The new Brazilian criminal law: Continuities and changes in Car Wash's professional project


Eduardo Cornelius, Universidade de Toronto

Since the 2000s, Brazilian legal professionals have increasingly engaged with anti-corruption and white-collar crime law. After passing globally-inspired legislation, strengthening accountability institutions, and investing in the federal police, the country saw a spike in white-collar criminal investigations. These changes culminated in ‘Operation Car Wash,’ an investigation that unravelled the “largest corruption scandal in [world] history.” Lasting from 2014 to 2021, the investigation revealed a billionaire scheme involving politicians bribing state officials to favor firms in procurement bids. For the first time in Brazilian history, powerful white individuals would join the young Black men arrested for property and drug crimes that make up most of Brazils 830,000 carceral population. The crimes of the powerful also became the nation’ s obsession, with 80% of the population supporting Car Wash and seeing corruption as the country’s biggest problem. Car Wash also produced new practices and discourses about crime and punishment reflected in the daily workings of the criminal justice system, legislative proposals, and the media. Despite these changes, research on the legal profession’s involvement with anti-corruption has mainly focused on politics. In this paper, I focus on legal actors’ contribution to continuities and changes in Brazil’s penal culture. I follow punishment scholars’ emphasis on penal material practices and symbolic frames, which are legitimated through legal actors’ involvement with anti-corruption. I conceptualize Brazilian legal actors’ fight against corruption as a “criminal law professional project” that, in competition with other legal actors, contributes to shaping penal policy. Building on scholars’ emphasis on the (un)intended consequences of prosecutors’ fight against corruption, I also discuss the potential unintended consequences of such criminal law project. Empirically, I analyze federal prosecutors’ written and oral statements about the Ten Measures Against Corruption bill in Congressional hearings. Drafted originally by Car Wash’s chief prosecutor, Deltan Dallagnol, the bill was officially embraced by the Federal Prosecution Service and was supported by Car Wash’s main judge, Sergio Moro. The Ten Measures sought to model Brazilian criminal law after the practices and ideas put forth during Car Wash and previous investigations. While the bill has not passed in Congress, the discourses and practices it promoted represent the culmination of Federal Prosecutors’ criminal law project. Besides, the ideas contained in the bill are very much alive in the Brazilian legal field, including the 2019 successful “Anti-Crime Bill,” which Moro proposed as Bolsonaros Minister of Justice, resuscitating much of the Ten Measures. I find that prosecutors’ professional project presents several changes to practices and discourses to Brazil’s penal landscape, while also sustaining historical continuities. In terms of practices, the Ten Measures represent a break with traditional approaches to the crimes of the powerful, increasing their accountability and making it easier to obtain criminal convictions, which the corruption literature finds to be rare. Nevertheless, despite targeting white-collar crime, these practices (e.g., weakening procedural protection for defendants) also have the potential to increase punishment against the people most vulnerable to criminalization (working-class Black young men). In terms of discourses, the Ten Measures ’ ‘talk of crime’ differs from traditional racist and classist discourses and even denounces the inequalities in the criminal justice system. However, although prosecutors’ critique of the justice system is aimed at white-collar defendants, their discourses reinforce ideas that have been historically mobilized against blue-collar criminality (e.g., “impunity”). The Ten Measures ’ discourses also tap into long-standing historical anxieties and fear about crime, representing a discursive continuity in the Brazilian penal landscape. Finally, by innovatively promoting American-inspired legal practices to fight the crimes of the powerful, prosecutors promote American criminal law as a reference to be adopted in Brazil. Yet, this innovation has the potential to negatively affect the ‘usual suspects’ in Brazil’s carceral state, the urban poor. Beyond the Brazilian case, this paper shows how the contemporary internationalization of crime control intersects with local disputes for power and local professional projects, as well as with broader social racist colonial structures, with the potential to strengthen punitive practices and discourses against marginalized and racialized groups. While white-collar crime scholars have argued that lack of punishment of the harm caused by the powerful increases inequality, this paper shows how criminalizing the wealthy can reinforce traditional projects against Black and poor individuals, usually the targets of penal policy.

This paper will be presented at the following session: