Immediate Execution of the Sentence in the Jury Court: Reflections on the Expansion of Punitive Power and Constitutional Guarantees

The Federal Supreme Court has decided by a majority that it is possible to immediately execute the sentence of people convicted by the jury immediately after the verdict has been handed down.

The decision reflects the thesis supported a few years ago by Justice Luis Roberto Barroso, to the effect that a conviction in a jury trial strongly undermines the presumption of innocence, due to the constitutional provision for the sovereignty of verdicts, which authorizes the immediate execution of the sentence.

According to the majority view, the constitutional provision of the sovereignty of verdicts, set out in article 5, item XXXVIII, paragraph c (regarding the “sovereignty of verdicts”) of the Constitution, would justify the beginning of the sentence in the first instance.

On the other hand, by allowing immediate imprisonment, the decision extends the punitive scope, which goes against the original meaning of the rule, which aims to limit the power of the state over individual freedoms.

Another relevant point is the American Convention on Human Rights (Pact of San José da Costa Rica), to which Brazil is a signatory. Article 8, item 2, establishes that everyone has the right to the presumption of innocence until legally proven guilty, including the right to appeal to a higher court. The early execution of the sentence can be seen as a violation of this principle, since by starting the sentence before the appeals have been heard, the right to a double degree of jurisdiction is rendered ineffective.

Furthermore, the decision creates an asymmetry in the treatment of appeals. While the prosecution can appeal to challenge an acquittal, without the sovereignty of the verdicts preventing such a review, the defendant convicted in the jury will have to serve the sentence immediately, even if the decision can be reversed later.

Finally, it is important to consider the impact of this decision on the prison system. Immediate execution of the sentence, without an adequate structure to absorb a possible increase in the number of prisoners, could further aggravate the crisis in the Brazilian prison system, as well as causing irreversible damage to convicts who are later acquitted on appeal.

Despite respecting the decision of the justices, which is the result of intense debate and analysis, it is equally important to reflect on the impacts of these decisions, especially when they involve the expansion of the state's punitive power and the possible mitigation of constitutional guarantees such as the presumption of innocence.

The decision to allow the immediate execution of the sentence in the Jury Court, although based on the interpretation of the sovereignty of verdicts, must be carefully evaluated in the light of the principles that guide the justice system, especially human rights and the right to a double degree of jurisdiction. Reflecting on these issues does not diminish respect for the decision, but emphasizes the importance of weighing up its practical and legal effects, always seeking a balance between protecting society and the right to a fair trial.

Reference:

Judgment of RE 1.230.340/SC, with general repercussion