The Brazilian Non-Prosecution Agreement as a Subjective Right of the Accused and Prosecutorial Discretion

• In Event: Prosecution in the Making II: Plea Bargaining and Case Processing in the Americas

Abstract

Negotiated justice is on the rise in Brazil since its first provision by the Constitution in 1995. Among the recent advancements is the implementation of the non-prosecution agreement, similar to a plea agreement in the United States. The prosecutor is empowered to propose the agreement, which provides alternative punitive measures for defendants who formally confess to offenses lacking violence or serious threats. The non-prosecution agreement offers alternative penalties rather than imprisonment, and spares the defendant a criminal record. Despite the stipulated objective criteria for eligibility, a recent ruling by the Brazilian Supreme Court clarified that the agreement does not inherently grant defendants a subjective entitlement to a non-prosecution agreement. Consequently, the decision to extend the offer remains within the discretion of the prosecutor, even when the objective prerequisites are fulfilled. Thus, this study seeks to investigate the rationale behind prosecutors' decisions in offering non-prosecution agreements, particularly in assessing their analysis on deterrence and crime prevention within the bounds of the law. To delve into this inquiry, I am conducting interviews with prosecutors and other court actors within the Brazilian judicial system to elucidate their decision-making processes regarding non-prosecution agreements.

Author

• Anna Heinzmann, University of Missouri-St. Louis