Direito à atenuação da pena e a Súmula nº 231 do Superior Tribunal de Justiça: por uma interpretação constitucionalmente adequada

Abstract

This paper discusses the arguments surrounding Precedent No. 231 of the Superior Court of Justice, which prohibits reducing a sentence below the minimum prescribed when considering mitigating circumstances. The prevailing understanding currently upholds the content of the precedent, citing reasons ranging from Topic No. 158 of the Supreme Federal Court to the alleged usurpation of legislative competence. Based on a qualitative bibliographic research approach that includes studies on constitutional criminal law, criminal execution, criminal law manuals, and decisions issued by the Superior Courts, this study argues that the restriction on the right to sentence mitigation violates fundamental rights for three reasons. First, because legality is a guarantee for the litigant. Second, because the individualization of sentences is incompatible with the standardization of penalties. Third, because the unconstitutional state of affairs in the Brazilian prison system should guide the interpretation of criminal norms. The monograph, therefore, advocates that a constitutionally adequate interpretation of the right to sentence mitigation is one that ensures its full exercise, taking into account fundamental rights and the grave national context of unlawful sentence enforcement, contrary to the provisions of Precedent No. 231 of the Superior Court of Justice.