Thursday, May 8, 2014

Bringing Plea Bargaining to Brazil

I was lucky to have Rafael Wolff, a Federal Judge in Brazil and an SJD Candidate here at Pace Law School, as a student in my Comparative Criminal Procedure seminar this semester.  Judge Wolff has written a fascinating paper analyzing new legislation – additions to the Criminal Code and the Code of Criminal Procedure in Brazil -- that would authorize plea bargaining in Brazil for the first time.  The bills would allow a judge, after finding sufficient evidence to support the charge, to allow for immediate imposition of sanctions if there is a 1) total or partial confession about the facts; 2) a request for imposition of the minimum statutory sentence; and 3) an express agreement that the prosecution of evidence is not necessary.  Presently, the only type of “bargain” that can be struck is a non-prosecution agreement, which is used most widely in the prosecution of misdemeanors.

These proposals have been met with opposition in Brazil, based largely on a concern that defendants will plead guilty involuntarily, and innocent people may be convicted. Some opponents also fear that the negotiating process would alter the truth seeking process, and hamper the ability of officials to carry out an investigation into the facts of the case.  United States District Court Judge Peter J. Messitte noted that the Brazilian judicial system has generally remained committed to the traditions of an inquisitorial system, resulting in “compulsory prosecution[s], which is to say all cases must go to trial.” He explained  that “[t]he idea of negotiating and bargaining a plea traditionally has [simply] not existed within [Brazil’s] inquisitorial system primarily by reason of the principle that the real truth can never be negotiated.”

But several aspects of Brazilian criminal procedure make the dim scenarios proposed by opponents unlikely to occur. First, a guilty plea may not be accepted unless a judge has already “accepted” the charges, meaning a judge has found sufficient evidence to support the charge.  While this is a low threshold, as it is in the United States, judges in Brazil have full access to the dossier and should theoretically be able to spot weaknesses in the prosecution’s proof that could signal a not guilty defendant. Moreover, as Judge Rafael Wolff explains “not all crimes are complex,” and the likelihood of a miscarriage of justice occurring as a result of a negotiated plea may be largely minimal in such cases.

In addition, the sentence discount available to a pleading defendant is the statutory minimum sentence; unlike the United States prosecutors, who have tremendous discretion in negotiating a plea, the prosecution cannot offer a larger discount that might encourage an innocent defendant to plead guilty.   Notably, prosecutors in Brazil are civil servants, who have no professional stake in a conviction.  Finally, there is no evidence that judges put pressure on prosecutors to enter into non-prosecution agreements under the current regime.

We are all aware of the pros and cons of plea bargaining.  It will be interesting to see if this rather modest, well-regulated proposal – compared to US plea bargaining – is adopted.

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