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.Comment: 23 pages, in Portuguese