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Andy Spalding on Brazil’s fourth pillar: The organized crime law

Of the four pillars (here, here, and here), Brazil’s 2013 organized crime law has thus far impacted anti-corruption enforcement to a degree that few could have imagined or dreamed.

The bill was supposedly proposed to go after organized crime generally (e.g. drug trafficking, etc.) and specifically a group of violent protestors known as the Black Bloc. Wearing black disguises, these protestors became highly more organized and visible in the 2013 anti-corruption protests, engaging in vandalism and theft.

During the early stages of congressional consideration, there was no mention that these enforcement tools could, or would, be used to go after high-level officials and businesspersons engaged in graft.  But word on the street is that those pushing for adoption of this bill may well have understood its potential to convict the very politicians who would vote for its support.

Of the law’s various enforcement tools, two have proven of particular significance to anti-corruption enforcement. First is an obstruction of justice charge, which did not previously exist under Brazilian law.  Second is the expanded plea bargain. Though plea bargains did already exist, they were more restricted and thus a much less effective tool in the prosecutor’s arsenal.

These two provisions, taken together, are what blew open the Petrobras investigation (known as Operation Car Wash).  The first witness wasn’t talking much.  But when prosecutors threatened the new obstruction of justice charge against him and his family, and offered to enter into a plea bargain, he spilled it all, making possible what may well be the largest corruption enforcement action in history.

We are now reading about so much Brazilian corruption, and hearing about the resignations and convictions, precisely because this law works. The scandals are not evidence of a state in decline, but of the rise of the rule of law. Brazil’s four pillars mark an important milestone in this history of anti-corruption reforms, and of the Olympics. Brazil has created a governance legacy that has already proven to extend well beyond Olympic preparations, and that will endure long after the Games are gone.

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Andy Spalding is a Senior Editor of the FCPA Blog and Associate Professor at the University of Richmond School of Law. He’s the author of the ebook Olympic Anti-Corruption Report: Brazil and the Rio 2016 Games (available here). He’ll be a speaker at the FCPA Blog NYC Conference 2016.

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