IMPLICIT RISK CRITERIA IN PRETRIAL DETENTION FOR DRUG TRAFFICKING: ACTUARIAL JUSTICE, PENAL SELECTIVITY, AND SÃO PAULO CASE LAW

Abstract

This article sought to analyze the implicit risk criteria involved in ordering pretrial detention for drug trafficking offenses, aiming to identify the extent to which the criminal justice system operates by reproducing the discourse of Actuarial Criminal Policy, bypassing the subjective public rights enshrined in the Federal Constitution. The study is qualitative in nature, employing an analytical and descriptive approach, and utilizes three primary methods: a literature review, case law analysis, and a case study. The literature review involved examining academic scholarship on the subject—selecting research papers, articles, theses, and dissertations—alongside an analysis of case law from the state of São Paulo. The research is based on the hypothesis that justifications citing public order, the abstract gravity of the offense, and dangerousness indicate the presence of an implicit actuarial rationality. The study sought to elucidate the application of a decision-making pattern that diverges from fundamental principles and citizen guarantees, instead reproducing historical discourses rooted in social exclusion, social stigma, and penal selectivity; consequently, justifications regarding public order, social peace, and dangerousness serve to underpin the selective incapacitation of vulnerable segments of society.