QUANDO A EXCEÇÃO SE TORNA REGRA: narrativas do STJ acerca da prisão domiciliar para mães e gestantes presas por tráfico de drogas

Abstract

As a consequence of the fallacious "war on drugs,", the female prison population has grown exponentially in recent years. It is noteworthy that women prisoners in Brazil meet a very specific profile: these are mostly young, black, poor women, with a low level of education, heads of families and who are responsible for drug crimes. However, the increase in the number of women imprisoned was not accompanied by the adaptation of the Brazilian prison system to women's specificities, so that human rights violations occur constantly in Brazilian prisons, victimizing not only incarcerated women, but also their children, who end up being hit by the effects of the penalty. In this context, house arrest was introduced into the Brazilian legal system in order to represent an alternative to the mass incarceration of women and children. Thus, the present work has a general objective to analyze the narratives used by the ministers of the Superior Court of Justice to judge requests for the granting of house arrest in cases in which the defendant is responsible for drug crimes and is a pregnant woman or a mother of a child. Therefore, the methodological option consisted of the use of the documentary research technique, which involved the collection and analysis of 58 judgments of the STJ, dated from 01/01/2022 to 31/12/2022, about house arrest claims in favor of pregnant women or mothers of children who were imprisoned for crimes related to drug trafficking. The results indicate that, although this benefit should be granted whenever the woman fulfills the legal requirements, with the exception of "exceptional situations", the STJ ministers have used the nonspecific scope of this expression to reject house arrest in most cases, making exceptionality the rule. Still, it was seen that the discourses constructed by the STJ to reject house arrest were based mainly on issues related to the fact that the crime was perpetrated in the family home, in the absence of the indispensability of maternal care in the specific case, non-compliance with a measure previously granted, the repetition of the criminal practice, the participation in a criminal association or organization, the defense of public order, merely formal vices and the fact that the child has already exceeded 12 of age at the time of the trial of the application. The constant arguments in the decisions carry the need to punish women not only for the crime committed, but also for breaking with the gender roles that have been historically assigned to them. Thus, it was concluded that the speeches reproduced by the STJ in the judgments examined follow, predominantly, positions more unfavorable to women prisoners, denoting the exacerbated punitivism and criminal selectivity that permeate the Brazilian judiciary.