Parcerias público-privadas em estabelecimentos penais: uma alternativa à crise da pena privativa de liberdade

Abstract

This work investigates the choice of public-private partnership contracts for the construction and management of penal establishments as an alternative to the crisis faced by the deprivation of liberty in Brazil. This proposition arises in a context of proven state incapacity to carry out, by itself, all activities relevant to criminal enforcement, given the precarious infrastructure of its establishments, plagued by the systematic transgression of fundamental rights and guarantees of the custodians, and the intangibility of the purposes imprisonment, outlined in criminal law. Accordingly, the purpose of this study is to promote the analysis of the legal-constitutional feasibility of public-private partnerships and understand how and to what extent this new modality of special concession can contribute to overcoming the crisis of the deprivation of liberty. Therefore, it was necessary to navigate through the history of the evolution of the penalty and define its objectives, discriminating the types of penal establishments and the inappropriate conditions presented by them. Then, the management reform and the phenomenon of privatizations were disciplined, marked by the delegation of provision from public services to the private initiative, which occurred through common concessions and, more recently, through public-private partnerships. The replacement of the traditional penitentiary system, essentially public, by co-management, despite having shown positive results, is still debate in the legal, ethical and political fields. It were verified, through descriptive research, based on doctrinal works, books and scientific articles, and exploratory, supported by the only Brazilian experience of public-private partnership in the prison plan, which is the Complexo Penitenciário Público-Privado (CPPP), in Ribeirão das Neves, Minas Gerais. The model is compatible with the Brazilian law, as long as the delegation to the firm is limited to the design, construction and provision of complementary administrative services, accessories and instruments, which do not characterize the exercise of jus puniendi, exclusive to the Public Power. Besides, it is understood that the main prison problem is overcrowding, so that the reduction of the deficit of vacancies, through the construction of new units, combined with the provision of part of the services by the private, through inspection by the Administration, is crucial. In this way, only by respecting the physical and moral integrity of the inmate and by the successful implementation of work and study, the crisis can be surpass and make the prison sentence effective. Key words: Deprivation of liberty penalty. Crisis. Public-Private Partnerships