PENAL SELECTIVITY, THE CRIMINALIZATION OF POVERTY, AND THE WAR ON DRUGS IN BRAZIL

A CRITICAL CRIMINOLOGICAL ANALYSIS

Abstract

This article critically examines how the application of Brazilian Drug Law (Law No. 11,343/2006) has operated as a mechanism of penal selectivity and the criminalization of poverty, contributing to mass incarceration among Black and peripheral populations. The research problem investigates whether the absence of objective criteria to distinguish drug users from traffickers expands discretionary power within the criminal justice system and reinforces structural inequalities. This is a qualitative study of a theoretical-critical nature, developed through bibliographic and documentary procedures, including analysis of critical criminology literature, official prison data (SENAPPEN and FBSP), relevant legislation, and Supreme Federal Court case law, particularly RE 635.659/SP (Theme 506). The theoretical framework is grounded in the works of Michel Foucault, Loïc Wacquant, Florestan Fernandes, Orlando Zaccone, and Nilo Batista. The findings indicate that the normative indeterminacy of Article 28, § 2, legitimizes selective practices from police intervention to judicial decision-making, disproportionately affecting poor, Black, and low-educated individuals. The so-called “war on drugs” effectively functions as a penal strategy for managing poverty, reinforcing mass incarceration and the reproduction of social and racial inequalities.