In recent articles published on the Lucchesi Advocacia blog and on the legal portal Migalhas, Professor Guilherme Lucchesi has drawn attention to an important phenomenon in contemporary criminal law: what he calls the logic of spillover.
The idea is straightforward. Laws originally enacted to confront extreme forms of criminality—such as armed criminal groups, drug trafficking networks, or violent criminal organizations—tend, over time, to expand their scope of application into contexts far removed from those that initially justified their creation.
The evolution of Brazilian legislation on organized crime offers a clear example of this dynamic. The legal framework currently consolidated in Law No. 12,850 of 2013 did not emerge abruptly. Rather, it is the result of a legislative process that began in the early 1990s and progressively broadened the scope of investigative tools originally designed to combat violent criminal organizations.
Among these tools, none has become more central than plea bargaining agreements, known in Brazil as colaboração premiada.
The Origins of Organized Crime Enforcement Tools
An important early step in this legislative trajectory appears in the Heinous Crimes Act (Law No. 8,072 of 1990). Enacted in a context of intense political mobilization in response to the rise of violent crime—particularly kidnappings and drug trafficking—the statute introduced, in embryonic form, a mechanism that decades later would become central to Brazilian criminal investigations: plea cooperation agreements, known in Brazil as colaboração premiada.
The logic was straightforward. Faced with closed criminal structures, the State needed to create incentives capable of breaking the code of silence that protects organizations involved in serious crimes.
A few years later, another step in this legislative process emerged with Law No. 9,034 of 1995, the first Brazilian statute specifically aimed at combating organized crime. The bill that gave rise to this law had originally been introduced in 1989 and sought to equip the State with special investigative tools to confront organizations involved in activities such as drug trafficking, smuggling, and kidnapping for ransom.
The bill gained political relevance during the first half of the 1990s, a period in which criminal organizations that would later play a central role in Brazilian organized crime began to emerge—such as the Primeiro Comando da Capital (PCC), founded in 1993 within the prison system of the state of São Paulo.
Curiously, however, Law No. 9,034/1995 created extraordinary investigative mechanisms without ever providing a legal definition of what constituted a criminal organization.
Consolidation with Law No. 12,850 of 2013
This conceptual gap persisted for many years. It became particularly visible in the early 2010s amid public debate about the possibility of attributing the existence of criminal organizations in high-profile proceedings such as the Mensalão corruption scandal.
The first attempt to address the issue came with Law No. 12,694 of 2012, which introduced a statutory definition of a criminal organization, although it did not establish a separate criminal offense.
Full consolidation came the following year with the enactment of Law No. 12,850 of 2013, which systematized the legal framework governing organized crime in Brazil.
The statute defines a criminal organization as a structured association of four or more individuals, characterized by a division of tasks and aimed at committing serious or transnational criminal offenses. It also brought together and organized investigative tools that had previously emerged in a fragmented manner over preceding decades—including plea cooperation agreements, undercover infiltration of agents, and controlled investigative operations.
The result was a robust legal framework for the investigation of complex criminal structures.
As often happens in criminal law, however, mechanisms originally designed to confront violent criminal organizations gradually expanded beyond their initial purpose.
A Sensitive Point: Companies Are Also Structured Organizations
Modern companies are, by definition, structured organizations. They operate through divisions of labor, hierarchical decision-making processes, and multiple levels of responsibility. Corporate operations frequently involve consultants, intermediaries, service providers, and successive contractual relationships.
In other words, many legitimate corporate activities display precisely the structural characteristics used by the law to describe a criminal organization: organization, hierarchy, and functional division of tasks.
Within this context, legislative development did not remain confined to the fight against violent criminality that originally motivated these laws.
Over time, investigative tools designed to dismantle criminal gangs began to be used in investigations involving economic and corporate crimes.
Plea cooperation agreements, in particular, have become one of the principal mechanisms for producing evidence in investigations involving corruption, contractual fraud, and other unlawful practices connected to the corporate environment.
This development illustrates the spillover dynamic mentioned at the beginning of this article—a phenomenon that may also arise in current debates surrounding the proposed new legal framework for combating organized crime in Brazil, sometimes referred to as the Raul Jungmann Law.
A Timeless Warning
This situation is not entirely new. Long before the offense of participation in a criminal organization was formally defined, Brazilian criminal law faced a similar problem with the former offense of criminal conspiracy (quadrilha ou bando), provided in Article 288 of the Brazilian Penal Code. For many years it became relatively common for crimes committed by more than one person to be accompanied automatically by conspiracy charges.
This phenomenon was sharply criticized by Professor René Ariel Dotti in his classic article “Um bando de denúncias por quadrilha” (“A Gang of Indictments for Conspiracy”), published in the IBCCRIM Bulletin in 2007. In that piece, Dotti drew attention to a recurring conceptual mistake: not every situation involving multiple offenders constitutes a criminal association.
The warning remains relevant.
If the earlier risk was that any collective criminal conduct might be treated as conspiracy, contemporary criminal law now faces a similar challenge regarding the attribution of organized crime.
Structured groups have come to occupy a central role in the investigation of complex offenses—and this increasingly includes the corporate environment.
The corporate world itself operates through organized structures. Companies function through divisions of labor, decision-making chains, specialized roles, and multiple layers of responsibility.
Elements that are intrinsic to legitimate corporate organization may, in certain investigations, be analyzed through the same structural lens used by Law No. 12,850/2013 to characterize criminal organizations.
This reality should not necessarily be interpreted as a problem, but rather as an important trend in contemporary criminal law.
A clear example is Operation Car Wash (Lava Jato). It was in this context that the investigative tools provided by Law No. 12,850/2013—particularly plea cooperation agreements—were widely used in investigations involving executives of state-owned enterprises and major private corporations.
The historical pattern is evident: legal instruments originally designed to confront violent criminal organizations gradually became part of an investigative model aimed at uncovering complex illicit structures—including those operating within corporate environments.
Within this scenario, the legislative evolution that culminated in Law No. 12,850/2013 sends a clear message to the corporate world: companies must be prepared to demonstrate the integrity of their operations.
Compliance programs, governance mechanisms, internal controls, and corporate cultures oriented toward legality are no longer merely good administrative practices. They have become essential safeguards to ensure that legitimate corporate structures are not compromised by unlawful conduct that may arise within them.
The lesson remains the same one highlighted by René Ariel Dotti nearly two decades ago: not every organization is criminal.
In the contemporary legal environment, however, every organization must be prepared to demonstrate that it is not.
