A invenção da prisão preventiva para a garantia da ordem pública: periculosidade e controle racial na matriz do código de processo penal de 1941

Abstract

Drawing from Critical Race Theory, this research investigates how the concepts of public order, dangerousness, and racism intertwined throughout the legislative production concerning pretrial detention in Brazil, from the Empire to the Republic, specifically focusing on criminal procedural doctrine in the 1940s in shaping the content of pretrial detention to ensure public order, provided for Criminal Procedure Code of 1941, and validating racial control practices constructed around it. It discusses racism as a cornerstone of authoritarianism in Brazilian criminal procedure, established long before the influence of the Rocco Code, though updated by it. The research adopts a documentary, qualitative approach, analyzing historical legislation on pretrial detention and doctrinal works on criminal procedure from the 1940s. The findings demonstrate that procedural criminal legislation historically subjected black individuals to potentially harsher treatment and that the criminal procedural doctrine of the 1940s tacitly endorsed this treatment, despite its omissive nature. The body of literature analyzed to capture the doctrinal thinking of the 1940s predominantly reflected the perspectives of white men from the southeast who served in the judiciary, many of whom had prior experience as police officers or prosecutors. These men endorsed the notion that pretrial detention was a "necessary injustice" in the interest of social welfare, without questioning its lack of caution in relation to public order. Their conceptualization of public order was generic, open-ended, and imprecise. The doctrine's omission, combined with the predominant profile of the scholars, suggests adherence to a single narrative that expanded the scope of detention by leaving the definition of public order vague, thus facilitating racial control through criminal procedure without overtly resorting to racially discriminatory language, in line with the segregation model consolidated in the post-abolition era under the myth of racial democracy.