Fernando Gabriel Zarabozo, NESA Alumnus
We live in emergency times. COVID-19 has upended our lives and it is difficult to foresee when, if ever, we will get back to “normal”. Not only have we established habits of social distancing and quarantine, but we have also witnessed some major economic repercussions. Authorities try to maintain order, promote the general welfare, and satisfy their citizens’ demands. Some states’ measures have certainly eroded our civil liberties and rights, but most have perceived these steps as necessary, even if undesirable.
In spite of these changes, the pandemic has had a positive effect regarding transparency, in that it has shown a spotlight on public policies and institutions that do not work properly. We have seen this play out in Argentine prisons.
In normal times, most of population does not care what happens inside jails and prisons. However, the impact of COVID-19 on the prison system has been a trending topic of late. Why now? First, there were mutinies[i] and rebellions in different prisons throughout the country. One of the most visible was the mutiny in Devoto, where Argentine inmates set fire to the prison in a coronavirus protest. This was a very visible protest because inmates were able to share cell phone recordings with the media and public.
Second, many criminal judges sent prisoners home for house-arrest, which generated a negative backlash over fears of public safety. Many considered the house-arrest decisions to have been motivated by fears of mutinies rather than factual considerations based in law.
Some citizens staged angry, pot-banging protests against the release of inmates from prisons.[ii] The noisy protests were a counter-reaction to political demands from NGOs, political parties, and relatives of prisoners to free inmates or put them on house arrest. In one high profile case, a released prisoner killed his ex-wife[iii]. The incident soon became a political issue, and similar cases have intensified debates about the merits of “house arrest” for prisoners.
I will attempt to simplify this complex problem. There are different reasons to justify why a person should be sent to prison. In law schools, faculty teach different theories about the objectives of prisons, including four main principles: incapacitation, deterrence, rehabilitation, and retribution.
There are extensive debates about whether those four objectives should be pursued in democratic societies. I will not analyze the merit of these positions in depth, because that would exceed the scope of this article. Personally, I think the first three objectives are legitimate to justify the existence of prisons in a rule of law system, but I can´t deny that the fourth objective is linked with the aspirations and desires of victims and their families. Is it right and legal to recognize the desires of victims to harm criminals that affected them?
Nevertheless, it is important reach a consensus about strategic objectives when we design a criminal justice policy. If we do not determine objectives in advance, we might end up with a lack of orientation when we implement a concrete public policy, and each public organization will seek different, and sometimes contradictory, ends and objectives. This is what has happened in the Argentinian penitentiary system. Different agencies do not follow any comprehensive strategic objective. Each agency has its own proposal to deal with perceived problems in prisons and there is no intra-agency or inter-agency coordination.
Each organization has its own sectoral objectives that are contradictory with the objectives of other agencies. Imagine a situation where there are problems and lack of coordination between the National Congress (creates the law), criminal judges (who enforce the current laws), prison agencies (which maintain the life, health and welfare of prisoners) and security forces (who put offenders in jails and prisons). The strategic objectives of the criminal justice system (fixed by the Supreme Court) are not followed by all members of these organizations (internal coordination), and even worse, not in line with prison agencies (external coordination). This lack of coordination is increased by different criteria of the institutions of national and provincial governments.
We see anarchy in many situations and contradictory responses in others. In this context, each actor tries to demonstrate a lack of compromise, waiting for the other agencies to solve this mess. Even worse, all agencies know that the prison system is in crisis (overcrowding, lack of food, corruption, lack of authority inside jails, and prisoners have access to forbidden goods and equipment).
While each agency has its own ends and objectives, it is important that they begin to find some coherency. There must be some national strategic objectives fixed and enforced by a superior authority.
Often, judges make rulings about issues they know little, thinking they will improve human rights standards and human welfare within prisons. Consequently, prison agencies perceive these kinds of decisions as undermining their authority and ability to maintain security inside prisons. Some judges’ arbitrary decisions, where they try to limit the authority of prison agencies, have negative consequences for the entire system. If judges erode their authority the gap is often filled by other actors, including criminal elements within the prison system. In Argentina, the weakness of prison authorities has been laid bare. In some prisons, inmates have cell phones, drugs, guns, and other forbidden objects that are introduced through corruption or relaxed security procedures.
Prisoners that have cell phones can coordinate actions between different criminal groups that operate outside, start mutinies, and coerce other prison officials, judges, prosecutors or members of the police. This situation has affected governability in prisons, and has increased rates of recidivism.
The Brazilian case is one of the most extreme examples where criminal organizations essentially rule the prison system.[iv] The PCC (Primer Comando de la Capital) is the most well-known case in Brazil, and Argentina must take proactive steps to avoid this scenario.
The decision by the government to negotiate with prisoners that started recent Covid-related mutinies was a big mistake and has set a bad precedent. Negotiations between judges and prison authorities, on the one hand, and prisoners that controlled recent mutinies, on the other, have showed the authorities as weak. It has signaled to inmates that they can impose conditions within prisons.
It is fair to note that the conditions in many Argentinian prisons are quite bad, including overcrowding, lack of food and sanitation services, lack of resocialization programs, and reduced opportunities for work (such as construction, cleaning and maintenance, etc.) – factors which are critical to improve the well-being of prisoners.
Another element we need to understand is the coordination between prisoners and other political actors, who act as agents of pressure on the system. Some political actors have asked for reduced sentences or liberation for those prosecuted for corruption, such as Julio De Vido, Amado Boudou, Luis Delía and Milagro Sala, by calling them political prisoners,[v] and in some cases judges have acquiesced.[vi] As a result, other prisoners have realized that they can get house arrest or even freed if they organize and coordinate with other actors (judges, lawyers, and politicians).[vii]
Despite this difficult scenario, I propose some suggestions to reverse this crisis:
1). Officials with responsibility over prisons must get a better understanding of the current reality, doing what is necessary to gain a complete picture of the situation through interviews and intelligence activities.
2). We must define the strategic objectives of the prison system at the national level, and those objectives must be mandated upon all organizations in the public and private sector and at national and local levels.
3). The derivative local and sectorial organizations much define strategic objectives, analyze the compatibility between and inside each organization, and compare with the objectives of other organizations. This is an important step to avoid contradiction and incoherence.
4). The criminal justice system should not forget the implications of its decisions on public security.
5). The criminal justice system should consider the implications of its decisions on victims and their families.
6). Prison reform should be guided by the aforementioned fundamentals of criminal law regarding incarceration – incapacitation, deterrence, rehabilitation, and retribution.
Argentinian Society – like much of Latin America – has a decades-old problem with prisons. We have a lot of issues that we must attend to, and we must understand that prisons are an essential part of our national security.
We cannot improve our security if we do not make needed reforms of the prison and criminal justice system. This includes doing a better job with prisoners in terms of their well-being inside prisons, as well as their re-socialization in order to reduce recidivism. All improvements we can make inside the prison system will be an essential step toward improving our security policies and objectives.
[v] All were the highest Official that integrated Governments between 2003-2007 and 2015-2019.
[vi] Amado Boudu house arrest, https://www.infobae.com/politica/2020/04/06/le-otorgaron-la-prision-domiciliaria-a-amado-boudou/
Julio De Vido liberation, https://www.infobae.com/politica/2020/03/04/la-justicia-ordeno-la-liberacion-de-julio-de-vido/