article 1 of the Penal Execution Law (Law No. 7.210/1984), the purpose of penal execution is to give effect to the provisions of the criminal sentence or decision and to provide conditions for the harmonious social reintegration of the convicted and the interned. However, between the normative provision and the concrete reality, a profound gap is observed, marked by structural deficiencies, the absence of effective public policies, and penal selectivity.

Alternatives to imprisonment

In this context, the debate about alternatives to imprisonment gains importance, especially given the realization that mass incarceration is incompatible with the constitutional principles of human dignity, proportionality, and individualization of punishment. Alternative penalties and measures emerge as instruments capable of promoting a more rational, humane, and efficient penal response.

Restrictive penalties, as provided for in Article 43 of the Penal Code, such as community service, weekend confinement, and monetary compensation, are mechanisms capable of preventing the convict from entering the prison system, reducing the criminogenic effects of imprisonment and promoting the socially useful accountability of the offender.

Furthermore, institutions such as the conditional suspension of sentence (probation), the plea bargain, and the conditional suspension of proceedings, within the scope of the Special Criminal Courts, represent important advances towards decriminalization and the promotion of consensual solutions, especially for offenses of lesser offensive potential.

Within the context of penal execution, measures such as electronic monitoring, house arrest, and the increased use of less restrictive regimes stand out, provided that objective and subjective criteria are observed. These instruments allow for greater state control at a lower social, economic, and human cost, in addition to promoting the maintenance of the offender's family and work ties.

It is important to emphasize that the adoption of alternative measures does not imply impunity, but rather a redefinition of the penal response, aligned with the preventive and resocializing purposes of punishment. Studies indicate that alternative punishments, when properly monitored and accompanied by integrated public policies, show lower recidivism rates than those observed in the traditional prison system.

The future of the Brazilian prison system necessarily involves a paradigm shift. It is essential to overcome the exclusively punitive logic and invest in evidence-based criminal policies that prioritize prevention, restorative justice, and the social reintegration of the convicted.

In this sense, restorative justice emerges as a promising model, promoting dialogue between the offender, victim, and community, seeking to repair the damage and the conscious accountability of the perpetrator. This approach contributes to social pacification and the reduction of recidivism by addressing conflict in a more comprehensive and humane way.

The implementation of a fairer and more efficient penal system demands coordinated action from the Executive, Legislative, and Judicial branches, as well as the strengthening of institutions responsible for overseeing and monitoring alternative sentences and measures. Only through a criminal policy committed to fundamental rights and the social function of punishment will it be possible to envision a more dignified and effective future for the Brazilian prison system.

Furthermore, it is essential to recognize that the crisis in the prison system cannot be resolved solely by increasing prison capacity. While building new facilities may temporarily alleviate the problem of overcrowding, it does not address the structural causes of mass incarceration, such as selective prosecution, the criminalization of poverty, and the excessive use of imprisonment as an almost automatic response to crime.

How should penal execution be understood?

The execution of sentences must be understood as a fundamental stage of criminal prosecution, in which the constitutional values ​​of the Democratic Rule of Law are realized. The dignity of the human person, a founding principle of the 1988 Federal Constitution, imposes clear limits on state punitive action, prohibiting cruel punishments, inhuman or degrading treatment, and requiring minimum conditions for serving the sentence.

In this sense, the expansion and improvement of alternative measures prove strategic not only to reduce the prison population, but also to rationalize the performance of the criminal justice system. By directing imprisonment to cases of greater severity and social dangerousness, the State optimizes resources and confers greater effectiveness to penal protection.

Another relevant aspect concerns the need to strengthen the Alternative Penalties and Measures Centers, responsible for monitoring and overseeing compliance with these sanctions. The lack of adequate structure, trained professionals, and integration with social policies compromises the effectiveness of alternative measures and fuels discourses that question their credibility.

Interdisciplinary action, involving social workers, psychologists, educators, and civil society organizations, proves essential for the success of these measures. From this perspective, punishment ceases to be a mere instrument of retribution and takes on a pedagogical and preventative function, contributing to the reduction of recidivism and the social reintegration of the convicted individual.

Also noteworthy is the role of the Judiciary in consolidating a new punitive culture. The interpretation and application of criminal and criminal procedure laws must be aligned with constitutional principles and international human rights guidelines, such as the Mandela Rules and the Tokyo Rules, which encourage the use of non-custodial sanctions.

The paradigm shift, however, faces social and political resistance, often fueled by populist and punitive rhetoric. The belief that increased incarceration automatically results in greater public safety ignores empirical evidence and contributes to the exacerbation of social inequalities and institutional violence.

Given this scenario, the future of the Brazilian prison system depends on consolidating a criminal policy committed to the effectiveness of fundamental rights, reducing unnecessary incarceration, and promoting alternative measures. It is about recognizing that punishment should serve society not only as an instrument of repression, but also as a means of social transformation and the promotion of justice.

Thus, penal execution and alternative measures must proceed in an integrated manner, guided by a humanistic and constitutional vision of punishment. Only by overcoming the failed prison model and adopting more intelligent and proportionate penal responses will it be possible to build a more just, efficient criminal justice system compatible with the values ​​of the Democratic Rule of Law.

REFERENCES

BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil of 1988. Brasília, DF: Presidency of the Republic.

BRAZIL. Decree-Law No. 2.848, of December 7, 1940. Penal Code. Brasília, DF: Presidency of the Republic.

BRAZIL. Law No. 7.210, of July 11, 1984. Penal Execution Law. Brasília, DF: Presidency of the Republic.

BRAZIL. Supreme Federal Court. Claim of Non-Compliance with Fundamental Precept No. 347/DF. Rapporteur: Justice Marco Aurélio. Decided on September 9, 2015.

Parliamentary Commission of Inquiry into the Prison System. Final Report. Brasília: Chamber of Deputies, 2009.

NATIONAL COUNCIL OF JUSTICE. Re-entries and Criminal Recidivism in Brazil. Brasília: CNJ, 2015.

FERRAJOLI, Luigi. Law and reason: theory of penal guarantees. 3rd ed. São Paulo: Revista dos Tribunais, 2010.

INSTITUTE FOR APPLIED ECONOMIC RESEARCH. Criminal recidivism in Brazil. Brasília: Ipea, 2015.

REALE, Miguel. Preliminary Lessons in Law. 27th ed. São Paulo: Saraiva, 2002.

ZAFFARONI, Eugenio Raúl; PIERANGELI, José Henrique. Manual of Brazilian Criminal Law. 7th ed. São Paulo: Revista dos Tribunais, 2011.