Automatic Offset between Recidivism and Voluntary Confession: A Threat to the Principle of Individualization of Sentencing

Abstract

This article examines the recent shift in case law established by the Superior Court of Justice concerning the possibility of offsetting the aggravating circumstance of recidivism against the mitigating circumstance of voluntary confession, on the grounds that both are considered preponderant factors; the issue raises concerns within the Brazilian legal system regarding the selection and application of penalties, particularly from the garantist perspective advanced by Luigi Ferrajoli, which emphasizes that the legitimacy of the State’s punitive power depends on limiting judicial discretion, especially when determining the nature and extent of the appropriate penalty for each offense, in order to avoid legal uncertainty; the central research question investigates whether the automatic offset between recidivism and voluntary confession violates the principle of proportionality and its derivative principle of individualization of sentencing; the initial hypothesis is that such jurisprudential development is inconsistent with the national legal framework and that objective and subjective criteria should be established to allow for such offset in a manner consistent with the principle of individualized sentencing.