As medidas despenalizadoras na justiça criminal negociada: uma análise no âmbito do 2º Juizado Especial Criminal em São Luís/MA.

Abstract

This dissertation aims to analyze the development, application, and impacts of consensual criminal justice in the Brazilian legal system, with emphasis on the mechanisms provided by Law No. 9,099/1995 and the innovations introduced by the Non-Prosecution Agreement, established by Law No. 13,964/2019 (Anti-Crime Package). Based on the recognition of the serious structural crisis affecting the Brazilian criminal justice system, characterized by procedural delays, prison overcrowding, penal selectivity, and inefficiency in the State’s response, the study highlights the urgent need to adopt alternative models capable of overcoming the limitations of the traditional criminal system, without disregarding the fundamental rights and guarantees of individuals. Methodologically, the research adopts the inductive method, a socio-legal critical approach, the exploratory legal research method, and a quantitative-qualitative technique, combined with the empirical analysis of data extracted from official Judiciary databases, notably the TermoJuris system and the National Judicial Data Base (DataJud/CNJ). In this context, the study investigates the feasibility, benefits, and limits of Negotiated Criminal Law as an innovative and complementary model to traditional criminal prosecution, especially in cases involving minor offenses. The research outlines the theoretical and normative foundations of consensual justice, examines the evolution of Brazilian legislation, and compares international experiences, with emphasis on the American plea bargain, as well as the models adopted in Italy, Germany, and Portugal. Additionally, an empirical analysis is conducted based on data from the 2nd Special Criminal Court of São Luís/MA, focusing on the practical application of plea agreements such as criminal transaction and conditional suspension of the process, as well as their developments and challenges. It is argued that consensual mechanisms represent an effective, swift, and proportionate response to the challenges of the Brazilian criminal system, contributing to reducing the overload of the Judiciary, mass incarceration, and promoting fairer and more adequate solutions to the complexity of concrete cases. However, the study emphasizes the need for careful application of these instruments in order to ensure compliance with constitutional principles such as adversarial proceedings, full defense, legality, and voluntariness, thus preventing undue flexibilization of procedural guarantees and the worsening of social, racial, and economic inequalities historically present in the criminal system. Finally, the dissertation reinforces the importance of deepening the academic and political debate on consensual criminal justice, so that its implementation may effectively contribute to the modernization, democratization, and humanization of Brazilian criminal law and criminal procedure.