Sentencing discretion,authoritarian legacies and punitive consensus in Brazil: A criminological inquiry

Introduction

In recent decades, critical criminology and legal sociology have increasingly turned their attention to the enduring legacies of authoritarian regimes and their imprint on contemporary criminal justice systems (Garland, 2001; Godoy, 2006; Huggins et al., 2002). Emphasis has been placed on how institutions of control—courts, police, prisons—retain organizational cultures and operational routines shaped by authoritarian pasts. This scholarship suggests that democratization, even when formally extensive, often fails to dismantle the punitive architectures that had enabled repression and exclusion under dictatorship. Penal practices, far from being neutral or technical, frequently operate as sites of continuity between authoritarian governance and post-authoritarian rule (Chevigny, 2003; O'Donnell, 1996; Sozzo, 2016).

Brazil offers a salient case for examining such continuities. The country experienced a long civil–military dictatorship (1964–1985), preceded by earlier authoritarian episodes, notably the Estado Novo regime (1937–1945). Legal institutions during these periods were re-engineered to expand state power and suppress dissent, embedding punitive flexibility into legal frameworks. Despite re-democratization in the late 1980s—including constitutional reforms and rights guarantees—many foundational structures of the penal system remained untouched. Discretionary sentencing practices—enabled by vague legal criteria, weak oversight, and expansive judicial autonomy—continue to sustain unequal and punitive outcomes.

This article explores the hypothesis that judicial discretion in Brazil, though formally justified as a vehicle of individualized justice, operates in practice as an institutional mechanism for reproducing authoritarian legal rationalities under democratic rule. Crucially, the argument distinguishes analytically between the authoritarian origins of Brazil's discretionary sentencing architecture and its contemporary deployment within a formally democratic context marked by institutionalized punitiveness. Authoritarian legacies are not equated here with present-day punitivism. Rather, they are understood as institutional conditions of possibility that have enabled discretionary power to be normalized and mobilized in ways that facilitate punitive and selective penal practices over time.

Empirical research supports this diagnosis. Studies of Brazilian sentencing practices consistently reveal patterns of severity and exclusion that cannot be explained solely by legal doctrine or case characteristics. Rather than producing unpredictable or random outcomes, judicial discretion tends to sustain systematically harsh sentencing practices—a phenomenon that can be described as a punitive consensus (Dal Santo, 2023; Dourado and Fischer, 2021; Testa et al., 2022). This consensus reflects a contemporary configuration of penal governance rather than a direct continuation of authoritarian repression. Its distributive effects, however, are markedly uneven. Discretionary sentencing disproportionately affects poor, racialized, and marginalized populations, particularly Black defendants residing in peripheral urban areas, revealing the selective operation of penal power in Brazil (Fonseca, 2024). Penal selectivity is understood here, in line with Latin American critical criminology, as the patterned and unequal distribution of punishment along lines of race, class, and territory.

To explain the resilience of discretionary sentencing, the article draws on insights from political sociology and the sociology of professions. It advances the concept of interpretive sovereignty to capture the professional and institutional claim to exclusive authority over sentencing decisions. Discretion is approached not merely as a doctrinal feature of criminal law, but as a professional value embedded in judicial identity—one that equates legitimacy with individualized judgment and resists standardization, transparency, and external control. Through this lens, judicial discretion appears not as an accidental gap in legal regulation, but as a constitutive element of a legal culture that privileges interpretive authority and moral judgment over formal constraint.

The article examines how discretionary sentencing persists as a resilient structure of penal governance. While acknowledging the authoritarian origins of the 1940 Penal Code (or Code) under the Estado Novo, it emphasizes the long-term institutionalization of discretionary rationalities over direct political repression. Although centered on Brazil, the analysis situates this case within a broader Latin American framework, drawing comparative insights from Argentina and Chile—countries that also transitioned from authoritarian rule but retain penal cultures marked by strong claims of judicial interpretive authority and reform resistance. These elements underscore a regional pattern through which courts maintain symbolic and institutional authority despite democratic transitions. The article also briefly notes other global contexts—such as Eastern Europe, South Africa, and Southeast Asia—where similar legacies have endured (Godoy, 2006; Giffard and Muntingh, 2006; Popova, 2012).

Theoretically, the article contributes to efforts to bridge critical criminology with political sociology, legal history, and transitional justice studies (Bell, 2009; Garland, 2001; Skaar, 1999; Wiebelhaus-Brahm, 2010). By foregrounding the reproduction of authoritarian legal rationalities through discretionary practices, it highlights how discretion, power, and professional ideology operate within nominally democratic legal orders. Rather than equating authoritarian legacies with contemporary punitivism, it treats the former as institutional conditions that facilitate—rather than mechanically determine—punitive outcomes. The article also joins a critique of legal formalism, which obscures the political and institutional dimensions of penal decision-making (Harcourt, 2007; Sarat and Kearns, 1995), and argues that judicial discretion should be rethought not primarily as a source of arbitrariness, but as an institutional mechanism through which systematically punitive outcomes are stabilized.

Discretion, authoritarian legacies, and the culture of punishment

This section develops the theoretical framework underpinning the article's argument by situating judicial discretion within broader dynamics of penal governance. Drawing on critical criminology, sociology of punishment, and post-Foucauldian governmentality, penal governance refers to the institutional, discursive, and operational mechanisms through which the state organizes and legitimates the control of crime and deviance. Rather than focusing solely on legal codes or doctrines, this perspective emphasizes how punishment is administered through dispersed practices, professional ideologies, and bureaucratic routines that structure penal power (Garland, 2001; Simon, 2007; Wacquant, 2009). In post-authoritarian contexts, penal governance reflects hybrid rationalities: formally democratic procedures coexist with authoritarian legacies embedded in judicial culture, legal discretion, and institutional opacity.

The 1940 Penal Code and the endurance of authoritarian legal rationalities

The 1940 Penal Code occupies a pivotal place in the genealogy of Brazil's penal culture. Its discretionary sentencing model, still in place today, originated under the Estado Novo dictatorship (1937–1945). Led by Getúlio Vargas, this regime fused nationalism, technocracy, and legal centralism, treating law as an instrument of state-building and control. Legal reforms aimed to consolidate authority and suppress adversarial tendencies, and both the Code and the 1941 Code of Criminal Procedure were integral to this authoritarian project (Bisi, 2016; Melchior, 2023). As in the rest of the article, the focus is on how this discretionary architecture was forged in an authoritarian context and later normalized within democratic institutions, rather than on a direct continuity of repressive practices.

Drafted under Francisco Campos, Minister of Justice and one of the regime's key ideologues, the Code was enacted by executive decree without parliamentary deliberation. This bypass of democratic procedures consolidated legal doctrine within the executive branch (D Nunes, 2014). Promulgated on 7 December 1940, and in force from 1942, it was the third penal codification in Brazilian history—and the first under authoritarian rule.

Doctrinally, the Code represented a decisive break from 19th-century models that constrained judicial arbitrariness through structured penalties. It introduced expansive judicial discretion, allowing judges to determine sentences based on an open-ended list of personal and contextual factors. The Exposição de Motivos (Statement of Reasons) of the 1940 Code explicitly justified this shift as a means to promote individualized sentencing, stating that the judge should consider the offender's “personality,” “motives,” “character,” and “social conduct” (Exposição de Motivos, §§ 22–27, 1940/1942). Although presented as scientific, in practice these categories were vague, moralized, and methodologically unstructured, enabling assessments grounded in subjective judgment rather than in measurable standards. The Statement of Reasons thus framed judicial latitude as a technical requirement of individualized justice while simultaneously introducing a disciplinary and classificatory logic embedded in penal decision-making.

From a formalist view, the Code was hailed as modern, aligning with rehabilitation and proportionality. Nelson Hungria, a leading criminal law scholar and one of the principal jurists involved in the formulation and early interpretation of the 1940 Penal Code, emphasized its “anthropological focus” on the offender and its reliance on prudente arbítrio (Hungria,1941:15). While Hungria presented this shift as a scientific and individualized approach to punishment, the discretionary model institutionalized by the Code simultaneously marked the insertion of a “moralizing scientism” into judicial reasoning—a discursive strategy that cloaked subjective moral judgment in the language of technical expertise (Campos, 2024). But this scientific veneer masked a deeper disciplinary logic. Technocratic vocabularies often cloak authoritarian practices in rationalist language. The Code thus combined moral judgment with claims to technical expertise—a hallmark of authoritarian legalism.

This doctrinal shift represented what may be described—following contemporary criminological debates—as a “discretionary turn” in Brazilian penal law: a movement away from structured sentencing rules toward a flexible architecture grounded in judicial subjectivity (Campos, 2024). Although the global literature on sentencing reform often associates transitions from structured or rule-based sentencing frameworks to more discretionary models with late 20th-century developments—particularly in North America and Europe (Ashworth, 2005; Garland, 2001)—the Brazilian case illustrates an earlier and distinctly authoritarian iteration of this trend. Indeed, the 1940 Penal Code was not the product of democratic reform, but of centralized executive decree. The term “Brazil's discretionary turn” is thus used here to capture this historically specific and politically contingent reconfiguration of sentencing law.

Although the Code's origins are well documented (D Nunes, 2014; Pinto, 2020), the use of discretion for political repression during the Estado Novo remains empirically underexplored. Accordingly, this article does not posit a direct causal link between discretion and authoritarian repression in practice. Rather, it highlights that the discretionary architecture was forged within authoritarianism and survived into democracy. This survival is significant. Despite major political ruptures—most notably the 1988 Constitution—the discretionary structure of the 1940 Code remains intact. Although the Parte Geral was reformed in 1984 to establish a three-stage sentencing structure (base sentence, aggravating/mitigating factors, and causes for increase or reduction), it did not limit judicial latitude. The reform clarified procedural stages but did not constrain interpretation. Even when appellate courts have encouraged fractional increases or decreases, enforcement remains weak. Judicial discretion continues to shape sentencing practices, legal education, and doctrinal commentary. Its semantic vagueness allows accommodation of a range of penal ideologies, including populist punitiveness from the 2000s onward.

From a criminological standpoint, this model contributes to the reproduction of penal inequality. Where discretion is broad and unregulated, sentencing reflects not just offense characteristics, but also judges’ class-based, moral, or racialized perceptions. Discretion thus becomes a conduit for selective penal governance, enabling differential treatment without the need for overtly discriminatory laws. By basing sentencing on judicial discretion, the 1940 Code forms part of a structural and symbolic foundation for contemporary penal governance in Brazil. It embedded sentencing discretion into legal doctrine and professional culture, facilitating the persistence of authoritarian rationalities as institutionalized modes of legal reasoning within democratic institutions. Judicial discretion became a means for interpreting social norms, producing punitive outcomes, and resisting legal reforms aimed at transparency, accountability, and equality before the law.

Contemporary persistence of discretionary sentencing culture in Brazil

Although Brazil formally transitioned to democracy with the promulgation of the 1988 Constitution, the country's penal system remains structurally anchored in a discretionary model of sentencing introduced during the Estado Novo dictatorship. The 1984 reform of the Penal Code—which instituted a clearer sentencing methodology—did not alter the foundational premise of broad judicial autonomy. Instead, it refined procedural steps but left intact the deeper problem of normative indeterminacy. The law's language remains vague, its categories open-ended, and the quantitative logic of punishment largely undefined. As a result, sentencing remains governed by professional habitus and institutional custom.

The persistence of discretionary culture in Brazil is empirically observable in contemporary judicial practices. A 2022 National Council of Justice (Conselho Nacional de Justiça) survey with 1732 criminal judges revealed significant heterogeneity in how sentencing factors are operationalized. While most respondents reported using fractional criteria-i.e., standardized percentage-based increases or decreases applied to the base sentence-frequently or always (56% and 25%, respectively), nearly 19% admitted to rarely or never applying them (Conselho Nacional de Justiça (CNJ), 2022). Qualitative responses emphasized a commitment to “complete discretion” and the rejection of standardized methods as “bureaucratic.”

These findings indicate that discretionary authority is not merely tolerated within the Brazilian judiciary but actively valued in sentencing practice. Judges frequently frame autonomy as essential to the legitimacy of their role, portraying proportionality-based or algorithmic approaches as incompatible with substantive justice. Legal manuals and academic commentaries reinforce this stance by presenting rigid criteria as threats to judicial sensibility and prudence (Greco, 2022; Prado, 2020). As Fonseca (2024) argues, this embrace of discretionary authority is part of an ambivalent trajectory of democratic modernization in Brazil—where penal expansion, bureaucratic rationalities, and institutional autonomy evolve in tandem, reinforcing rather than dismantling authoritarian legacies.

Empirical research suggests, however, that discretionary sentencing in Brazil is marked less by variability than by informal standardization (Lages and Ribeiro, 2024; Machado, 2016; TR Oliveira, 2019). Judges frequently use similar fractional increases or decreases in response to aggravating or mitigating factors, revealing the use of shared heuristics. While this may challenge the notion of arbitrariness, it raises a different concern: that discretion is guided more by punitive conventions rather than principled reasoning.

Studies on juvenile sentencing support this claim. TR Oliveira (2017) and FL Oliveira (2022) found that judges tend to rely on institutional heuristics and sentencing scripts that favor punitive rationalities. Similarly, Machado (2016), in an ethnographic study of sentencing practices in São Paulo, observed that decisions often reflect routinized interactions among courtroom actors and informal expectations regarding appropriate levels of punishment, rather than strict legal logic. These findings echo Ulmer's (2019) description of criminal courts as inhabited institutions, where local cultures and routinized practices shape sentencing in socially meaningful and institutionally embedded ways.

Thus, Brazil's penal regime remains marked by institutional opacity. Though formally individualized, it structurally accommodates arbitrariness and unequal treatment. Harcourt's (2007) critique of arbitrary governance is especially relevant: discretion without constraint enables vulnerability to bias and authoritarian reflexes. In Brazil, discretion functions as a mechanism of selective repression—allowing the system to punish harshly without codifying severity and to discriminate without legislating exclusion.

This structure disproportionately affects marginalized and racialized populations, particularly poor and Black defendants. The concept of “penal selectivity” (seletividade penal)—central in Latin American critical criminology—describes how penal systems disproportionately target and punish along lines of race, class, and territory, under a veneer of neutrality (Baratta, 2002; Sozzo, 2016; Zaffaroni, 2011). In Brazil, empirical studies confirm that Afro-Brazilians are overrepresented in prison and more likely to receive harsh sentences, especially for drug and property offenses (Alves, 2018; Cerqueira et al., 2019; IDDD and DataLab, 2021). Fonseca (2024) emphasizes that these racialized and territorialized dynamics are integral to the political rationalities that govern penal expansion in Brazil. Unregulated discretion thus serves as a vector of structural inequality and racialized penal control. As Santos (2023) argues, these patterns reflect deeper colonial legacies that continue to shape the criminalization of Black and Indigenous populations in Brazil—revealing how punitive selectivity is embedded in long-standing structures of racial domination.

The result is a penal system that, although formally democratic and procedurally modern, remains deeply anchored in a culture of interpretive sovereignty—a legacy of authoritarian legalism understood here as a historically forged but democratically rearticulated pattern in which law functions more as a tool of discretionary authority than a constraint on it.

As the next section explores, this dynamic is not only institutional but also ideological. It reflects a professional self-understanding that equates judicial autonomy with legitimacy and discretion with moral authority—thereby reproducing authoritarian rationalities under the guise of individualized justice.

Professional ideology and resistance to sentencing reform

Although Brazil's discretionary sentencing structure is formally justified by the principle of individualized justice, its persistence cannot be explained solely by doctrinal tradition or legal inertia. A deeper analysis reveals that discretion is sustained by a professional ideology that resists efforts at standardization, transparency, and oversight. This ideology is embedded in judicial self-understanding, reinforced through institutional practices, and protected by corporatist structures that prioritize autonomy over accountability.

At the institutional level, the judiciary has developed mechanisms to shield its internal governance from political, administrative, or technocratic intervention. FL Oliveira (2022), for instance, documents how judicial actors secured favorable outcomes from the Supreme Court in cases concerning salary, promotion, and prerogatives—often at the expense of broader reform. Even internal self-assessments, such as the report Quem Somos: A Magistratura Que Queremos (Associação dos Magistrados Brasileiros, 2017), reveal tensions between public expectations of accountability and the corporatist ethos that shape judicial identity.

The CNJ, created in 2004 to improve transparency and standardize judicial practices, has faced sustained resistance. Judicial associations and individual judges have challenged its authority through litigation and procedural maneuvering (Ribeiro and Arguelhes, 2015). Proposals involving sentencing guidelines, performance indicators, or algorithmic tools are frequently portrayed as threats to judicial independence. This resistance, however, should not be read as a simple opposition between discretion and inherently egalitarian forms of regulation. As extensive scholarship in the United States has shown, actuarial instruments, performance metrics, and algorithmic tools can themselves reproduce and amplify racial and class-based inequalities when embedded in punitive institutional contexts (Eubanks, 2018; Feeley and Simon, 1992; Harcourt, 2007; Simon, 2007; Starr, 2014). The point here is not to idealize technocratic alternatives to discretion, but to highlight how appeals to judicial independence function as a powerful professional resource to block any form of external scrutiny—whether discretionary or rule-based—over sentencing practices.

As Fortes (2015) notes, even numerical performance metrics in judicial evaluations have sparked strong opposition, justified by appeals to constitutional protections of judicial autonomy. Notably, small but significant counter-hegemonic groups such as the Associação Juízes para a Democracia (AJD) have, at times, defended more transparent and rights-oriented approaches, illustrating that discretion can also be mobilized in ways that resist authoritarian or corporatist tendencies.

This configuration illustrates how judicial autonomy in Brazil functions less as a neutral institutional feature and more as a corporatist strategy. Judges act collectively to protect their domain, invoking legal rhetoric and institutional leverage to preserve interpretive sovereignty. This strategy constitutes a professional project to retain jurisdictional control over legal interpretation (Larson 1977).

At the cultural level, discretion is not only accepted—it is valorized as a marker of professionalism and moral judgment. Brazilian judges construct their professional identity around the idea of being impartial, autonomous interpreters of the law. Baptista (2020) argues that the belief in judicial neutrality serves as a discursive tool legitimizing broad authority and insulating decisions from external critique. As several critical Brazilian scholars have documented, this professional ideology has a racialized dimension for institutional neutrality can coexist with (and mask) racial hierarchies within criminal justice (Almeida, 2019; Bento, 2022; Borges, 2019; D Oliveira, 2021). This configuration of professional ideology helps explain why reforms constraining discretion and calls for transparency, rationalization, or control are interpreted as threats to foundational norms of judicial practice.

These patterns resonate with the sociology of professions. The insistence of Brazilian judges on maintaining a monopoly over sentencing exemplifies Abbott's (1988) notion of jurisdictional control and Larson's (1977) idea of the professional project. Freidson's (2001) model of professional autonomy likewise helps explain resistance to CNJ metrics and technocratic reform, even when promoted in the name of efficiency or equity. In short, judicial corporatism operates as a protective mechanism, enabling a powerful group to wield discretionary authority with limited public scrutiny.

This convergence of institutional resistance, professional ideology, and legal flexibility constitutes a powerful mechanism for reproducing authoritarian rationalities. Discretion serves to maintain punitive norms, undermine legal equality, and neutralize reform. It sustains a form of institutional continuity that transcends legal texts and political regimes. Rather than viewing discretion simply as a doctrinal tool, this analysis suggests a broader criminological understanding of how professional power functions in post-authoritarian systems. Such dynamics are not unique to Brazil. As the next section demonstrates, similar configurations are observable in other Latin American jurisdictions, where judicial autonomy has similarly facilitated the preservation of authoritarian legacies under democratic rule.

Latin American parallels and global resonances

This section brings together two lines of analysis: the regional diffusion of discretionary and punitive judicial cultures, and the enduring impact of authoritarian legacies on judicial governance. The Brazilian case, although specific in its historical development, is far from unique within Latin America. Countries across the region underwent authoritarian regimes that left lasting marks on their legal cultures, especially in the functioning of criminal justice systems. Scholars have noted the persistence of discretionary and punitive logics—often embedded in judicial and prosecutorial practices—that continue to shape penal governance in post-dictatorial societies (Palma Olivares, 2024; Sozzo, 2016; Zaffaroni, 2011). A recurring feature is penal selectivity, whereby discretion targets poor, racialized, or otherwise marginalized populations, reinforcing social exclusion through ostensibly neutral practices (Baratta, 2002; Zaffaroni, 2011). For example, the legacy of state terror under the last military dictatorship in Argentina (1976–1983) remains visible not only in memory politics, but also in penal practices. Despite democratic reforms, sentencing continues to reflect high levels of discretion, limited transparency, and carceral excesses (Bombini, 2012; Marchiori, 1995; Soler, 1992). Meanwhile in Chile, the post-Pinochet transition introduced significant reforms, including the adoption of an adversarial criminal procedure system in the early 2000s, that aimed to increase transparency and reduce authoritarian residues (Duce, 2000). Yet judges still retain substantial sentencing discretion (Cury Urzúa, 2009; Navas Mondaca, 2024; Wilenmann et al., 2019), and prosecutorial discretion through plea bargaining was expanded. Concerns remain about professional resistance and the persistence of punitive rationalities (Urízar and Bustos, 2025).

Yet efforts to reform criminal justice systems in the region face structural barriers linked to the symbolic and institutional role of judges. Rather than passive implementers of law, judges have often acted as custodians of institutional continuity, defending discretion as part of their professional identity. Macaulay (2007) notes that criminal justice reforms frequently stall when confronted with entrenched judicial cultures that privilege stability over transformation. These dynamics mirror the Brazilian case, in which sentencing guidelines have repeatedly failed because of political and judicial resistance (RM Nunes, 2015), and they are also present in Argentina (Sozzo 2016).

Beyond Latin America, similar patterns are observable in post-authoritarian and postcolonial contexts. In post-communist Eastern Europe, courts often reproduce authoritarian legal cultures under democratic constitutions (Hendley, 2009; Popova, 2012). In South Africa, discretion has remained central despite the formal end of apartheid, allowing racialized and hierarchical logics to persist (Giffard and Muntingh, 2006; Simpson, 2004, 2006). In Southeast Asia, discretionary and repressive penal practices have been reinforced by populist authoritarianism, as in Duterte's Philippines (Curato, 2017; Reyes, 2016).

Taken together, these Latin American and global experiences show that judicial discretion—when left unexamined—can serve as a durable vector of penal inequality. Addressing it requires not only legal reform, but also cultural and institutional transformation capable of unsettling the normative foundations of punitive governance. They also illustrate how Latin American critical criminology, with its attention to state violence, institutional continuity, and penal selectivity, offers analytical insights that resonate beyond the region and contribute to global debates on sentencing and judicial power.

Conclusion

This article has argued that judicial discretion in sentencing, when embedded within legal cultures shaped by authoritarianism, operates as a mechanism of institutional continuity—a conduit through which undemocratic rationalities persist after formal transitions to democracy. Rather than treating discretion as a neutral doctrinal tool, the analysis has located it within the legal rationalities of the Estado Novo dictatorship and traced how this architecture was later normalized within Brazil's post-authoritarian democracy. While the authoritarian context of the 1940 Penal Code is well documented, the specific uses of discretion for political repression under Vargas remain underexplored. Accordingly, the article refrains from positing a direct causal link between discretion and repression, emphasizing instead how a sentencing model forged under authoritarian concentration of power was preserved and rearticulated as a professional ideology that resists standardization and sustains a culture of judicial opacity.

A central theoretical contribution has been to reconceptualize the relationship between discretion, authoritarian legacies, and contemporary penal outcomes. Rather than equating authoritarianism with punitivism, the article distinguishes between the historical origins of discretionary authority and its current operation within democratic institutions. Existing empirical research suggests that discretionary sentencing in Brazil often functions within stable institutional and cultural frameworks that tend toward systematically harsh outcomes, especially in cases involving racialized defendants and stigmatized crimes. The claim is not that discretion deterministically produces punitiveness, but that discretionary authority, forged and normalized under authoritarian legal rationalities, constitutes an institutional condition of possibility for the stabilization of punitive orientations under democratic rule. In this sense, discretion operates less as a generator of variability than as a governance mechanism that can sustain institutionalized punitiveness without codifying severity in formal legal rules.

The Brazilian case underscores the importance of understanding discretion as a form of professional power embedded in judicial identity and institutional culture. As the sociology of professions suggests, discretion is defended as a hallmark of professional autonomy, particularly where oversight mechanisms are weak and reform efforts are perceived as encroachments on independence. In Brazil, this has translated into sustained resistance to sentencing guidelines, algorithmic decision-making tools, and performance monitoring, even when proposed in the name of transparency and equality. Opposition to reforms based on judicial neutrality can obscure how sentencing operates ideologically to reproduce inequality (Khan, 2024). Approaching criminal courts as inhabited institutions (Ulmer, 2019; Ulmer et al., 2025), then, highlights how discretion is exercised through routines, professional scripts, and normative expectations rather than formal doctrine alone. Rather than classifying legal systems as simply authoritarian or democratic, this perspective emphasizes how authoritarian legacies are normalized within democratic institutions through everyday professional practice.

By analyzing discretion through the lenses of political sociology, transitional justice, and critical criminology, the article contributes to debates on legal continuity in post-authoritarian democracies. It challenges linear narratives of democratization by showing how formal legal change can coexist with substantive institutional persistence. Judicial discretion may function as a mechanism of penal governance that preserves interpretive sovereignty, professional dominance, and punitive hierarchies incompatible with egalitarian ideals. Ultimately, sentencing discretion in Brazil operates as a vector of penal selectivity—ensuring that formal legality coexists with systematic exclusion. Rather than reflecting a direct survival of authoritarian repression, this configuration reveals how institutionalized discretionary practices can sustain exclusionary outcomes within democratic legal orders and shape stratified models of citizenship.

The persistence of discretionary sentencing in Brazil reveals the limits of formal democratization when legal institutions retain their authoritarian grammar. Reforms aimed at increasing accountability, consistency, and proportionality must grapple not only with legal texts, but also with deeply rooted professional ideologies and institutional arrangements. This article, grounded in historical analysis and secondary sources, is limited by the absence of original fieldwork or archival research—especially regarding judicial practices under the Estado Novo. Future research should examine how professional ideologies are transmitted through legal education, institutional routines, and peer networks, and pursue comparative analyses of how judicial discretion and professional ideology are configured across Latin America and other post-authoritarian settings. At the same time, the broader question of in whose interest discretionary authority continues to operate is deliberately left open—one that acknowledges the need for further empirical inquiry and avoids premature closure on a question constitutively shaped by power, inequality, and institutional history.