Inquisitoriality, public order and dangerousness: analysis of habeas corpus cases judged in the Courts of Justice of Rio de Janeiro and Mato Grosso do Sul during the Covid-19 Pandemic

Abstract

Based on data collected in the research “Federative Asymmetries in Times of Covid-19: Diagnoses and Impacts of Recommendation 62 of the National Council of Justice in Mato Grosso do Sul, Rio de Janeiro and Rio Grande do Sul” (Capes Notice 12/2021), this article analyzes how the “guarantee of public order” and the “social dangerousness of the agent”, understood as indeterminate categories of Law, are repeatedly used as grounds and moralities to deny habeas corpus involving the crime of drug trafficking. After a survey and quantitative and qualitative analysis of habeas corpus cases judged in the Courts of Justice of Mato Grosso do Sul and Rio de Janeiro, filed during the Covid-19 Pandemic and which mentioned Recommendation 62 of the National Council of Justice, issued in 2020 with the aim of implementing preventive measures against the spread of the virus within the criminal justice and socio-educational systems, in the vast majority of judgments these indeterminate categories were used to deny the requests. In this sense, the article problematizes how the indiscriminate and generic uses of the “guarantee of public order” and the “social dangerousness of the agent”, both associated with the possibility of “reoffending,” show us how legal practices are associated with an inquisitorial tradition, which is similar to criminal policies and conceptions of public security of a repressive nature, with mass incarceration being its most evident result, even in an extraordinary context such as the Covid-19 pandemic in Brazil and its impacts on the prison system, already declared by the Supreme Federal Court as an “Unconstitutional State of Affairs.”