RECIDIVISM AS A PERSONAL CONDITION OF THE CONVICTED PERSON IN CRIMINAL ENFORCEMENT: THE NEED FOR REVIEW IN LIGHT OF THE ANTI-CRIME PACKAGE

Abstract

This article seeks to demonstrate the need to review and overcome the jurisprudential understanding that has been established regarding criminal recidivism and its extension in criminal enforcement to all convictions, even when, at the time of a given offense, the convicted person held the status of a first-time offender. The notion/understanding was consolidated that the application of recidivism to all sentence calculations stemmed from recidivism being a “personal condition of the convicted person.” However, the Anti-Crime Package introduced in Brazil a legislative distinction between “generic recidivism” and “specific recidivism,” and also differentiated the percentages for regime progression, as provided by Article 112 of the Law of Criminal Enforcement, based on different types of offenses (with or without violence and grave threat; common or heinous/equivalent; heinous with a result of death). This change was recognized by Repetitive Theme 1.084 of the STJ for the purposes of regime progression, bringing objectivity to the concept of recidivism. However, this distinction was not followed in the context of individualization of the sentence. The aim is to prove, through legal, conventional, and constitutional norms—as well as Theme 1.084 itself—that distinguishing is necessary. Revising this understanding will directly impact the review of thousands of criminal sentence calculations, contributing to legality and preventing clear excesses in enforcement.