—Julia Maia Goldani, PhD, Postdoctoral Global Fellow – FGV
On October 28, 2025, police forces in Rio de Janeiro killed 117 people during an operation in the Penha and Alemão favela complexes. Although authorities described the operation as a strategic offensive against the criminal organization Comando Vermelho, reports by residents, journalists, and civil society organizations highlighted indiscriminate violence against civilians, as well as the absence of judicial warrants or evidence linking those killed to involvement with criminal activities. Analysts further noted that, despite the scale of the violence, the operation failed to locate targeted individuals and was unlikely to disrupt Comando Vermelho.
The episode triggered a wave of legislative proposals aimed at intensifying criminal law responses to organized crime. An analysis of these proposals offers an important window into contemporary tensions between security policies and constitutional protections in Brazil, particularly as Congress moved to reshape — and in some respects constitutionalize — punitive criminal law responses.
Fighting crime by eroding rights: the “Anti-Mafia” bill
In the aftermath of the lethal police operation in Rio, the federal government introduced what it described as “Anti-Mafia” legislation (Bill No. 5582/2025). The proposal, which had already been in development within the Brazilian Ministry of Justice and Public Security, increased penalties for the crime of participating in a criminal organization and created a new category of “qualified criminal organization,” defined by the objective of controlling territories or economic activities.
Concerns about the failure of police accountability mechanisms or the absence of safeguards against state violence therefore played little role in shaping the federal institutional response to the operation. Instead, legislative action focused on strengthening criminal law tools against organized crime.
The bill raised concerns about penalty escalation and overcriminalization. However, these risks were somwhat mitigated by a provision that allowed for sentence reductions for first-time offenders with no leadership or financing roles.
This balance was substantially altered during congressional review. The substitute bill adopted by the rapporteur — a congressman recently returned after serving as São Paulo’s Secretary of Public Security during a period of sharply rising police lethality — replaced the original framework with a markedly more punitive strategy.
The new text created a criminal offense labeled “structured social domination,” classified as a heinous crime and punishable by 20 to 40 years’ imprisonment. This offense was broadly defined, encompassing eleven forms of conduct, some of which were vague, such as the “use of violence or serious threat to impose control over territories or communities” or the “imposition of social control over economic activities or services.” Provisions did not differentiate between organizational leadership and lower-level participants, extending harsh sentencing to individuals with episodic or subordinate involvement and no command authority.
Under the Brazilian Federal Constitution, the individualization of punishment is an express guarantee — “The law shall regulate the individualization of punishment and shall adopt, inter alia, the following…” (Article 5, XLVI) — requiring that sanctions be shaped according to the specific circumstances of the criminal conduct and the offender. Thus, by subjecting all participants to uniformly severe penalty ranges without adequate differentiation based on function, intent, or degree of participation the substitute bill challenged constitutional limitations on punishment.
Furthermore, the substitute bill amended Brazil’s Penal Enforcement Law to significantly increase the fraction of sentence required for progression to less restrictive regimes in cases involving heinous crimes or equivalent offenses. Under the new rules, first-time offenders would be required to serve at least 70% of their sentence before eligibility for progression, while repeat offenders convicted of crimes resulting in death would face a threshold of 85%. These fractions amount, in practice, to an almost total prohibition of sentence progression — a policy the Brazilian Supreme Court has already deemed unconstitutional in its judgement of Habeas Corpus 82.959/SP in 2006.
Some of these aspect, most notably the breadth and looseness of the new offense’s definition, were mitigated through Senate review. The revised text established “criminal faction” as a subtype of criminal organization, defined by territorial control or interstate activity, with penalties ranging from 15 to 30 years and enhanced punishment for leadership roles. It also provided a more explicit definition of “territorial control,” focusing on repeated conduct that obstructs freedom of movement, economic activity, or the provision of public services. Even so, it continues to allow for harsh sentencing of lower-level participants and to restrict sentence progression.
The legislative process illustrates a contemporary political trend in Brazil: responding to public security concerns — even in episodes in which police violence, rather than criminal violence, is central — not only through harsher criminal law measures, but also through explicit attempts to erode constitutional safeguards in this field, thereby reinforcing patterns of rights violations that enable lethal state violence. This dynamic became even more pronounced in subsequent congressional debates over the Public Security Constitutional Amendment.
Constitutionalizing punitivism: the “Public Security Amendment”
Shortly after debating the “Anti-Mafia” bill, Brazil’s National Congress turned to an even more consequential proposal: the so-called “Public Security Constitutional Amendment” (Constitutional Amendment Bill No. 18/2025), drafted within the Ministry of Justice and introduced several months earlier. The amendment initially aimed to strengthen the federal government’s role in public security policy, notably granting the Union greater authority to promote institutional coordination.
While this objective itself triggered debate over its consequences for Brazil’s federal system, congressional revisions went far beyond this issue. The substitute bill instead moved to constitutionalize harsher custodial and disciplinary regimes for members of criminal organizations, introducing new provisions into Article 5 of Brazil’s Federal Constitution. These provisions require future legislation to establish special punitive regimes for members and leaders of “criminal organizations of high dangerousness or harmfulness,” as well as, where applicable, for perpetrators of crimes involving violence or serious threat. Such regimes must include:
- compulsory pretrial or post-conviction detention in maximum-security or special-regime facilities;
- restrictions or prohibitions on sentence progression, provisional release, plea agreements, and alternative sanctions;
- limitations on sentence reduction, temporary leave, and parole.
Mandatory pretrial detention under more restrictive custodial regimes directly conflicts with the presumption of innocence enshrined in Article 5, LVII of Brazil’s Federal Constitution, as it effectively imposes aggravated custodial conditions before criminal responsibility has been established. The proposal also amends Article 15 of the Constitution to allow for the suspension of political rights based on provisional detention, further undermining this constitutional guarantee.
Although the substitute text remains under legislative debate, its attempt to entrench frameworks for disproportionate punishment into Brazil’s constitutional order is already cause for concern. The direction taken by legislative revisions illustrates how, in the field of public security, Congress is reshaping even proposals originally aimed at institutional reform into vehicles for punitivism and erosion of constitutional rights, justified as necessary for combating organized crime.
Conclusion
Taken together, these proposals and their legislative processing reveal several problematic trends in criminal law and public security reform in Brazil. First, although episodes of this nature typically prompted measures related to police accountability and institutional reform, in this case the response to an episode of extreme police violence was shaped almost entirely around the need for harsher criminal law measures to combat organized crime. Second, congressional revisions have altered proposed bills in ways that move them toward the erosion of constitutional protections through both statutory reform and constitutional amendment.
These initiatives reflect a logic in which rights are not balanced against public security demands, but subordinated to them. While doing little to effectively counter organized crime or strengthen policing institutions, they promote constitutional backsliding by mobilizing security concerns and narratives.
Suggested citation: Julia Maia Goldani, Security Against Rights? Criminal Law Reform and the Constitutional Entrenchment of Punitivism in Brazil, Int’l J. Const. L. Blog, Feb. 17, 2026, at: http://www.iconnectblog.com/security-against-rights-criminal-law-reform-and-the-constitutional-entrenchment-of-punitivism-in-brazil/