Senso comum teórico (racista) dos juristas: o juiz das garantias em um modelo processual inquisitório que aprofunda a seletividade do negro no sistema penal

Abstract

The current state of the carceral system in Brazil will be revisited through a critical analysis of the pre-defined stereotyping of incarcerated individuals, often shaped by a racist Theoretical Common Sense among jurists. This research primarily aims to prompt reflection on the construction of eugenic ideological presuppositions disseminated in the discourses of scientists and theorists over the years. It will explore their significant influence as a determinant factor in the predominant incarceration of Black individuals in Brazil, from police approaches to sentence fulfillment. Under the theoretical framework of Adilson José Moreira, the study will evaluate the construction of race and its intersection with Brazilian racial sociology. These elements are contributing characteristics for an anti-discriminatory legal approach by jurists, and the research proposes an analysis of the interpretive parameters of Black and White jurists based on their historical backgrounds. Secondly, the examination demonstrates the existence of presuppositions already defined by Luis Alberto Warat and his concept of Theoretical Common Sense, which corroborate the existence of a racist theoretical common sense among jurists, resulting in doxa justified as episteme. Finally, the paper offers a critical analysis of the advent of the Judge of Guarantees in relation to racial sociology and its potential to disrupt the current praxis of the Brazilian penal system. This includes assessing whether the Judge of Guarantees' role enables the identification of partiality and a resolution to the scenario of selective enforcement against Black individuals within the penal system. This is crucial because, in the current model, the procedural flow hinders the necessary impartiality, leading to cognitive dissonance. This is due to the fact that, in addition to the inquiry being fueled by a procedural model with an inquisitorial heritage and a fascist paradigm, the sentence is determined by the same judge who acted in the preliminary phase, gradually accumulating elements that contaminate their impartiality.