LAW NO. 15,358/2026 AS A LEGISLATIVE RESPONSE TO THE PHENOMENON OF REAL CRIMINAL PENALTIES: AN ECONOMIC ANALYSIS

Abstract

This study analyzes Law No. 15,358/2026 as a legislative response to the consolidation of the phenomenon of real criminal penalties, resulting from the difficulties faced by the Brazilian prison system in enforcing custodial sentences in accordance with the terms established by law. To understand this context, the study examines the evolution of organized crime in Brazil and the ways in which the State has sought to respond to the strengthening of these organizations through the progressive tightening of criminal legislation. The study aims to assess whether Law No. 15,358/2026 constitutes an effective response to the phenomenon of real criminal penalties from the perspective of Law and Economics (L&E). To this end, the deductive method was employed through a qualitative approach, based on documentary research, a literature review, and an analysis of legislation and case law, with Law and Economics adopted as the theoretical framework. The study concludes that Law No. 15,358/2026 represents a legislative response to the consolidation of the phenomenon of real criminal penalties; however, increasing the severity of the penalty, by itself does not eliminate the discrepancy between the penalty prescribed by law and the penalty actually enforced. It was also found that, from the perspective of Law and Economics, the effectiveness of criminal sanctions depends not only on the severity of the penalty but also on the probability of its actual enforcement. This context reveals institutional tensions between the Legislative and Judicial Branches, while also demonstrating the tendency toward the expansion of Criminal Law.