The use of this strong expression, which continues to generate noise in the Fla-Flu that the Brazilian political scene has become, deserves closer examination. To be very clear, the truth is that the bribery schemes investigated by Lava Jato can be a lot of things—but calling them “organization” doesn't seem right. There is a subtle error in the use of this term that is worth analyzing.

Italian criminologists Della Porta and Vannucci demonstrate that, for a corruption scheme to work, when it involves many parties and large amounts of money, corruption must be systemic. Systemic corruption has two main characteristics. First, there must be clear rules of the game respected by everyone involved. Rules, for example, stating that once the amount of the tuition fee has been agreed, the “service provider” delivers exactly what was promised at the agreed price. Another fundamental rule is the obligation of secrecy, to never talk about the transaction and never to deduct those involved. This second characteristic shows the existence of a “governance” system to ensure compliance with the rules.

In terms of organizational dynamics, they are nothing more and nothing less than the two pillars of organized crime itself. The obligation of secrecy is the bond of cohesion of those involved, of mutual commitment — called a “tight ass” in Brazil. To join the group, a new member must let their butt be tied to those of the other confreres.

In the Sicilian Mafia, the archetype of organized crime, this process has a name, Omerta. The novice, to be accepted as a full member of the family, must commit murder. That way, he is committed. Not only him: each participant is equally committed to the others. Each individual has information that could incriminate others. If everyone is quiet, everyone is protected. If you open your mouth, everyone becomes vulnerable — and the house can fall down.

The other pillar is the counterpart to the first. Every criminal organization has a mechanism to keep those involved in line, which in practice involves the ability to threaten and intimidate the potential violator of the rules, applying physical violence if and when necessary.

In Brazil, this part is known as “file burning”. However, here, this concept is more restricted and originates from the dictatorship, when it referred to the elimination of evidence. In a criminal organization, the destruction of compromising evidence is only one aspect, and not the most basic, of its modus operandi. In it, the most important is to ensure compliance with obligations, the most fundamental of which is to shut up. This implies sending a clear message to potential dissidents, warning them what will happen to them if they transgress.

Disorganized Crime

Looking through the prism of these concepts, the corruption scheme investigated by Lava Jato represents the pinnacle of disorganized crime. To begin with, there were no clear rules - and the rules that existed were not always enforced. Those paying bribes were not sure that the agreement would be honored. The so-called “lobbyists” and other intermediaries offered to resolve situations, gladly accepted the money - and did not always deliver the service. Or they asked for more money, and sometimes they still didn't give what they promised. Worse, some demanded bribes in the face of it, with no offer in return and under threat of harming the payer. That is, pure extortion. This was because there was no one to subscribe to the transactions - that is, to ensure compliance with the rules.

What can be seen now, with some perspective, is that the schemes clarified by Lava Jato were a mixture of gluttony, Gerson's Law and the most immaculate sense of impunity. Those who paid bribes accepted their role as a victim and a sucker.

When Car Wash began, using preventive detention to force a prize-winning plea, based on the Italian model of Operation Clean Hands, the deburing activity snowballed, exceeding all the expectations of the prosecutors.

It was nothing more than the old prisoner's dilemma game. In it, two inmates are placed in separate cells. If the two of them are quiet, they are both saved. The purpose of the captors is to convince at least one of them that his colleague opened his mouth. If he believes this, he must also speak up to save himself or, at least, to mitigate his situation.

To use one of those metaphors from a mob movie, in the Lava Jato case, the complaint goes wild because there isn't a team of tough gangsters to send a simple message — “shut up or you — or your family — will be killed”. Of course, this is only metaphorical - but, as we have seen, the existence of some kind of control through threats is a sine qua non condition for setting up a criminal organization

Calling fraud schemes involving Petrobras, politicians, contractors, advertising agencies, and other various actors “organized crime” is therefore almost offensive to “institutions” such as the “organized” mafia. Perhaps the closest criminal model to what occurred in Brazil is that of gangs, in which anything goes. Or, if you want to stick to terminology close to that chosen by MPF prosecutors, the expression “criminal disorganization” is well suited.

Whatever the choice of words, this demonstrates that the situation is even more frightening than one that would be translated as an “organization”. In this one, at least, there are rules, that is, some kind of limit. Not everything goes, no.

*Postgraduate lawyer in Economic Law from Yale Law School and Master in International Law from Cambridge, Barry Wolfe is director of Wolfe Associates (www.wolfe.com.br), a consultancy in preventive compliance, risk assessment and corporate fraud investigation.

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