Política antidrogas e cárcere no Brasil: a subjetividade do §2º do art. 28, da Lei 11.343/2006 e seus danosos efeitos no inconstitucional sistema penitenciário brasileiro

Abstract

Drug trafficking deals hundreds of millions of dollars each year, which makes several countries to adopt war on drug policies to curb its advancement. With the emergence of Lei 11.343/2006, 18 conducts have been characterized as drug trafficking by the Brazilian legislation. Furthermore, the criteria applied to distinguish users and dealers is permeated by a high degree of the judge subjectivity. In this scenario, since its inception, there has been a significant increase in the number of prisoners accused of crimes comprised by the new law, aggravating the longstanding deplorable situation of the Brazilian penitentiary system. More worrisome has become the condition of women in prison, as the lack of buildings adapted to their specific needs deprive many of some rights established by international treaties. Hence, this study intends to analyze the impacts of Lei 11.343/2006 on the Brazilian criminal justice system, looking at the constitutional basis of its edition and disclosing the correlation between its emergence and the massive increase of imprisonment. In addition, it will be examined the approach taken by some countries around the world regarding the complex problem of drugs, in order to spur a critical reflection about the rights and wrongs of the legal dispositions.