Female incarceration

the child in the criminal justice room

Abstract

The addition of the Legal Framework for Early Childhood, amendments to article 318 of the CPP and Habeas Corpus 143,641, together, represent a challenge to the criminal justice system by bringing alternative standards of sentences for mothers of children up to 12 years of age and pregnant women. The purpose of this study is the intra-systemic examination of the – interpretative – antinomies concerning the uses and legal effects of the legal provisions concerning the granting of house arrest for mothers and pregnant women deprived of liberty. Methodologically, the study tracked the discretionary processes of decision-making to grant or not the benefit and allowed the establishment of significant correlations and broader inferences about the causal mechanisms for the decision. The pendular aspect of the best interest of the child relies upon non-compliance with the directive of legal and jurisprudential innovation. In other words, the child's entry into the decision-making process simultaneously affirms and denies rights. The judicial review of the right to maternity in decision-making exposes disagreements about the interpretation of the norm, in which the child assumes an aggravating or favourable aspect. Therefore, it is reasonable to understand the child as a penological cause and an interpretative antinomy that implies estimating the unconditional scope of the punishment by taking the objective and subjective aspects of the concrete case.