“In the USA, 95% of trials end in ‘plea bargains’. It would be impossible for the US Justice system to work without this instrument because we simply would not have the capacity to work through each stage of every trial.”
Peter Messitte, federal judge, Maryland district (USA)
“Plea bargaining is an extremely important instrument for fighting organized crime, which includes politics, but only if it is effective. If it is applied in the wrong way it will generate a great deal of disappointment.”
Alexandre de Moraes, Supreme Federal Court judge (Supremo Tribunal Federal)
While in the United States negotiated penal justice - “plea bargaining” - is an instrument in use since the 18th century which applies to virtually every crime and enables the state to conclude the vast majority of lawsuits rapidly by means of negotiation with the accused, in Brazil, the application of its closest equivalent “delação premiada” is much more restricted.
Here, plea bargaining is circumscribed to illegal acts associated with organized crime, including corruption cases. The main objective is to encourage the accused to provide the Justice system with information about their partners in crime and/or about the actual structure and workings of the criminal organization.
“As in Brazil, there are criticisms in the USA, but plea bargaining is a consolidated institution and it may be used for any crime, regardless of its nature, including more serious ones such as homicide. American Justice would not be able to work properly without this instrument”, said Peter Messitte, federal judge in the District of Maryland (USA) and a professor of comparative law at the American University Washington College of Law, in this seminar in the Fundação FHC, organized in partnership with the University of São Paulo Law School, and mediated by Flávio Yarshell, lecturer at the same school.
Evidently one of the objectives of the institution of ‘plea bargaining’ in the USA (and in other countries that adopt the ‘common law’ system, originated in England) is to encourage the accused (or defendant) to collaborate with the Justice system, inform on their partners in crime and reveal how the criminal organization works. This is what happened in diverse cases involving the Mafia, which ended up undermining the power of these criminal organizations in the United States in the last century. But, according to Judge Messitte, “it is understood that plea bargaining also works in the overall interests of society and judicial economy (more rapid solution of cases to avoid backlogs).”
“I started out in the Ministério Público (Brazilian government agency for law enforcement). In São Bernardo do Campo, where I was a criminal prosecutor, there were 900 penal lawsuits and a backlog of 4,000 investigations, most of which were less serious crimes that could be resolved rapidly. There is nothing a prosecutor wants more than to resolve things speedily, but there is a distance between what he wants and what the legislation authorizes. And Brazil is learning how to analyze this distance”, said the Supreme Federal Court (STF) Judge Alexandre de Moraes.
“Unfortunately, we are learning how to use plea bargaining during a perfect storm when, because of investigations into corruption such as the Lava Jato, the public demands rapid punishment. Someone who takes a position against any aspect of plea bargaining is immediately labeled as in favor of corrupts. Perhaps at a different time this new institution could be analyzed with more calm, but this is the reality, and we need to deal with it”, the former minister of Justice (2016-2017) added.
“We need to extract from this new institution of plea bargaining the best it has to offer in order to combat organized crime and corruption, but inside our system. And to make use of it to leverage the restructuring of the penal justice system in Brazil, where more than half of the homicides are related to drug and arms trafficking. So far there have been few cases of collaboration aimed at combating drug trafficking”, Moraes added.
“We are introducing an institution whose historical roots are in another judicial culture into the Brazilian judicial system, which is a rather delicate process. Evidently, plea bargaining has produced results and should be preserved, but all negotiations must comply with the Brazilian constitution and laws. If not, the effect will be the opposite of what is expected, because all sorts of agreements will be made and in a short while public opinion will reject it (the new instrument)”, said former president Fernando Henrique Cardoso, commenting on the arguments of the American and Brazilian judges.
Brazil: ‘tradition of drawn out lawsuits’
“Plea bargaining is a necessary instrument, but I believe there should be more control mechanisms, especially on the part of the Public Prosecution department (responsible for the accusation in lawsuits). Why should a prosecutor decide to accept one plea bargain and not another? Which benefits were granted to the defendant in one case and why not to the defendant in another one? It could even be an internal control within the institution itself, but greater transparency is necessary”, said the lawyer Gustavo Badaró, associate professor in penal process law at the University of São Paulo.
Badaró mentioned that the Brazilian tradition comprises a mandatory penal process, in other words, all conflicts must be resolved by means of a trial, generally slow and drawn out, rather than the abbreviated or shortened process enabled by the institution of plea bargaining in the USA. “Here is it normal to have an investigation, a charge, the response of the accused, normally by confrontation, the production of evidence and, lastly, sentencing by the judge”, he explained.
Plea bargaining was enabled in Brazil in recent years with the approval of the Organized Crime Law (2013). But it only gained greater visibility and came into more widespread use with the Car Wash (Lava Jato) operation from the beginning of 2014, receiving both enthusiastic support and heavy criticism. “There was no time for this new institution to be applied initially in the first instance, and to then pass on to the higher courts and, after some years, to be duly analyzed and consolidated by the Supreme Federal Court (STF). Due to the fact that a number of people investigated in Lava Jato are entitled to parliamentary immunity, the Supreme Court was very quickly called on to act in relation to it, a process which is still underway”, explained Badaró.
“This ‘cultural shock’ disturbs me, because when I take an institution out of its cultural environment and insert it in another model, this can generate two effects, both of which are bad. Firstly, if the law does not catch on; secondly, and this is much more drastic, if the institution produces results not foreseen in the originating system such as, for example, becoming equated with impunity. It is impossible to be too careful”, he added.
‘In the USA, testimony is acceptable as proof’
Another important difference between ‘plea bargaining’ and delação premiada is that, in Brazil, the content of the collaboration, that is, what the accused (or defendant) says to the public prosecutor in exchange for some benefit, has less value as proof and needs to be accompanied by evidence, such as the money laundering schemes or bank accounts used by those involved in the crime. Whereas in the USA, the collaborator is transformed into a witness in the process and his/her word is considered sufficient for an agreement to be reached with the representatives of the Justice department.
“In Brazil, it is understood that plea bargaining may just be a vehicle for uncovering more evidence, while in my country the fact that the accused admits to having committed or witnessed (other people) committing a crime is already considered to be proof”, said Peter Messitte.
“When deposing as a witness, the accused is obliged to provide the information promised when the deal was made with the prosecutors (and endorsed by the judge, as in Brazil). But, if no one believes him and the people he denounced are found innocent, he still has the right to receive the benefit negotiated, because he honored his part. The prosecutor cannot ask for a review of the agreement because he did not win the case in the end”, he continued.
According to Messitte, the judge must be convinced that there is a factual base justifying the plea bargaining agreement, but the onus of proof that the accused or defendant’s testimony is true is on the state, especially when it involves other people who will be prosecuted as a result of the denunciations. If not, the new action may come to nothing.
‘In Brazil, plea bargaining requires effectiveness’
“In Brazil, the Supreme Court has already ruled that multiple testimonies via plea bargaining are not enough to condemn someone. Even if there are five witnesses accusing the same person, the plea bargain is considered worthless unless proof is presented. In this respect, we are a step behind the American system”, said Alexandre de Moraes. “Plea bargaining requires effectiveness. Denunciation based only on plea bargaining, without concrete proof, may even be accepted (by the public prosecution and endorsed by the judge), but will result in acquittal, which is prejudicial to the justice system.”
In his presentation, the newest member of the Supreme Court revealed that he had already rejected a plea bargaining agreement since he joined the bench in March of this year, returning it to the Federal Public Prosecution service (the highest body in the Government Agency for Law Enforcement) “for alterations”. Similar to Moraes, the Supreme Court Judge Ricardo Lewandowski has also returned a plea bargain agreement to the Public Prosecutor. See report on the law website JOTA.
The Public Prosecution service and ‘discretionary powers’
According to the judges, there is also a difference in relation to what the prosecutor may offer the accused as a benefit if he/she opts for a plea bargain, in the US, or a delação premiada, in Brazil.
“In the United States, federal or state prosecutors have full discretionary powers; there are no limits to making an agreement. Whereas in Brazil, the sentence may only be reduced by up to two thirds, among other limitations”, stated Messitte, who, as director of his university’s Brazil-USA Legal Studies program, has been visiting the country for a number of decades and speaks Portuguese well.
“The Public Prosecution service has discretionary powers, and I defended this in my vote in the Supreme Court, but they are mitigated, they are not absolute. The prosecutor may not propose a sanction that does not exist in law or a progressive sentencing regime without a proper legal basis, as has been occurring in some cases. Article 37 of the Constitution determines that the three state powers, as well as the three federative spheres, must always act in accordance with the principle of legality.
We must obey the Constitution, or we will regret it further down the road”, said Moraes.
“Now, if the plea bargain is in accordance with the law, the judge or the supreme court judge (in the case of defendants with parliamentary immunity) may not agree with it, may even find it absurd, but he/she is obliged to endorse it.”
Both in the USA and in Brazil, the judge does not participate directly in the negotiation between the state (through the Public Prosecutor) and the defendant (represented by his/her attorney). The judge remains neutral and merely endorses the agreement, but with the imposition of certain conditions: the defendant’s decision to collaborate must be “conscious, informed and voluntary”.
“They cannot be coerced, they must have had the opportunity for wide ranging consultation with their legal counsel and must be aware of the sentences they may be subject to. They must also know that they are renouncing certain rights, such as being able to complain about proof obtained illegally or being judged by a jury. They opt to plead guilty to one or more crimes in order to put an end to the process and receive a lighter sentence”, Messitte explained.
Parliamentary immunity and serving the sentence
Lastly, the two judges spoke about two other aspects of the justice system where there is a significant difference between Brazil and the US, although they are not directly related to the question of plea bargaining.
The first is parliamentary or legislative immunity, which here in Brazil determines that diverse public authorities, such as the president of the Republic, ministers, senators and federal deputies may only be judged by the Supreme Federal Court or the High Court (Superior Tribunal de Justiça), in the case of governors, among others.
“We have never had this (in the USA). The person who decides whether someone is guilty or not, except where the president is concerned, is the judge in the first instance, in other words, me”, Messitte joked. “And generally this takes place by means of plea bargaining. The public prosecutor makes the deal, I endorse it, pass the sentence and, normally, there are few appeals or reviews”, said Messitte.
“I agree that the 1988 Constitution exaggerated in the question of parliamentary immunity, but this debate has been contaminated by a great deal of superficiality and populism. It is false to say that the judicial process is faster in the first instance than in the Supreme Court. The first instance is not just the Curitiba district court, which is doing a great job with the Car Wash operation. But in order to be able to do this, they had to put together a veritable task force, with an auxiliary judge and the participation of the public prosecution department, the Federal Police etc. Would this be possible in every jurisdiction in the country? Comparing the speed of legal processes in the diverse instances is to divert focus from the need for a more adequate structure for the entire criminal justice system”, said Moraes.
Judge Messitte also said that in the USA, a person condemned in the first instance, by means of plea bargain or not, starts serving their sentence immediately. “When I decide that a defendant is going to jail, he goes immediately regardless of the possibility of appeals in higher courts. It is possible for a judge in the first instance to make a mistake, but, if the sentence is revised later, there’s nothing to be done about it. The defendant is not entitled to any compensation”, he said.
In 2016, the Federal Supreme Court admitted the execution of a sentence after condemnation in the second instance, it no longer being necessary to wait for all the possible appeals to be heard, that is, appeals to the highest courts in the country, either the Supreme Court or the High Court (depending on the case). But discussion of the subject may be resumed by the Supreme court soon. Judge Alexandre de Moraes did not comment on this question.
“Differently from the United States, which is organized more horizontally, Brazil has a very verticalized and hierarchical society. We can see this in expressions like ‘go complain to the bishop’ (‘vai reclamar para o bispo’). Normally we only accept the deprivation of a right after receiving the last word from the highest body in the hierarchy”, said Gustavo Badaró.
When he finished speaking, judge Messitte suggested that those who wanted to know more about the subject should read the article O Acordo de Vontades no Processo Criminal do Brasil e nos Estados Unidos, written by the Brazilian prosecutor Luciene Angélica Mendes.
Otávio Dias is a journalist specialized in international affairs. He was the correspondent for the Folha in London, editor of estadão.com.br and chief editor of Brasil Post, a partnership between the Huffington Post and the Abril Group.