A questão de “ordem pública” como fundamento da prisão preventiva no crime de tráfico de drogas: a influência do populismo penal na relativização da presunção de inocência

Abstract

This study aims to analyze the use of pre-trial detention based on the guarantee of public order in the crime of drug dealing, considering the impacts of this justification on the effectiveness of the constitutional principle of the presumption of innocence. It is based on the hypothesis that the vagueness and indeterminacy of the expression "public order" favor judicial decisions grounded in generic arguments, which stray from a concrete analysis of the factual and evidential elements of each case. The research examines how penal populism, by prioritizing social clamor and media pressure, contributes to the consolidation of punitive and selective judicial practices, especially targeting socially vulnerable individuals, turning pre-trial detention into premature punishment. Employing a deductive method with qualitative and quantitative approaches through bibliographic research and jurisprudential analysis, the research concludes that decreeing pre-trial detention solely based on the abstract protection of public order, without objective criteria and empirical support, compromises the legality of the measure and weakens the foundations of the Democratic State of Law, resulting in the trivialization of procedural criminal guarantees