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Why is it dangerous to import plea bargaining to Brazil?

FairTrialsAdmin - June 17, 2020 - plea bargaining

This post was written by Daniel Padilha Vilanova, lawyer at Padilha Advocacia e Consultoria in Brazil.

With all the problems that Brazil’s justice system has today, we are facing a new enemy- the abusive use of negotiation instruments to handle criminal problems.

The reason why I am writing this article is not to exhaust the subject, but to show how hazardous all of this could be when applied to the Brazilian context.

Comparison with other countries is almost inherent in every Brazilian citizen. We use this artifice to – most of the time – show how bad the situation is here, and how other countries cope better with the same problem. It’s what we call “mongrel complex”[1].

Additionally, in the study of law, it is necessary to look at other legal orderings to understand justice in a wider view. The birth of our modern civilization (using the law procedure as an instrument of conflict resolutions) started in Rome, so we can’t run away from comparative law study.

However, using comparative law doesn’t mean applying the same institutes to solve a problem, especially when we are talking about crime. The main point is simple- Brazil is not the US, Italy or Germany (just some examples). We have  many social, economic and moral issues, an unstable Government, and Judges who want to become heroes at all costs- the perfect combination to create chaos.

Moreover, we have a very big territorial extension which makes things harder, and our prisons are anything but humanitarian. Unfortunately, in Brazil resocialisation doesn’t exist, even though it is the only justification to arrest someone[2], at least in Brazil where death penalty doesn’t exist[3].

The political situation and the strong (and often unfair) media influence directly impacts on the application of law. Brazil is a country with an excellent legal order, but it is never used properly. It mostly brings awful results which is the opposite of the intention of the laws.

For example, it is written in Brazil’s Constitution from 1988 (art. 5º, LVII) that no one would be considered guilty before the sentence transited in rem judicantum[4]. The same idea is drafted in Brazil’s Code of Criminal Procedure (art. 283) referring to arrests . If you would only be considered guilty after the sentence transited in rem judicantum, you cannot be arrested just because of the existence of Criminal Procedure, unless there is good motivation to arrest preventively or temporarily. It has always been crystal, it is not rocket science. But, for political reasons – in our opinion – last year the Brazilian Supreme Court was discussing this situation, what should be considered unacceptable.  

The problem is, they were trying to give a different meaning to an article that doesn’t open space to different interpretations, for political reasons. This  shows how fragile the Brazilian Constitution is.

We do not need much effort to lead to this conclusion. In Brazil, the Constitution must be respected above all, otherwise we will not live in a democracy. Within all these issues, the only way to make justice – or achieve something close to it – is to focus on the procedure.

In regards to prisons, it is necessary to clarify this point. Brazil has had overpopulation in its prison system since before the year 2000. This problem is getting worse, and there is no effort being made to solve it. Between 2010 and 2019, the deficit increased from 214.731 to 306.002 (numbers from IFOPEN[5]).

The reflections of this overpopulation on society is huge, but it is not the article’s intention. Nevertheless it leads us to conclude that it is coherent not to create more crimes, or ways to put more people into jail. But unfortunately, Brazil is trying to do that all the time, and here we get to the point of the abusive use of negotiation instruments to handle criminal problems.    

There are already some negotiation instruments to criminal problems in Brazil, but most of them are referred to crimes with low offensive potential[6]. It is a way to not arrest more people, and to give celerity to the procedure in specific circumstances.

Firstly, we have to understand that Brazil has adopted the accusatorial system – the inclusion of the article 3º-A[7] in Brazil’s Criminal Code of Procedure was one of the main changes with the Law 13.964, from 2019. It’s clear the judge cannot take initiative on the procedure, neither to substitute the prosecutor on the proof production. The judge needs to keep distance.

This is important for Brazil because it is one more step to keep the Constitution “safe” and to assure the legality of criminal procedure. But, at the same time, we detected a movement that conspires to turn the Criminal Procedure into a bargain table, which is dangerous.

On the first project of the Law 13.964/2019, proposed by the current Minister of Justice (Sérgio Moro), a plea bargain project was drafted, which would have happened almost on the same terms as US’s plea bargain. The congress, fortunately, rejected it. But, like we said, this idea is gaining momentum.

This new law expanded the limits of some negotiation instruments, for example the deal fixed on the article 28-A[8] of Brazil’s Code of Criminal Procedure, brought by this new law.  

We are still learning how to deal with the instrument of state’s evidence[9] (Brazilian law number 12.850/2013, art. 4º), and it’s still full of flaws. Here, the police are arresting people to force them to “snitch”, which is a way towards psychological torture. It is illegal and removes one of the main requisites of the state’s evidence- it must be voluntary.

And yet, the existence of this tiny possibility of bargaining a penalty helps increase overcharging, which has been strongly common in Brazil, and is completely incompatible with Brazil’s Constitution and its principles.

Acting with the media, the prosecutors (and the judges) are making a prejudgment, creating a threatening scenery, which turns every person who has been investigated into a criminal, thus destroying his/her image even before a fair trial. In this context, the criminal procedure becomes political (based on public opinion), and not technical. Even if you prove your innocence until the end of the trial, it doesn’t matter. Everyone will treat you like a criminal, and there is no way back.

With all that has been said, two points are evident: 1. Brazil uses its justice system to try to give the population an answer, acting according to public opinion and political reason; 2. The use of negotiation instruments to handle criminal problems would lead us to ruin.

At this point, if we consider the whole context, it is insane to think about applying plea bargain to Brazil. We already have some negotiation instruments, and like we said before, some of them are not working well. But there are some points that are important to mention.

Primarily in the US, the prosecutors can choose how to act[10] (prosecutorial discretion), which gives them more power and freedom to make deals. Meanwhile, in Brazil, prosecutors must respect the obligatory principle. They don’t have the same freedom on their acting, which means that if they are facing a crime (not every kind of crime), it is their duty to offer a criminal complaint.

The plea bargain has been criticized in its own country. At least for some of the lawyers, and human rights advocates in recent years. It is important to remember the case of John Dixon, who was charged for sexual assault, kidnapping, robbery, unlawful possession of a weapon, and received a 45 year sentence. The incident happened in 1990.  

John Dixon pleaded guilty, fearing a harsher sentence if convicted by jury, and stayed in jail for 10 years. The story only changed when they finally conducted a DNA test, which was previously denied by the court. The results indicated that Dixon could not have been the source of spermatozoa collected from the victim. His conviction was vacated on November 29, 2001, and he was released the following week.

This case is a good example of how bad the abusive use of plea bargaining could be, even in a country with a good economic system and less poverty than Brazil. But it is not an isolated case, unfortunately. In the United States, more than 97% of cases are solved with a guilty plea – a percentage that has remained stable for the past two decades[11].

More than that, plea bargain is directly linked to the phenomena of mass incarceration, because without a trial, it becomes easier to obtain convictions, which would be terrible for Brazil. Guilty pleas can also persuade innocent people to admit crimes they did not commit. As the Police Officer Rebecca Shaeffer explained, “The US has been promoting an adversarial constitutional model of oral trials that has been accepted as the golden standard but, in practice, it is an inquisitorial, confession-based justice system, she said. “Incredibly long sentences are driving the trial penalty and those don’t exist anywhere else in the world, and that’s really what the problem is.”[12].

We cannot also forget about the case of Phillip Bivens, who wrongly served three decades in a Mississippi prison for a murder and rape that DNA evidence, once again, proved he didn’t commit. He pleaded guilty, fearing a death penalty[13].

Likewise, Kenneth Kagonyera, Robert Wilcoxson, Teddy Isbell, Damian Mills, and Larry Williams Jr. each served multiple years in prison for murders they did not commit before DNA eventually proved their innocence[14]. All of them pleaded guilty, lamentably.

The recent years showed us how the US’s justice system could fail. These problems are not limited to Brazil. For example, on March of the current year, James Dannenberg resigned from the USA Supreme Court Bar. He wrote an open letter, directed to Chief Justice Roberts. In this letter, he said that he lost his faith in the system and criticized the Chief Justice Roberts. In his words: “It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.[15]

In conclusion, using plea bargain, prosecutors possess too much discretion in choosing the charges that a criminal defendant may face, and that turns the procedure strongly unfair. This is not Democracy, at least not in the Brazilian Constitution. Unlike Brazil, in the US prosecutors could raise a level of any charge if they own enough facts to support a reasonable belief (this standard is called “probable cause”, which is a lower standard than the “reasonable doubt”, that they must meet at trial[16]).

For all these reasons, we can assure that plea bargain is not compatible with Brazil’s Justice System. More than that, most of the negotiation instruments applied in a criminal conflict are anything but democratic. It’s a shortcut to achieve something that is not justice.

Besides, this is not what Brazil needs. If we – as a nation – start to follow this lead, we are going to put more people in jail, creating our own catastrophe, worse than what we have today. The prison system would collapse.


[1] Expression created by a famous Brazilian playwright Nelson Rodrigues, to explain how likely it is for Brazilians put yourselves down, with issues of self-esteem.  

[2] If we ignore the preventive arrests and the temporarily arrest.

[3] Just in case of war.

[4] When no longer it’s possible to appeal or to do anything. It’s the last verdict of the procedure.

[5]Click here.

[6] Brazilian expression to refer to crimes with lower penalties and not involving violence.

[7] Art. 3º-A. O processo penal terá estrutura acusatória, vedadas a iniciativa do juiz na fase de investigação e a substituição da atuação probatória do órgão de acusação.

[8] Art. 28-A. Não sendo caso de arquivamento e tendo o investigado confessado formal e circunstancialmente a prática de infração penal sem violência ou grave ameaça e com pena mínima inferior a 4 (quatro) anos, o Ministério Público poderá propor acordo de não persecução penal, desde que necessário e suficiente para reprovação e prevenção do crime, mediante as seguintes condições ajustadas cumulativa e alternativamente: [...]

[9] Evidence from someone who has been accused of committing a crime, given against the people who were accused with them, in order to have their own punishment reduced

[10] Respecting the law, of course.

[11] https://www.fairtrials.org/news/criticism-plea-bargaining-gaining-momentum-us 

[12] https://www.fairtrials.org/news/criticism-plea-bargaining-gaining-momentum-us

[13] https://www.innocenceproject.org/cases/phillip-bivens/

[14] https://www.innocenceproject.org/cases/kenneth-kagonyera/

[15] https://slate.com/news-and-politics/2020/03/judge-james-dannenberg-supreme-court-bar-roberts-letter.html

[16] https://law.jrank.org/pages/9227/Plea-Bargaining-Plea-Bargaining-Shortcut-Justice.html

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