A Execução da Pena sob Perspectiva Crítica: O Desalinhamento entre o Executivo e o Judiciário na Gestão do Jus Puniendi

Abstract

This paper discusses the application of the Law of Criminal Enforcement in Brazil, focusing on the misalignment between the Executive and Judiciary branches. This is a crucial topic, as it involves the complex difficulties in implementing the LEP, requiring incisive cooperation among the three branches of government, especially the Executive and Judiciary. The methodology is qualitative, based on doctrinal analysis and Law N. 7.210/84. It is necessary to understand the purpose of punishment, which is a criminal sanction imposed by the State on an individual through criminal proceedings, as a result of a violation of a legally protected good. Thus, there are different ways of applying punishment: Absolute, which is the mere retribution of the penalty; Relative, which aims to use the individual as an example to prevent new crimes; and Mixed, which combines both and seeks the reintegration of the offender into society (applied in Brazil). Criminal Enforcement is the stage in which the individual, after being legally convicted, must serve the sentence as provided by law. It is observed that Criminal Enforcement has become a matter of public policy, as it falls under the Executive branch, which must comply with what is imposed by the Judiciary, ensuring that the means for applying the law are adequate—something that, in the current scenario, has become an arduous task. This deficiency prevents the mixed purpose of punishment from being achieved, violating fundamental precepts such as the minimum existential standard. Such failure was recognized in ADPF 347/DF. Finally, the divergence between the branches of government, caused by the scarcity of resources, hinders the enforcement of the LEP.