Pretrial detention, media outcry, and penal populism: the instrumentalization of precautionary measures as a mechanism for legitimizing premature punishment

Abstract

This article critically analyzes pretrial detention in the context of intensified media outcry and the rise of penal populism, taking as its central problem the progressive instrumentalization of precautionary measures as a mechanism for legitimizing anticipatory punishment within the Brazilian criminal process. It begins from the observation that, in cases of major public repercussion, pretrial detention has frequently been displaced from its endoprocedural purpose to assume a symbolic function of immediate response to social pressure, the media spectacularization of crime, and the institutional need to reaffirm state authority. The general objective is to examine how media outcry and populist rationality influence the reasoning of precautionary decisions, fostering the erosion of the presumption of innocence, the exceptional nature of procedural imprisonment, and the integrity of criminal due process. Methodologically, a qualitative approach is adopted, of a legal-dogmatic, critical-bibliographical, and hermeneutic nature, with an integrated analysis of the Federal Constitution, the Code of Criminal Procedure, contemporary criminal procedural doctrine, and recent studies on media criminology, penal populism, and judicial reasoning. The findings indicate that the recurrent use of semantically open grounds, such as the guarantee of public order, the credibility of Justice, and the prevention of a sense of impunity, has enabled the indirect incorporation of media outcry into judicial rationality, transforming provisional imprisonment into an instrument of symbolic management of collective fear. It is concluded that this practice distorts the precautionary nature of pretrial detention, weakens the constitutional safeguards designed to restrain punitive power, and reinstates, under procedural language, sophisticated forms of punishment without final conviction, incompatible with the garantist structure of the Democratic Rule of Law.