Criminality, Public Security, and the Challenge to Democracy in Latin America

Chapter Nine: Latin America’s Prisons: A Crisis of Criminal Policy and Democratic Rule

c ha p t e r n i n e Latin America’s Prisons A Crisis of Criminal Policy and Democratic Rule mark ungar & ana laura magaloni Latin America’s prison populations are swelling to record levels. The increase reflects the weakness rather than the strengths of the region’s efforts to impose law and order. Most of all, conditions in the penitentiary systems of the region provide evidence that patterns of discrimination are entrenched, criminal justice systems are in disarray, and tolerance of human rights abuse is an ongoing reality. Killings, overcrowding, disease , torture, hunger, corruption, and the abuse of due process that occur under the twenty-four-hour watch of the state belie the principles underlying contemporary Latin American democracy. Even the measures being adopted to improve prison conditions, such as reformed criminal codes and new conditional release laws, are undermined by inconsistent and ineffective policy, slow judicial processes, and, above all, a rising crime rate that fuels arrests, prolonged preventative detention, and incarceration (see the chapters by Pásara and Restrepo in this volume). 223 224 Mark Ungar & Ana Laura Magaloni Various national and international organizations have documented and condemned the state of Latin America’s prisons, issuing specific recommendations for improvements. But there are few studies that have explored the underlying causes of the ongoing deterioration of Latin American prisons, even as they are the object of growing attention. The argument presented here is that the penitentiary crisis is steeped in political dynamics and institutional practices that are very difficult to alter. This view is expounded over five sections: the first three provide a general overview of the situation of Latin America’s prisons, describing overcrowding, the extent of violence, and food and health deprivations, followed by a description of the institutional structure of prisons to identify the primary deficiencies in policy and administration. Section four consists of a case study of the type of offenders the system imprisons, with a focus on the Mexican penitentiary system (the one about which there is most information). The criminological and socioeconomic profile of inmates is outlined, and the efficacy of due process standards in the criminal justice system is examined. With some caveats, the conclusion drawn from this case study applies to most other penitentiary systems in the region, and we hope our work inspires further scrutiny of prison systems in other countries. The final section examines the applicability in Latin America of the usual kind of justifications offered for penitentiary systems. OVERCROWDING AND VIOLENCE Latin American incarceration rates rose sharply after the early 1990s, as shown by table 9.1. Increases began in the 1980s, but shot up in the following decade. Every Latin American country has overcrowded prisons, following an overall increase in prison population of 79 percent over the past decade.1 Twenty countries have reached a critical level of over 120 percent occupation rates.2 The regional average of 161 prisoners per 100,000 inhabitants is comparable to the average rate in Africa (188 per 100,000) and central-eastern Europe (184 per 100,000), but far higher than that for North America, Oceania, and Western Europe.3 Less than 15 percent of this growth is attributable to population increases—the remaining increase is primarily the result of resorting more frequently to incarceration as a response Table 9.1 Latin America’s Prison Population Population1 Increase (Reported Per since Overcapacity3 Unsentenced4 Country Year) 100,000 1992 (%) 2 (%) (%) Argentina5 56,313 (2002) 148 134 Prov. av. 40 Av. 70 Bolivia6 7,207 (2005) 76 Est. 33 62* 75 Brazil7† 330,642 (2004) 183 145 State av. 81* 45 Chile8 36,374 (2004) 212 58 47*–50 51 Colombia9 68,545 (2004) 152 102 39 43 Costa Rica10 7,619 (2004) 19 114 28*–67 Moderate Cuba11 55,000 (2003) 487 n/a Aprox. 175 Moderate D. Republic† 13,836 (2004) 157 28 156*–215 74 Ecuador† 13,045 (0000) 100 63 40–43 Severe El Salvador12 12,117 (2004) 184 113 7*–35 75+ Guatemala13 8,307 (2003) 69 n/a 13 62 Honduras14 11,236 (2004) 158 97 109* 90 Mexico† 191,890 (2004) 182 109 State av. 33 Varies by state Nicaragua15† 5,610 (2004) 100 n/a 13* 17 Panama16 10,630 (2003) 354 120 51*–212 Moderate Paraguay17 4,088 (1999) 75 n/a 24*–26 80-90 % Peru18 32,129 (2004) 114 85 41* 55 Uruguay19 7,100 (2003) 209...