The concept of “overkill” in criminal law refers to the use of excessive violence in the commission of a crime. This phenomenon has been recognized in comparative law and is now being examined in the context of the Brazilian criminal justice system.
A study of the effects of overkill on the Brazilian system aims to provide a practical analysis of the concept. To understand the argument, it is essential to establish some premises: overkill is not an autonomous criminal type, nor is it a qualifier or circumstance that automatically aggravates the penalty.
Overkill is a category that can aid in interpreting the circumstances of a crime, always in conjunction with other probative elements. The presence of overkill can be considered in conjunction with circumstances that interfere with the typing of the crime, qualifying it, or producing consequences in the dosimetry of the penalty.
Qualifiers and Penalty Dosimetry
The reiteration of blows is considered an indicative circumstance of the existence of overkill, which can reveal an increase in unnecessary suffering of the victim or exceptionally relevant violence. According to a decision by the Superior Court of Justice (STJ), “the reiteration of blows on the victim, at least in principle and for the purposes of pronouncement, is an indicative circumstance of the ‘cruel means’ provided for in item III of paragraph 2 of article 121 of the Penal Code.”
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In the dosimetric phase, the Penal Code provides several markers to be used by members of the Judiciary to fix the base penalty. An analysis of the STJ’s jurisprudence shows that overkill has been recognized as a circumstance apt to aggravate the base penalty, based on the negation of the ‘culpability’ vector.
In one of the precedents, the STJ recognized the legality of aggravating the base penalty due to the “accentuated reprovability of the conduct, translating the violence employed in the execution of the crime, through several blows of a machete to the victim’s head.”
In another opportunity, the STJ examined a case of feminicide and upheld the aggravation of the base penalty fixed by the first-degree court due to the author “having inflicted numerous stabbings on the victim, revealing conduct of extreme brutality.”
The STJ also admitted the increase in punishment in a third opportunity, stating that “the penalty was fixed based on rightful reasoning, considering the brutality of the crime.”
Thus, it is highlighted that the practice of overkill has been directly influencing both the qualifier of cruel means and the fixation of the base penalty in cases of feminicide, implying greater concrete reprovability of the author’s conduct.
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The Overkill as an Indication of Feminicide
In the national territory, feminicide can be characterized from two scenarios: crime committed in the context of domestic and family violence or by lessprezo à condição de mulher (art. 121-A, § 1º, incisos I e II, respectively).
Conforme afirmamos no texto inaugural desta série, o fenômeno do overkill pode ser útil, a um só tempo, como importante marcador para a identificação de feminicídios íntimos.
Overkill and Preventive Detention
In the context of preventive detention, overkill can be considered one of the concrete elements indicating the differentiated gravity of the conduct, without dispensing with the individualized justification of the preventive detention. The recent alteration of article 312, §3, I, of the CPP admits the consideration of the modus operandi employed in the practice of the crime, including when evidenced by the repeated use of violence.
The STJ has maintained the preventive custody of defendants based on the modus operandi employed for the consummation of the crime, especially in cases of feminicide. The Court has justified the denial of the plea for freedom in the “extreme violence against the victim in a situation of vulnerability, in addition to repeated threats, which justifies the preventive segregation”.
