Prosecutorial discretion and the erosion of power in criminal legal systems: Insights based on a case study of Brazil

• In Event: Prosecution in the Making I: Prosecutorial Discretion: Plea Bargaining and Pretrial Detention

Abstract

In Brazil’s criminal legal system, prosecutors play a dual role: guiding investigations to ensure legal compliance and acting as litigators in court. However, in non-prosecution agreements (NPAs), they increasingly adopt a one-size-fits-all approach. NPAs offer a diversionary outcome by allowing prosecutors to suspend charges for eligible offenses in exchange for conditions like reparations or community service, with no criminal record upon compliance. While strict legal frameworks help prevent abuses, they also limit room for negotiation, highlighting systemic rigidity. Brazil’s hybrid legal system, not originally designed for adversarial negotiations, has embraced discretionary prosecutorial practices, raising the question of how NPAs shift prosecutorial power and discretion. Drawing from 16 interviews with prosecutors and defense attorneys in southern Brazil, I found that prosecutors, untrained in negotiation, approach NPAs with a litigant mindset. The lack of true negotiation raises concerns about fairness and proportionality. Structural reforms in legal education, balanced prosecutorial training, and procedural safeguards in NPAs are essential to aligning discretion with justice and preventing systemic imbalances.

Author

• Anna Heinzmann, University of Missouri-St. Louis