IMPRISONMENT IN THE BRAZILIAN LEGAL SYSTEM: CONSTITUTIONAL FOUNDATIONS, STATUTORY REGULATION, AND LIMITS ON THE EXERCISE OF STATE PUNITIVE POWER

Abstract

This article examines imprisonment within the Brazilian legal system through three mutually conditioning dimensions: the constitutional foundations that authorize the deprivation of liberty, the legal regulation of its various forms, and the limits imposed on the State’s punitive power. The central research question concerns the extent to which the regulation of imprisonment is compatible with the constitutional protection of individual liberty. Employing a qualitative, descriptive-analytical approach and a deductive method, this study draws upon a bibliographic and documentary review—including an analysis of the 1988 Federal Constitution, the Penal Code, the Code of Criminal Procedure, the Penal Execution Law, specific supplementary legislation, and rulings from the Supreme Federal Court and the Superior Court of Justice. The findings reveal a coexistence between guarantees of liberty and an expansion of penal control, particularly following the amendments introduced by Laws No. 15.272/2025, No. 15.295/2025, and No. 15.358/2026. The study concludes that the legitimacy of imprisonment depends on the compatibility of its normative framework and practical application with the Constitution—ensured through effective judicial oversight, individualized legal reasoning, and adherence to the principles of proportionality and due process.