A (IN)CONSTITUCIONALIDADE MATERIAL DO ART. 28, §2° DA LEI ANTIDROGAS: UMA ABORDAGEM CRÍTICA A PARTIR DO PROJETO AUDIÊNCIAS DE CUSTÓDIA NO ESPÍRITO SANTO

Abstract

This study analyzes the (in) material compatibility of article 28, § 2, of the current Drug Law with the legal order of the country, as well as investigates the degree of criminal selectivity afforded by the broad interpretive opening of the aforementioned law. Given this, we seek, through the arguments constructed by critical criminology and RAP, to unveil the interests of today's anti-drug policy adopted by our country. Moreover, to measure the interpretive space of the supradite legal device, we use the positivist approach of Kelsen and Hart, and the attempt to overcome this model, proposed by Dworkin. Finally, we have brought possible alternatives in order to seek to change the current established paradigm regarding the treatment of illicit psychotropic patients, as well as users, who are currently marginalized by the penal system. The interest of the research is present in the practical consequences of the subjects that, although they are theoretical, have great implications in the legal and political system.