Risks of the uncritical adoption of Common Law criminal negotiation practices in brazilian democratic criminal procedure

Abstract

This article analyzes the risks arising from the uncritical adoption of mechanisms of negotiated justice inspired by the Anglo-Saxon plea bargaining model in Brazilian criminal procedure. The objective is to verify whether the transposition of this model to Civil Law systems preserves a symmetrical space for negotiation or represents a promise of rupture with the pillars of the Democratic Rule of Law. The methodology employed is deductive, with a bibliographic review and a dogmatic-comparative analysis of the institutes involved. Initially, the study presents the systematization of plea bargaining within the American justice model (Common Law). It then discusses the tendency toward the uncritical adoption of criminal negotiation practices in systems derived from Civil Law, addressing the structural disadvantage of the defense from the perspective of the concentration of prosecutorial power in the Public Prosecutor’s Office. Finally, the study examines the fundamental issue concerning the risk of expanding a negotiation-oriented culture inspired by the Anglo-Saxon model within the Democratic Rule of Law. Based on the dichotomy under examination—negotiation policy versus due process of law—it was concluded that the incorporation of consensual practices originating from Common Law constitutes a reality compatible with Brazilian democratic criminal procedure, provided that their implementation remains subordinate to constitutional guarantees, preserving the commitment of the State and its institutions to the realization of justice above merely efficiency-oriented objectives.