INTRODUCTION
Do politicians get away with murder? In Brazil, they once did.
In December 1963, Arnon de Mello — father of former president
Fernando Collor de Mello — murdered a colleague on the floor
of the Brazilian Senate.1 He was arrested, tried, found
not guilty, and immediately released. Fifty years later, things
have changed. Brazil’s Federal Police (PF) arrested the leader of
the governing party’s bloc in the Senate, Sen. Delcidio do Amaral,
after charging him with obstruction of justice.2 This was not an isolated case.
Former president Luiz Inácio “Lula” da Silva (known as Lula), who
is still one of the most powerful people in Brazil, was sentenced
to almost 10 years in prison for money laundering.3 What changed?
In recent years, Brazil has transitioned to a more robust
judiciary system dedicated to fighting corruption. The Federal
Police, the Federal Public Ministry (MPF), and the Federal Public
Prosecutor’s Office (which is a separate division that handles
cases with jurisdiction before the Supreme Court) have also
transformed themselves into more effective institutions that
promote equality before the law and prosecute powerful individuals
when warranted.
This phenomenon is largely a product of Operation Lava
Jato (Car Wash), an ongoing criminal investigation into
institutionalized corruption. Launched in 2014, it has looked into
wrongdoing by prominent politicians, businessmen, and
state-controlled companies. The corruption brought to light by the
investigation has received worldwide attention. The Associated
Press called it “the biggest corruption scandal in the country’s
history,”4 while
Transparency International named it one of the most symbolic
corruption cases in history.5
The operation started as an investigation of a small car wash
gas station in the country’s capital. That investigation eventually
led to the discovery of a huge network of bribery and corruption
that involved many political actors of the ruling class in Brazil.
From former presidents (such as Fernando Henrique Cardoso, Lula da
Silva, and Dilma Rousseff) to leaders of the opposition and ruling
parties in Congress (including the speaker of the House of Deputies
and the president of the Senate), party chairmen, and even high
court judges, the systemic web of corruption took Brazil into a
frenzy of scandals that have come to light and are now under
investigation and prosecution. Despite a history of negligence and
overlooking criminal activities committed by politicians, the
Brazilian legal system is now bringing people with money and
political power to justice.
Operation Car Wash discovered an enormous network of corruption
among Brazil’s leading construction companies and state-owned
enterprises, specifically Petrobras (the national oil corporation),
the Brazilian National Development Bank, and Eletrobras (a major
electric public utilities company). Investigators unlocked a scheme
of bribery in exchange for contracts that resulted in kickbacks
ranging from 1 percent to 5 percent of every contract. So far,
federal prosecutors are seeking to recover in court $12 billion
from those implicated.6
The scandal gave rise to other investigations as well, such as
the discovery of irregular campaign donations for leading
candidates in Brazilian elections in the last few decades. The
Superior Tribunal on Electoral Affairs of Brazil narrowly voted
down a case that could have annulled the last presidential election
and revoked the mandate of current president Michel Temer, on the
grounds of undeclared donations to the campaign of impeached
president Dilma Rousseff — who preceded Temer in office, and
with whom Temer ran on the same ticket as her vice president. The
runner-up in that race, Sen. Aecio Neves, is also implicated
— allegedly having received money from the same companies
that donated to Rousseff and Temer. All this has taken place while
Brazil has suffered from its deepest economic crisis since the
1930s.
Six main factors made Operation Car Wash possible and
successful:
- The plea bargain option;
- Merit-based selection for the judiciary introduced in the 1988
constitution;
- A strong system of incentives to choose qualified public
servants;
- The 45th amendment to the constitution and the creation of the
National Council of Justice and the National Council of the Public
Ministry;
- Qualified Supreme Court appointments; and
- The autonomy of the Federal Police and Federal Public
Ministry.
Those changes in the legal system in recent years have
increasingly affected the incentives and behavior of both
individuals and institutions.
FACTOR 1: THE PLEA BARGAIN OPTION
Although plea bargaining is a common courtroom practice in
common law jurisdictions, it is rare in countries with civil law
systems, in which judges play a greater role in the conduct,
discovery, instruction, and deliberation stages of a trial.7 Until recently, the idea that
the prosecution and the defense could sit and negotiate a
sentencing deal was unheard of in Brazil.8 Today, the country has a more
modest version of the plea bargain, called delação premiada —
which literally translates to “awarded delation.”
Plea bargaining was first introduced into Brazil’s legal system
in 1990 as a reaction to a series of heinous crimes, including
rape, kidnapping, and murder.9 Numerous pieces of legislation
in 1995,10 1998,11 2006,12 and 201113 expanded its reach. Most
important, in 2013, the Congress passed the “Law against Organized
Crime,” which outlines the procedure and criteria for its
application. The act defined “organized crime” as criminal acts
committed by four or more people. To make enforcement possible, the
act established a results-based system of incentives to encourage
people to provide information that can lead to the conviction of
other criminal suspects.
For a plea deal to be valid, the information provided by the
defendant must achieve one of the following: identify the other
participants of the criminal organization and criminal offenses
committed by them, disclose the hierarchical structure and division
of tasks within the criminal organization, prevent criminal
offenses arising from the activities of the criminal organization,
recover total or partial gains from offenses committed by the
criminal organization, and find the victim with his or her physical
safety preserved.14
This set of requirements is designed to increase the system’s
effectiveness. The benefits of collaboration to a defendant include
the possibility of reducing a prison sentence by up to two-thirds,
replacing the sentence with a deprivation of civil rights, or even
having a pardon promptly granted if the collaboration is considered
to be of major importance.15
Most, if not all, collaborations include disclosure of evidence,
because witness accounts are not sufficient for a
conviction.16 Evidence
is required because individual testimony in Brazil is regarded as
highly unreliable.17
Defendants and victims are not even required to testify truthfully
before a judge, and other witnesses’ testimony is often deemed
unreliable, so judges tend not to convict someone purely on the
basis of witness testimony. Compared with the U.S. legal system,
which emphasizes cross-examination and imposes penalties for
perjury, Brazil’s system incentivizes testimonial falsehoods, which
makes oral testimony unreliable.
Plea bargaining has helped transform the incentives for
presenting testimony. Before plea bargaining was introduced,
defendants could easily lie or obfuscate the truth because they
faced no negative repercussions for doing so. Now, there are
incentives not only to be truthful at trial, but also to
effectively collaborate during the investigation phase, when
evidence is gathered and presented before a judge. This change is
the biggest in the system, and it made Operation Car Wash possible.
Without plea bargains, many of the investigations undertaken during
the operation would simply not have occurred. As of May 2017, 155
such agreements had reached a settlement.18
For example, a plea deal by former Petrobras director Paulo
Roberto Costa revealed important information about the methods of a
criminal operation.19 It
also provided evidence that connected politicians to the
scheme.20 As a result,
Sen. Delcídio do Amaral was arrested after attempting to obstruct
an investigation.21
However, the senator himself agreed to a plea deal: he provided
information linking President Rousseff and former president Lula to
corruption that resulted in legal charges.22
Operation Car Wash could never have gotten as far as it did
without the incentives established by the system of plea
bargaining.23 Most of
the major scandals that have recently rocked Brazil were uncovered
thanks to these agreements.
The plea bargain option represents an important step toward
creating a more resourceful and time-efficient judiciary. It also
presents a real prospect of improving a severely overloaded justice
system. According to recent estimates, there are currently two
pending lawsuits for each Brazilian24 — a major bottleneck
that hinders the timeliness and effectiveness of judiciary.25 Additionally, the Federal
Public Ministry estimates that Brazil recovered $225 million in
corruption cases through collaboration agreements.26
The system of plea bargaining transformed the incentive
structure within Brazil’s judicial system by influencing the
actions of defendants during criminal lawsuits. Prior to the
implementation of this instrument, defendants faced incentives not
only to suppress relevant information, but also to obstruct
justice. Today, incentives effectively encourage collaboration with
the justice system, prevent impunity, and bring criminal suspects
to trial regardless of social status.
FACTOR 2: A MERIT-BASED SELECTION SYSTEM AND GREATER ACCESS TO
PUBLIC OFFICE
Historically, the exercise of power in Brazil has been
associated with a traditional political establishment that was long
considered to be out of touch with the majority of the
people.27 However, new
criteria set by the 1988 constitution significantly reduced
reliance on political connections to gain access to public office
in the judiciary. These changes were bolstered by the growing
number of people pursuing careers in the legal profession, which in
turn is a result of Brazil’s economic transformation since the
early 1990s. The demographic group that has benefited the most from
these developments is the middle class, which has expanded
significantly in the past two decades, becoming the largest segment
of the population in 2009.28 The middle class has grown
from comprising approximately a third of the population to the
majority — from 63 million people in 2005 to 103 million in
2011, which represents 55 percent of families in Brazil.
The growth of the middle class also increased the number of
students attending university. With more people now able to afford
a higher level of education, there are more students and hence more
law students. As the middle class grows, so do higher education and
the legal profession (see Figure 1).
After passing the bar exam, the path to becoming a judge or
prosecutor begins with a mandatory three years of practicing
law.29 After that, there
are two distinct ways to obtain a permanent judicial post. The more
common path, through which 80 percent of judges are chosen,
involves a rigorous process of open, public, and objective
selection. This method gives greater opportunities to members of
the middle class with no previous political connections.
The other path, known as o quinto — which
literally translates as “the fifth” because 20 percent of judges
for higher courts are selected this way — can be heavily
influenced by political connections.

This selection process is outlined in a constitutional clause,
which instructs the Order of Attorneys of Brazil (the Brazilian bar
association) and the Public Prosecutor’s Office to each create a
list with six nominees and submit it to the court with a vacant
judicial seat.30 The
court then creates a new list with three nominees drawn from the
previous lists. The court’s list is then sent to the chief of the
respective executive office — for instance, the governor for
state judges — who will choose someone from that list to fill
the position. Nominees on each list need major support from the
institutions that put their names forward. In the last phase, when
the chief of the executive office makes a choice, political
influence plays an even stronger role. Hence, to earn this
promotion, candidates must face tough political competition within
the institution to which they belong and wield enough influence to
be selected by the relevant executive officer.
However, since a greater number of candidates come from the
first path, that process has significantly altered the Brazilian
judicial system because it facilitates the hiring of judges and
prosecutors who do not have strong political backgrounds. Moreover,
the public selection process incorporates a system of incentives
outlined by the Brazilian constitution.31 The process follows several
constitutional principles of administrative law, including
impartiality and equality.32
The prerequisites for the selection process are a law degree,
passing the Brazilian bar exam followed by at least three years of
practice, Brazilian citizenship, compliance with military and
electoral obligations, and no criminal record. The process itself
is set forth by public notice and is divided into a five-step
process of elimination.33 The first two steps are tests
used to evaluate a broad range of legal knowledge. The third step
evaluates the candidate’s mental and physical condition and medical
records. The fourth step is an oral exam. The fifth and final step
consists of a point-scoring system based on credentials,
publications, and other qualifications of the candidate. The
procedure explicitly disregards the candidate’s political
background and focuses instead on practical qualifications.
Additionally, the system establishes different merit goals as
incentives throughout that person’s career.
An approved candidate will be offered a position as a substitute
judge in a small county, with the possibility of advancing to
intermediate-sized counties and then, potentially, larger-sized
counties. Ultimately, the judge may become a Justice of Appeal,
known as a desembargador. (Supreme
Court judges are selected according to different criteria, as
explained later.)
The merit-based selection system established in the 1988
constitution has increasingly allowed ordinary people without
political influence to reach top positions in the Brazilian
judiciary. Once in office, the individuals selected can exercise
their duties without fear or favor.
One relevant figure selected in this way is the young federal
judge Sergio Moro, who is the leading face of Operation Car Wash.
Only 45 years old, Moro has handled most of the initial cases that
have resulted from this operation (that is, before the appeals
process). The media usually describe him as tough, rigorous,
and technical.
FACTOR 3: A STRONG SYSTEM OF INCENTIVES TO CHOOSE QUALIFIED
PUBLIC SERVANTS
The incentives to select well-qualified public servants,
specifically those in powerful decisionmaking positions such as
judges and prosecutors, have become more robust in the past two
decades. This has both positive and negative impacts on many
people’s decisions to pursue a career in public service.
A Highly Competitive Career Path
According to a report by the Brazilian bar association, Brazil
has more law schools — more than 1,400 — than the rest
of the world combined.34
The country has over 900,000 lawyers — and many more law
graduates — often competing for top legal positions.35 The supply of candidates to
become judges and prosecutors remains high because public law
remains a very attractive career option for high school graduates.
Nonetheless, increased law school enrollment does not necessarily
create more lawyers. Over the past decade, the percentage of law
graduates who passed the bar exam has fluctuated between 10
percent36 and 25
percent.37
The typical career goal for members of this large demographic is
to be a judge or a prosecutor. Both professions have a legal right
to the same salaries: an entry-level prosecutor must be paid the
same as an entry-level judge. With 100 to 250 candidates seeking a
single position, competition is stiff.38
Public Law Careers: High Salaries, Tenures, and Honors
Public law jobs are among the highest paid in Brazil. A judge,
by the start of his or her career, earns a base annual salary of
about $76,160. Compared with the average annual income in Brazil of
around $7,200, this is a significant sum.39 The income of Brazilian
judges is further increased by bonuses and various other perks,
with total compensation sometimes reaching up to $226,000 a
year.40 Unfortunately,
bonuses are often awarded for dubious reasons. For example, judges
receive around $13,200 a year for housing assistance, even though
they already have among the highest salaries in the
country.41
Tenure is another important benefit. After a probationary term
of two years, tenure makes it extremely difficult to fire judges, a
system which guarantees them stability and increasing salaries for
most of their lives.

Negative Impacts
Tenure also generates bad incentives because it allows judges to
behave improperly with impunity. Only in the most severe cases are
tenured judges forced into compulsory retirement — with full
pay for life. For instance, in the north of Brazil, a judge was
caught sexually assaulting his female assistants in their
workplace.42 As a
result, he was forced to retire but will receive full payment of
his salary for the rest of his life. Even at the end of his life,
his payment will not stop: If his wife survives him, she will
receive the money until her own death.
Given the high salaries and bonuses paid to judges and
prosecutors, Brazil’s judiciary is very expensive. In 2014, the
National Council of Justice estimated that the entire Brazilian
judiciary cost approximately $30 billion, equivalent to 1.2 percent
of the country’s gross domestic product (GDP).43 Personnel expenses represent
89.5 percent of the total cost.44 Western European countries
such as France, Germany, Italy, Portugal, and the United Kingdom
spend no more than 0.4 percent of GDP on their respective justice
systems (see Figure 2).45 The figure for the United
States is approximately 0.13 percent of GDP.
Another bad incentive concerns fiscal policy, because Brazil’s
judiciary is responsible for its own budget.46 The federal Supreme Court
(STF) approves its own budget, and the presidents of state
tribunals vote on state courts’ budgets. Thus, the judiciary may
increase its budget if it considers it necessary, and the
legislature merely ratifies it.47
Although very expensive and not always effective, Brazil’s newly
improved judiciary still makes for an attractive career option,
regardless of political connections.

FACTOR 4: THE 45TH AMENDMENT TO THE CONSTITUTION AND
INSTITUTIONAL OVERSIGHT
In 2004, the Brazilian Congress approved the 45th amendment to
the 1988 constitution, which came to be known as the “Judicial
Reform.”48 The amendment
brought a series of changes to the judiciary’s functions, including
stricter requirements on hearings before the Supreme Court,
measures to turn the Court’s decisions into precedent (unusual in a
civil law system), and the creation of two institutions charged
with oversight: the National Council of Justice (CNJ) and the
National Council of the Public Ministry (CNMP).
The CNJ’s mission is to protect the autonomy of the judiciary.
Its goal is to enhance the effectiveness of the Brazilian judicial
system, primarily through improved supervision, administrative
controls, and transparency. To that end, it enforces the Statute of
the Magistrates, a code of rules that sets duties and rights for
every Brazilian judge, oversees the functioning of the judicial
system, hears complaints, establishes disciplinary proceedings, and
promotes measures to increase courts’ effectiveness.49 The CNMP is tasked with
administrative, financial, and disciplinary supervision of the
Public Ministry (MP), the country’s top prosecutorial body. The MP
is divided between the Federal Public Ministry (MPF) and the state
Public Ministries. Specifically, the CNMP has the authority to
review the legality of MP staff actions, make administrative
decisions, respond to complaints against MP staff, review
disciplinary proceedings, and develop an annual report on the
status of the MP.50
Both the CNJ and CNMP have strengthened the judiciary by
incentivizing greater effectiveness, rigorously supervising the
judiciary, and implementing independent oversight to combat
internal corruption. The CNJ also publishes comprehensive reports
on the efficiency of the judiciary, such as the Justice in Numbers
Report, and sets goals for state courts, such as general timelines
and quantitative deliverables for measuring effectiveness.51

The CNJ has substantially helped the judiciary become more
expeditious in its decisionmaking. For instance, the Brazilian
Supreme Court is one of the busiest courts in the world, with as
many as 100,000 new cases per year.52 However, the number of
pending cases began to drop after the 45th amendment was ratified
in 2006 (see Figure 3).53
The initial sharp rise in litigation is partly due to the 1988
constitution, which empowered ordinary Brazilians to defend their
rights before the judiciary. As a result, an overwhelming number of
new cases reached the Supreme Court. While Brazil’s population grew
by 30 percent over the ensuing 25 years, the number of cases grew
by 27,000 percent during the same period.54 Although the number of cases
is still high, the 45th amendment is widely credited with helping
to significantly reduce the number of Supreme Court cases, as it
made settlement before reaching the STF more likely.55 The number of cases before
the STF with decisions pending continues to fall, reaching its
lowest number in a decade in 2015, with only 53,950 cases undecided
(see Figure 4).56
However, the CNJ’s corruption oversight remains weak. While it
has become more effective, it still has a long way to go. Since its
founding, the CNJ has filed 7,200 disciplinary complaints but
resolved only 78.57
Worse, disciplining members of the judiciary remains extremely
difficult, because the CNJ still maintains a close relationship
with judges and remains hesitant to charge them. For example,
Justice Nancy Andrighi, the head of the CNJ, has been criticized by
her colleagues for a speech in which she came out strongly against
nepotism and for opening an investigation of a fellow judge over
charges of corruption.58
In another case, a small-county judge took two arbitrary measures
— regarding the disruption of the WhatsApp mobile messaging
app in Brazil and the arrest of Facebook’s vice president for Latin
America — before the CNJ started investigating him.59
FACTOR 5: QUALIFIED SUPREME COURT APPOINTMENTS
The Brazilian Supreme Court is composed of 11 justices appointed
by the president and confirmed by the Senate, in a process similar
to that in the United States. The chief justice is selected by a
vote by his or her colleagues for a term of two years. Unlike the
judicial systems of many of its neighbors in South America, the
appointment process has enabled the Brazilian Supreme Court to
retain ideological stability throughout the past couple of decades,
enforcing checks and balances instead of being subjected to changes
in the political winds depending on which party is in power.
It is important to note that the Brazilian Workers’ Party, which
held power from 2003 to 2016, has longstanding alliances with other
Latin American left-wing parties. This ideological alignment proved
advantageous when several of those allied parties held power around
the same time, most notably Hugo Chavez in Venezuela, Nestor
Kirchner and his wife Cristina Fernandez in Argentina, and Evo
Morales in Bolivia. However, in those countries, violations of the
rule of law became commonplace. In contrast, Brazil’s democratic
institutions have proven remarkably resilient, even after Workers’
Party governments appointed nine justices to the Supreme Court. Of
these nine justices, eight have extensive and accomplished legal
careers (the exception being Justice Dias Toffoli, a former
election lawyer for the Workers’ Party60 who had previously failed a
judicial selection61).
The Supreme Court’s independence was evident in the 2005
corruption scandal known as the Mensalão, which
translates roughly as “big monthly payment.”62 Despite special judicial
privileges granted to senior public officials by the constitution,
the STF convicted top political figures on corruption charges,
including some with close links to former president Lula da Silva.
Notably, the Workers’ Party had appointed many of the
justices.63 The Court’s
independence was also evident in the denial of several requests
made by President Rousseff, Lula da Silva’s successor, to stop
impeachment proceedings against her.64 Despite her protests, the
process moved along and Rousseff was impeached in April
2016.65
It is worth noting that the STF is constitutionally protected
against any interference from the executive or the legislature. For
instance, the Supreme Court could nullify a constitutional
amendment that alters its independence or prerogatives. Unlike many
neighboring countries, Brazil has maintained a strong separation of
powers between the judiciary and the other branches of government.
Every administration following the 1988 constitution has respected
that separation.
FACTOR 6: AUTONOMY OF THE FEDERAL POLICE AND FEDERAL PUBLIC
MINISTRY
The autonomy and independence of the Federal Public Ministry is
a recent accomplishment. The Public Ministry officially gained
autonomy from the executive branch following implementation of the
1988 constitution — an important step for a country with a
history of abusive behavior by the executive. Nonetheless, through
the 1990s, Brazilian prosecutors general routinely refused to bring
charges against senior officials of the executive branch. Today, by
contrast, the MPF has earned praise for the significant degree of
independence it has achieved.66 Although the president enjoys
full discretion in appointing the prosecutor general, for more than
a decade the president chose — from the list submitted by all
federal prosecutors — the candidate who received the most
votes from colleagues.67
The prosecutor general recently stated that laws against
corruption and the Organization for Economic Co-operation and
Development Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions are the main
factors behind the criminal investigations and indictments made by
MPF.68 The convention
sets standards and procedures to combat systemic bribery,
especially in developing countries such as Brazil. In the same
interview, the prosecutor general publicly responded to Lula da
Silva’s complaint of ingratitude, stating that he owes nothing to
the executive, thereby signaling the MPF’s independence.69

In October 2014, the Federal Police also gained greater
independence from the Ministry of Justice, via executive order no.
657, informally known as the MP da Autonomia
(Provisional Measure of Autonomy). This measure requires that the
PF director must have served previously as a federal police
officer, thus giving the institution greater independence to choose
its own leadership.70
Police officers lobbied the presidency hard for this
change.71
Investigation methods have also improved greatly. The MPF and PF
have had several joint task forces throughout Brazil carrying out
important investigations as part of Operation Car Wash, after the
director of the PF said his agency would not lag behind the MPF in
investigating the scandal.72 Those task forces have
focused on coordinated crimes that could be linked together. The
MPF and PF’s work has brought them international recognition and
greater prestige.73
By dedicating people and resources to investigating related
crimes instead of investigating them separately, the PF and the MPF
were able to better focus their efforts and better utilize their
personnel with the experience and technical expertise needed to go
after criminal organizations. Although common in other countries,
this type of investigation management is another recent development
in Brazil, starting with 18 task forces in 2003 and growing to 550
by 2016 (see Figure 5).74
The management of resources has improved substantially, as the
results achieved by the PF and MPF have bolstered the image and
prestige of both institutions. The success of the task forces has
provided an incentive for their operating procedure to become
standard for corruption investigations.75
CONCLUSION
The judiciary in Brazil is far from perfect, but its
effectiveness has improved enormously since the early 1990s. The
legal, social, and institutional changes reviewed in this paper
show how creating the right set of incentives can strengthen the
judiciary of an emerging country, even one with a history of
corruption and of politicians used to acting with impunity.
Brazil has developed a strong system of incentives to select
qualified people who are able and willing to confront the political
and business establishment, including in some of the biggest
corruption cases in the country’s history. Other countries could
learn from Brazil’s much improved process for selecting good judges
and prosecutors, while avoiding some of the mistakes the country
still needs to correct in the future.
NOTES
This paper was originally submitted for publication on April 1,
2017.
- “Arnon de Mello, Senator
profile,” Senado da República, http://www25.senado.leg.br/web/senadores/senador/-/perfil/1479.
- “Injunction no. 4039,” Supremo
Tribunal Federal, November 25, 2015,
http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/Acao_Cautelar_4039.pdf.
As explained later in this paper, Sen. do Amaral entered a plea
deal that exempted him from further prosecution in the case in
which he was involved.
- Ernesto Londoño, “Ex-President of
Brazil Sentenced to Nearly 10 Years in Prison for Corruption,”
New York Times, July 12, 2017,
https://www.nytimes.com/2017/07/12/world/americas/brazil-lula-da-silva-corruption.html.
- “Politicians Face Investigation
in Brazil’s Biggest Ever Corruption Scandal,” Associated
Press/Guardian, March 7, 2015,
http://www.theguardian.com/world/2015/mar/07/brazilian-court-approves-investigation-into-politicians-in-petrobras-scandal.
- “Transparency International to
Pursue Social Sanctions on 9 Grand Corruption Cases,” Trans-parency
International, February 10, 2016,
http://www.transparency.org/news/pressrelease/transparency_international_to_pursue_social_sanctions_on_9_grand_corruption.
- “A Lava Jato em Números,”
Ministério Público Federal da República Federativa do Brasil,
http://lavajato.mpf.mp.br/atuacao-na-1a-instancia/resultados/a-lava-jato-em-numeros.
- Antoine Garapon and Ioannis
Papapoulos, Julgar Nos Estados Unidos E Na França (Rio
de
Janeiro: Lumen Juris, 2008).
- It is important to note that plea
bargaining does not fully exist in Brazil. It was proposed in the
project for a new penal code in 2012, but a special commission
excluded it, saying “it was not the moment yet.” “Projeto de Lei do
Senado no. 236,” Special Commission for the New Penal Code,
December 17, 2013,
http://www.senado.leg.br/atividade/rotinas/materia/getPDF.asp?t=143412&tp=1.
- “Act no. 8072,” Presidência da
República, July 25, 1990, http://www.planalto.gov.br/ccivil_03/leis/L8072.htm.
- For accounting crimes, such as
tax fraud and tax evasion, and crimes committed by a professional
criminal organization.
- “Act no. 9613,” Presidência da
República, March 3, 1998, http://www.planalto.gov.br/ccivil_03/leis/L9613.htm.
- “Lei de Drogas Act no. 11343,”
Presidência da República, August 23, 2006,
http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/lei/l11343.htm.
- “Act no. 12.529,” Presidência da
República, November 30, 2011,
http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/Lei/L12529.htm.
- Translated from the following:
I - a identificação dos demais coautores e partícipes da
organização criminosa e das infrações penais por eles praticadas;
II - a revelação da estrutura hierárquica e da divisão de tarefas
da organização criminosa; III - a prevenção de infrações penais
decorrentes das atividades da organização criminosa; IV - a
recuperação total ou parcial do produto ou do proveito das
infrações penais praticadas pela organização criminosa; V - a
localização de eventual vítima com a sua integridade física
preservada. “Act no. 12.850,” Presidência da República, August
2, 2013,
http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/lei/l12850.htm.
- Ibid.
- Someone cannot be found guilty
solely on oral evidence obtained through a plea deal. Other
evidence must be presented for a defendant to receive a guilty
verdict by a judge.
- See Bruno Cruz da Silva vs
Ministério Público do Estado do Rio Grande do Sul,
70068866466/CNJ: 0096840-09.2016.8.21.7000 (2016).
- “A Lava Jato em Números.”
- “Termo de Colaboração no. 1,”
Polícia Federal 2014,
http://media.folha.uol.com.br/poder/
2015/03/11/termo-de-colaboracao-001.pdf.
- “Termo de Colaboração no. 11/12,”
http://politica.estadao.com.br/blogs/fausto-macedo/wp-content/uploads/sites/41/2016/01/dep-cervero-t.pdf.
- “Açao Cautelar 4039,” Supremo
Tribunal Federal, November 25, 2015,
http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/Acao_Cautelar_4039.pdf.
- “Procedimiento Oculto e em
Segredo de Justiça, PET 5952,” Ministério Público Federal, February
22, 2016,
http://veja.abril.com.br/complemento/brasil/pdf/delacao-delcidio.pdf.
- “Colaboração premiada,” MPF
Combate à Corrupção,
http://lavajato.mpf.mp.br/atuacao-na-1a-instancia/investigacao/colaboracao-premiada.
- Maria Tereza Sadek, “Acesso à
Justiça: um direito e seus obstáculos,” Revista USP 101
(2014): 55-66, http://www.revistas.usp.br/revusp/article/download/87814/90736.
- Conselho Nacional de Justiça,
“Dados Estatísticos,”
http://www.cnj.jus.br/programas-e-acoes/politica-nacional-de-priorizacao-do-1-grau-de-jurisdicao/dados-estatisticos-priorizacao;
and Conselho Nacional de Justiça, “Justiça em Números,”
http://www.cnj.jus.br/relatorio-justica-em-numeros/#p=justicaemnumeros.
- Deltan Dallagnol, “As luzes da
delação premiada,” Época, July 4, 2015,
http://epoca.globo.com/tempo/noticia/2015/07/luzes-da-delacao-premiada.html.
- Bruno Garschagen, Pare de
Acreditar no Governo (Rio de Janeiro: Record, 2015).
- Statistics are from the Center
for Social Policies of Getulio Vargas Foundation (FGV), obtained by
the Instituto Brasileiro de Geografia e Estatística,
http://www.cps.fgv.br/cps/pesquisas/Politicas_sociais_alunos/2012/Site/11_1BES_Nova%20Classe_Media.pdf.
- “Resolução no. 1079/2015-COMAG,”
Diário de Justiça do Estado do Rio Grande do Sul, 2015, http://www.jusbrasil.com.br/diarios/DJRS/
2015/06/08.
- Brazilian Federal Constitution of
1988, Article 94.
- Brazilian Federal Constitution of
1988, Article 37, sec. 2,
http://www.planalto.gov.br/ccivil_03/Constituicao/ConstituicaoCompilado.htm.
- Supreme Court ruling: ADI 498,
Rel. Min. Carlos Velloso (DJ de 9-8-1996) e ADI 208, Rel. Min.
Moreira Alves (DJ de 19-12-2002).
- “Resolução no. 1079/2015-COMAG,”
Diário de Justiça do Estado do Rio Grande do Sul, 2015, http://www.jusbrasil.com.br/diarios/DJRS/
2015/06/08.
- “Brasil, sozinho, tem mais
faculdades de Direito que todos os países,” Order of Attorneys of
Brazil (OAB), October 14, 2010,
http://www.oab.org.br/noticia/20734/brasil-sozinho-tem-mais-faculdades-de-direito-que-todos-os-paises.
- OAB, “Quadro de Advogados,”
http://www.oab.org.br/institucionalconselhofederal/quadroadvogados.
- “Exame de Ordem em Números,”
2014,
http://fgvprojetos.fgv.br/sites/fgvprojetos.fgv.br/files/relatorio_2_edicao_final.pdf.
- OAB, “Desempenho no Exame de
Ordem,” October 2014,
http://www.oab.org.br/content/pdf/examedeordem/exame_de_ordem_desempenho_ies_campus.pdf.
- Tribunal de Justiça do Rio Grande
do Sul, “Concurso de Juiz de Direito Substituto tem cerca de 100
candidatos por vaga,” February 20, 2009,
http://tj-rs.jusbrasil.com.br/noticias/833447/concurso-de-juiz-de-direito-substituto-tem-cerca-de-100-candidatos-por-vaga.
Four thousand
candidates competed for 16 places. Tribunal
Regional Federal da 4ª Região, “Concurso Público
Sevidores,” 2017,
http://www2.trf4.jus.br/trf4/controlador.php?acao=pagina_visualizar&id_pagina=125.
- Wage data obtained from the
Brazilian Institute of Geography and Statistics (IBGE). Trading
Economics, “Brazil Real Average Monthly Income,” http://www.tradingeconomics.com/brazil/wages.
- Simon Romero, “Brazil, Where a
Judge Made $361,500 in a Month, Fumes over Pay,” New York
Times, February 10, 2013,
http://www.nytimes.com/2013/02/11/world/americas/brazil-seethes-over-public-officials-super-salaries.html?_r=0.
- National Council of Justice
(CNJ), Resolution 199, 2014,
http://www.cnj.jus.br/images/imprensa/Resolu%C3%A7%C3%A3o_n__199-GP-2014.pdf.
- “Juiz do AM acusado de pedofilia
pede aposentadoria,” Revista Consultor Jurídico, July 12,
2009,
http://www.conjur.com.br/2009-jul-12/juiz-trabalho-acusado-pedofilia-aposentadoria-tj-am.
- 2014 is the most recent official
estimate
available.
- National Council of Justice
(CNJ), Justiça em Números, 2015.
- European Judicial Systems,
European Commission for the Efficiency of Justice (CEPEJ),
https://public.tableau.com/views/2010-2012-2014Data/Tables?:embed=y&:display_count=yes&:toolbar=no&:showVizHome=no.
- Brazilian Federal Constitution of
1988, Article 99,
http://www.planalto.gov.br/ccivil_03/Constituicao/ConstituicaoCompilado.htm.
- The finances of the judiciary
must conform with the annual budget presented by the executive
branch and passed by the Congress. However, due to political
favors, the executive and the legislative branches tend to be
“generous” with the judiciary.
- This amendment also greatly
expanded the jurisdiction of the Brazilian Labor Justice, a
separate branch of the judiciary. The expansion is not related to
the thesis presented in this paper.
- Conselho Nacional de Justiça,
http://www.cnj.jus.br/sobre-o-cnj/quem-somos-visitas-e-contatos.
- Conselho Nacional do Ministério
Público “Apresentação,” June 20, 2017, http://www.cnmp.mp.br/portal/institucional/o-cnmp/apresentacao.
- CNJ, Justiça em Números,
2015,
http://www.cnj.jus.br/relatorio-justica-em-numeros/
#p=justicaemnumeros.
- “When Less Is More,” The
Economist, May 21, 2009, http://www.economist.com/node/13707663.
- Fundação Getúlio Vargas,
Supremo em Números, http://www.fgv.br/supremoemnumeros/.
- CNJ, Justiça em Números,
2014,
http://www.cnj.jus.br/relatorio-justica-em-numeros/
#p=justicaemnumeros.
- Brazil, 45th Amendment, December
30, 2014,
http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/emc45.htm.
This amendment established institutes that increased the binding
force of decisions by the tribunals over lower-level jurisdictions.
MG/LF, Repercussão geral e súmulas vinculantes diminuem o
número de processos no STF, STF’s newsletter, October 4, 2008,
http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=97176&caixaBusca=N.
- The eleven-justice Supreme Court
is able to rule on thousands of cases every year because of its
internal division of labor. Each justice has his or her own
cabinet, which includes “auxiliary judges.” These are usually
judges from state and federal courts picked by a justice to serve
temporarily as his or her clerks on the Supreme Court. The
auxiliary judges decide most of the cases on the basis of previous
votes and opinions of their respective justice. Moreover, each case
is assigned to an individual justice, called the
rapporteur, who summarizes the case, casts the first vote,
and makes recommendations to the rest of the Court. The other
justices can follow the rapporteur’s recommendation or give a
different decision. In over 95 percent of the cases, a majority of
the court agrees with the rapporteur’s recommendation. See Damares
Medina, “Como funciona o STF,” Damares Medina Advocacia, November
16, 2015, http://damaresmedina.com.br/como-funciona-o-stf;
and Lilian Venturini, “Quem são e o que fazem os juízes auxiliares
do Supremo,” Nexo, January 27, 2017,
https://www.nexojornal.com.br/expresso/2017/01/25/Quem-s%C3%A3o-e-o-que-fazem-os-ju%C3%ADzes-auxiliares-do-Supremo.
- Débora Zampier, “Reforma
constitucional que criou CNJ completa 10 anos,” Agência CNJ de
Notícias, December 22, 2014,
http://www.cnj.jus.br/noticias/cnj/62361-reforma-constitucional-que-criou-cnj-completa-10-anos.
- Severino Motta, “Se eleição fosse
hoje, Nancy não se elegeria presidente do STJ,” Radar
Online, April 29, 2016,
http://veja.abril.com.br/blog/radar-on-line/judiciario/se-eleicao-fosse-hoje-nancy-nao-se-elegeria-presidente-do-stj/.
- “CNJ investiga se juiz que
bloqueou WhatsApp cometeu abuso de autoridade,” Revista
Consultor Jurídico, May 3, 2016,
http://www.conjur.com.br/2016-mai-03/cnj-abre-investigacao-conduta-juiz-bloqueou-whatsapp?utm_source=dlvr.it&utm_medium=facebook.
- Dias Toffoli, curriculum vitae,
May 11, 2016,
http://www.stf.jus.br/arquivo/cms/sobreStfComposicaoComposicaoPlenariaApresentacao/anexo/cv_dias_toffoli_11maio2016.pdf.
- Rodrigo Haidar, “Toffoli,
candidato ao STF, não passou em concurso para juiz,” Revista
Consultor Jurídico, June 8, 2008,
http://www.conjur.com.br/2008-jun-05/toffoli_candidato_stf_nao_passou_concurso_juiz.
- The Mensalão was the
biggest scandal of the Lula da Silva administration. An
investigation into the Brazilian Postal Service uncovered large
monthly payments made by the executive to federal legislators to
get them to vote in accordance with the wishes of the executive
branch.
- “Criminal Case no. 470,” Supremo
Tribunal Federal, 2012,
http://www.stf.jus.br/arquivo/cms/noticianoticiastf/anexo/relatoriomensalao.pdf.
- Partido Comunista do Brasil
vs. Câmara dos Deputados, “ADPF no. 378/2015,”
Supremo Tribunal Federal, 2015,
http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/adpf378.pdf.
- Despite some claims to the
contrary, Rousseff’s impeachment was not a coup. The impeachment
process and the “responsibility” crimes for which a Brazilian
president can be impeached are outlined in articles 85 and 86 of
the constitution. One of those impeachable offenses is violation of
the budgetary law. The independent Federal Accounts Court found
that the Rousseff administration had broken the law by fiddling
with the budget. In fairness, previous presidents had committed the
same crime-although not to the same extent as Rousseff-without
facing political consequences. Impeaching Rousseff was certainly a
political decision, but the process was legally sound, as
demonstrated by the Supreme Court’s finding of no fault in the way
it was conducted. It is important to note that, at the time, eight
of the eleven justices on the Supreme Court had been appointed by
Rousseff and her Workers’ Party predecessor, Lula da Silva. See
Diogo Costa and Magno Karl, “Dilma Rousseff’s Impeachment Wouldn’t
Be a Coup,” Forbes, April 28, 2016,
https://www.forbes.com/sites/realspin/2016/04/28/dilma-rousseffs-impeachment-wouldnt-be-a-coup/.
- Secretariat of Social
Communication, Prosecutor General’s Office, Roberto Gurgel
destaca independência, modernização e união do MP, MPF’s
newsletter, August 15, 2011,
http://noticias.pgr.mpf.mp.br/noticias/noticias-do-site/copy_of_geral/roberto-gurgel-destaca-independencia-modernizacao-e-uniao-do-ministerio-publico.
- Juliana Dal Piva, “A eleição de
Janot foi uma resposta da classe,” Estadão, August 30,
2015,
http://politica.estadao.com.br/noticias/geral,a-eleicao-de-janot-foi-uma-resposta-da-classe,1753037.
This tradition was recently broken by President Michel Temmer, who
picked the candidate with the second most votes from the list
submitted to him.
- Estadão Conteúdo, “ ‘Isso é
problema dele, não meu,’ afirma Janot sobre Lula ministro,”
Zero Hora, March 16, 2016,
http://zh.clicrbs.com.br/rs/noticias/noticia/2016/03/isso-e-problema-dele-nao-meu-afirma-janot-sobre-lula-ministro-5112913.html.
- Rede TV, “Janot responde à
crítica de Lula dizendo que estudou para ser procurador,” March 18,
2016,
http://www.redetv.uol.com.br/atardeesua/videos/ultimos-programas/janot-responde-a-critica-de-lula-dizendo-que-estudou-para-ser-procurador4.
- “Act no. 13.047,” Presidência da
República, December 2, 2014,
http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2014/Lei/L13047.htm.
- Mario Coelho, “Dilma edita MP que
agrada delegados da PF,” Congresso em Foco, October 14,
2014,
http://congressoemfoco.uol.com.br/noticias/dilma-edita-mp-que-agrada-delegados-da-pf/.
- Jailton de Carvalho, “Polícia
Federal cria força-tarefa para investigar parlamentares,” O
Globo, March 6, 2016,
http://oglobo.globo.com/brasil/policia-federal-cria-forca-tarefa-para-investigar-parlamentares-15521143.
- Receita Federal, “Brasil se
destaca em operação
internacional coordenada pela Organização Mundial das Aduanas,”
press release, December 17, 2015,
http://idg.receita.fazenda.gov.br/noticias/ascom/2015/dezembro/brasil-se-destaca-em-operacao-internacional-coordenada-pela-organizacao-mundial-das-aduanas.
- Policia Federal do Brasil,
Estatística
de Operações, http://www.pf.gov.br/agencia/estatisticas.
- The official task force dedicated
to the Operation Car Wash within the PF ended its work in
accordance with its schedule, officially shutting down on July 6,
2017. The focus now is inside the MPF, where the task force
dedicated to the operation is still expanding, with an expected 200
percent increase in the prosecutors’ budget for 2018. See Rafael
Moraes Moura, “MPF triplica orçamento da Lava Jato e aprova alta
salarial de 16%,” Exame, July 25, 2017,
http://exame.abril.com.br/brasil/conselho-do-mpf-amplia-orcamento-para-lava-jato-em-2018/.