Por um direito penal humanizado: a inclusão da avaliação psicossocial na dosimetria da pena como possível instrumento garantidor da efetividade do princípio da individualização da pena e dos direitos humanos

Abstract

This thesis investigates the extent to which psychosocial assessment, systematically integrated into the first phase of sentencing, can serve as an instrument to guarantee the effectiveness of the principle of individualization of punishment and the protection of human rights in the Brazilian criminal justice system. The general objective is to analyze the theoretical, normative, and operational feasibility of including an intersectional psychosocial assessment in sentencing, focusing on the “personality of the agent” and “social conduct” factors established in Article 59 of the Brazilian Penal Code. The research adopts a qualitative and interdisciplinary approach, combining theoretical-conceptual analysis, drawing on Freudian psychoanalysis, critical criminology (Baratta, Foucault, Zaffaroni), moral philosophy (Lévinas, Jonas, Ricoeur, Brugère), and intersectionality theory (Crenshaw, Collins), documentary research on legal provisions and landmark decisions of the Superior Courts (STJ and STF), and critical analysis of official data from SISDEPEN (2024), the Ethnic-Racial Diagnosis of the Judiciary (CNJ, 2023), IBGE (2022), and the Federal Councils of Psychology, Social Work, and Medicine. The results demonstrate that: (a) the absence of technical instruments for evaluating the subjective factors of Article 59 transforms sentencing into a space for the projection of racial, class, and gender prejudices by judges; (b) the Brazilian prison population, composed of approximately 67% to 68% Black individuals, is judged by a judiciary in which only 14% self-identify as Black, revealing a structural asymmetry reproduced in sentencing rationales; (c) the jurisprudence of the Superior Courts, despite advances in prohibiting abusive practices (Precedent 444/STJ, Theme 1077, ADPF 347), still does not require technical reports for the assessment of personality and social conduct; and (d) psychosocial assessment, when guided by an intersectional perspective, ethics of commitment, and guarantist safeguards, can function as a counter-device of resistance to penal selectivity. As an original contribution, the thesis proposes a practical protocol and application guidelines organized in seven sections, principles of analysis, a layered application model (optional, mandatory, and prohibited), analysis of paradigmatic crimes, ethical and operational safeguards, grounding in the Ethics of Commitment, profile and training of multidisciplinary teams, and implementation considerations —, constituting an unprecedented instrument in Brazilian legal and interdisciplinary literature for the humanization of sentencing.