The Privatization of the "Extinction" Privative Freedom Penalty

Critical Provocations Amidst the Debate About the Loss of Legitimacy of Punitive Power and the Expansion of Criminal Law

Abstract

This paper aims to establish a basic premise prior to any discussion of constitutionality and political-criminal risks of the privatization of prisons, that is, the custodial sentence (the target of privatization) will still exist in the midst of contemporary criminological discourses who question their legitimacy? In this sense, the study proposes a critical reflection on the (ir) rationality of the punitive state power that, although it has been rightly pointed as selective, stigmatizing and dysfunctional by radical abolitionists and minimalists, has expanded more and more in post-industrial societies as the "legitimate" protector of fundamental rights. In development, the prison was born, from the workhouses - even before being used as a criminal sanction - through its introduction into the legal system of Modern States and the search for its humanization in the liberal perspective of Beccaria. It was also necessary to counter the legitimizing theories - absolute theories (Kant and Hegel) and relative theories of general (Feuerbach and Jakobs) and special (Ferrajoli and Roxin) prevention with the delegitimizing theories (like Hulsman, Baratta, Zaffaroni and Foucault). Finally, through the methodology of bibliographic research, dogmatic and criminological, the phenomenon of the expansion of criminal law worked through the work of Silva Sánches has repercussions not only in the legislative and judicial spheres but also in penitentiary policies, opening up fertile grounds for private prison management.