The crossroads of penitentiary policies in Latin America

Due to the increase in violence in several Latin American countries, the response of governments has been to toughen criminal justice systems and increase penalties. This is due to political systems adopting the banner of populist legislative initiatives as a legitimization strategy, which has resulted in steadily increasing prison population rates over the last decades. In this way, models based on the imprisonment and neutralization of the individual in prisons are reproduced, such as Nayib Bukele’s model which has 2% of El Salvador’s population behind bars.

There is currently a dialectic disjunctive about prison systems, between the resocializing models and those based on the limitation of human rights and the punishment of persons deprived of liberty. Given this duality, there are a number of fundamental elements that must be considered when creating a penitentiary policy that promotes reintegration, the protection of society, and the reduction of criminal recidivism, as established by the UN Standard Minimum Rules for the Treatment of Prisoners, which are known since 2015 as the Nelson Mandela Rules (Rule 4).

In Latin America, when visiting different prisons, it can be seen that in practically all countries there is evidence of abuse and violation of the rights that guarantee a dignified life for people in prison. Overcrowding in prison facilities is due to a combination of several elements, including a justice system that for decades has favored the use of custodial sentences over other existing options.

In 2022, I was part of the group that prepared the report on reducing reoffending for the United Nations Commission on Crime Prevention and Criminal Justice. The report contains the conclusions and recommendations of the expert group meeting on the Criminal Justice System, which took place at the beginning of the year and in which specialists, academics, judges, and prison system operators from all regions of the world collaborated by presenting experiences and evaluating promising practices and their results.  

What are the key issues to consider when identifying measures to reduce recidivism and what strategies should we use to develop evidence-based prison policy? These options can be provided as a practical and flexible strategy, rather than a prescriptive one, in the context of each nation’s specific circumstances, and be considered as alternatives for crime prevention and criminal justice.

In general terms, the conclusions mention efforts to reduce recidivism based on “a comprehensive and multisectoral approach that includes not only measures within the criminal justice system but also measures external to it”. It is imperative, with a view to reducing reoffending, to “address the societal root of offending, such as poverty, social inequalities, and discrimination, including those related to gender.”

In relation to the criminal justice system, the effective use of non-custodial measures, sentencing policies, prison treatment, effective rehabilitation, and social reintegration programs are key to reducing reoffending. The development of “restorative justice programs for reducing reoffending, both as a diversionary measure and as an alternative or complement to existing criminal justice interventions at all stages of the criminal justice process” is also key.

The lack of penitentiary policies based on empirical evidence, the use of models based exclusively on imprisonment and extreme punishment, the extension and prolongation of sentences, the elimination of due process during imprisonment, and the supplanting of authentic accountability systems have been the characteristics of most prison systems in the region.

Therefore, beyond these measures, and the need to protect the prison system and its administration from corruption and opportunism, there is a need to foster political commitment and new strategies for inter-institutional cooperation between the prison administration and external agencies.

The objective is to reduce the discursive use of reintegration models and to foster a commitment to carry out a real transformation of prison systems. Increasing inequity in the exercise of rights in prisons has caused and exacerbated the increase in violence for years, which can only be overcome by applying the principles of the rule of law in the daily life of prisons.

“A Nation should not be judged by how it treats its highest citizens, but its lowest ones” Nelson Mandela

*Translated from Spanish by Janaína Ruviaro da Silva

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