A aplicação da atenuante inominada do art. 66 do Código Penal em casos de furto e roubo: a vulnerabilidade social como circunstância relevante na dosimetria da pena

Abstract

The study examines whether the social vulnerability of individuals convicted of theft or robbery can be recognized as a “relevant circumstance” for applying the unnamed mitigating factor provided in Article 66 of the Brazilian Penal Code. It connects constitutional principles (dignity, humanity, legality, and individualization) with insights from critical criminology and the theory of co culpability. The paper argues that poverty, low education, race/color, and territorial exclusion—when proven and causally linked to the criminal act—may reduce the offender’s concrete culpability without justifying the unlawful conduct. It shows that case law, particularly from the Superior Court of Justice (STJ), has taken a restrictive stance—reinforced by Precedent 231—rejecting the automatic application of the State’s co-culpability. Accordingly, the research advocates for an exceptional, evidence-based, and well-reasoned application of Article 66, avoiding both the notion of a blanket exemption and the stigmatization of the defendant. It proposes operational criteria such as robust proof, causal connection with the offense, subsidiarity, detailed reasoning, and respect for legal boundaries. The study concludes that this approach humanizes sentencing, mitigates the selectivity of the criminal justice system without breaching legality, and recommends the inclusion of socioeconomic assessment protocols in sentencing, as well as a future research agenda to measure impacts and improve judicial practice