Abstract
This Article offers a comparative analysis of the legal frameworks governing cooperation agreements in the United States and Brazil, focusing on how each system balances the competing imperatives of public interest protection and fairness to informants and cooperators. While both jurisdictions rely on the use of cooperating defendants to prosecute unlawful activities such as cybercrime, political corruption, narcotics offenses, and transnational organized crime, their institutional approaches diverge sharply. The United States—operating within an adversarial, prosecutor-centered tradition—grants prosecutors broad discretion in negotiating and enforcing cooperation agreements, with minimal judicial oversight. This discretion reflects a utilitarian logic that prioritizes prosecutorial efficiency and the expedient administration of justice, often at the risk of coercion, opacity, and the instrumentalization of defendants. In contrast, Brazil’s inquisitorial, judge-centered system—particularly following the enactment of Law No. 12.850/2013—emphasizes procedural transparency, judicial oversight, and constitutional guarantees. Cooperation is structured as a legal entitlement, governed by formalized procedures and enforceable safeguards aimed at preserving the dignity and rights of the cooperator. While this model may constrain prosecutorial agility, it also tends to introduce significant procedural formalism and bureaucratic complexity, narrowing the strategic latitude of prosecutors and, at times, impeding the timely and effective disruption of complex criminal schemes. This Article contends that both systems pursue similar goals but embody fundamentally different normative commitments: the American model privileges the protection of public interest through prosecutorial pragmatism, whereas the Brazilian framework reflects a deeper institutional concern with fairness, legal certainty, and individual dignity. The comparison illustrates how the locus of authority—prosecutorial discretion versus judicial supervision—profoundly shapes the character and legitimacy of criminal cooperation regimes.