A MATERNIDADE E A LEI DE DROGAS: UMA ANÁLISE SOBRE A APLICAÇÃO DA PRISÃO DOMICILIAR NA PARAÍBA

Abstract

The drug-dealing crime is the penal type responsible for 48.29% of women incarcerated, who are in prison situations in Paraiba. regarding Brazilian feminine detention, it’s observed an increase of 455% in the last decades. Literature has pointed out unemployment and the challenges of sustaining children are the most frequent reasons for women's involvement in illegal drug traffic, in addition to the influence of their partner or a family member. Given this context, this paper had as a general objective to analyze how the magistrates of Paraiba have applied the substitution of pre-trial detention for home detention, in cases where the agent is a pregnant woman and/or mother of children up to 12 years of age incomplete, arrested for the crime of drug trafficking. To do so, documentary research was carried out in the system of jurisprudence of the Court of Justice of Paraiba (TJPB in Portuguese), in which 74 decisions were found, 11 of which were favorable and 63 were not, a literature search on the subject was also carried out. The interpretation of the content of the decisions of the TJPB led to the conclusion that the Paraiban magistrates use the undue need to prove the indispensability of the physical presence of the mother, as well as the maintenance of public order, to justify not substituting preventive detention by home detention. On the other hand, the cases in which the requests were granted were based on the observance of the law in force, aiming at the best interest of the child. Furthermore, it was found that women in prison are doubly condemned: when they violate a penal rule and are subject to the degrading conditions of Brazilian penitentiary institutes, and when the woman breaks the social expectations that fall upon her, assuming a role that transitions between being a mother and being a criminal. In this sense, in the decisions analyzed it was evident that the crime is seen as a deviation from the expectations generated from a concept of the ideal mother, a condition that should be something that leads the woman to her "true feminine nature". Thus, the analysis of the data obtained from the reading of the judgments of the TJPB has allowed the conclusion that the Paraiban judiciary rarely applies the right provided in art. 318, IV, V, of the Code of Criminal Procedure (CPP in Portuguese), and when it does, it is evident that the holder of this right is the child and not the woman.