Latin America and the Caribbean (LAC) has made important progress in strengthening the rule of law, however, as I mentioned in an earlier post, we continue to lag behind when compared to high-income countries, such as those of Western Europe. We understand the rule of law as the neutral and anonymous application of rule, where those who apply them are also subject to them. There are different ways in which the rule of law can deteriorate. One of these is the unequal access to justice, since this is a basic service to which everyone must have access in an expeditious manner. Justice that is delay, becomes, actually, injustice.

This #GraphForThought focuses on the number of people who are in prison without a conviction, in Latin America and the Caribbean. Why does excessive use of pre-trial detention or a slow resolution of a person's legal situation undermine the rule of law? Basically, for three reasons: it undermines the presumption of innocence[1], it can encourage corruption and, finally, it can promote criminality. Pretrial detention significantly increases the likelihood of conviction and is related to the socio-economic conditions of the accused. That is, a person who has been detained for some time prior to his sentence tends to be more likely to plead guilty to the crime with which he is accused, and, in addition, has a relatively more unfavorable appearance before the court, inspiring less confidence than a person who has not been detained while awaiting sentence. Importantly, evidence shows that people in vulnerable groups constitute the largest proportion of people detained awaiting justice, and this is particularly true for judicial systems that operate through the bond payment mechanism. This fundamentally violates the first principle of the rule of law - that the law be applied equally for all - since it is certain vulnerable groups to whom justice comes slower. Likewise, corruption tends to manifest itself during the waiting-for-a-sentence stage because, in many cases, it is subject to less scrutiny, and, in turn, is subject to greater discretion compared to subsequent judicial stages.

Unfortunately, the negative impacts are not only limited to the weakening of the rule of law. According to the most recent economic literature, it also has negative causal effects on the economic and individual results, and, at a more aggregate level, on economic and social well-being. This results because it is costly to keep people in detention, and their trajectories of socioeconomic achievement is altered. In a related way, in addition to reducing employment, detention pending conviction increases future crime through a criminogenic effect (although its net effects are ambiguous), something that is consistent with the economic literature that studies the negative impact of crime incarceration in general, as well as detentions without conviction, on the formation of social and human capital.

The evidence for LAC is consistent with this pattern. According to data from the World Prison Brief, on average, the percentage of people detained without a conviction for Latin America and the Caribbean is 43%. [2] That is, more than 4 out of 10 people in prison in the region are there without a sentence. When we examine the subregional averages, we see that in the Caribbean this percentage is even higher, close to 52% of the population detained is awaiting justice, which is almost double the number observed in the European Union.

 

If we complement this data with the average time that people spend in prison without a conviction, we see a picture that requires policy responses. Although time data is scarce, we know, for example, with surveys for the period 2016-2019 in several Caribbean countries, that detainees awaiting trial last, on average, from 2.5 to 4 years in prison before a sentence. In other countries in the region where information is available, it is estimated that 59% of people detained without a sentence spent up to six months in prison, and 16% spent more than six months. In addition, 49% of the people detained pending their sentence ended up without receiving a single day in prison, either because they were not guilty or were punished without prison.

How has the situation changed over time in LAC? When we examine the percentage of detainees awaiting sentence within the total number of prisoners for the years available, we see that, in the region, in the last 20 years, there has been a reduction in the percentage, going from 53% to 42%.

 

What kinds of efforts have led to a reduction in the percentage of detainees without sentencing in these countries? Many, but an important one is that, starting in the mid-1990s, there was a process of reforms to the criminal justice system that implied a change from an inquisitorial system, where by law it was established as a general rule that defendants indicted for serious and moderately serious crimes had to remain in a regime of custodial control throughout their process or during a large part of it, to a system characterized by procedural models of an accusatory nature. This was an important change, especially because within its objectives it was sought to use preventive detention in a manner consistent with International Human Rights Law. Examples of this include the reform of the Guatemalan Penal Code in 1994, the Peruvian reform of 2006, that of Panama that came into effect in September 2011, and that of Uruguay, where in 2017 the Government transitioned from an inquisitorial system to an accusatory one.

Are these efforts sufficient? While they have been fundamental, unfortunately, they are still not enough. In each country and in each context the measures necessary to resolve this situation will be different, but swift and concrete policy action is required.

 

[1] See, for example, Article 11 of the "Universal Declaration of Human Rights."

[2] This average incorporates the most recent observation for all available countries and regions in LAC (including countries not shown in the figure).

 

 

 

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