From Penal Guarantee to Radial Guarantee: for a more humane and fairer criminal system in Latin American countries

Abstract

The present work intends, through the dialogue between Luigi Ferrajoli's criminal guarantee and radical guaranteeism of Iñaki Rivera Beiras, to discuss a new model of criminal justice to be adopted mainly in  the Latin American countries guided by the effective and strict guarantee of the fundamental rights of the incarcerated subjects so that, through alternative solutions, we can think of a more just and humane criminal law without the prison institutions and the custodial sentence. To this end, through the inductive method, we seek to analyze certain peculiarities of Latin America, solidify the assumptions of radical guaranteeism through criminal guaranteeism, constitutional democracy and the institutional contradiction of Luigi Ferrajoli prison, as well as the analysis of retributive theories, utilitarians and the idea of overcoming the punishmentof Roberto Gargarella. It is concluded that, in order for Latin America to abandon its high levels of incarceration and its criminal policy that reproduces inequalities and violence, it must establish a policy based on constitutional democracy, the balance of trust and social ties and strict respect for the rights of convicted.