Criminal Responsibility of Psychopaths in Brazil: Legal Challenges and Post-Sentence Gaps

Abstract

This study analyzes the criminal responsibility of individuals diagnosed with Antisocial Personality Disorder (ASPD), with an emphasis on psychopathy, in light of the Brazilian legal system. The study aims to examine the limitations of the current penal system regarding the accountability and treatment of these agents, especially concerning the absence of adequate control mechanisms in the post-sentence period. This is a qualitative, exploratory research developed through a bibliographic and documentary review, based on legal doctrine, legislation, and national and international academic productions. The results demonstrate that the Brazilian legal model, structured on the binary system between sanity and insanity (imputability and non-imputability), proves insufficient to deal with psychopathic individuals, since they, although understanding the illicit nature of their conduct, present impairment in their capacity for self-determination. Furthermore, it analyzes the existence of a legal limbo in the period following the completion of the sentence, marked by the absence of adequate state monitoring, which increases the risks of recidivism. Moreover, it is observed that recent regulatory instruments, such as Resolution No. 487/2023 of the National Council of Justice, although representing advances in the field of security measures, do not adequately address the specific situation of individuals with ASPD. It concludes that there is a need for regulatory reformulation to allow the creation of legal mechanisms for post-sentence monitoring and follow-up, inspired by experiences in comparative law, in order to balance the protection of society and the fundamental rights of the individual.