What do Laws No. 15,397 and 15,358 of 2026 teach us about criminal legislative policy in Brazil?

Prof Dr Chiavelli Facenda Falavigno

Chiavelli is a Professor of Criminal Law at the Federal University of Santa Catarina (UFSC, Brazil). Her research explores criminal law, criminal policy, and legislative criminal policy in Brazil, with a focus on the intersection of criminal policy and legislative analysis. In 2022, she was a postdoctoral researcher studying criminal legislative policy at the University of Málaga. She holds a PhD in Criminal Law from the University of São Paulo, which included a research period at the University of Hamburg.

The excessive use of criminal law to address problems stemming from various other factors—particularly social ones—is well known in Brazil. The belief that tightening criminal laws is sufficient to eradicate long-standing problems related to the lack of public safety has led to successive legal changes, most of which follow the same pattern: increasing penalties and creating new criminal offenses. The main effects of this policy are typically felt most acutely by members of vulnerable groups and result in mass incarceration and the consequent violation of individual rights. However, rather than engaging in dogmatic debates over categories of criminal charges and jurisprudential analyses, it is necessary to step back and view the creation of law as a legal act arising from a specific (criminal) policy decision. Two highly punitive laws that represent this kind of criminal policy were recently passed to combat property crimes (among others) and organised crime in Brazil.

The first of these, Law No. 15,397, revises various penalties for existing crimes under the Penal Code, including theft and robbery. For instance, simple theft now carries a penalty of up to six years in prison. Simple robbery, in turn, has had its minimum penalty increased to 6 years (while the maximum remained at ten years). Certain aggravated forms of robbery, such as those resulting in the victim’s death, can carry a sentence of 24 to 30 years in prison. This represented an increase in the minimum penalty from 20 years.

The second law, No. 15,358, deals with so-called “ultraviolent criminal organizations,” which are said to go beyond what was already defined as a criminal organization in national legislation (Article 1, paragraph 1, of Law No. 12,850/2013, inspired by the Palermo Convention). The new law, which becomes the “legal framework for combating organized crime in Brazil,” as stated in its preamble, sets forth, in Article 2, a series of acts that may result in sentences of 20 to 40 years in prison. The main provision of this article addresses the act of belonging to an ultraviolent criminal organization, a paramilitary group, or a private militia, and engaging in any of the acts described in the following subparagraphs, regardless of the reasons or motivations. While Article 2 criminalizes the commission of certain acts by members of these organizations, Article 3 criminalizes the establishment and support of such organizations, among other conduct. Among the various behaviors listed in the subparagraphs are the unlawful seizure of means of transportation, the disruption of public databases, and a generalized threat to public welfare. The law also amended certain offenses in the Penal Code, once again covering the crime of robbery (Article 157), which carries a sentence of 20 to 40 years in prison in cases where the victim is killed, and the perpetrator belongs to one of the types of organizations referred to in Article 2, caput, of the new law.

A few key statistics regarding public safety and criminal policy are worth noting. The first is that robbery and theft—in their simple forms and, in the case of robbery, also in its aggravated form—are among the five most frequently committed crimes in the prison population. These are incidents of criminal offence and do not necessarily represent distinct individuals. The same person may be counted in more than one category. According to 2025 data from the National Secretariat for Criminal Policy. In other words, with longer sentences, individuals who will be imprisoned in the future because of these types of offenses will remain in prison longer, exacerbating overcrowding. Another relevant fact, already widely discussed in legal scholarship, is that the poor conditions in Brazilian prisons are directly linked to the emergence and development of criminal organizations, as well as to their proliferation across the country’s various states. Such conditions have already been recognized as unconstitutional by the Federal Supreme Court (ADPF(Action for Failure to Comply with a Fundamental Provision) No. 347).

On this point, indeed, it is important to mention that this decision gave rise to the “Fair Sentencing” Program, led by the National Council of Justice and the Ministry of Justice and Public Security—representatives of the Judicial and Executive branches, respectively. Created in 2023, the program’s main objectives are to curb overincarceration and improve general prison conditions. The continued enactment of criminal laws that seem to be moving in the opposite direction demonstrates, at the very least, a lack of coordination among the three branches of government. In the realm of theory and legislative drafting, it is also possible to make initial observations on the reforms implemented. Paragraph 5 of Article 157 of the Penal Code has become extremely confusing, as it refers to a criminal offense that already provides for the death of the victim (paragraph 3, subparagraph II) and again stipulates the necessity of death.

The terms “private militia” and “paramilitary group” remain undefined by law (a criticism that had already been levelled at Article 288-A of the Penal Code, which used the same terms without defining them). The various acts listed in the subparagraphs of Article 2 of Law No. 15,358 differ in their degree of reprehensibility, despite being subject to the same penalty. Furthermore, the provisions use generic terms that are difficult to define (such as “public welfare”), which violates the principle of specificity required by the legality rule. The harsh penalties (20 to 40 years) also make it difficult to tailor the punishment to the individual offense, which is a constitutional guarantee (Article 5, XLVI). In other words, even though the three-phase sentencing method currently in force in Brazil is equally applicable, starting from an abstract minimum of 20 years already places conduct of varying degrees of culpability on the same level, thereby preventing the principle of individualized sentencing from being effectively achieved.

My question is very simple: where is all this data and discussion in the legislative process that approved these laws? And in this regard, we are not dealing with random data on crime, but rather with studies on the prison-related, judicial, economic, and social impacts of these laws, such as an estimate of the impact on the prison system, the quantification of costs, an assessment of alternatives, and the criteria for a future review of the policy.

Law No. 15,397 originated from Bill No. 3780 of 2023, introduced by three deputies, one of whom was Kim Kataguiri, known for his inflammatory social media posts associated with far-right agendas. It is worth noting that the budget and economic impacts always seem to be on this politician’s agenda—except when it comes to increasing incarceration. Processed on an expedited schedule, the Chamber’s website does not indicate that the bill passed through any committee other than the Constitution and Justice one. Although this committee does not compile statistics on its website regarding the approval and rejection of bills over time, it has recently been associated with approving measures of questionable constitutionality, such as Bill No. 215, which grants criminal competence to state legislative assemblies. It is a body that thus appears to be subject to political influence rather than adhering to technical standards. The legislative process surrounding Law No. 15,358 is what draws the most attention. Introduced on November 1, 2025, in the context of the Rio de Janeiro operation that resulted in more than 100 deaths, the bill was definitively approved on March 24, 2026—that is, in less than six months—according to information on the Chamber of Deputies’ website. Processed on an expedited basis, it passed only through the Public Safety and Constitution and Justice Committees. Not even the budgetary provisions appear to have been debated with any seriousness.

When we speak of legal rationality, we use Diez Ripollés’ concept to argue that a law must take into account the realities of the context in which it will be applied. How can a law intended to combat criminal organizations push more individuals into overcrowded cells, thereby increasing the pool of recruits available to such organizations, which emerge and operate amid the state’s total inability to properly detain those it imprisons?

The most concerning aspect of this scenario is the lack of subsequent legislative impact studies—and by that I mean official studies that actually link any future progress or setbacks to the laws that have been passed. What we will see later on will be merely the publication of general data, such as the Atlas and the Yearbook of Violence, which will point to the continued occurrence of such crimes without the legislative decision to criminalize them (that is, criminal policy viewed as public policy) being rethought and reprogrammed to achieve the objectives it promises. In other words, it is as if the law had nothing to do with this, as if it existed only in the realm of ideas, discourses, and imaginary hopes. Or worse: as if its mere enactment were enough to solve the problem.

The two laws mentioned rely on increasing custodial sentences (and the exclusive use of criminal law) to suppress violence and crime more generally. It is general negative prevention (deterrence of other members of society) and special negative prevention (neutralization of the offender) operating at full speed in the collective imagination.

The deliberate failure to address data pointing to the ineffectiveness of this policy and to the worsening of the situation under this type of legislation is quite telling regarding how criminalization processes operate in the country—processes that aim more to fuel inflammatory rhetoric on social media by “Instagrammer” politicians than to actually propose solutions to public safety issues. To be clear: solutions that should be devised in collaboration with those who have long studied this issue—or, at the very least, by overcoming the argumentative burden imposed by the data of reality. However, electoral demands and the collective indignation driven by the media seem to push aside the need for deeper analysis.

The irrationality of the legislative process is evident. So is its apparent democracy, since a law passed hastily and without the systematic participation of other members of civil society is based on a mandate granted in distant quadrennial elections. The absence of periodic evaluations of these legal measures seals their detachment from the practical, proactive, and inherently political realm, and definitively pushes them into the field of empty rhetoric with no need for results.

What we can expect is an increase in prison overcrowding, the continuation of its racist bias, the strengthening of criminal organizations, and the treatment of a social and structural problem through incarceration, forcing academia itself to repeat cyclical observations and arguments in its analyses in the field of criminal justice studies. We, too, would like to advance this research by developing new proposals grounded in constitutional principles and based on real data and evidence on violence.

Brazil—and its population, both inside and outside prisons—deserves better than this from the State and the University.

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