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1 Criminal Justice Reform: Human Rights, Crime Control, and Other Unlikely Bedfellows
- Penn State University Press
- Chapter
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1. See Llobet (1993), Maier et al. (1993), Baytelman (2002), Correa (1999). The province of Córdoba, Argentina, enacted a criminal procedures code in 1939, which is regarded as the Wrst step in the regional reform process. 2. Correa (1999) gives a good overview. See also Hammergren (1998a, 1998e), Popkin (2000), Spence and Vickers (1994), Spence et al. (1995), and Washington OfWce on Latin America (1990). 3. Alvarez (1992) and Bipartisan National Commission on Central America (1984). Criminal justice was the target for the Wrst Latin American judicial reforms, and for many it remains the main act. Implementation of the reforms that began in the mid-1980s continues to this day. Their early emergence is explained by the conjunction of several factors. First was the longer-term interest among Latin American jurists in effecting a change to more accusatory criminal justice proceedings, following trends in Europe and some earlier initiatives in Latin America itself.1 Second was the region’s emergence from a period of authoritarian governments during which its judicial systems had generally deteriorated in quality because of political interference and chronic underfunding.2 Finally, there was the interest on the part of donors and local and international nongovernmental organizations (ngos) in the human rights implications of criminal justice and in the presumed role of the judiciaries in strengthening democratic governance.3 Judicial weaknesses clearly extended beyond the criminal justice area, but this was where external manipulation, political dependence, and a series of traditional vices had the most visible impact on citizen well-being. Political intervention could hardly be blamed on the legal tradition. Local reformers, however, believed this and many other Xaws were closely tied to procedural requirements. The claims are debatable. That made little difference to their effect on policy. It may have had considerable impact on the subsequent outcomes of the programs. Criminal justice may not seem the most logical place to initiate a review of Latin American judicial reform efforts. Its placement here follows its historical lead. In this chapter, we review the situation prior to the reforms and its impact on shaping them, the evolution of the programs over time, their achievements, and the variety of preferences and prejudices (mental models or strategic paradigms) that have tended to impede progress in reaching the presumed goals. I say “presumed” because aside from the uncomfortable juxtaposition of the two principal objectives ONE criminal justice reform: human rights, crime control, and other unlikely bedfellows (reducing human rights abuses and enhancing crime control), the reforms demonstrate a certain substitution of means for ends. Rather than being equated with the production of these downstream impacts, success is often measured by the extent to which new procedures are adopted. Criminal justice is not the only partial reform where such strategic shortcuts have confused the issue of what would constitute success. It is, however, a very good example of these characteristics, for which reason they are discussed in more depth in this section. the status quo ante and its influence on reform goals and design Reform is often a reactive undertaking. Its proponents are attempting to eliminate weaknesses in existing practices, often with far less clarity as to what they will substitute . Much of the Latin American judicial reform movement can be interpreted in this fashion. Reactive reform is not necessarily a bad approach; the few examples of proactive reform (for example, modernization) in which proponents were clearer about the solutions than about the problems have faced their own setbacks. Nonetheless, it is virtually impossible to understand Latin America’s criminal justice programs without taking the status quo ante into account—for which reason the following brief summary is provided. There can be little debate as to the largely unsatisfactory nature of the region’s criminal justice systems over time, and especially from the mid-twentieth century. Although the situation has been attributed to their inquisitorial nature, other special circumstances may be more important. Latin America’s inquisitorial criminal procedures had been inherited from Spain and Portugal during the colonial period. Early independence (in the 1820s4 ) meant that their subsequent development continued on its own track, largely unaffected by new trends in continental Europe. This, combined with the socioeconomic environment, led to a certain distortion of the basic model. The criminal justice systems found throughout Latin America in the late twentieth century demonstrated a variety of Xaws. Many of their characteristic practices, however, would have looked odd by twentieth- or even nineteenthcentury European standards. In fact, some scholars argue that they...