CONSTITUTIONAL LIMITS OF CRIMINAL POLICY: A CRITICAL ANALYSIS OF LAW NO. 15.358/2026

Abstract

 This scientific article provides a critical and systematic analysis of possible material unconstitutionalities introduced by Law No. 15,358/2026, presented as the new legal framework for combating organized crime. Driven by the rise of penal efficiency and penal populism in contemporary public security policies, it investigates how certain legal mechanisms strain the constitutional paradigm of the Democratic Rule of Law and approach Enemy Criminal Law logic. Through bibliographical-dogmatic research and jurisprudential analysis, the study examines the provision of preventive detention resulting from crimes established in article 2, voting rights restrictions for provisional detainees, administrative presumption of affiliation under article 29, § 6, the imprescriptibility of civil property forfeiture actions, and the prohibition of the reclusion allowance in specific situations. The theoretical framework articulates Luigi Ferrajoli’s penal garantismo, David Garland’s culture of control, Aury Lopes Jr.’s accusatory perspective and cognitive originality, Alessandro Baratta’s critical criminology, Humberto Ávila’s proportionality, and Lenio Streck’s hermeneutical principles. It concludes that combating complex crime does not justify setting aside constitutional safeguards, requiring the Judiciary to exercise constitutional and conventional review over the enacted measures.