It is with great pleasure that the blog receives another post from one of our recurring visitors, the Professor Walter Carnielli, from the Logic Center at Unicamp. The lawyer and philosopher also signs the text Pedro CarrasqueiraPhD student under the supervision of Professor Walter.
Didactically, based on the award-winning allegations of Lava Jato, the two explain how the so-called prisoner’s dilemma works, one of the foundations of game theory, with applications in the most different areas, from economics to psychology, passing through evolutionary biology. Good reading!
The use of plea bargains in the Lava Jato operation according to game theory
Walter Carmielli and Pedro Carrasqueira
The whistleblower and collaboration awarded, with the exception of minor technical differences between these notions, consist of the possibility that the investigated in crimes involving a gang or criminal organization helps in some way in the production of evidence, in exchange for benefits such as the reduction of the sentence or even the pardon. court for the crimes committed by him.
Regulated more broadly by law 12,850/2013 — the organized crime law —, the award-winning collaboration institute was heavily criticized in Brazil for its unrestricted use in the Lava Jato operation, especially by political sectors of society. However, some jurists are also critical of him, who understand collaboration as an immoral form of criminal prosecution (“premium betrayal”, in Tourinho Filho’s expression), and its presence in the legal system as a confession of the State’s incompetence in the fight against crime.
From the perspective of game theory — the mathematical theory of decision-making in situations of conflict of interest —, however, whistleblowing and rewarded collaboration are justified because they are the legal instruments to implement the famous prisoner’s dilemma game.
The prisoner’s dilemma is a decision-making paradox that exemplifies a conflict in which individuals, if they make perfectly rational choices, will thwart their own interests and arrive at a resolution that is not optimal (i.e., far from ideal) for them. any of those involved. This paradox was first proposed by mathematicians M. Flood and M. Dresher in 1950, and its modern interpretation elaborated by Canadian mathematician AW Tucker.
It should be noted, however, that Plato, in his work “Republic”, makes use of what we can recognize today as being essentially the version of this game with any finite number of players greater than or equal to two for the argument that, in society, it is better to be unjust than just.
In its two-player form, the prisoner’s dilemma consists of the following situation. Two investigated are suspected of having committed a serious crime in collusion. Police authorities, however, only have enough evidence to incriminate them for a minor offence. Each of them is then offered, separately, the opportunity to denounce the other in exchange for a pardon for the lesser crime.
If one of them decides to betray his partner but the other does not, the one who betrays will go free, and the other will be prosecuted (and almost certainly convicted) for both crimes. If they decide to rat on each other, they will both face charges for the most serious offence. If, however, they choose not to cooperate with the authorities, they will spend relatively little time in prison.
the real dilemma
Despite the name by which it is known, for the prisoners themselves the dilemma is not a dilemma at all, because, assuming that each of them prefers to spend as little time as possible in prison, there is no doubt about what is the best thing to do: inform on the partner. it is always what will guarantee him the least possible penalty, both in the case of the other also denouncing him, as in the case of not denouncing him.
The dilemma in fact lies in that, if both of them act rationally in this way, then they will certainly be convicted of the most serious crime and will suffer the most severe punishment, while, if neither of them reported it, it is more likely that they would be incarcerated for a short time. Because the investigated prefers to spend as little time as possible in prison, no matter what action the partner chooses, it is better to report. In game theory, it is said that snitching is a dominant strategy.
An important and often misunderstood aspect of the prisoner’s dilemma is that it is irrelevant to the defendants’ choice that there be an agreement between them not to betray each other. This is because they make the choice to denounce or not without knowing whether the others will in fact fulfill the promise, and because every accused finds in the possibility of not being arrested, or at least having his sentence attenuated, an incentive to not fulfill it.
That is why, when properly applied, the institutes of whistleblowing and plea bargaining are efficient instruments of criminal prosecution: because, by creating situations such as the prisoner’s dilemma, accused are by these means led to collaborate in the public interest without , however, necessarily having any intention of doing so, but rather acting in self-interest in a calculated manner, for fear of being themselves betrayed by their associates.
For the situation of the person being investigated for a crime involving a criminal organization to be in fact like that of one of the prisoners in the dilemma, however, two things are fundamental. The first is that the threat of conviction for at least one crime is credible; the second, that the duration of the expected incarceration, resulting from the possible convictions, is long enough to make any benefits that the investigated person believes he may obtain by not reporting appear insignificant.
From the perspective of game theory, therefore, the insufficiency of independent investigations prior to any whistleblowing, as well as the sluggishness of the Brazilian Judiciary and the brief sentences that, in the worst case, await those convicted of white-collar crimes in Brazil, explain much of the little effectiveness observed by some in the use of these legal institutions in the Lava Jato operation.
