Imprisonment and Human Rights in Latin America: An Introduction

Abstract

This article reflects on Latin American prisoners’ human rights to give an up-to-date picture of the state of play and to establish the benchmarks on how this issue can be approached in future research activities. In an attempt to establish methodological guidelines for approaching the Latin American context, the article contextualizes Latin American prisoner human rights standards within the inter-American system of human rights. Then, it addresses three key issues that have a direct impact on the treatment of prisoners and the most important problems in Latin American prisons.

Keywords

inter-American prisoner human rights system human rights standards Latin American prison systems

Introduction

The protection of human rights in the prison environment is one of the most important human rights problems in Latin America that remains currently unresolved (Inter-American Commission on Human Rights [IACHR], 2011; Carranza, 2012). Reforms of Latin American legal systems, including the legislative reforms of national prison laws, and the financial efforts made by Latin American States in recent years to improve prison systems have not been enough to make the breakthrough needed (Benito Durá, 2009). Indeed, the human rights problem in Latin American prisons requires greater efforts on the part of the States, which become the guarantors of the persons deprived of liberty as will be discussed below. The article also calls for an in-depth reflection on the root causes of the current situation.

Economic and social inequality, poverty, and social violence are some of the structural factors directly linked to the human rights violations in Latin American societies. The social dynamics generated by these factors are also projected into the prison field in such a way that many of the human rights problems taking place in prisons also happen outside (violence; insecurity; lack of access to food, water, decent living conditions, education, work, health system, etc.). This is why the human rights problem in Latin American prisons cannot be viewed in isolation; they are part of the broader human rights issue in the region. From this point of view, the idea that human beings have inherent and inviolable human rights stemming from the recognition of human dignity and that situations of deprivation of liberty cannot limit this set of rights takes on its full meaning. In other words, as long as Latin American citizens’ human rights are not properly protected, which implies the consolidation of democracy and correlatively the consolidation of human rights standards (United Nations Development Programme [UNDP], 2004), the protection of prisoners’ human rights will remain a challenge for Latin American States. On the contrary, the situation underlying the discussion of how best to protect prisoners’ rights necessarily modifies how scholars should analyze the reality of Latin American prisons.

With this in mind, this article reflects on prisoners’ human rights in Latin America to give an up-to-date picture of the state of play and to establish the benchmarks on how this issue can be approached in future research activities. That is, this article not only addresses prisoners’ situation in Latin America but also tries to establish the methodological guidelines for approaching the Latin American context. In this regard, it is worth stressing that this issue has not been studied specifically. This is in contrast to what has happened in the European context, where there has been increasing attention to prisoners’ human rights from a regional point of view (as an example, see Morgan & Evans, 1999; Murdoch, 2006; Van Zyl Smit & Snacken, 2009). Accordingly, the article first contextualizes prisoners’ human rights in Latin America within the Inter-American Human Rights System. Next, it makes a reference to the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, a soft-law instrument establishing the regional human rights standards of persons deprived of their liberty. The article also places the discussion of the emerging general principles of Latin America Prison Law and Policy on the academic agenda. Although this specific issue needs to be further analyzed, it should be stressed that this ideal will determine not only the development of prisoners’ human rights in Latin America but also Latin American states’ prison policies in the future.¹

Second, the article addresses three key issues that have a direct impact on the treatment of prisoners: the purpose of deprivation of liberty sanctions, the application of ultimate penalties, and prisoners’ human rights in national laws. Pursuant to Article 5.6 of the American Convention on Human Rights (ACHR), all Latin America legal systems recognize resocialization as the purpose of imprisonment. That is, offenders are sent to prison as punishment, not to be punished. The purpose of imprisonment is a key factor in understanding how and why states apply the ius puniendi in the Latin American context, and why ultimate penalties (death penalty and life imprisonment) are not that widespread in the region as one might expect. Having established the general legal framework for the treatment of prisoners, the article points out the most important problems in Latin American prison systems and their effect on prisoners’ human rights. The nature of the problems identified in the IACHR’s Report on the situation of Persons Deprived of Liberty in the Americas, the only existing report on this issue from a regional perspective, reveals such structural shortcomings that endanger prisoners’ fundamental rights and prevent deprivation of liberty sanctions from meeting their purpose. Finally, the article includes some concluding remarks. The stark contrast between the existence of rights-based legal systems and the material living conditions in prisons is probably one of the most surprising characteristics of the Latin American prison systems. This brings us to the conclusion that the situation of prisoners’ human rights in Latin America is paradoxical.

Latin American Prisoners’ Rights Standards

The Inter-American Human Rights System

The Inter-American Human Rights System is a mechanism designed for the promotion and protection of human rights that has developed within the Organization of American States (OAS), an international organization founded in 1948 (Dulitzky, 2011). Since its creation, the American states have adopted a wide set of international legal instruments that have become the normative basis of the regional human rights system. Within the process of internationalization of human rights, begun after the Second World War, the OAS adopted the American Declaration of the Rights and Duties of Man a few months before the United Nations Universal Declaration (Brewer-Carías, 2008; Forsythe, 1991). Despite being drafted as a nonbinding legal instrument, it was adopted as a statement of moral obligations and not as a treaty; both the IACHR and the Inter-American Court of Human Rights (ACtHR) have stated that the Declaration constitutes a source of international obligations for the OAS Member States.²

The Declaration set out that the international protection of human rights “should be the principal guide of an evolving American Law,” but it did not prevent human rights mass violations in Latin America (Medina Quiroga, 2009, p. 17) or did it foresee the creation of judicial or monitoring bodies to protect these rights. It was not until the Fifth Meeting of Consultation of Foreign Ministers held in Santiago de Chile in 1959 that American states reacted to the political situation (antidemocratic regimes) existing in some countries of the region and the inherent deprivation of human rights (Goldman, 2009). Consequently, the Ministers passed a resolution titled “Human Rights” calling for the drafting of a convention establishing a regional court as well as the creation of an IACHR,³ whose mandate was to promote respect for human rights. In contrast to the rapid adoption of the IACHR, the process of elaboration of the ACHR slowed down. It was not adopted until 1969, and it finally came into force in 1978. The ACtHR could not be established and organized until the Convention came into force. Thus, the Court was officially launched in 1978.

The entry into force of the ACHR created a dual system for protecting human rights in the region. The American Declaration together with the OAS Charter would be the reference point for those states not parties to the ACHR while this Convention would define the human rights obligations for states parties. In any case, the IACHR is entitled to receive petitions and decide cases lodged against Member States to both the American Declaration and the ACHR (Goldman, 2009; Harris, 1998). The Inter-American Human Rights System was later complemented by a series of legal instruments, including the Inter-American Convention to Prevent and Punish Torture (1985), the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (1988), the Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990), the Inter-American Democratic Charter (2001), and the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), which is the first and so far the only specific legal instrument related to prisoners’ human rights standards in the region, as will be seen below.

Most Latin American states joined the regional human rights system during the democratic transition processes, which led to the constitutionalization of human rights in national jurisdictions (Brewer-Carías, 2008). And even though, in some cases, the values and rights recognized and protected by the system were—and are—not sufficiently rooted because of the political regimes and social structures, there is no doubt that the Inter-American Human Rights System definitely predetermines how every American society should respond to the criminal phenomenon and treat persons deprived of liberty.

Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas

The Principles and Best Practices were adopted in 2008, after a 7-year process. The Special Rapporteurship on the Rights of Persons Deprived of Liberty played a central role in drafting this instrument.⁴ The critical situation of violence and overcrowding in the places of deprivation of liberty reported by the first Special Rapporteur in 2006 stressed the need to advance the drafting process (the consultation phase) to take concrete measures to prevent this situation. In this line, one of reasons for adopting this legal instrument was to help Member States to establish public policies and pass new domestic laws as well as to offer civil society organizations a control tool, and provide support to the IACHR when dealing with cases concerning conditions of detention.⁵

The Principles are a soft law instrument based on the international instruments mentioned in Paragraph 6 of the Preamble (some UN legal international instruments and some legal instruments under the inter-American system of human rights). The document establishes the regional standards for deprivation of liberty situations, a broad concept covering

any form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship, protection or because of crimes or legal offences. (General Provision)

Accordingly, this concept encompasses persons deprived of liberty “because of crimes or infringements or non-compliance with the law” and persons under the custody and supervision or certain institutions, for instance, psychiatric hospitals; establishments for persons with physical, mental, or sensory disabilities; institutions for children and elderly; centers for migrants, refugees, asylum, or refugee status seekers; stateless and undocumented persons; and “any other similar institution the purpose of which is to deprive persons of their liberty.” That is, the Principles and Best Practices also apply to other deprivation of liberty situations in places not listed in the General Provision.

The key factor is the deprivation of liberty, which arises when the person depends on “the decisions made by the personnel of the establishment where he or she is being held” (IACHR, 2011, p. 16), and the state becomes the guarantor (a special public law relationship of subordination) of the person deprived of liberty.

Given this unique relationship and interaction of subordination between an inmate and the State, the latter must undertake a number of special responsibilities and initiatives to ensure that persons deprived of their liberty have the conditions necessary to live with dignity and to enable them to enjoy those rights that may not be restricted under any circumstances or those whose restriction is not a necessary consequence or their deprivation of liberty and is, therefore, impermissible. Otherwise, deprivation of liberty would effectively strip the inmate of all his rights, which is unacceptable.⁶

Against this background, the existence of basic guidelines on the protection of persons deprived of liberty limiting state action is of great significance.

The Principles and Best Practices are structured around three core issues. First, they set out the General Principles to frame state action in the prison field (humane treatment, equality and nondiscrimination, personal liberty, principle of legality, due process of law, judicial control and supervision of punishment, petition and response, and Principles I-VII). These basic principles are built on the recognition of the dignity of every person irrespective of his or her legal situation in such a way that persons deprived of liberty’s right should be protected to the same extent as the rest of citizens’ rights. Then, they establish the Principles related to the Conditions of Deprivation of Liberty, which comprises the standards regarding the rights and restrictions of persons deprived of liberty together with admission, registration, medical examination, and transfer issues as well as provisions related to living conditions, specifically matters related to health, food and drinking water, accommodation, hygiene and clothing, education and cultural activities, work, freedom of conscience and religion, freedom of expression, association and reunion, measures against overcrowding, contact with the outside world, and separation of categories (Principles VIII-XIX). Third, they regulate a set of Principles related to the Systems of Deprivation of Liberty, namely, to the personnel of places of deprivation of liberty, body searches, inspection of installations, and alike measures. They also include the disciplinary regime as well as measures to combat violence and emergency situations (Principles XX-XXIII). Finally, the document includes one institutional inspection clause (Principle XXIV) and one interpretation clause (Principle XXV). It is important to stress that this document was also established to give input to the drafting of Inter-American Declaration on the rights, duties, and care of persons under any form of detention or imprisonment,⁷ which is currently under examination.

General Principles of Latin American Policy and Prison Law?

While this issue will not be further analyzed in this article given its complexity, it should be noted that the Inter-American Human Rights System provides enough legal basis for building what might be described as general principles of Latin America Prison Law.⁸ Like the European case, ACtHR’s decisions would be essential to consolidate these basic principles. However, the implementation of the ACtHR’s judgments is rather complex. On one hand, there is not any permanent treaty body or national mechanisms monitoring compliance with the ACtHR’s judgments (Ayala Corao, 2007; Corasaniti, 2009). And, on the other hand, the judiciary remains a weak power in the region because of a still lack of rule of law, high levels of corruption, and impunity (Calleros, 2009), which can be explained in terms of democratic consolidation. For its part, the IACHR’s work monitoring the situation of persons deprived of liberty might be seen as emerging Latin American prison policy guidelines. In this regard, the creation of the Rapporteurship on the Rights of Persons Deprived of Liberty in 2004 was a landmark decision consolidating the issue of the protection of human rights in prison. The foundations for the building of a genuine Latin American standardization of prisoners’ human rights are set out, irrespective of the complexity of the process.

According to the Inter-American Democratic Charter, it is necessary to understand that the promotion and protection of human rights is the basic condition for the existence of a democratic society. But, it is essential to become aware that the promotion and the protection of human rights in prisons is also part of this guiding principle. In this regard, the drafting of a legally binding Inter-American Declaration on the rights, duties, and care of persons under any form of detention or imprisonment should be regarded as a step in the right direction and shows the scope for the future development of the Inter-American Human Rights System.

The Inter-American Human Rights Systems and Its Impact on the Treatment of Prisoners

The Inter-American Human Rights System has been an essential factor in shaping prisoner’s legal status in national jurisdictions. Most Latin American countries carried out structural reforms during the transition processes toward democracy that involved thorough revisions of the foundations of the legal systems and the adaptation of national laws to the regional standards. More specifically, the establishment of democratic constitutional states implied the recognition of citizens’ fundamental rights and public freedoms within the process of constitutionalization of human rights. Regarding prisoners’ legal status, special attention must be paid to three core questions: the purpose of deprivation of liberty sanctions, ultimate penalties, and, finally, the recognition of the most relevant human rights by national laws and its application to persons deprived of liberty.

The Purpose of Deprivation of Liberty Sanctions

In a similar fashion to Article 10.3 of the International Covenant of Civil and Political Rights, Article 5.6 of the ACHR establishes, “Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.” Subsequently, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas expanded the purpose of deprivation of liberty sanctions, including the “personal rehabilitation of those convicted, the reintegration into society and family live as well as the protection of both the victims and society.” Accordingly, there exists a clear trend in Latin American legal systems regarding the purpose of imprisonment. They all relate to resocialization. In most of the cases, the purpose of imprisonment is set out in the constitutional wording. Only Argentina and Chile set out the purpose of imprisonment in the national prison law and Costa Rica, Cuba, and Colombia in their criminal codes. Thus, from a formal point of view, all Latin American legal systems are adapted to the Inter-American Human Rights Systems.

In terms of the prisoners’ legal status, resocialization implies that the state must provide opportunities for prisoners to enhance their ability to reintegrate in society and lead a responsible and crime-free life, limiting the negative effects of imprisonment. The Principles and Best Practices’ standards regarding living conditions (Principles VIII-XIX) are of particular importance at this point as they aim to normalize life in prison and enable the exercise of prisoners’ fundamental rights. This is why the Principle VIII of the Principles and Best Practices set out the following:

Persons deprived of liberty shall enjoy the same rights recognized to every other person by domestic law and international human rights law, except for those rights which exercise is temporarily limited or restricted by law and for reasons inherent to their condition as persons deprived of liberty.

Most Latin American legal systems have similar provisions in their national laws. However, living conditions in the Latin American prison systems as well as the so-called “resocialization crisis” have called into question the resocialization purpose on which the prison model is primarily built, enabling the system to become more flexible by recognizing other aims. At the same time, this process has been strongly favored by the high levels of insecurity and violence in the region, which have generated a deep mistrust in the criminal justice system and great demand for retributive and neutralizing penal policies, resulting in an intense use of prison sentences and long-term prison sentences. In this regard, the implementation of the Principle III.4 of the Principles and Best Practices, related to the application of alternative or substitute measures for deprivation of liberty, is a challenge for the region (Carranza, 1992; Rodríguez Manzanera, 1992; Benito Durá, 2009) inasmuch as national jurisdictions “shall provide the necessary and appropriate resources to ensure their availability and effectiveness.”

Ultimate Penalties

Most Latin American countries have long supported the abolition of the death penalty. In fact, Venezuela, Costa Rica, Ecuador, Uruguay, Colombia, Argentina, Panama, and most of the Mexican states abolished the death penalty by the end of the 19th century. However, the death penalty has been in force in some legal systems during the 20th century, mainly during dictatorial regimes and revolutionary struggles that intensified the punitive response (Hood & Hoyle, 2015). Against this background, Article 4 of the ACHR recognized the right to life and restricted the application of the death penalty in two different but complementary ways. On one hand, Article 4 prevents the introduction of the death penalty in those jurisdictions that have already abolished it. And, on the other hand, Article 4 limits the application of the death penalty to the most serious crimes in countries that have not abolished this penalty yet. Besides, it forbids its application to juveniles (persons under 18 at the time the crime was committed) and persons above 70 years old. Subsequently, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty also forbade the application of the death penalty (Article 1), but it allowed Member States to declare that they reserved the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of military nature (Article 2). Only Brazil and Chile have made such declaration, so they retain the application of the death penalty for certain military offenses, which from a theoretical perspective means that military legal rights deserve a more punitive protection compared with civil legal rights—an issue that should be opened to debate. The Principles and Best Practices also seem to outlaw the death penalty. Principle I sets out that “taking into account the special position of the States as guarantors regarding persons deprived of liberty, their life and personal integrity shall be respected and ensured, and they shall be afforded minimum conditions compatible with their dignity.” And according to this principle of humane treatment, it introduces a specific clause prohibiting

any kind of threats and acts of torture, execution, forced disappearance, cruel, inhuman, or degrading treatment or punishment, sexual violence, corporal punishment, collective punishment, forced intervention or coercive treatment, from any method intended to obliterate their personality or to diminish their physical or mental capacities.

Latin America is not only a de facto death penalty free zone (Hood & Hoyle, 2015) but also a life imprisonment almost-free zone. Life imprisonment is currently in force in only six out of 18 countries—Argentina, Chile, Cuba, Honduras, Mexico, and Peru. In the case of Mexico, life imprisonment is not in force at the federal level but at the state level (Chihuahua, Mexico, Puebla, Quintana Roo, and Veracruz). Life imprisonment is a mandatory sentence in Argentina, Cuba, and Peru, and regarding the prospect for release, life sentences can be reviewed in Chile, Honduras, and Argentina. Peru life sentences can be reviewed only in some cases, and in Cuba, just in exceptional cases (López Lorca, 2016). By contrast, there exists an intense use of long-term prison sentences, and the maximum terms of imprisonment in the region are usually quite high, especially when compared, for instance, with Western European legal systems.

Prisoners’ Human Rights in National Laws

Together with the recognition of resocialization, the constitutionalization of human rights has had a direct impact on how persons deprived of their liberty should be treated inasmuch as committing an offense cannot equal to systematic limitations of the convicted person’s fundamental rights that cannot be justified by the purpose of the sentence.⁹ In this line, the Principles and Best Practices establish that persons deprived of their liberty shall enjoy the same rights recognized to any other person except for those rights temporarily limited or restricted for reasons inherent to their condition as persons deprived of liberty (Principle VIII). Principle II sets out a similar clause when establishing the principle of equality and nondiscrimination. Accordingly, in all constitutional texts, there is a general recognition of a more or less comprehensive series of human rights—although only a few jurisdictions regulate specific provisions for persons deprived of liberty. That is, there exist a clear trend regarding the recognition of fundamental rights and public freedoms in Latin American legal systems, including the most relevant fundamental rights in the prison field—although it is important to stress that each national jurisdiction has gone through different processes of recognition and consolidation (Pou Giménez, 2006). Ultimately, this trend is the consequence of the basic obligations accepted by Member States to the ACHR set out in Article 1, which requires states to “respect” and “ensure” the Convention rights.¹⁰ In this regard, the implementation of human rights’ standards under the Inter-American Human Rights System in national laws expanded de iure and de facto citizens’ fundamental rights and public freedoms in each jurisdiction (Abramovich, 2009).

Article 2 of the ACHR sets out that

where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

That is, Article 2 guarantees the effectiveness of the protection of human rights in the region. Thus, not only human rights’ standards should be implemented in national laws. States should eliminate any piece of law or practice contrary to the ACHR’s provisions (“that in any way violate the guarantees provided under the Convention”) and elaborate rules and develop practices “conducive to effective observance of those guarantees.”¹¹

The right to life is one of the core rights on which prisoners’ legal status is built. Both the American Declaration of the Rights and Duties of Man (Article 1) and the ACHR (Article 4) establish the right to life, which is expressly recognized in the majority of national constitutions. Some jurisdictions even specifically set out that persons deprived of liberty’s lives shall also be respected. These provisions are the manifestation of the protection of human rights–based role taken on by the State within the framework of the constitutional state. In the prison field, the right to life takes on particular significance inasmuch as the State becomes the guarantor of prisoners’ lives (Principle I of the Principles and Best practices). That is, the first and main States’s obligation is to protect prisoners’ life and physical integrity, which are the bare minimum for carrying out any other kind of activity in prison, as a basis for ensuring other rights (Van Kempen, 2008).¹²

This public law relationship of subordination (in Spanish, “relación de especial sujección”) is twofold. On one hand, States should take all necessary steps to create minimum living condition standards in such a way that they do not constitute in themselves a distressing factor added to the deprivation of liberty¹³ as well as to implement means of protection against any attack or violence within the prison environment, ensuring the effective implementation of human rights in prisoners’ social relations.¹⁴ And, on the other hand, States should also prevent the negatives effects of imprisonment which regarding the right to life specifically means that States should fight against violence in prison and eliminate any bad practices by the prison staff. But according to the IACHR (2009),

The State’s obligation toward prison inmates is not limited to merely enacting provisions to protect them, nor is it enough for state agents to refrain from actions that could injure the lives and persons of detainees; instead, international human rights law requires States to adopt all measures available to them to guarantee the lives and personal integrity of people held in their custody. (§286)

Nevertheless, despite the recognition of the right to life and State’s role as guarantors, the IACHR (2011) has stated that “The life of people deprived of liberty is at risk” in the Latin American prison systems (p. 6). This statement stems from the material conditions in Latin American prisons, which can be defined as structural factors of the prison systems resulting in a systemic human rights problem, as will be seen below, and the disclosed troubling levels of violence in prisons, including the prisoners’ death at the hands of the prison personnel (nonjudicial executions, deaths from an excessive use of force in prisons, and forced disappearances of people deprived of liberty; IACHR, 2011).

Together with the right to life, human dignity is the axiological basis of the majority of human rights that make up the human essence and, therefore, it is the inviolable limit to state action, especially when dealing with persons deprived of liberty. The American Declaration establishes that any person deprived of liberty “has the right to humane treatment during the deprivation of liberty” (Article XXV) and, in a similar fashion, the ACtHR sets out that “no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment. All persons deprived of their liberty shall be treated with the respect due to inherent dignity to human beings” (Article 5.1-2). The special projection of the principle of human dignity in the prison field is also reflected in the Principles and Best Practices within a wide clause:

All persons subject to the jurisdiction of any Member State of the Organization of American States shall be treated humanely, with unconditional respect for their inherent dignity, fundamental rights and guarantees, and strictly in accordance with international human rights instruments. In particular, and taking into account the special position of the States as guarantors regarding persons deprived of liberty, their life and personal integrity shall be respected and ensured, and they shall be afforded minimum conditions compatible with their dignity. They shall be protected from any kind of threats and acts of torture, execution, forced disappearance, cruel, inhuman, or degrading treatment or punishment, sexual violence, corporal punishment, collective punishment, forced intervention or coercive treatment, from any method intended to obliterate their personality or to diminish their physical or mental capacities. Circumstances such as war, states of exception, emergency situations, internal political instability, or other national or international emergencies may not be invoked in order to evade the obligations imposed by international law to respect and ensure the right to humane treatment of all persons deprived of liberty.

Serving a sentence should not imply higher levels of suffering than what the sentence of deprivation of liberty itself involves, and this is why human dignity is a key principle in the prison field.¹⁵

Physical and moral integrity and the prohibition of torture complete the core human rights for building prisoners’ legal statue, which will enable the possibility of the individual’s full development within the prison environment. Both the American Declaration (Articles I, XXV, and XXVI) and the ACHR (Article 5) set out the right to personal integrity and the prohibition of torture. They are also established in the Principles and Best Practices (Principle 1), which impose the irrevocable protection of prisoners

from any kind of threats and acts of torture, execution, forced disappearance, cruel, inhuman, or degrading treatment or punishment, sexual violence, corporal punishment, collective punishment, forced intervention or coercive treatment, from any method intended to obliterate their personality or to diminish their physical or mental capacities.

In the Latin American context, the concept of torture is regulated in the Inter-American Convention to Prevent and Punish Torture (Article 2). According to the ACtHR, torture involves the intentionality of the act, the causation of physical or mental suffering, and the implementation aimed at achieving a particular end, causing the complete defenselessness of the victim. Against this background, the ACtHR has listed a wide range of actions that can be considered as torture under the inter-American system of human rights.¹⁶ The IACHR has pointed out that these sorts of behaviors are not rare in Latin American prisons, especially taken into consideration that torture is seen as an effective tool for criminal investigation. Among other factors, torture is one of the manifestation of the high rates of violence of the system which can be explained, among other factors, for the existence of inherited institutional practices and a culture of violence firmly rooted in State security forces, impunity, the lack of provision of the necessary resources, suitable equipment and technical capability of the security forces, repressive responses from the State (hard-line or zero-tolerance policies) to deal with crime, and granting probative value de facto to confessions or information obtained by means of torture or inhumane or degrading treatment (IACHR, 2011).

The Systemic Human Rights Problem in Latin American Prison Systems

According to the IACHR (2011), the most serious and widespread problems in the Latin American prison systems are overcrowding and overpopulation, poor living conditions due to the lack of basic services, prison violence, use of torture, excessive use of force by the prison personnel, lack of labor and educational programs, corruption, and lack of transparency in prison management. Obviously, all these problems have a direct impact on the implementation of the sentence, namely, the progression principle, the individualization principle, and so on—most of them recognized in national prison laws on the contrary. But, the true human rights issue is that all abovementioned core human rights (the right to life and personal integrity, human dignity, the right to humane treatment) are seriously affected by these problems.

The most characteristic problem of Latin American prison systems is the high rates of prison overcrowding. At the regional level, several factors have been identified to explain the overall and significant increase in the prison population since 1980: intensification of repressive policies due to the need to fight against organized crime; increase of common offenses against persons and property, which is related to the levels of poverty and social exclusion in the region; penal policies of “tough justice”; and, to a lesser extent, increase in the Latin American population. The excessive use of preventive detention, which is a specific problem in the region, is also an important factor (Benito Durá, 2009; Carranza, 1992). Besides, there exist another two factors that should be taken into consideration: on one hand, the so-called expansion of Criminal Law and the extensive use of deprivation of liberty sanctions, which is closely related to the implementation of alternative sanctions, and, on the other hand, the increase of the length of sentences. As mentioned above, there exist an intense use of long-term prison sentences in Latin American criminal codes, and the maximum terms of imprisonment can be quite high. There are some significant cases like Colombia, Costa Rica, El Salvador, Guatemala, or Mexico, where long-term prison sentences can be sometimes more punitive than life imprisonment. Probably, the best example of this situation is the maximum terms of imprisonment in some Mexican States, which can reach up to 70 (for instance, Baja California del Sur and Campeche), 100, and even 105 years (Chiapas and Oaxaca).

The high rate of overcrowding (see Table 1) has a direct and very negative impact on the right to humane treatment and human dignity and the implementation of the sentence and constitutes an important obstacle to the fulfillment of the purpose of punishment.¹⁷ In this regard, for instance, the Supreme Court of Colombia has stated in clear terms that overcrowding makes it impossible to provide enough resources (educational programs and work) for all inmates, completely undermining the purpose of deprivation of liberty sanctions.¹⁸ On the contrary, high rates of overcrowding also fuel violence and tension between prisoners as well as between prisoners and prison officers, generate lack of space for carrying out activities, hinder prison management, cause health and hygiene problems, have an impact on the prison budget distribution, and so on (IACHR, 2011). That is, overcrowding is a cross-cutting problem aggravating a wide range of problems directly affecting prison conditions and can be seen as an inhuman and degrading treatment. This is why the Principles and Best Practices establish the following:

The occupation of an institution over its maximum capacity shall be prohibited by law. When human rights abuses continue, it should be considered a cruel, inhuman or degrading treatment or punishment. The law should establish mechanisms to immediately rectify any case of occupation that exceeds the number of places established. The competent judges should adopt adequate remedies in the absence of effective legal regulations. (Principle XVII)

Table 1.

Overcrowding in Latin American Prisons (2012-2010).

	Prison system capacity	Prison population	Overcrowding rate	Year
Argentina	58.211	59.227	1.75%	2010
Bolivia	4.700	11.516	145.02%	2011
Chile	37.500	51.447	37.19%	2012
Colombia	68.079	84.444	24.04%	2011
Costa Rica	8.536	14.027	64.33%	2012
Cuba	NAD	NAD	NAD
Ecuador	8.480	11.800	39.15%	2010
El Salvador	9.060	24.283	168.02%	2010
Guatemala	6.674	11.140	59.74%	2010
Honduras	8.625	12.336	43.03%	2012
Mexico	187.752	230.943	23%	2012
Nicaragua	4.742	7.200	51.83%	2011
Panama	7.088	12.017	170	2012
Paraguay	5.300	6.300	18.87%	2011
Peru	29.521	54.319	84%	2012
Dominican Rep.	11.455	20.969	83.06%	2011
Uruguay	7.061	9.067	28.41%	2011
Venezuela	16.909	43.461	157.03%	2010
Media	43.776	63.181	58.54%

Source. Conferencia de Ministros de Justicia de los Países Iberoamericanos (2012). Prepared by the author.

Note. NAD = not available data.

Directly related to overcrowding, prison violence is another major problem in the region, which includes both physical attacks and intimidation between inmates, by inmates against prison staff and, conversely, attacks by prison officers against inmates. This situation leads to perturbing figures of dead and injured prisoners each year (Carranza, 1996). The most worrying situation is located in Venezuela, where more than 20,000 prisoners have died from 1999 to 2014.¹⁹ In view of the level of violence, the IACHR have requested precautionary measures to States on several occasions under Article 63.2 of the ACHR ordering prison authorities to take direct and immediate measures to put an end to specific episodes of extreme prison violence.²⁰ In 2015, this mechanism has already been applied 9 times in prison matters (four interventions in Mexico, three in Venezuela, one in Bahamas, and one in Colombia), while in 2014, the Court intervened in 37 cases.²¹ In line with IACHR’s precautionary measures, the Principles and Best Practices regulate preventive measures to combat violence and emergency situations in prisons. Principle XXIII set out that “appropriate and effective measures” shall be adopted to prevent violence in prison at all levels, that is, violence among prisoners and between prisoners and the prison personnel. Such measures shall be always implemented “in accordance with international human rights law,” the Inter-American Human Rights System in this case.

According to the IACHR, the following factors are the main causes of prison violence: lack of effective control of order and internal security; lack of sufficient and properly trained security personnel; excessive use of force and the humiliating treatment of prisoners by security agents; presence of alcohol, drugs, and money in prisons; possession of weapons by inmates; activities of criminal groups inside prisons; overcrowding and poor living conditions; lack of separation of inmates by category; lack of protection of the most vulnerable groups; lack of productive activities; discriminatory treatment of inmates’ relatives; corruption and lack of preventive measures; existence of “self-governance systems” in prisons in which some groups of prisoners themselves control other prisoners, even having the power over others prisoners’ lives; existence of systems in which the state delegates disciplinary and law enforcement powers to certain groups of inmates; drug-trafficking; and other criminal activities (IACHR, 2011).

Poor living conditions, inadequate infrastructures, and, in many cases, the lack of access to basic living conditions (water, electricity, food) are also very important matters, aggravated when prisoners themselves take control of the supply and management of basic resources. There are cases in which prisoners even rent or sell the cells and impose their living conditions in certain areas of the prison. Moreover, poor health and hygiene conditions often endanger prisoners’ lives and lead to continuing protests and a climate of tension in a large number of prisons.²² There is also a lack of educational and rehabilitation programs, and those existing are poorly managed. This is why the Principles and Best Practices focus specifically on the conditions of deprivation of liberty (Principles VIII-IX). The role of prison staff is another key factor to normalize life in prison. However, in Latin America, the lack of training and commitment, mainly due to poor working conditions, as well as corruption and the lack of transparency in the management of prisons, seriously hinder, and, in most cases, prevent, the mechanisms aimed at social reintegration from being implemented effectively. The “self-government of prisons,” which results in putting the effective control of prisoners’ lives into the hands of certain prisoners or criminal groups, and the existence of a “shared governance,” in which groups of prisoners share the power with prison authorities, are a consequence of the lack of training and commitment of prison staff and constitutes one of the first problems Latin American States should face (IACHR, 2011, p. 5).

Finally, it is important not to forget the impact of the lack of public awareness about the importance of maintaining the relationship between prisoners and the outside world and the constant violation of the human rights of persons deprived of their liberty in perpetuating the systemic human rights problem in Latin American prisons. Latin American prisons are emerging as true “total institutions” facilitating the institutionalization and rapid integration of prisoners into the so-called “prison subculture” (Edgar, O’Donnell, & Martin, 2012), where the values of society are mere mirages and survival becomes the main purpose of life in prison.²³

Concluding Remarks

There exist a systemic human rights problem in Latin American prisons which cannot be fully understood or explained without taking into account the broader human rights issue that affects the whole region. At the same time, this problem is directly related to the consolidation of the constitutional state and democracy. Methodologically, it implies that scholars should approach the prisoners’ rights issue in Latin America without projecting analytic models from other contexts. It is necessary to identify the characteristics of Latin American prison systems—as it was intended in this article—and this implies not only identifying the shortcomings but also the positive aspects. In this regard, the Inter-American Human Rights System plays a central role. The inter-American system has the necessary normative and institutional basis to serve as a reference in prison issues for the American region, which would also strengthen the inter-American system itself on the contrary. Emerging principles of Latin American prison law and policy can be observed; the foundations of a specific role of the inter-American system related to human rights in prisons are set. And even if this is a complex process that may take some years to develop, it is necessary to help States implement and enforce more extended rights-based penal and prison policies.

In any case, the situation of prisoners’ human rights requires states to develop and implement prison policies firmly and strongly focused on preventing human rights violations in prisons and protecting prisoners’ lives. This would entail increasing financial and human resources, implement new penal policies, which should be less focused on the use of imprisonment and foster the use of alternative measures to prison, as well as guaranteeing effective judicial monitoring of the enforcement of sentences.

To this end, this article tries to highlight the opportunity and necessity to build prisoners’ rights standards in the region within the Inter-American Human Rights System to improve prisoners’ lives in prison. The protection of human rights confers legitimacy to the prison system and, to a large extent, to punishment itself. And this is a crucial battle that Latin American states cannot afford to lose to consolidate the constitutional state and democracy.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Francisco Javier de Leon Villalba, PhD, is a professor of criminal and prison law at the University of Castilla-La Mancha (Spain). Researching all aspects of sentencing and punishment, he recently directed a groundbreaking project on long-term prison sentences in Spain, including life imprisonment. A former magistrate of the Provincial Court of Appeal, he has published many articles and books over a 25-year career.

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