JUSTIÇA NEGOCIADA: ANÁLISE CRÍTICA DO ACORDO DE NÃO PERSECUÇÃO PENAL COMO MECANISMO DE DESPENALIZAÇÃO RESPONSÁVEL À LUZ DO ESTADO DE COISAS INCONSTITUCIONAL

Abstract

This paper provides a critical analysis of the Non-Prosecution Agreement (Acordo de Não Persecução Penal – ANPP), introduced by Brazilian Law No. 13.964/2019, examining its actual criminal policy function within the context of the “Unconstitutional State of Affairs” of the prison system. The research is guided by the following problem: can the ANPP be considered a mechanism of “responsible depenalization” or does it merely reproduce the selective and managerial logic of its predecessor, the Special Criminal Courts (Juizados Especiais Criminais – JECRIM)? Based on a methodological approach of bibliographic and documental review, anchored in the framework of critical criminology and penal garantism, the study reconstructs the mass incarceration crisis and the legacy of the JECRIM. It concludes that the praxis of the ANPP, although applicable to certain white-collar crimes, is overwhelmingly focused on managing non-violent property and financial crimes, such as theft, fraud, and misappropriation. This widespread application reveals a dual selective function:on one hand, it optimizes control over the "retail criminality" that overcrowds the system; on the other, it offers an advantageous procedural outlet for economic offenses. Furthermore, the requirement of a formal confession as a condition for the agreement represents the point of greatest tension with the constitutional model, operating as a "bargaining chip" that undermines the principle presumption of innocence, an important element of the accusatory system. Thus, the ANPP proves to be less of a structural solution to the crisis and more of a sophisticated mechanism for managing the flow of the penal system.