A desconsideração da hediondez no tráfico privilegiado de entorpecentes: uma análise à luz do Direito Constitucional

Abstract

The present research aimed to analyze the exclusion of heinousness in privileged drug trafficking, in light of the Federal Constitution of 1988 and infra-constitutional legislation. The study sought to understand the legal and social reasons that have grounded the decisions of higher courts, which, in specific cases, disregard the heinous nature of this crime, and the impacts of these decisions on Brazilian criminal policy. Initially, an analysis was conducted on the concept of heinous crimes and the treatment of drug trafficking under the Federal Constitution, highlighting the relevance of this classification in the fight against organized crime and public security. Subsequently, the concept of privileged trafficking, as set forth in Article 33, §4 of Law No. 11.343/2006, was examined, along with its application by the Judiciary, with emphasis on the justifications for mitigating punitive severity in relation to lower-risk traffickers. Finally, the social and legal implications of this paradigm shift were discussed, with a focus on the criticisms and potential consequences for the fight against drug trafficking. The methodology used was deductive, based on bibliographic research and analysis of case law, aiming to identify patterns and trends. It was concluded that the exclusion of heinousness in privileged trafficking represents progress in the pursuit of a more proportional and humanized criminal law, but also requires caution, given the potential impacts on criminal policy.