4. nov., 2022

The failure of criminal policy in the Americas.

“The social gap is progressively increasing 
throughout the world. And the prisons
are in the deepest of that abyss”
(Víctor H. Almanza)

The United States of America, a natural benchmark for the entire continent, even in criminal legislation, occupies the first place in the shameful ranking of countries with the largest number of persons deprived of liberty (IACHR, 2008), with more than two million inmates, that is, a rate of around 665 prisoners for every one hundred thousand inhabitants.

It is closely followed by the small republic of El Salvador, which despite having a population 50 times smaller than the US, and being the smallest country in the Americas, by the beginning of 2021 had 39,274 incarcerated people, according to the World Prison Brief report (WPB, 2022).

The social dynamics created by the effect of prisionalization, social exclusion, stigmatization and the lack of serious and consistent state policies for the return of persons deprived of liberty, are causing an exponential increase in recidivism, encouraged not only by the dangerous trend of national policies, but also due to the absence of efficient administration of jails and penitentiaries throughout the continent.

Currently, the criminal offender is subjected to a system that has mutated from the legal-ideal, towards a monster with a thousand heads dominated by the same crime that it seeks to correct.  For the legislators of each nation, it should be clear that the purpose of the sentence are the ideal goals that they seek to achieve through its imposition. These are, at least ideally: fair retribution for society and for the victim, general prevention, the rehabilitation of those convicted, and the commitment to non-repetition.

Analysing each of these points separately, we will understand that the failure of the modern prison system is integral. It is evident that interning a human being in a prison in which, in exchange for money, they can live better than on the street, not only does it not contribute to the comprehensive reparation of the victim, but it also contributes to the corruption of the state, increases social violence, overloads the entities in charge of custody, raises the costs of system sustainability, collapses the judicial system and motivates the prison subculture, a source of corruption, recruitment of new generations of criminals and the affectation of the value scales of human being.

The rates of recidivism of people deprived of liberty rise dramatically in relation to the length of sentences. At the same time, recent studies reveal that prisons are the institutions with the least investment in social and citizen security projects throughout the continent, as stated by Geoff Thale, in his publication “WOLA and IDB Release most comprehensive study to date on international Aid for citizen Security in Central America” (WOLA, 2011).

With regard to the so-called "moral and social lesson", on which the prison system is based, is simply not being achieved. Far from it, the victims are subject to threats, new attacks and intimidation by those who are reported to the authorities, in such a way that the prison becomes, as has always been colloquially mentioned, the "University of Crime".

Regarding prevention, the legislation, the governments and obviously the society, hope that the sentence, being perceived as a misfortune or evil for the individual, intimidates people so that the members of the social conglomerate do not commit crimes. So why does crime increase exponentially in the countries that have the largest number of people in their prisons? It is enough for us to quickly reflect on two specific and almost typical types of crime in the United States of America: school shootings and armed robberies. How is it possible that, despite having such harsh and fast legislation against offenders who commit this type of crime, the cases not only increase but multiply in an uncontrolled manner throughout the country? The answer is very simple, the criminal no longer fears prison.

And if the criminal does not fear punishment, what can we expect from the rest of society? Perhaps we will find the answer in the many examples of songs, movies, and television series, in which the criminal who reigns in prison is glorified, and after leaving prison, takes revenge or leads a much larger and more powerful gang than the one he had before. This type of shameless "promotion" by the media makes that not only the offender not fear being imprisoned, but even worse, that he seeks to be interned, in order to "enrich" his resume against criminal organizations.

Prevention then becomes absolutely ineffective. Mariano Ambrosio Aurazo, in his article “Why is our society more violent every day?" (Aurazo, 2016), draws attention to the psychological nature of violence, promoted either by state policies, through wars, coups, or by the media through videos, movies, and series that extol violence as a fundamental element of justice and equity, or for society itself, which is becoming increasingly exclusive and radical, causing tribal confrontations and the birth of marginalized ghettos who see violence as a vehicle of social retaliation against the powerful or better-favoured classes.

Today no one fears jail. Either because the criminal knows that in the end the same State that represses creates a multitude of tools and escape routes to the sentences imposed, or because he simply belongs to groups and power structures that will never be prosecuted, and that, in the worst case, will a prison where they will bring everyone to their knees, including their guards, with their money and their political or armed influence.

In the jail and penitentiary system, it is then materially impossible to develop programs that actually achieve the goals of prevention and thoroughly attack recidivism.The resocialization processes, which basically constitute educational, training and labour projects that should be the general line of the entire penitentiary system, without being insufficient or applied incorrectly, based solely on the fulfilment of statistical goals, due to the overpopulation that affects the prisons throughout the region, with occupancy rates that vary from around 110% in Chile and Uruguay to 350% in Central America, as stated by Gustavo Fondevila, a professor at the Center for Economic Research and Teaching in Mexico and a specialist in the Latin American prison system (Fondevilla, 2021).

Prevention is blurred between short-term corrective measures that require constant investment due to the terrible conditions of prison buildings and facilities, the scarcity, or almost absence, of basic public services, work overload and the terrible working conditions of prison officers, which ultimately causes prisons to be literally warehouses of humans with no defined social purpose. As a consequence of the sum of the two previous factors, the last of the objectives of the sentence, that is, the rehabilitation of the offender of the law, is an expected product but impossible to achieve. As for judicial processes, the abuse of preventive detention is a phenomenon that is closely related to the general failure of the prison system, at least as far as the American continent is concerned. In Colombia, for example, in those in the legal profession, there is a phrase that says: “In the judicial system no person is denied jail”, which reflects the way justice is administered in that country.

In Central and South America, it is very common to see people deprived of liberty preventively, forcing them to suffer prison rigor throughout the trial period and not when they are convicted, as it should be within the concept of legal logic (IACHR, 2013). This disastrous practice accumulates people in prisons that saturate penitentiary services, reduces the chances of be include in an occupational activity for those convicted, what require the investment of significant resources in their support and prevent the development of plans truly focused on the rehabilitation of criminal offenders.

But then, what must be done to solve this critical situation, fulfilling the purposes of the sentence, obeying the judicial sentences and above all, complying with general prevention? For a long time, the ghost of criminal alternatives has haunted the corridors of justice.

The government of the United States and the government of Colombia recently signed an agreement to implement a criminal alternative pilot project, which offers the opportunity to persons deprived of their liberty who meet the profile of the program, to pay, through tasks that represent a real social effect, the penalties imposed by the judges (Minjusticia, 2021).

However, as evidenced by Rodolfo Alfonso Torregrosa Jiménez, in his "Comments on the Law of Criminal Alternatives in Colombia from international law" (Torregrosa, 2020), in Latin America there is a negative phenomenon that tends to confuse alternatives with impunity. Therefore, more research and legislation is required in this regard, to overcome the preventions and shield the processes, systematically questioned by public opinion due to the already innumerable cases of corruption, which are constantly discovered.

Currently, when a person face a legal problem, regardless of the national context in which it is carried out, is normally sent to jail while waiting to obtain the definition of their legal status. The person have to remain in that place of nightmare in which, as has been known for a long time, is controlled behind bars, by mafias and organized criminal structures, which are the ones who impose social conduct, the rules of coexistence and subjugation, and the costs that the individual must assume in addition to the misfortune of being deprived of liberty.

On the other hand, the plan of occupational activities, which among other things, are designed by central offices that are unaware of the prison reality, do not offer coverage or effect for all prisoners.

In addition, due to overcrowding and the shortage of correctional officers, these programs are designed, more to distract the individual and not to transform him. It is programmed to the fulfilment of bureaucratic goals and not to the reconstruction of human beings with a view to re-entering them to society with the true intention of non-repetition.

Cells packed with human beings take on more value in times of overcrowding. Access to water, electricity or hot food, become costly privileges beyond the reach of the popular masses. The great criminals, those who embezzle the public treasury, steal from society or cause great massacres, are the kings of this dark and chaotic world that prisons are. And what about the visits, the possibility of buying basic necessities, or at least having the right not to sleep outdoors, constitute luxuries of great monetary value.

The proposal for a solution to this generalized failure, from the penitentiary reality, is very simple and does not even imply large investments of economic resources on the part of the governments:

  1. Purge the laws and regulations that control the mandatory imprisonment and mainly preventive detention as a preferential measure over other types of less restrictive actions.
  2. Eliminate the prevailing punitive populism throughout the world, which leads to legislation from the microphones and not from the thorough analysis of the social, criminal and prison reality of each state.
  3. Profile the inmate professionally and methodically from the moment he enters a prison, in order to guide his rehabilitation efficiently.
  4. Establish effective and efficient measurement and follow-up instruments so that the convicted advance in effective, real and contextualized social re-education programs in their daily lives, considering their cultural, ethnic, family and social contexts.
  5. Engage the convicted person to physical work activities, such as agricultural programs, maintenance of green areas, street cleaning, rehabilitation of parks, etc. That they require the criminal offender to invest their constant physical effort, within international human rights standards, as part of the punishment and the real burden of the criminal sanction.
  6. Engage the convicted person to educational activities simultaneously, appropriate to the educational profile of each one, so that all the available time of the subject be used in positive activities that require a level of dedication that makes him reconsider ever returning to the prison.
  7. Carry out quarterly evaluations of the prisoner's performance, in order to adapt constantly the resocialization processes, aiming at their productive return to society.
  8. Separate repeat offenders from those who enter the system for the first time, in order to avoid socialization with criminal gangs and long-standing criminal structures.
  9. Guarantee, through the improvement of working conditions, education and severe legislation, that the guards fulfil their mission, staying away from the personal processes of the prisoners, who must be guided by professionals, in psychology, occupational activities and in education.
  10. Guarantee the conditions of fairness, equality, respect for Human Rights, access to justice, due process, visits, habitability and respect for the dignity that corresponds to them as persons subject to a criminal sanction.

In conclusion, and sharing what was exposed by Dr. Hernán Griboldi Ciprian Nieves, the repressive and reactive tendencies of the criminal policy of the States (Ciprian, unimilitar.edu.co, 2015), do not really protect the constitutional right.

In addition, the principle of exceptionality of preventive detention has been losing ground and therefore it is necessary to thoroughly review the issue, in order to reduce the cases in which the precautionary measure of prison internment is the only admissible, promoting the application of the multiple alternative resources to incarceration, available in the constitutional and criminal systems of the States, thus contributing to the so-called decreasing balance of the prison system (Diaz & Diaz, 2019). Besides, design practical plans of occupational activities for inmates framed in the reality of the jail and penitentiary system, which respond to social need and not immediacy, allowing to profile the person who is deprived of liberty from the first moment of their internment with the firm intention of transforming their scale of values.

But for this, true-political-will is required from governments to find the most practical formula to transform the criminal factories that prisons have become, into corrective and constructive institutions that, at least from the theory of law, should be establishments that are feared by the criminal, recognized by society, managed by professionals with a high social sense and watched by ethical guardians who respect Human Rights.