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Open Journal of Social Sciences
2013. Vol.1, No.4, 1-12
http://dx.doi.org/10.4236/jss.2013.14006 Published Online September 2013 in SciRes (http://www.scirp.org/journal/jss)
Copyright © 2013 SciRes. 1
Theories of Punishment in the Age of Mass Incarceration: A
Closer Look at the Empirical Problem Silenced by Justificationism
(The Brazilian Case)*
Universidade Federal de Santa M aria, Sa nta Mari a, Brazil
Received August 6th, 2 013; revised September 6th, 2013; accepted September 13th, 2013
Copyright © 2013 Salo Carvalho. This is an open access article distributed under the Creative Commons Attri-
bution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the
original work is properly cited.
The paper examines three central problems involving punitive social control in recent decades: first, the
steady increase in the number of incarcerated people (the phenomenon of great confinement), with special
emphasis on the Brazilian case; second, the way criminology interprets contemporary confinement (New
Penology); and finally, the lack of a (dogmatic) criminal law theory on the reality of mass incarceration.
Incarceration data are presented here as premises in order to inquire about the relations between the (nor-
mative-philosophical) theories regarding the justification of punishment and the (empirical) phenomena of
mass incarceration. The questions behind the current reflection are therefore about what role criminal
theories play in the expansion or contraction of the power to punish (potestas puniendi) and the explana-
tions the justification models offer to the problem of hyper-punishment.
Keywords: Punishment; Penology; Theories of Punishment
The Urgency of Reality: Punitive Social Control
Data in Brazil
Expansion of Incarceration
During the 1990s Brazilian legislators helped foster the ex-
pansion of incarceration, partially boosted by the set of consti-
tutional and criminal norms—due to the expansion of primary
criminalization (the creation of new crimes) and the restriction
of rights in the phase of the execution of the sentence. The re-
sult of this experiment was the expansion of the number of
inmates going into the system and the narrowing of the number
of those who were ready to leave it. The most significant ex-
ample of the punitive trend that guided criminal policies in the
last decades was the enactment of Act 8.072/90, which in-
creased punishment, withdrew progressive sentencing, in-
creased the term for parole and obstructed the commutation and
pardon for crimes known as heinous crimes.
Despite the fact that Act 8.072/90 can be displayed as a
milestone in the Brazilian punitive system, the legislative activ-
ity in criminal matters in the post-democratic transition was
intense. The creation of numerous crimes, the quantitative ex-
pansion and stiffening of punishment made the system highly
complex and also contradicting, a situation that fosters incar-
ceration in a punitive culture. The fragmentation of the system
created problems that led to the creation of committees of ex-
perts by the Senate and House of Representatives in order to
draft a new Criminal Code, governed by the principle “no pun-
ishment out of the Criminal Code” (the gathering of the existing
statutes in a single text, making sure the penalties are propor-
tional among themselves).
In criminal procedure, topical changes in the Code and the
creation of independent laws fostered the expansion of secon-
dary criminalization. Regarding provisional detention, not only
were the possibilities for provisional detention (re)structured,
e.g. temporary arrest (Act 7.960/89) as well as new restrictions
and the impossibility to post bail for some crimes (Act 7.716/89,
Act 8.072/90, Act 9.034/95 and Act 9.455/97)—but also a form
of early implementation of the sentence before the judgment of
a conviction becomes unappealable was created (Act 8.038/90).
As previously anticipated, numerous factors contributed to
the increased rates of incarceration in the legislative sphere: 1)
the creation of new crimes based on the list of new legal inter-
ests expressed in the Constitution (criminal arena); 2) the in-
crease of the amount of custodial sentences in numerous and
distinct offenses (criminal arena), 3) the shortening of criminal
procedures, with the extension of precautionary detention hy-
potheses (preventive detention and provisional detention) and a
decrease on the possibilities of bail (criminal procedure arena),
4) the creation of the early execution of the sentence, regardless
of a final conviction (criminal procedural and execution of the
sentence arena), 5) the toughening on the serving of the sen-
tence, with the extension of deadlines for implementing pro-
gressive sentencing and parole (execution of the sentence
arena), 6) the limitation of the possibility of extinguishing pun-
ishment with the toughening of the criteria for pardon, grace,
amnesty and commutation (execution of the sentence arena), 7)
*This paper is dedicated to my friend Geraldo Prado. It was prepared for the
4th Session of the International Forum on Crime and Criminal Law in the
Global Era (IFCCLGE), December 2012, Beijing, China
the expansion of the powers of the prison administration to
report the behavior of the convict, whose effects affect those
serving the sentence (e.g. Act 10.792/03) (prison arena) (Car-
valho, 2012: 35).
Moreover, it is important to realize that incarceration rates do
not stem exclusively from eminently legislative attitudes. Par-
allel to the political and criminal expansion in the sphere of
legal production, numerous studies demonstrate how punish-
ment gradually seeped into the culture of the legal actors, espe-
cially in the judiciary, a situation that hindered the effectiveness
of normative minimizers of incarceration filters. Regarding the
punitive culture of the actors of the criminal justice system,
there are important investigations, some produced in the judi-
cial institutions themselves, support the hypothesis (Associação
dos Magistrados Brasileiros, 2006; Azevedo, 2005; Carvalho,
2010; Instituto Brasileiro de Ciências Criminais, 2007; Instituto
Latino-Americano das Nações Unidas para Prevenção do Delito
e Tratamento do Delinquente, 2005).
Rates of Incarceration and Non-Custodial Punitive
The effects of the rising punitive culture within the criminal
agencies (Institutions of Production, Application and Enforce-
ment of Criminal Law) had a direct impact on the rates of in-
carceration and non-custodial punitive control (Sentencing and
Procedural Diversion Programs). The staggering number of
inmates and the outstanding failure of public officials in pro-
viding minimally adequate conditions to maintain people in
custodial sentences transformed the national punitive system
into one of an explicit and permanent violation of human rights.
The urgency limits have been long surpassed; there are numer-
ous facts that, using the exact words of Geraldo Prado (2001),
reveal the indecency of criminal enforcement in Brazil on a
But the urgency of the situation is not limited to the quantita-
tive growth of the number of people arrested, but especially to
the inhuman conditions prisoners are subject to. The national
prison situation has been described in numerous academic arti-
cles and institutional reports in recent decades. The lack of
material (poor hygiene), medical, psychological, social, phar-
maceutical, dental, legal and educational assistance is increased
by the horror of a reality marked by the pathological violence
of idleness, torture, ill-treatment and exploitation of prisoners
and their families by public officials and by other convicts1.
According to consolidated data by the National Penitentiary
Department (DEPEN), the Brazilian prison population was of
514,582 inmates by the end of 2011. If these numbers are com-
pared to the population index presented by the Brazilian Insti-
tute of Geography and Statistics (IBGE)—later reproduced by
the Ministry of Justice-Brazil would have reached, in December
2011, an index of 269.79 inmates per 100,000 inhabitants.
Upon analyzing the increase of the prison population curve
in the last two decades, one can see that the political-criminal
option to toughen the punitive apparatus has achieved undeni-
able success in increasing hyper-punishment. These numbers
take alarming proportions from the point of view of the protec-
tion and enforcement of human rights (see Table 1).
If the results presented by Brazil (269) and the countries of
the European Community (2010 data) are put together, it is
clear that the degree of incarceration (number of prisoners per
100,000 inhabitants) largely overcomes those of countries like
Portugal (109), Spain (160), France (102), Italy (112), England
(153) and Germany (88), and are closer to those of Eastern
European countries, such as Estonia (265) and Lithuania (260).
These countries are only topped by Belarus (483), Ukraine (318)
and, notoriously, Russia (609), the country with the largest
incarcerated population density on the continent (International
Centre for Prison Studies, 2012).
Brazil ranks fourth in number of prisoners per 100,000 in-
habitants in South America and is topped only by French
Guiana (316), Suriname (356) and Chile (313). All other coun-
tries in the continent have lower levels of incarceration: Argen-
tina (151), Bolivia (93), Colombia (142), Ecuador (136), Para-
guay (99), Peru (154) and Venezuela (85). The only countries
with ratios closer to the Brazilian one are Uruguay (261) and
Guyana (289) (International Centre for Prison Studies, 2012).
When comparing Brazil and Argentina, due to their similar
geographical, political, social and economic contexts, there is a
significant difference in the punitive policies-Brazil (269) and
Number of inma tes p er 100,000 inhabitants in B razil.
1994 147,000,000 129,169 87.87
1995 155,822,200 148,760 95.47
1997 157,079,573 170,207 108.36
2000 169,799,170 232,755 137.08
2001 172,385,826 233,859 135.66
2002 174,632,960 239,345 137.06
2003 176,871,437 308,304 174.31
2004 181,581,024 336,358 185.24
2005 184,184,264 361,402 196.22
2006 186,770,562 401,236 214.83
2007 183,965,854 419,551 228.06
2008 189,612,214 451,219 238.10
2009 189,612,214 473,626 247.35
2010 191,480,630 496,251 260.18
2011 190,732,694 514,582 269.79
1In this s ense, in o rder to check the l ack of stat e action in the las t decades , it
is interesting to compare the report published in 2009 by the House of Rep-
resentatives, the Parliamentary Commission of Inquiry about the Prison
System, with some important documents of the 1990’s—for example, Am-
nesty International, 1993; Amnesty International, 1999; Confederação Na-
cional dos Bispos do Brasil, 1997; Human Rights Watch, 1998. The reports
only state the facts anticipated by national scholars in two landmark studies:
Fragoso, C ato & Sussenkind, 1980; Thompson, 1991.
Source: Penitentiary Census, DEPEN (Ministry of Justice, 2011) and the Brazil-
ian Institute of Geogr a phy and Stat istics (IBGE , 2011)2.
2The wide range of the data regarding the number of inhabitants is due to
differen ces between t he data repo rted by the Pen itentiary Dep artment ( Min-
istry of Just i ce) and the IBGE.
Copyright © 2013 SciRes.
Argentina (151). The disparity in rates between countries with
similar cultural insertion clearly reflects the Brazilian option for
criminal policies of hyper-incarceration in recent decades. If the
United States, according to data provided by the Federal Bureau
of Prisons (2010), remains the country with the highest incar-
ceration rate worldwide (730), totaling 2,266,832,157 (both
provisional and already sentenced) prisoners, Brazil is close to
countries that imprison the most, and ranks, in absolute figures,
only behind China (1.65 million prisoners—123 prisoners per
100,000 population) and Russia (864,197 prisoners—609 pris-
oners per 100,000 inhabitants) (International Centre for Prison
When it comes to leading emerging economies (BRICs), the
Brazilian prison density is also high: Brazil (269), Russia (609),
India (31) and China (123).
War on Drugs Police’s
The important variables that may explain the increased in-
carceration is the toughening of the policies of the war on drugs.
By the way, as mentioned in previous articles, further investi-
gation needs to take place regarding the relation between the
national hyper-punishment trend and the crackdown on drug
trafficking. Increased incarceration seems to be connected to
drug trafficking repression policies in recent decades, since it
was the main focus of criminal policies in Brazil. As previously
stated, major legislative changes in the country were largely
defined according to the criminal-political option to start a war
on drugs (prohibitionist policies) (Carvalho, 2007).
If the Brazilian incarceration data throughout the last decades
indicate a strong upward curve—88 prisoners per 100,000 in-
habitants in 1994 to 269 in 2011—the drug enforcement policy
adds important figures, especially when taking a closer look at
the incarceration ratio according to the offense committed (see
The result of prohibitionist policies can be seen more clearly
when taking a look at the number of the female inmates. In
recent years not only has the number of imprisoned women
grown proportionately far more than the number of incarcerated
Male Prisoners and Offenses Ratio .
Offense Inmates (2011)
Manslaughter and Aggravated
Manslaughter 85,560 16.62%
Theft and Aggravated Theft 69,224 13.45%
Receiving S t olen Prope rt y 13,012 2.52%
Robbery an d Robbery Aggravated
by Death 147,365 28.63%
Extortion and Aggravate d
Kidnapping 4922 0.95%
Rape 19,361 3.76%
Domestic and Internat ional Drug
Trafficking 125,744 24.43%
Other Crimes 49,394 9.59%
Total 514,582 100%
Source: Penitentiary Census, DEPEN (Ministry of Justice, 2011).
absolute figures—but also the arrests of women for drug traf
men—the number of female inmates in 2007 was of 18,507,
and it reached 34,058 in 2011, i.e. female incarceration nearly
doubled whilst there was a 25% increase in the male population,
in ficking has become significant (see Table 3).
Despite the larger numbers of male incarceration concerning
crimes against property (theft, robbery and robbery aggravated
by death), the unlawful trade of narcotics ranks second in this
universe of the protection of legal interests that produce incar-
ceration, reaching 24.43% of the prison population. When
looking at female inmates—their incarceration growth is signi-
ficant throughout the West in recent decades—drug trafficking
is responsible for putting 49.65% of these women behind bars.
When analyzing Brazilian incarceration rates according to
parts of the country (base year 2007), Rodrigo Azevedo notes
that it is possible to establish significant differences, particu-
larly in relation to the impact of drug trafficking on overall
levels of incarceration, “there are states with high rates of im-
prisonment, of over 300 prisoners per 100,000 inhabitants,
among which the state of São Paulo, the most populous in the
country, stands out with a rate of 384.30 prisoners per 100
thousand inhabitants, as well as Mato Grosso do Sul, with a
rate of 479.54 prisoners per 100 thousand inhabitants. The
states of Mato Grosso, Rondônia, Acre, Roraima and Amapá,
and the Federal District are also in this range. With the excep-
tion of São Paulo and the Federal District, all of the states
mentioned here are located on the western border of the coun-
try, where drug trafficking and other unlawful goods go
through” (Azevedo, 2009: 106).
According to previously presented data, drug trafficking rep-
resented 15% of the prison population in 2007, and robbery and
robbery aggravated by deathanswered for 32% of the offenses.
There is a substantial change in 2011: drug trafficking accounts
for 24.43% of convicts and robbery and robbery aggravated by
death decreased to 28% (Carvalho, 2007).
Parallel to the increase in incarceration numbers in recent Dec-
ades, Brazil created numerous diversion programs to replace
Female Prisoners and Offenses Ratio.
Offense Female Inm ates (2011)%
Manslaughter and Aggravated
Manslaughter 1703 5%
Theft 2051 6.02%
Receiving S tolen Property 330 0.96%
Robbery an d Robbery Aggravated
by Death 3036 8.91%
Extortion and Aggravate d
Kidnapping 248 0.72%
Rape 146 0.42%
Domestic and I nt ernational
Drug Trafficking 16,911 49.65%
Other Crim es 9633 28.28%
Total 34,058 100%
Source: Penitentiary Census, DEPEN (Ministry of Justice, 2011).
Copyright © 2013 SciRes. 3
custodial sentences. Despite having also limited the possibility
of use of these programs with the reform of the general part of
the Criminal Code in 1984 (Act 7.210/84), especially the possi-
bilities of rendering community service, diversion programs
started to take place only in the mid-90s. According to the
Ministry of Justice a total of 197 convicted felons were part of
such programs in Brazil in 1987, in a single unit in the city of
Porto Alegre (Departamento Penitenciário Nacional, 2008).
The change in the conception of how to punish occurred after
the enactment of two separate pieces of legislation: Act 9.099/
95 (Special Criminal Courts Act) and Act 9.714/98 (Diversion
Programs Act). The Special Criminal Courts Act created the
procedural diversion programs (strategies to avoid criminal
proceedings), notably the dispute resolution and plea bargain in
cases of minor offenses—offenses with a maximum sentence of
under 02 years—and also established the right to diversion
programs for minor offenses with sentences of less than 01 year.
The Diversion Program Act rein forced the idea of the 1984
reform by expanding the possibilities of replacing custodial
sentencing for offenses with penalties of under 4 years.
In the first year of Act 9.099/95, the Ministry of Justice re-
corded 78,612 convicts under procedural diversion programs
(dispute resolution, plea bargain or suspension of prosecution).
With the redefinition of the criteria of Act 9.099/95, and after
Act 9.714/98 had been enacted for some time, the figures be-
hind diversion programs reached significant levels in the na-
tional criminal law scenario in 2002. According to data released
by the Ministry of Justice, it is possible to partially reconstruct
the curve of diversion programs in Brazil (see Table 4).
The total number of inmates, those subject to sentencing di-
version programs and those under procedural diversion pro-
grams give a clearer dimension of the national hyper-punish-
ment trend. Currently, as shown by the graph, it is clear that
formal punitive control broke out of the prison walls, creating
new networks of surveillance and punitive social control (see
In the contemporary Brazilian punitive reality, the institu-
tionalization of diversion programs did not reduce levels of
incarceration, as the official agencies like to report. Actually, it
is quite the opposite: incarceration rates have been growing
gradually and steadily, and being enlarged by the amount of
people subject to diversion programs since 1995.
Despite not being common in analyzes of prison density—
mainly for being a different system, with serious problems of
identifying its legal criminal, civil, hybrid orsui generis nature
—it seems to be equally important to consider the data of youth
incarceration not due to the quantitative impact that the number
of young prisoners may have in the overall prison population,
but mainly because these data make it possible to realize how
institutions may resist to or accept punishment in a situation
where people usually have the first contact with punitive insti-
In absolute figures, the population of adolescents in conflict
with the law in prison-like institutions increased by 31.29%
over the past 15 years.
At first, the possible conclusion would be that after a signifi-
cant increase between 1996 and 2006, the figures were stable,
and the current incarceration rate of adolescents in conflict with
the law is smaller than that of adults, a situation that would
indicate a greater control on how many adolescents enter the
system. However, when one takes a closer look at the criterion
for assessing the number of prisoners per 100,000 inhabitants,
the reality is quite the opposite (see Table 6).
Sentencing and Procedural Di v e rsion Programs in Brazil.
Year Sentencing Diversion
Diversion Pr ograms Total
1987197 No statutory provision 197
19951692 78,672 80,364
200221,560 80,843 102,403
200663,457 237,945 301,402
200788,837 333,685 422,522
200897,674 401,055 498,729
Source: Penitentiary Census, DEPEN (Ministry of Justice, 2010).
Number of Arrests and People Subject to Diversion Programs in Brazil.
Total Number of
Arrests and P eople
Subject to Diversion
1995229,124 147 -----
2002341,748 195 +32.6%
2006684,882 366 +87.6%
2007844,895 459 +25.4%
20081,010,049 532 +15.9%
20091,144,704 598 +12.4%
Source: Penitentiary Census, DEPEN (Ministry of Justice, 2010).
Evolution of Incarceration of Adoles cents in Brazil.
YearNational Population Incarcerated
Adolescents 100,000 inhab.
1996155,822,200 4245 2.72
1999169,799,170 8579 5.05
2002174,632,960 9555 5.47
2004181,581,024 13,489 7.42
2006186,770,562 15,426 8.25
2007183,965,854 16,509 8.97
2008189,612,214 16,868 8.89
2009189,612,214 16,940 8.93
2010191,480,630 17,703 9.24
Source: National Survey: Socio Care for Adolescents in Conflict with the Law
(Secretariat of Human Rights, 2010) and Brazilian Institute of Geography and
Statistics (IBGE, 2011).
Copyright © 2013 SciRes.
As one can see, the number of adolescents incarcerated per
100,000 inhabitants grew from 2.72 to 9.24 between 1996 and
2010, i.e. 239.7%. In absolute figures, the number of incarcer-
ated adolescents increased from 4245 to 17,703, or 317.03%. In
the same period (1995-2010), there was a variation of 95.47 to
259.17 prisoners per 100,000 inhabitants in the adult impris-
onment rate, representing an increase of 171%. In absolute
figures, the number of adults incarcerated rose from 148,760 to
496,251, or 233.59%. It is important to emphasize that during
the same time the national population increased only by
The numbers indicate that the incarceration of adolescents
due to the so-called “juvenile offenses” significantly beats the
incarceration rates of adults convicted of offenses, which
clearly shows the national trend of hyper-punishment at all
levels of formal control.
The Criminological Critic to the Punitive Trend
Hypotheses for Contemporary Punitive Trend
The steep increase in global levels of incarceration in recent
decades has become a fact that challenged criminology to draft
explanatory schemes. It can be argued, also, that the phenome-
non of great confinement went in the opposite direction of the
trend of gradual decrease of the carceral archipelago (Foucault),
as foreseen by the criminal science of the 1970s.
Pavarini (2009) summarizes some of the explanatory hy-
potheses for contemporary punitive trend: 1) increased crime; 2)
increased repressive criminal legislation (primary criminaliza-
tion), 3) a great support among actors of the criminal justice
system to hyper-punishment (secondary criminalization), and 4)
new forms of social control in a structured actuarial and tech-
nocratic management of public safety. The first three hypothe-
ses were kind of single-cause explanatory schemes, unlike the
last one that would reestablish the macro-level sociological
model of social construction. The first possible conclusion,
according to him, would be that there are significant flaws in
the single-cause explanations models, a reason that would make
it clear of why it was not feasible to reduce the phenomenon of
incarceration to a deterministic causal ap pr oach.
Criminological researches have shown, for example, that
there is not a clear relation between the growth of crime record
rates and the increase in the incarceration rate. Crime and in-
carceration are distinct phenomena, although some explanatory
variables are related to both of them3. Similarly, it is possible to
say that the social perception of rising crime, which deepens the
sense of fear and insecurity (moral panics) also do not match
the reality of the phenomenon of crime, i.e., feelings of insecu-
rity are not an accurate reflection of changes in crime rates4.
Furthermore, evidence regarding legislative policies (primary
criminalization)—as well as judicial and administrative policies
(secondary criminalization)—is also not an isolated factor. The
change in the normative structure (primary criminalization) is
artificially induced; crime is a political entity and not a natural
one. However, despite crime being a phenomenon and not an
assumption, criminal and political changes often appear linked
to concrete phenomena as the improvement of record keeping
(official crime numbers) and overestimation of contingent
situations that increase the perception of social insecurity. De-
spite the difficult construction of evaluation methodologies,
both phenomena (crime records and sense of insecurity) can be
analytically seen in criminological diagnosis through empirical
research—one should point out, of course, the difference be-
tween the statistical accuracy of crime record rates and the
sense of insecurity rates.
On the other hand, criminological research has shown that
agencies that help shape the criminal justice system (mass me-
dia, for example) explore crime and insecurity rates as an im-
portant factor in triggering contingent punitive responses (puni-
tive populism), revealing a close relationship between the first
and second theses about increased incarceration.
One can also note that, despite being strategic in the chain of
criminality, the attitude of the actors of the criminal system
(secondary criminalization) does not have an isolated role and
cannot, by itself, determine an incarceration policy. There is no
doubt that the inclusion of operators of the criminal justice
system in an inquisitorial culture fosters the punitive trend, for
the way to interpret and apply the rules allows the expansion of
the filters that could halt the number of inmates going into the
system. However, especially in the judiciary system, due to the
liberal tradition and normative force that the Constitutions have
acquired from the second half of the last century on, there are
frequent resistance movements. Also, thinking about the con-
nection between the actors of the criminal justice system and
the experience of the great confinement would necessarily im-
ply the inclusion of these practices in the economic, criminal
and political context, for they are not isolated from the cultural
processes (historical, social and political ones) that shape the
inquisitorial (or guarantism-focused) mindset (instrumental
The failures (gaps and contradictions) presented by single-
cause models stem from the fragmentation of the effects of the
punitive culture (incarceration based) at a fixed point that
represents the source of the problem (increased crime, legisla-
tive processes of criminalization, attitude of the actors of the
Besides the single-cause hypotheses highlighted by pavarini,
there would still be a fourth explanation of a macro-level
criminological nature that seeks to locate the problem of the
punitive trend as a result of political and economic changes in
Western countries after the crisis of the social welfare states
and the consolidation of the penal state among the critical
criminological trends it is possible to identify a general agree-
ment that understands the mass incarceration phenomenon as a
consequence of the consolidation of the neo liberal political
economy. The dismantling of the welfare state institutions
crushed assistance and social inclusion policies, eventually
affecting criminal matters.
3In this sense, Larrauri argues, “the fact that increasing incarceration is no
correlated to crime rates is a conclusion widely accepted by criminologica
literature, whatever its ideological orientation” (Larrauri, 2009: 04).
The data presented by Garland on crime and im
risonment records in the
United States and in Great Britain between 1950 and 1998 (Garland, 2001:
208) and the comparative figures given by Wacquant regarding crimes as
well as prison population in the US in 1975 and in 1999 (Wacquant, 2008:
10) leaves no doubt about it.
4“Crime and fear of crime are not like an object and its reflection on the
mirror. Feeling threatened and insecure are not mere reflection
threats, but also the consequence of circumstances of de-
social unrest ” (Hassemer, 1994: 163). The structure of correctionalism, created based on the posi-
Copyright © 2013 SciRes. 5
tive special prevention models, is unthinkable outside of the
interventionist state. Not for any other reason Garland calls the
predominant model in the last century (correctionalism) as pe-
nal-welfare. Prison represents a strategic institution in this con-
text because it is responsible for correcting individual learning
deficits that were not sufficiently reinforced by other agencies
of social control, particularly school. It would up to the crimi-
nological lab, therefore, to (re)create favorable conditions so
that the offender could be reinstated to social life. But if during
the implementation period of the Liberal State to Welfare State
the absenteeism conception became more interventionist-based
on policies that built welfare institutions, with the financial and
political crisis of the welfare state these same structures were
reduced to minimum acceptable ones according to the designs
of public policies established on the basis of efficiency and the
actuarial management approach.
The actions of punitive agencies are therefore redirected due
to the impact of neo liberal economic policies in the structures
of correctionalism. In this respect, the interpretation resources
provided by critical criminology remain valid, allowing the
understanding of the decisive influence of the neoliberal project
in the (re)training of the punitive approach, especially in pris-
ons and its legitimating discourses (punishment the ories).
Among the critical readings, the one made by Wacquant can
When analyzing economic processes of recent decades and
the new techniques of punishment, Wacquant (2004) brings
prisons and the experience of ghettos produced in the new
capitalism together. According to the author, the ghettos today
are two-fold instruments of ethnoracial closure and control, a
social-organizational device that employs space to reconcile the
two antinomic purposes: economic exploitation and social os-
tracization. When faced with the reality of the predominant and
growing representation of African-Americans in the punitive
system, Wacquant argues there is a process of redefinition of
prison in the new order: to offset and complement the bank-
ruptcy of the ghetto as a mechanism for refraining the hazard-
ous and superfluous population from both an economic and a
political point of view—“prison is merely the ultimate manifes-
tation of a policy of exclusion of which the ghetto has been a
means and an end since it first appeared in history” (Wacquant,
The urban ghetto—a special form of collective violence
typical of large population areas—would represent an ideal type,
a hypothesis matrix, a symbolic incubator, which allows the
interpretation of other similar institutions of forced confinement
of marginalized groups such as prisons and refugee camps.
Prison, therefore, acquires a new feature in the Penal State,
one that is totally different from the one sanctioned by theories
of positive special prevention. In the void left by the Welfare
State and its correctional policies, prisons are conceived to
control segregation, acting as one of the mechanisms for man-
aging poverty and the technocratic control of unwanted groups
(ill-adjusted individuals and social misfits)—“the ‘punitive
refraining’ of the layers of the precarious new urban proletar-
iat policy has spread across the planet in the wake of economic
neoliberalism” (Wacquant, 2009: 12).
In the same track, Bauman brings together the phenomena of
the reinventing of prison and the sanctioning of punishment
with the crisis of the welfare policies and the social experience
of chronic unemployment: “in the current circumstances, con-
finement is an alternative to employment, a way to use or neu-
tralize a considerable portion of the population that is not nec-
essary for production and for which there is no work to which
they can be reinstated to” (Bauman, 1999: 119). Thus, the re-
awakening of prison is directly connected to the need to create
an isolated space (confinement) for the surplus population.
After discrediting the single cause theories that explain mas-
sive incarceration, Pavarini shifts his critique to the social con-
struction of punitive models, emphasizing its geopolitical rela-
tivity according to the author, “the theories that refer to the
paradigm of social construction, although interesting for being
more intellectually sophisticated, insist on the hegemonic
presence of economic, political and cultural aspects—from the
production of surplus populations to the need to impose new
ethics, the role of the military lobby and the control of the irre-
versible crisis of endogenous forms of social control—that are
certainly present and decisive, but only in some geopolitical
areas and not in others” (Pavarini, 2009: 246).
While acknowledging the theoretical difficulty, Pavarini
suggests an explanation to the phenomenon of mass confine-
ment. The author argues that it would be possible to see, espe-
cially after the end of the East West fragmentation (capitalism
and communism), the incorporation of the US social control
models by marginal countries. Due to the economic, political
and cultural hegemony, there would have been a sort of
“Americanization of the outskirts”. Thus, US political and
criminal models and criminological theories would have been
diffused everywhere, as a sort of a habit.
The author argues that the worldwide increase of incarcera-
tion rates could be explained by the single cause or macro-level
sociological models only if, in this historical contingency, 1)
the increase in crime, 2) the spread of insecurity, 3) the exclu-
sionary practices imposed by the market, 4) the new processes
of mobility determined by globalization and 5) the reduction of
the Welfare State were perceived as “elements through which—
the predominant effects of “Capitalism”—a new moral phi-
losophy, a certain ‘point of view’ about good and evil, about
lawful and unlawful, about the worthiness of inclusion or ex-
clusion is constituted and spread in an universal way” (Pavarini,
The new universal philosophy about the (un) lawful and
spread across nations from the center to the outskirts as a model
(or art) of social control would be represented in the new dis-
courses on punishment (New Penology).
The New Penology—or fundamentalist Penology, in the
words of Pavarini (2009)—operates through the diffusion of a
populist culture of punishment sanctioned “from below”. It is a
culture of repression that is sprayed in the speeches of the
population (common sense), disseminated by the media and
incorporated by major theorists of the academic community
(scientific legitimacy). It is a new way of perceiving punish-
ment, with criminal policies of strong populist appeal and that
cannot be solely classified as a “right-wing policy” for it is
shared by numerous left and center-left wing governments (for
example, some experiences of the new realism of the left).
The new penal discourse that emerges from the 1990s in the
United States 1) politically inspired in the zero tolerance ideas,
2) academically grounded in situationist authoritarian theories
(the broken windows theory, for example) and 2) normatively
crystallized with the institutionalization of the “three strikes”
Copyright © 2013 SciRes.
criminal laws in important US states—seeks to recover the
prestige of prison by abandoning traditional purposes attributed
to punishment (correction, intimidation or retribution). The
romantic appeal of (re)socializing is left behind in favor of the
idea of controlling and managing the risks posed by certain
individuals or dangerous groups.
Garland, when analyzing the managerial models, notes that
the new punitive approach changes the foundations of the
criminological discourse in its most significant aspects: the
functions of punishment and the image of the criminal individ-
ual. As he highlights, one of the features of the New Penology
is that the criminological discourse became more statistical,
more actuarial, aimed at identifying risk groups and populations,
unlike correctionalism when the individual was the core of the
punitive discourse (Garland, 2004: 55). If the correctional mod-
els of positive special prevention perceived crime as a result of
an individual pathology, the actuarial theories (Wilson &
Clarke) seek to explain the phenomenon based on the economic
approach of rational choice and utility.
Wilson admits hypotheses built based on and through com-
mon sense (popular opinion) in the sense that it would be pos-
sible to explain how people become criminals in the same way
as they become carpenters or even buy a car. According to the
author, popular knowledge is based on a certain theory of hu-
man nature that understands that people act thinking about the
estimate between costs and benefits—“people lead their lives
electing rewards and penalties of all kinds”. (Wilson, 2005:
336) So criminals would act according to the expectation of the
penalty “as sanctions become more likely, crime become less
common” (Wilson, 2005: 337). He emphasizes, however, that
due to high social risk, the formula of rational choice would not
be applied in some situations (pathological personalities, for
This equation used to explain the individual deviant act is
significantly magnified. This is because the actuarial policies
seek to recognize and neutralize hazardous groups who threaten
stability and security. Besides creating an explanatory model of
the criminal act, the New Penology seeks to identify risk groups
and manage potential offenders. The correctionalist idea of
individual dangerousness is converted into a collective danger-
ousness. Punishment—as a normative response to crime—and
prison—as an institution that makes criminal sanction possible-
will be justified as mechanisms of disabling dangerous indi-
viduals or groups (positive general prevention). The perception
of the risk (of commiting crimes) sanctions the restraint of
In Feeley and Simon’s (2005) point of view, the New Pe-
nology emerges in order to innovate the techniques of identify-
ing subpopulations, defining new risk groups. Michelle Brown
(2006) argues that the focus of managerial theories in hazard-
ous or risk groups resumes a key category of processes of
criminalization criticized by radical criminology (Marxist
criminology)—the dangerous classes.
In this scenario, new instruments and new surveillance tech-
niques are incorporated into the administration of the criminal
justice system in order to increase the performance of manage-
ment, with the subsequent expansion of punitive control. Thus,
automation projects are inserted into the spaces of prison ad-
ministration and into the management of urban public safety. If
in the penal welfare project the ideal of rehabilitation depended
on the interaction between the convict and those responsible for
the penal treatment (psychologists, social workers or teachers),
in the managerial approach, humans are replaced by surveil-
lance cameras, electronic monitoring, drug testing, computer-
ized CT scans.
As stressed by Feeley and Simon, these innovations in the
punitive control field lead to the expansion of criminal sanc-
tions and the inversion of punitive approach, especially when it
comes to assessing the levels of recidivism. In the old correc-
tional model, “the high rates of return to prison while serving
parole indicated flaws in the program; now they provide indi-
cators of efficiency and effectiveness of probation as a control
device” (Feeley & Simon, 2005: 436).
Punishment Justification Theories and Mass
Based on the hypotheses presented by Pavarini, especially in
relation to macro-level criminological explanations of the phe-
nomenon of great confinement, it is possible to elaborate a
concept map composed of some conclusions and new questions
that seek to evaluate the remodeling of the functions of prison
and punishment in the new phase of global capitalism, espe-
cially in the outskirts. The first defiance that seems relevant is
about the real (non)necessity of a central hypothesis explaining
the phenomenon of mass incarceration. The defiance concerns
the tendency of modern science of determining an origin to the
phenomena. The definition of a source or emergency point
would make it possible to historically rebuild the object of
study, a procedure that would allow its full understanding. This
approach derives from the Cartesian idea that to get to the truth
the investigator must dismember the object to the smallest par-
ticle possible, researching the parts individually to later make
its reunification. Understanding the particles would allow
therefore the understanding of the entire object of the research.
But this model of interpretation cannot explain complex phe-
nomena of contemporary life, such as mass incarceration.
All variables presented (single cause ones and macro-level
sociological ones) acquire a high degree of importance when
examined together, though they cannot alone explain mass
incarceration. However this is not just a simple addition, as
punishment philosophers would like it to be when they merge
theories of justification (hybridtheories), for example. The ex-
planatory hypotheses relate to each other in a discontinuous
manner: in certain circumstances of time and space they be-
come stronger; in others, they are interdependent or mutually
excluding. In certain contexts, it would be possible to reverse
the causal relation and point to incarceration as a factor that
triggers the growth of crime rates and the toughening of pri-
mary criminalization (criminal laws) and secondary (the atti-
tude of the actors of the criminal justice system).
The second defiancegoes on this difficulty to propose a uni-
versal explanation as to the different geopolitical context of the
processes of incarceration and the impact of different manage-
ment punitive policies that criminalized poverty in the countries
of peripheral capitalism, notably in Latin America. One may
note, for example, that completely different results are obtained
by comparing incarceration numbers of Brazil with other South
American countries (particularly Argentina) and with other
leading economies (BRICs). This means that the trans national
criminal policy adapts to regional characteristics (central and
peripheral), increasing or decreasing its lethality according to
each culture’s level of resistance to punishment. Similarly, it is
possible to understand the difficulty in determining the factors
Copyright © 2013 SciRes. 7
regarding the national culture that decisively impact increasing
incarceration. Incidentally, faced with a plurality of factors, the
suggestion is that incarceration stems from a dense and com-
plex network of variables, which greatly reduces the theoretical
expectations of an idealistic slant towards the development of a
universal explanatory model.
In the Brazilian case, the reinvention of prison undeniably
acquires an instrumental role in the new conception of capital-
ism. However, unlike other Latin American countries, the vul-
nerability to incarceration affects very specific groups i.e., the
target groups identified as misfits needing to be neutralized—
and have an unique characteristic normally associated with the
labels assigned to the black, poor and marginalized youth,
linked, either directly or indirectly, to the unlawful drug traf-
ficking of urban outskirts (war on drugs).
Moreover, it is also possible to argue that, in the Brazilian
experience, punishment never abandoned a latent function of
violently controlling dangerous and inconvenient individuals
and groups, even in the times of (formal) correctionalism.
Nowadays, with the abandonment of the (material) penal-wel-
fare policies and the new meaning given to prison as a mecha-
nism of exclusion and control, institutional violence reaches
indecent levels. The perverse equation that adds the historical
omission of integrative social policies with the active interven-
tion of increasing the chances of (primary and secondary)
criminalization results in brutal spaces of incarceration—i.e.,
brutal prisons, completely inappropriate for the rehabilitation
programs disclosed by official agencies; hazardous places that,
due to the lack of investments, do not provide even the minimal
living conditions for inmates in prisons, asylums and youth
detention cen te rs.
The third defiance relates to the emergence of new discourses
of justification and legitimation of punishment (New Penology)
in the new political order. New Penology emerges at the same
time as the punitive policies of the Penal State. Thus, the
macro-level criminology hypothesis (paradigm of social con-
struction) and the diagnosis of incarceration as a result of the
new managerial criminal policies seem to go together. Rather, it
can be said that this new discourse is the unfolding of the
criminal policies created by the PenalState. The perception of
the expansion of incarceration as a result of an economic and
political model that needs to transform flawed consumers by
neutralizing them into ghettos is not a statement opposite to the
theses of actuarial justification of punishment. Notoccasionally
these flawed consumers are identified as risk groups. Thus, the
propositions do not seem divergent but complementary in the
interpretation of the new geopolitics of confinement.
The control and neutralization of risk groups are rhetorical
structural elements in building a punitive culture as they easily
converse with common sense (punitive populism), and obtain
the sanctioning of punishments and prisons as a result. Thus, if
the paradigm of social construction exposes the macro-level
political movement of the punitive power, the New Penology
defines the assumptions of the political-criminal frequency and
presents a new theoretical hypothesis (theory of justification of
The convergence of the macro-level criminology explanation
(Penal State) with the criminal-political perspective (New Pe-
nology) also makes it possible to draw some hypotheses to be
worked out. First, the New Penology turns criminology into an
empty space of critical theoretical analysis of the phenomena of
crime and criminalization, turning it into a mere public safety
management tool (by both right and left wing governments)5;
second, the New Penology enters the field of bio political con-
trol of the population by operating under the actuarial control of
The fourth defianceaims at bringing critical criminology
from the foucauldian critique of prison as adisciplinary institu-
tion (Discipline & Punish, 1975) and update it to the bio poli-
tics perspective (History of Sexuality: The Will to Knowledge,
1976). Foucault’s critique of the prison has a precise delimita-
tion of time: it is directed at the prison inserted into the correc-
tional logic of industrial capitalism. The appropriation of the
theses brought forth in Discipline and Punish by critical crimi-
nology made it possible to uncover the correctional discourse,
especially when it opposed the official duties borne by the
theories of positive special prevention (rehabilitation of the
convict) to the actual functions performed by the institutional
However, despite this hypothesis being extremely useful to
strengthen the critic to correctionalism, nowadays the idea of
disciplining through confinement cannot be shared in an un-
critical manner. As previously stated, intervention policies cor-
roded with the welfare state crisis, which led to the collapse of
the positive special prevention model. Moreover, in the geopo-
litical and economic reconfiguration of globalized capitalism of
the 21st century, prisons do not perform the same penal-welfare
functions. This means that they essentially cannot be construed
as disciplinary spaces.
Vera Batista argues that neoliberal policies have brought the
penal system to the center of the political activity: “Prison has
not lost its meaning (...), the particular aspect of neoliberalism
was to combine the penal system with new control and surveil-
lance technologies, turning the world’s poor neighborhoods
into concentration camps” (Batista, 2011: 99).
Therefore, the question to be addressed is not how to adapt
the Foucauldian idea of discipline in the new criminal geopo-
litical order, but to notice how the disciplines that founded great
institutions of social control (prison, school) are nowadays part
of a complex network of political administration of bodies and
a rational management of life. In this respect, it is important to
realize that Foucault sees two main forms of exercise of power
over life that are intertwined. Two poles that are not antithetical.
The first forms around the body as a machine and projects the
necessity of its training (correctionalist hypothesis). However,
parallel to the idea of disciplining, Foucault refers to a second
pole, focused on the body as species body (population) and its
biological processes (proliferation, fertility, mortality, health,
longevity, for example). The second form of intervention aims
at regulatory controls and is incorporated as a biopolitics of the
population. Thus, “the disciplines of the body and the regula-
tions of the population are the two poles around which the or-
ganization of power over life was developed (...)” (Foucault,
The connection between the disciplines and biopolitics, i.e.,
the exercise of power over the body as a machine and the body
as species body can be seen in contemporary punitive policies.
It is interesting to see how, despite the crisis, some correctional
practices remain active in control devices, maintaining a mini-
mum of residue discipline. In this respect, despite prison being
5Vera Batista (2011) demonstrates exactly how part of the left was seduced
y managerialism, a situation that shows how some critical criminologists
were incorporated into the structuresof power and began to collaborate with
the governing of the State Criminal.
Copyright © 2013 SciRes.
increasingly identified as an area of neutralization and refrain-
ing, it is possible to note the maintenance of some correctional-
ist procedures. And this happens not only to maintain some
resemblance of social utility or of a certain humanitarian foun-
dation for criminal punishment, but especially to make sure
certain control techniques are still being used. In this scenario,
the criminological reports and administrative disciplinary pro-
cedures (disciplinary sanctions) are highly functional for the
surveillance of the prisoner, delaying his/her departure from the
institution or controlling his/her return to freedom.
Parallel to the body as a machine control, the prison ap-
proach goes beyond the boundaries of the prison and becomes a
part of daily life as (or through) the public safety policies. As
previously highlighted, management and actuarial punitive
control, sanctioned by the New Penology, appear to be “the
great political-criminal novelty” in the age of great confine-
ment. The objectives of identifying and managing potentially
criminal risk groups are the parameters that govern this prison
procedure that becomes a part of the life of the non-incarcerated
population. The technocratic control network enables therefore
not only keep the convict who served his/her sentence under
surveillance, but also identifies individuals or risk groups (po-
tential criminal offenders—social dangerousness) and develops
neutralizing actions that imply his/her segregation. As de-
scribed by Foucault, this is a large and complex network, and
brings together a number of government agencies, i.e., it is not
limited to traditional punitive policies.
For no other reason, the concept and public safety policies
nowadays seem to have a high power of attraction, becoming a
path for the main political actions. This is a key concept in the
instrumentalization of management policies. In the theoretical
field, the bio political concentration of punitive procedures in
the idea of public safety causes a depletion of criminology—if
understood as a field of knowledge focused on critical reflec-
tive thinking and punitive practices (critical criminology).
Critical reflection and the exposure of institutional violence are
replaced by a very clear guideline: drafting actuarial analysis
projects or management programs and crime control (technoc-
racy). The experi ences of the contemporary emphasis on safety
management—shared by right or left wing political trends—
halt any possibilities of thinking concrete alternatives or models
that overcome the prison-focused approach because the funda-
mentals of punitive culture are not seen as a problem and their
premises are naturalized.
The fifth defiance exposes the central problem of this paper:
what is the role of penal dogmatic theory when faced with the
phenomenon of great confinement? Or, Even: How Punishment
Justification Theories Explain Mass Incarceration? The justifi-
cation of punishment is one of the pillars of dogmatic dis-
courses. In many systems, the fundamentals of (dogmatic)
criminal science are all about theories of punishment. The form
of justification of punishment sets, in most cases, 1) the princi-
ples of interpretation of the criminal law (criminal law theory),
2) the criteria of imputation and premises of criminal liability
(tort theory) and 3) the instrumentalization (implementation and
execution) of the legal response to crime (theory of punish-
Thus, it seems imperative to confront the dogmatic penal
theory with the problems that have been exposed by critical
criminology in recent decades; questioning legal criminal sci-
ence to manifest about the reality it c r e a t e s i t s theories upon.
Punishment Theories and Mass Incarceration: A
Criminological Questioning to Criminal Law
(Justification) Punishment theories—characterized by the
doctrine of criminal law in a normative arena—seek to answer
the question why punish? It is, therefore, according to the crite-
ria for defining the horizons (and limits) of legal research
(epistemological problem) a question regarding the philosophi-
cal foundations of criminal law. Ferrajoli’s (1998) answer to the
question why discipline? can be understood in two different
ways: 1) why is there punishment? or why should one punish?
and 2) why should there be a penalty? or why should one pun-
ish? The first would be a scientific problem that admits only
empirical answers to verifiable and disputable (true or false)
assertions. The second sense of the matter would reveal a phi-
losophical problem that admits only political and ethical an-
swers thought according to normative propositions, neither true
nor false, but only acceptable and unacceptable as fair or unfair.
In other words, Ferrajoli understands that the first question is
sustained on the existence of the phenomenon punishment, or
of punishment itself as a fact that translates problems of a his-
torical or sociological (criminological, above all) perspective.
The second question reveals the should be legal aspect of pun-
ishment, i.e., the right to punish, which refers to the prescriptive
The (neo)positive epistemological model in criminal science
divides the problem into two: criminology would have the task
to reflect upon the empirical phenomenon of punishment, and
criminal law would be left with the task of the legal duty of
punishment. In this framework, criticism that empirically dis-
regards the normative theories and vice versa would be un-
The stiff demarcation of the boundaries of criminal and
criminological knowledge thus produces two absolutely inde-
pendent fields, two distinct scientific universes, with methods,
objects and language of their own, despite dealing with the
same problem: punishment. The impossibility to cross penal
and criminological knowledge stems from the idea according to
which one cannot achieve moral or prescriptive conclusions
based on factual or descriptive elements. The positive interdic-
tion of the possibility of deriving value from objective facts
determines that a normative perspective cannot come from
positive perspective, and, on the contrary, that a positive per-
spective cannot come from a normative one (Hume’s Law).
The transposition of Hume's Law to criminal science pre-
vents, for example, that criminological critique based on em-
pirical data of the phenomenological reality of punishment
annuls normative premises or dogmatic foundations of punish-
ment. Thus, the valid critical levels would be only those estab-
lished in their own area of competence: dogmatic critical theo-
ries to criminal law and critical criminology theories to crimi-
In the deepening of the boundaries between criminal law and
criminology, in specific terms, and between law and sociology,
in general terms, Ferrajoli (1998) states that responses to the
problem of punishment (to the question why punish?) based on
the confrontation between its function (historical or sociologi-
cal descriptive use) or its motivation (legal descriptive use) and
its purpose (axiological normative use) stem from a methodo-
logical addiction, or even, that such responses that do not dif-
ferentiate positive aspects (in fact or according to the law) from
the (axiological) normative aspects of punishment. The meth-
Copyright © 2013 SciRes. 9
odological error would be clear in the use of an explanation as
justification or vice versa. The doctrines and theories that over-
lap justification models to the schemes of explanation and the
theories that mix the normative aspects and the positive aspects
(of punishment) would violate Hume’s Law and reveal a fun-
damentally ideological character.
The epistemological positive pattern in criminal sciences,
brought forth in the legal dogmatism and in the criminological
orthodoxy, therefore limits the understanding and the critique
of the foundations of criminal law to the exclusively normative
sphere. The prohibition is expressed: reality is constituted as
another problem, something autonomous, independent.
In this context, the legal-criminal science philosopher should
adopt a system of understanding (criminal law or criminology),
and based on the premises and foundational principles of that
specific field, guide his/her discussion based over the funda-
mentals and the validity of the questioning hypotheses.
The separation from the positive asepsis and its subsequent
withdrawal in confronting the phenomena of everyday life—
Especially in a field of knowledge marked by the radicalism of
individual and institutional violence—Happens upon the emer-
gence of the critical theory of (Criminal) law and, in particular,
critical criminology. In the field of punishment, critical crimi-
nology highlighted the deep discrepancy between the official
discourses developed by the theories of justification (normative
theories) and the effectively exercised functions of the punish-
ment agencies (phenomenological experience). Despite the
never-ending resistance, the confrontation between the criminal
theories with the reality of the criminal punitive system made
the process of recognition of criminological knowledge by
Critical criminology repealed Hume’s Law from criminal
sciences, allowing the empirical knowledge about the reality of
the criminal control agencies to serve as a tool of deconstruc-
tion, modification and implementation of dogmatic knowledge.
Critical criminology as a critique of criminal law was devel-
oped in this line of thought in Western countries of the Roman
and Germanic legal tradition.
Based on this critical perspective, Muñoz Conde and Hasse-
mer state that “the importance to prevent blindness towards
reality that often has legal regulation, the normative knowledge,
i.e. the legal aspect, should always go together, be supported
and illustrated by empirical knowledge, i.e. by knowing reality
(...)”. (Hassemer & Conde, 2008: 05) However, as the authors
note, “the relation between empirical knowledge and normative
knowledge, according to how each of them approach reality, is
not, nevertheless, idyllic, but a conflicting one and one with
many points of contact, where sometimes the normative and the
empirical knowledge clash regarding the solution given by the
other part and it is not uncommon that sometimes this is a
cause of dysfunction and inefficiency of the criminal-legal
standards in solving conflicts or that even that empirical
knowledge itself lacks influence in the regulation of a specific
legal problem”. (Hassemer & Conde, 2008: 06) Vera Batista,
cautious of the warnings given by Zaffaroni, seems to precisely
understand the problem: “punishment can not be thought ac-
cording to normative theories, but according to the lethal real-
ity of our concrete penal systems” (Batista, 2011: 91).
In this aspect, this paper explicitly assumes the ideological
addiction (pejoratively) described by Ferrajoli. The choice for
the critical criminological perspective makes it possible to leave
Hume’s Law behind on behalf of an effective concern for the
lives of people who suffer in the gaps created by the grand nar-
ratives of theoretical justification of punishment and the real
experience of punitive distress. For no other reason does Zaf-
faroni bring forth a system of understanding criminal law with
the aim of limiting the punitive power and built on its empirical
data (Zaffaroni, Alagia, & Slokar, 2006: 77).
Geraldo Prado shows that, giving context to the methodo-
logical dispute between causalism and finalism, the bearers of
the official scientific capital in criminal law rarely base their
investigations on the contradictions of everyday performance of
the repressive apparatus, and not invariably, develop compre-
hensive schemes “disregarding the consequences produced by
adopting one or another way to interpret/apply the criminal
law. (...) Positivism [according to the author] annuls the his-
toricist aspect of the social sciences” (Prado, 2011:30). Ac-
cording to Michel Löwy’s interpretation, the effort of positive
thinking of achieving objectivity, freeing up from the ethical,
social or political assumptions, “is a feat that irresistibly brings
to mind the famous story of Baron Munchausen, this pictur-
esque hero who manages, through a genius stroke, to escape
from the swamp where he and his horse were being dragged by
pulling himself by the hair... Those who claim to be truly objec-
tive beings are simply those who carry their assumptions more
deeply” (Lowy, 1994: 32).
The purpose of this paper is to present Brazilian data regard-
ing incarceration in the last decades as premises with serious
ethical, social and political implications, and therefore explic-
itly inquire about the necessary relationship between the (nor-
mative philosophical) justification theories of punishment and
the (empirical) phenomena of the great incarceration. The ques-
tion behind the current reflection is the role that punishment
theories play in the expansion or contraction of the power to
punish (potestas puniendi). The question that pervades the text
is about what are the possible explanations that the punishment
theories would offer to the problem of hiper-punishment.
The theoretical exercise based on empirical criminalization
data seeks to reverse the question traditional punishment theo-
ries seek to answer. Instead of questioning the criminal law
theory why punish? (why should there be punishment?) the
goal here is to question how criminal dogmatic justifies the
concrete punitive system it sanctions. It is, undeniably, a theo-
retical questioning: if the penal doctrine, especially in the last
two centuries, made a huge effort to assign a positive meaning
to the existence of punishment, the proposal is to subvert the
apparently logical premises made since the positive era. The
goal here is not to simply question a normative system of justi-
fication that will be later verified or discredited in real life by
criminology, but to have the penal doctrine explain, with its
sophisticated theoretical resources, the contemporary phe-
nomenon of mass incarceration.
The defiance is justified by the urgent need for the criminal
law theory to take on some ethical and social responsibility, i.e.
one that does not evade reality and, in particular, the effects its
legitimacy models produce.
Based on Bourdieu, Geraldo Prado argues that it is necessary
to escape the narcotic temptations of the “pure science” per-
spective (unrelated to social needs) on one hand and the “sci-
ence as a slave” perspective (subject to political and economic
demands) on the other. This is exactly why he takes on the
starting points not as data but as constructions. In criminal law,
one of the key elements will be that of the offense—“penal
theories emerged in the nineteenth and twentieth centuries to
Copyright © 2013 SciRes.
sanction the operation of the criminal justice system, according
to the discourse of modernity, not questioning straight from the
beginning one of its key elements, the offense, something con-
sidered a social element and not a creation of the political
power itself” (Prado, 2011: 26).
But if criminal law assumes offense to be a social element
(and not a political construct), it shall think of punishment as
such as well, for the criminal sanction represents the natural
consequence of wrongdoing in this orthodox model. Crime and
punishment, understood by criminal dogmatic as natural phe-
nomena—and criminology will add the third element of the
natural criminal to this equation—are free from any prior ques-
tioning. Criminal law would be only entitled to establish the
assumptions of attribution and accountability (theory of crime)
and the justification for the execution of the sentence (theory of
punishment). Those responsible for the theory would only per-
form an exclusively instrumental task of justifying the use of
the categories; they would be free from the debate on the sub-
stance and effect of their technique. When confronted with the
questioning over the grounds of their theories (punishment
theories), they refrain from the question about its necessity and
impacts on reality.
However, faced by the blatant failure of the empirical phe-
nomenon of punishment and the outright disregard of the theo-
retical justifications for punishment, it seems crucial to question
how does criminal law justifies or, at least, explains the massive
incarceration that marks the first decades of the twenty-first
The paper sought to present problems considered to be cen-
tral to the theme that involves punitive social control in con-
temporary times: First, the steady increasing number of incar-
cerated people, especially in the west, with special focus on the
Brazilian case. Second, the form of interpretation of the crimi-
nological phenomenon of incarceration. Third, the existing gap
in criminal law theory concerning the reality of the great con-
Criminological theories, even the most orthodox ones, have
demonstrated the importance of thinking about the theme. Thus,
despite the numerous and dichotomous responses to the prob-
lem, criminology—especially penology—has shown intense
concern in analyzing the reality of world incarceration, sug-
gesting some explanatory hypotheses and proposing alterna-
tives. From the empirical problem of prisons, different trends of
thought have presented new criminological theories of legiti-
macy or illegitimacy, in models that are not limited to the de-
scription, but have justified or deconstructed punishment.
The (dogmatic) science of criminal law, cloistered in the
positive paradigm, justifies its omission based on the require-
ments summarized in Hume’s Law. Thus, it limits itself to the
proposition of normative theories of justification, preventing
the empirical reality of the system on which it operates being
debated. But the experience of mass incarceration turns this
silence into a loud noise.
The paper, besides reporting the prison situation in Brazil,
sought to defy the traditional theories of criminal law, by re-
versing the dogmatic logic and the traditional penal sci-
ence—specifically the punishment theories—in order to explain
the phenomenon of incarceration. In very simple terms, the
research problem could be summarized in the following ques-
tion: What do theories of punishment have to say about the
mass incar ceration?
In fact, the question here seeks to convene punishment theo-
ries to make an ethical reflection, posing a critical judgment
about its functionality (instrumentality) and its social (ir)res-
ponsibility. The questions, which go beyond idealism, are: first,
how does criminal law face the problem of actual incarceration,
since it is a direct consequence of the punishment discourse?
Second, what are the alternatives proposed by criminal law to
the phenomenon of mass incarceration, considering that this
strategy is not getting the expected results of reducing crime
rates, on the contrary, the system ends up creating even more
violence (crime-prison-strengthening of criminal identity-
crime-prison)? And as a result, the third question is: is it rea-
sonable to propose more incarceration as an alternative to the
At this stage of the criminal sciences, especially after the ir-
reversibility of deconstruction performed by critical criminol-
ogy, it seems that it is no longer possible that a theoretical
model justifies punishment in an abstract manner without wor-
rying about the impact that this justification produces on the
reality of the criminal justice system. Otherwise, by choosing to
keep silent, criminal law theory will completely lose its ability
to (self-)criticize; seduced by the will to be pure, it will remain
as a slave science, an innocent technique useful to political
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