THE (IN) CONSTITUTIONALITY OF RECIDIVISM AND THE WILL TO PUNISH THE STATE BEFORE IUS PUNIENDI

Abstract

The institute of recidivism comes from the state concern with the satisfaction of social expectations, which results in disapproving more rigorously the habitual criminal practice, being, then, a stricter form of social disapproval in which is given to the individual an increase of penalty in the new conviction. Considering this scenario, the present study aimed to analyze, in the light of the law, of the doctrine and of the jurisprudence, the (un) constitutionality of the aggravating circumstance in view of the fundamental guarantees provided in the current Federal Constitution, in order to understand the reasons that indicate the failure of the State to educate, violating constitutionally established principles. Thus, it was developed through literary researches that embraced two different types of approaches, deductive and dialectical, giving the reader the chance to check agreements and which result in a perspective that goes against what is usually had in daily knowledge. The object applies to the response to the criminal frequency, that, however, failed to achieve the goal of prevention, which falls on the individual, which is punished more strictly to achieve the desires of the population mass. Finally, it is concluded that the aggravating circumstance comes from the theory against garantism, which disagrees with the basic principles provided by the constitutional structure.