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

Chapter Eight: Criminal Process Reform and Citizen Security

c ha p t e r e i g h t Criminal Process Reform and Citizen Security luis pásara Wherever the rule of law reigns supreme, a high level of rule compliance provides the backbone of citizen security both objectively (respect for the rights of others does in fact grant citizens more security) and subjectively (people derive a sense of personal safety when rules are obeyed). But if a society disregards rules, and if such disrespect coexists with high levels of impunity, the state (the entity presumed to have a monopoly on the use of force) fails to guarantee citizen security objectively and, what is more, as citizens realize how widespread are impunity and the breaking of rules, subjective insecurity increases too. Thus, citizen security is linked to the relationship between punitive action and impunity. Given that where people obey rules there is a repressive apparatus to punish violators with some efficiency, people tend to believe that when people ignore rules, all that needs doing is to make punitive mechanisms more efficient. Thus, the problem of flouting rules or violating laws is shifted to the judicial arena, which “common sense” tells us is in the best position to promote rule enforcement, as the hypothetical enforcer of the rule of law and therefore a decisive factor in citizen security. 203 204 Luis Pásara In Latin America, crime levels are rising in a context where the rule of law is imperfect at best, and rights and duties are very imperfectly enforced . The reform of criminal proceedings, reforma procesal penal, or RPP, has been proposed as the most efficient way to deal with the resulting citizen insecurity. Most countries of the region are debating, have passed, or are implementing such a reform. Rather than evaluate the results obtained thus far (already started by Riego 2002; Baytelman 2002; Riego and Santelices 2003; J. E. Vargas 2005; Riego 2007), the question addressed in this chapter is whether or not changes in the criminal trial system can decisively increase levels of citizen security, or whether the state needs other, better instruments to achieve this goal. The main argument made here is that there is no evidence to answer the first question positively. Indeed, when RPP is seen as a variable that can decisively influence criminality, a conceptual error is being made; further, given a series of peculiarities of the most recent RPP, as many or more cases are never tried (or punished) as were left without punishment under the old system. Despite this negative view, there is no denying that RPP has brought about some positive changes, namely the speedier processing of cases and their resolution (albeit of a minority) within the system ;1 and the provision of a set of guarantees that, even though enacted long ago, are now more likely to be enforced, and that offer the accused a clearer understanding of their rights and how to defend them. However , these important improvements are not related causally with fighting crime, and they certainly do not contribute to improving objective citizen security.2 This chapter is divided into three parts. The first examines the relationship between criminality and justice. The second highlights the main points of RPP and examines some studies evaluating it. And the third focuses on the key question of how reforms in the criminal justice system may contribute to citizen security. CRIME, LAW, RULE OF LAW, AND THE JUSTICE APPARATUS In Latin American, there is a widespread belief that there is a causal relationship between norms and reality, even though experience belies this. Thus, people assume that when a law or a regulation changes, there will Criminal Process Reform and Citizen Security 205 be a corresponding change in reality (Pásara 2004, 530). In terms of criminal law, this translates into the view that the harsher the penalty established by law, the less inclined individuals will be to disobey the law; and moreover, the more efficacious the punishment, the lower the incidence of criminal conduct. It is hard to disagree that increasing the enforcement of punishment increases the cost of disobedience; but it is less clear that such an increase, in and of itself, results in less crime. Let us examine this assertion more closely. Increased instances of punishment alone do not have any discernable effect if the coercive system does not make provisions for people to obey legal norms. There is an aspect of the coercive system...