Encarceramento no Brasil não cumpre função ressocializadora

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Por Rafael da Escóssia e Leonardo Melo Moreira

A história do Direito Penal foi, na grande maioria das vezes, marcada pelas indagações acerca dos sentidos, funções e limites da sanção criminal. Longe de visar a uma discussão isolada acerca das inúmeras teorias da pena desenvolvidas ao longo dos anos, o presente artigo pretende discutir as formas mediante as quais o ordenamento jurídico brasileiro incorpora normativamente tais teorias e como tal “adesão” deve ser analisada sob a ótica dos princípios constitucionais de proteção à pessoa e dos parâmetros de racionalidade aduzidos por Eugenio Raúl Zaffaroni.

De início, portanto, a discussão estará centrada na identificação de uma suposta complementação “deôntica” – em face da própria Constituição – produzida pelo Pacto de São José da Costa Rica, o qual prevê, em seu artigo 5.6, a ressocialização como função primordial das penas privativas de liberdade. Na sequência, tal conjectural “legitimidade” será confrontada pelos referidos critérios de racionalidade propostos por Zaffaroni. Por fim, mediante uma leitura conforme a Constituição do Pacto de São José da Costa Rica, propugnar-se-á uma solução normativa para a questão concernente à incorporação, pelas normas brasileiras, das funções da pena.

Em busca de uma orientação telológico-normativa para a pena de prisão a partir do Pacto de São José da Costa Rica
A disposição genérica trazida no artigo 59 tem sido encarada pela doutrina majoritária como uma adesão do Código Penal às teorias unificadoras aditivas no tocante às funções da pena. Tal disposição, no entanto, deve ser interpretada em coerência com as normas superiores. Se, por um lado, a Constituição não dispõe teleologicamente sobre a punição, resultando em um “déficit deôntico” a ser integralizado hermeneuticamente, por outro, a Convenção Americana sobre Direitos Humanos (Pacto de São José da Costa Rica), que atualmente é vinculante para os Estados membros da Organização dos Estados Americanos (OEA), da qual o Brasil faz parte, indica, em seu artigo 5.6, que a reforma e a readaptação dos condenados, como finalidade essencial das penas privativas de liberdade, são garantias da segurança cidadã e direitos das pessoas privadas de liberdade.

Pode-se seguramente admitir, pois, que o disposto no item 5.6 do Pacto de São José da Costa Rica, norma supralegal que é, prevalece sobre o artigo 59 do Código Penal brasileiro. O tema concernente à função primordial da pena de prisão deve ter como balizamento normativo, portanto, a norma convencional.

Tal conclusão implica, em um primeiro momento, uma implícita e importante deslegitimação normativa de todas as demais teorias ou funções da pena que não guardem estreita relação com a prevenção especial positiva (tais como as assertivas de caráter preventivo geral e especial negativo).

O projeto ressocializador atende a um parâmetro de racionalidade?
A mera previsão de tal projeto ressocializador pela norma convencional, no entanto, não tem o condão de, pura e simplesmente, extrair daí legitimidade absoluta. Ressalvando as especificidades do estudo desenvolvido por Juarez Tavares, vale reconhecer que a legalidade não pode ser encarada, em termos de punição, como mera presunção de evidência, senão deve ser confrontada por outros recursos desenvolvidos pela doutrina, tais como a potencialidade de aferição empírica da lesão a bem jurídico, a clareza e a taxatividade dos enunciados, os princípios de humanidade, culpabilidade, presunção de inocência, etc.

Se, portanto, “em um Estado Democrático de Direito […], a incriminação não pode ser enunciada como evidente apenas pela circunstância de que seja legalizada”, não pode, por analogia, uma disposição abrangente como aquela prevista no artigo 5.6 da Convenção Americana sobre Direitos Humanos – a qual constitui orientação genérica para o desempenho das agências punitivas – ser apreendida de maneira peremptória.

Por isso, “é preciso ter em conta que toda e qualquer proibição esteja lastreada em fundamentos empíricos”, motivo pelo qual a legitimação deôntica da prevenção especial positiva pelo Pacto de São José da Costa Rica há de ser necessariamente confrontada por investigações ônticas ou empíricas que, segundo a proposta de Eugenio Raúl Zaffaroni, verifiquem o nível de racionalidade da atuação do Sistema de Justiça Criminal (a partir de que, aí sim, é possível falar em legitimidade).

Para este autor, a racionalidade significa, em suma, a coerência interna do discurso jurídico-penal e o seu valor de verdade quanto à nova operatividade social. Tal “verdade social”, por sua vez, deve ser definida segundo dois níveis, isto é, (i) um abstrato, “valorizado em função da experiência social, de acordo com o qual a planificação criminalizante pode ser considerada como o meio adequado para a obtenção dos fins propostos”; e (ii) um concreto, o qual “deve exigir que os grupos humanos que integram o sistema penal operem sobre a realidade de acordo com as pautas planificadoras assinaladas pelo discurso jurídico-penal”. A legitimidade do saber penal, em Zaffaroni, assume, pois, um valor empírico forte, isto é, trata do grau de realização – no mundo vital – dos propósitos manifestos da pena e do controle penal.

Seguindo tal orientação, portanto, esta investigação deverá verificar a legitimidade do sistema penal a partir da eficácia empírica de seu discurso manifesto, isto é, da previsão – pelo Pacto de São José da Costa Rica – da prevenção especial positiva como função primordial das penas privativas de liberdade.

A saber, a teorias preventivas especiais – de matriz positivista (cujo principal representante é Enrico Ferri) – atribuem à pena “a função de reparar a inferioridade perigosa da pessoa para os mesmos fins, diante dos mesmos conflitos, e na medida necessária para a ressocialização, repersonalização, reeducação, reinserção, etc. (o chamado conjunto de ideologias re)” . Em outras palavras, trata-se da “correção (ou ressocialização) do condenado, realizada pelo trabalho de psicólogos, sociólogos, assistentes sociais e outros funcionários da ortopedia moral do estabelecimento penitenciário”.

Seguindo os parâmetros de racionalidade aduzidos por Zaffaroni, portanto, a prevenção especial positiva deve ser valorada em função de uma (i) análise preliminar entre meios e fins; é dizer, o cárcere é meio idôneo à ressocialização ou reeducação do condenado? Tal questionamento pode ser respondido a partir de duas perspectivas diversas.

No primeiro caso, conforme destacam Rusche e Kirtchheimer, a manutenção da disciplina prisional “não tem qualquer valor na recuperação do preso, uma vez que os padrões requeridos ao prisioneiro são aqueles da submissão às formas externas de disciplina carcerária” e, portanto, não se confundem com os padrões de convivência social.

Com efeito, a submissão à disciplina carcerária revela tão somente uma adequação à rotina prisional. A obediência ao plexo de normas da execução penal, assim, não pode ser imediatamente interpretada como evidência da “ressocialização” do interno, assim como a desobediência, em contrapartida, não é sintomática da falta de reabilitação.

Ainda mais, como seria possível definir com precisão os limites entre a aceitação das regras de comportamento social impostas pelo cárcere e uma inconstitucional exigência de ajuste da personalidade e da concepção do mundo àquelas que lhe são ofertadas na prisão? Se o Estado democrático se funda na proteção da dignidade humana e na liberdade, esta que representa não apenas a liberdade ambulatória, não é exigível de ninguém que acolha as visões de mundo dominantes. As teorias da prevenção especial positiva não podem servir, portanto, à “função de reparar a inferioridade perigosa da pessoa para os mesmos fins, diante dos mesmos conflitos”.

No segundo caso, tendo em vista as péssimas condições de encarceramento no Brasil, não é precipitado afirmar que o sistema prisional brasileiro não apresenta as condições mínimas para a realização do projeto técnico-corretivo de ressocialização, reeducação ou reinserção social do sentenciado. Nessa esteira, a Comissão Interamericana de Direitos Humanos afirmou que os problemas apresentados no “Informe sobre los derechos humanos de las personas privadas de libertad en las Américas” revelam a existência de sérias deficiências estruturais nos estabelecimentos prisionais brasileiros – tais como superlotação, higiene, iluminação, aeração, alimentação, assistência médica, segurança –, que violam gravemente os direitos humanos e impedem que as penas privativas de liberdade cumpram com a finalidade essencial que estabelece o Pacto de São José da Costa Rica.

Dessa forma, não merece censura afirmar que a pena de prisão – tal como configurada no contexto nacional – é inadequada, no que tange à análise de meios e fins, à realização do projeto de ressocialização ou reeducação do condenado. O discurso jurídico-penal de prevenção especial positiva, por conseguinte, segundo a proposta de Zaffaroni, é falso quanto ao nível abstrato de verdade social.

(ii) Quanto ao nível concreto, ou seja, “a adequação operativa mínima conforme planificação” , a eficácia empírica do projeto de ressocialização deve ser avaliada a partir do dado de reincidência no sistema carcerário nacional. Ora, a adoção de quaisquer outras perspectivas – tais como a aderência a certo comportamento moral – não é facilmente aferível e viola o propósito primordial do discurso preventivo especial, qual seja, a “correção” do condenado para a prática posterior de delitos.

Ocorre que a inexistência de um estudo nacional sistematizado impossibilita que se extraiam conclusões mais ou menos seguras sobre o tema. Por ora, só se pode afirmar, ainda de forma meramente conjectural, que o sistema carcerário é ineficaz quanto ao seu objetivo ressocializador manifesto e, levando em conta as contribuições da chamada criminologia crítica, apresenta uma atuação deformadora e estigmatizante sobre o condenado.

Dessa forma, é possível dizer que o encarceramento no Brasil representa uma não-realização social da programação discursivo-preventiva. Seguindo a linha de raciocínio de Zaffaroni, portanto, diz-se, do ponto de vista empírico, um déficit de legitimidade.

Consequentemente, muito embora se fale de uma autorização normativa do projeto corretivo do cárcere, as análises perfilhadas acima evidenciam, do ponto de vista empírico, uma não realização da prevenção especial positiva, bem como refletem a eficácia invertida de tal projeto. Assim, o disposto no artigo 5.6 do Pacto de São José da Costa Rica encontra limite no déficit empírico da teleologia ressocializadora, o que, finalmente, é sintomático da ilegitimidade do discurso-jurídico penal manifesto.

Uma leitura conforme a Constituição do item 5.6 do Pacto de São José da Costa Rica

Valendo-se do recurso da interpretação conforme a Constituição – isto é, a escolha de um sentido que torne constitucionais normas infraconstitucionais dotadas de inúmeros significados – pode-se afirmar, portanto, que a norma convencional em estudo deve ser compreendida como uma desautorização (para além das teorias preventivas especiais negativas e gerais positivas e negativas) da própria teleologia ressocializadora.

Isso porque os princípios de proteção à pessoa, bem como as garantias constitucionais de não discriminação e os limites normativos e doutrinários à legalidade resultam, conjuntamente, na assunção de um teor negativo para a pena criminal, tal como propõe E. Raúl Zaffaroni. Em outras palavras, trata-se de compreender a pena criminal como um exercício de poder, uma “coerção que priva de direitos e inflige uma dor (pena) sem buscar seja um fim reparador seja a neutralização de um dano em curso ou um perigo iminente”.

De outra forma, a atuação das agências punitivas, em um Estado Democrático de Direito, deve pautar-se na estrita contenção do poder de punir sem, por isso, legitimá-lo mediante a falsa assunção de funções manifestas para a pena.

Conclusões
Tal a exposição, procede-se a algumas conclusões:

  • Embora a Constituição não disponha, sob o aspecto teleológico, acerca da pena criminal, o Pacto de São José da Costa Rica, em seu artigo 5.6, afirma que a penas privativas de liberdade devem ter como função primordial a ressocialização dos internos. Em um primeiro momento, portanto, pode-se assumir que o “déficit deôntico” decorrente do silêncio constitucional está supostamente sanado.
  • A necessidade de confrontação empírica dos enunciados normativos, no entanto, exige que sua legitimidade esteja condicionada – na linguagem de Zaffaroni – também a uma análise de racionalidade.
  • A confrontação do projeto ressocializador a uma análise de adequação entre meios e fins, bem como a sua plena realização segundo a nova operatividade social demonstram, de forma geral, que a prevenção especial positiva está eivada de ilegitimidade.
  • Uma análise conforme à Constituição do artigo 5.6 do Pacto de São de José da Costa Rica, nos aduzidos termos, pode levar, para além de uma deslegitimação das demais teorias da pena, à ruína discursiva da prevenção especial positiva, bem como à assunção de um teor simplesmente negativo à pena de prisão.

 

Fonte: ConJur

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