Penal populism and the ideal of the (de)constitutionalization of criminal law

Abstract

This paper analyzes the phenomenon of penal populism and its consequences for the constitutionalization of criminal law. It begins with concepts such as constitutional supremacy and the importance of procedural guarantees and principles derived from the Constitution itself. Criminal law should act as a check on punitive power, and in this sense, political rhetoric seeks to infuse its ideals into penal norms. This has been achieved through political discourse that demands a "tough on crime" approach, proclaiming increased penalties, more offenses, and fewer guarantees. However, this does not truly combat crime; rather, it creates a symbolic criminal law. In this context, the need for protection of constitutional supremacy by an independent body, free from sentimentality and political ambitions, is analyzed; otherwise, the most serious effect is the delegitimization of criminal law itself as a check on punitive power and as a protector of legal goods. Finally, the importance of the institutionality of the Constitutional Court and its work of control and interpretation as protector of the Constitution of the Republic is emphasized.