Exame criminológico e a lei 14.843/2024: a banalização do instituto e a necessidade de limitações

Abstract

This research analyzes the actual necessity of conducting the criminological examination for all inmates and the possible limitations to its application following the enactment of Law No. 14,843/2024, which reinstated its mandatory nature for prison regime progression. The study aims to demonstrate that the indiscriminate application of the exam proves unfeasible in light of the structural deficiencies of the Brazilian prison system, particularly regarding the shortage of qualified professionals. It begins with a historical contextualization of criminology, from its positivist phase—marked by the notion of the born criminal and biological determinism—to modern criminology, characterized by an empirical and interdisciplinary approach. From this perspective, the criminological examination is understood as a technical instrument for biopsychosocial evaluation, whose use must comply with scientific and ethical standards. The legislative analysis reveals that the exam, once mandatory under the 1984 Law on the Execution of Sentences (LEP), became optional after the enactment of Law No. 10,792/2003, with its application subject to judicial justification in accordance with Binding Precedent 26 of the Federal Supreme Court (STF) and Precedent 439 of the Superior Court of Justice (STJ). However, the enactment of Law No. 14,843/2024 reintroduced its mandatory status, imposing a broad and operationally burdensome requirement. Based on the report Impactos da Lei 14.843/2024, prepared by the National Council of Justice (CNJ), it was found that the universal application of the exam would result in an average delay of 197 (one hundred and ninety-seven) days in regime progressions. Furthermore, the Federal Councils of Psychology (CFP) and Social Work (CFESS) highlight ethical and scientific weaknesses in the exam, particularly concerning its alleged capacity to predict criminal recidivism. Therefore, the study concludes that the criminological examination should be rationalized, applied only in cases involving crimes committed with serious threat or violence against a person, recidivism, proven involvement of the inmate with a criminal organization, or the commission of a serious disciplinary infraction within the last twelve months. Maintaining its general obligatoriness is not only disproportionate but also undermines the effectiveness of criminal sentence execution. Thus, this research proposes a selective and reasoned application of the criminological examination, preserving its technical and scientific value while respecting the ethical, structural, and constitutional limits that govern Brazil’s criminal enforcement system.