This article examines how sentencing discretion in Brazil operates as a mechanism for reproducing authoritarian legal rationalities under democratic rule. It traces the origins of Brazil's discretionary sentencing to the 1940 Penal Code, enacted during Estado Novo, and shows how this architecture has persisted across political transitions. The article argues that discretion, forged under authoritarian conditions, has been normalized within democracy and facilitates institutionalized punitiveness. Judicial discretion sustains a punitive consensus and operates as a vector of penal selectivity, particularly against certain populations. By distinguishing between the authoritarian genealogy of discretionary sentencing and its contemporary punitive effects, and situating Brazil within Latin American and global patterns, the article contributes to debates on penal governance, institutional continuity, and post-authoritarian legal orders.
Gabriel Silveira de Queirós Campos (Mon,) studied this question.