  Based on the theoretical assumptions of the Labeling Approach, Critical
Criminology and Behavioral Economics, taking into account that almost half of
the Brazilian prison population is composed of individuals who are serving
pre-trial detention, it was sought to assess the characteristics of the
flagranteated were presented as determinants to influence the subjectivity of
the judges in the decision to determine, or not, the custody of these. The
research initially adopted a deductive methodology, based on the principle that
external objective factors encourage magistrates to decide in a certain sense.
It was then focused on the identification of which characteristics of the
flagranteated and allegedly committed crimes would be relevant to guide such
decisions. Subsequently, after deduction of such factors, an inductive
methodology was adopted, analyzing the data from the theoretical assumptions
pointed out. During the research, 277 decisions were analyzed, considering
decision as individual decision and not custody hearing. This sample embarked
decisions of six judges among the largest cities of the State of Paran\'a and
concerning the crimes of theft, robbery and drug trafficking. It was then
concluded that the age, gender, social class and type of accusation that the
flagranteated suffered are decisive for the decree of his provisional arrest,
being that, depending on the judge competent in the case, the chances of the
decree can increase in Up to 700%, taking into account that the circumstantial
and causal variables are constant. Given the small sample size, as far as the
number of judges is concerned, more extensive research is needed so that
conclusions of national validity can be developed.
