Abstract
In recent years, there has been a growing debate on how, and whether, during the past three decades, a neoliberal penal State, with close ties to the new economic order, has emerged in the United States and in other nations of the Global North. This article seeks to analyse, based on the criticisms that the neoliberal penal State theory has been subject to, whether, and to what extent, such a take on neoliberalism and the penal State may contribute to attaining a plausible explanation of Latin American crime control fields.
Keywords
The political sociology of neoliberalism and its relevance for the analysis of Latin American crime control fields
In recent years, there has been a growing debate on how, and whether, a neoliberal penal State has emerged in the United States, as well as in other nations of the Global North over the past three decades. Authors like Loïc Wacquant, one of the key advocates of this analytical perspective, have set out to provide a sociological analysis of neoliberalism as a new form of government (Wacquant, 2009). According to this view, the expansion of the penal State, which began in the mid-1970s, makes up part of a strategy promoted by society’s dominant classes to redefine, for their own benefit, the limits and the mission of the State. The primary role of the neoliberal State is to defend the new economic order, based upon the hyper-mobility of capital and the flexibility of labour. Towards this end, the State must guarantee its control, through punitive measures, over the social destabilization that market deregulation and the suppression of social welfare programmes (both key aspects of neoliberalism) have wreaked upon marginalized urban groups (Wacquant, 2009: 303).
This article examines whether the neoliberal penal State, with its distinctive features and framework, may be applied, and if so to what extent, to the Latin American context. This debate has inspired a critical conversation on the political economy of punishment in different Latin American countries and the influence of neoliberalism in the region (see Azevedo and Cifali, 2016; Grajales and Hernández, 2016; Hathazy, 2013; Iturralde, 2010a, 2010b, 2016; Müller, 2011; Paladines, 2016; Sozzo, 2016a, 2016b). In turn, this deliberation has led to more complex and interdisciplinary discussions about the voyages, transplants, adaptations, diffusion and also innovation of penal technologies and ideologies, as well as the key players involved in such disputes.
Although the focus of this article is on the impact of neoliberalism in Latin American crime control fields, it will draw on the wider literature about this phenomenon and its, alleged, global expansion and predominance as economic theory, political ideology, policy paradigm and social imaginary (Evans and Sewell, 2013: 36). Considering that there has been a broad analysis of neoliberalism and its impact on different social fields (see, for example, Evans and Sewell, 2013; Fourcade and Babb, 2002; Harvey, 2005; Mirowski, 2013), crime control fields are regarded as yet another scenario where such discussion may take place (Cavadino and Dignan, 2006; Garland, 2001; Van Houdt, 2014; Van Houdt and Schinkel, 2013; Wacquant, 2009).
Before proceeding, one cautionary note is necessary about the use of the term ‘Latin America’ to discuss the features of so many countries and societies, which have followed different paths through their complex and rich history. Using such a term implies a significant degree of generalization and oversimplification—precisely one of the weak points of the general theories of neoliberalism. Nevertheless, the alternative representation of Latin American countries as displaying unique and independent historical trajectories, disconnected from a global context, also risks oversimplifying and reducing complex relationships, and thus provincializing Latin American societies, making them irrelevant and isolated from the international concert. This article aims only to provide a sketch of some general trends that show an impressionistic picture of some of the social fields of Latin American countries, particularly their crime control fields. Thus, a historically nuanced and detailed account of each national trajectory and the transformations of their crime control fields is beyond the reach of this article.
Despite their limits, narratives on the structural similarities of the transformation of crime control fields in different countries are compelling because they illuminate similarities in penal practices and penal values that have come to prevail in diverse contexts, despite their differences in political regimes and economic conditions. As David Garland says, it suggests that similar structural forces are at play, producing similar patterns, even though they occur in diverse political and legal settings. So, it becomes a pressing question to establish how these similarities came about, as well as the mechanisms and processes that may link them (Garland, 2004: 179). Even if each national pattern is unique, there is a reasonable expectation that there will be a limited variety of patterns that shape crime control fields in different contexts, which may be categorized in recurring types (Garland, 2004: 180).
As to Latin American countries, despite their variety and unique particularities, in many respects they do have a shared past, similar historical trajectories deriving from a common process of colonization from the 15th to the 19th centuries, and comparable features that distinguish them from their North American neighbours and other regions of the world. They also share a legal culture, originating in their colonial past, with particular features (legal formalism, conservatism and authoritarianism) which has had a great impact on their legal fields (García and Rodríguez, 2003; Iturralde, 2010b).
Traditionally, the discourse, practices and institutions that have dominated these fields have been the domain of lawyers (particularly Criminal and Public Law lawyers), who constituted themselves as an elite with broad influence in governmental posts, Congress, advisory committees that drafted criminal laws and the academy. Such an elite shared close social and educational links, for they came from high classes, with a long trajectory in politics and economic affairs. This elite also chose Law as the ideal career to form State leaders.
Undergraduate studies took place in their countries of origin, which shared the same legal culture, highly influenced by that of Continental Europe (mainly Spain, Portugal, France and Italy). Once they attained a Law degree, many members of the elites travelled to Europe to obtain postgraduate degrees and experience. After a few years, they returned to their home countries and practised law, joined politics or occupied the high ranks of public office in the Executive, Legislative and Judicial branches. This was the elite that exerted power and influence on the legal and political fields after the independence from colonial powers (19th century) to well into the 20th century.
But after the second half of the 20th century this changed. As the United States rose as a global power, with great influence in Latin American affairs, their legal, political and economic fields changed as a result of the growing influence of the US political, economic and academic discourses. The new breed of Latin American leadership and technocrats educated in the United States has had a varied impact in Latin American social fields. Economists, and economic discourse, have increasingly replaced lawyers as the political and technocratic elite leading the way towards the modernization of the State and the opening up of Latin American economies to a global market (see Dezalay and Garth, 2002; Fourcade and Babb, 2002). In this regard, the influence of neoliberal ideology and technologies, starting with the Chicago boys in Chile and shored up by the Washington Consensus, 1 have widely been recognized (see Dezalay and Garth, 2002; Fourcade and Babb, 2002; Harvey, 2005; Portes, 1997; Portes and Hoffman, 2003; Rodríguez, 2009).
Regarding the legal field, during the 1990s, at the same time that neoliberalism became influential in the economic fields of many Latin American countries, a broad democratization process was taking place in practically the whole region. Many countries (i.e. Argentina, Chile, Brazil, Uruguay, Paraguay, Peru, Bolivia, Honduras), were overcoming military dictatorships, while others were putting an end to internal armed conflicts through peace negotiations or undergoing broad constitutional reforms (i.e. Guatemala, El Salvador, Colombia, Venezuela, Ecuador).
As Rodríguez (2009) points out, ‘neoliberal institutionalist’ reforms were supposed to lay the ground for free markets integrated into the global economy, and for law and order, both essential preconditions of the flourishing of Latin American societies. In this context, where financial and economic globalization along market lines was predominant, economic and institutional reforms based on the neoliberal agenda were a reasonable choice for Latin American politicians and technocrats, for pragmatic, political or ideological reasons, which varied in each country (Fourcade and Babb, 2002: 534). Moreover, in many cases neoliberal reforms were not only the outcome of ideological commitment or pragmatism, but also an unavoidable course of action to confront the economic and financial crises of the 1980s, due to the coercive pressure exerted by the International Monetary Fund (IMF) and the World Bank (WB) to aid the faltering economies of many Latin American countries (Evans and Sewell, 2013: 35).
At the same time, through the wave of democratization and constitutional reform processes that swept the region from the 1980s, the classical liberal political rhetoric at the base of neoliberal ideology provided legitimacy to the political and economic reforms undertaken in Latin American countries in the name of freedom and democracy. New Constitutionalism, a progressist liberal legal perspective that defended the supremacy of democratic constitutions, the rule of law, separation of powers, human rights and their enforceability, was taking hold in many Latin American countries. Neo-constitutionalist advocates, mainly composed of lawyers, insisted on legal and political reforms that strengthened, not only political and civil rights, but especially social and economic rights, as a way of achieving social justice in one of the most unequal regions of the world.
New Constitutionalism was introduced in many Latin American countries through the work of a new generation of legal scholars and lawyers, many of them educated in the United States and Europe, influenced by new (at least in the Latin American context) tendencies in legal theory and constitutionalism, particularly those of Anglo-Saxon origin (López, 2004: 3–6). Some of these scholars and lawyers became influential as they taught in prestigious law schools, and took up posts in high courts, particularly Constitutional Courts, as judicial clerks, and even as justices (Iturralde, 2013).
Thus, as Rodríguez (2009) points out, the reform of political, legal and economic institutions in many Latin American countries from the 1990s onwards has been marked by the interaction of two contrasting global projects—neoliberalism and New Constitutionalism, that nevertheless are based on liberal ideals, as if they were opposite sides of the same coin. These have produced varied and contrasting results in different countries, which make more intricate the analysis of their impact on Latin American crime control fields, which, also during the last three decades, have undergone significant institutional transformations.
Likewise, the analysis of a possible influence of neoliberalism on Latin American crime control fields during the last three decades has to consider the substantial transformations in the political landscape, marked by the realignment of Latin American countries, with a distinguishable polarization between left and right (Iturralde, 2010b). Countries such as Venezuela, Bolivia, Ecuador and Nicaragua underwent intense political processes under the lead of leftist governments, which claimed to defend socialism in quite radical terms, at least at the discursive level.
Instead, countries like Colombia, México, Peru, Panama and El Salvador, have been predominantly led by right-wing governments with a strong leaning towards neoliberalism which were also very keen to form a strong political and economic alliance with the United States, a key player in the region. At the centre of the political spectrum there are a number of countries that are not so easy to categorize, like Brazil, Argentina, Uruguay and Chile. During the last three decades they have been ruled both by right-wing governments and by social-democratic governments with leftist leanings, that nevertheless have accepted market capitalism rules and principles as the economic background on which they have to operate (Barrett et al., 2005; Evans and Sewell, 2013: 56–57).
Thus, in many Latin American countries, since the late 1990s, leftist governments have ideologically and politically distanced themselves from neoliberalism and even openly opposed it, to the point that they may be characterized, as Sozzo (2016a: 14) argues, as post-neoliberal regimes. Nevertheless, most of these countries, constrained by global financial markets with which they must interact to secure economic growth and stability, have implemented economic policies that are in line with key elements of neoliberal economic policy (Evans and Sewell, 2013: 55–56). Considering all these transformations and interactions between local, regional and global political economies, even though most of Latin American crime control fields share common features (particularly the institutional reform of criminal justice, the upsurge of punitive polices and the intensive use of prison as a reaction to high levels of violence and crime) despite their diverse political leanings, it is debatable whether such trends are all due to a monolithic form of neoliberalism, although its influence can neither be ignored.
As Evans and Sewell (2013: 36) suggest, the current global order has been shaped by neoliberal ideas and policies, but also there have been important deviations from the neoliberal creed, both in countries that apparently have adopted a wide range of neoliberal reforms, and in countries that have rejected them. Thus, the diverse political and social dynamics of different countries, whether to embrace or reject neoliberal reforms, are far from uniform and have produced varied outcomes. This reality does not escape crime control fields. Similar trends and outcomes regarding crime control policies, are not necessarily consequences of neoliberalism. As it will be discussed, and as Evans and Sewell (2013: 38) indicate regarding other social fields, many of these trends predated neoliberalism and may be as much causes of ‘neoliberal’ crime control policies as they are effects.
The following sections will discuss the impact of neoliberalism on Latin America societies, particularly on the region’s levels of poverty, inequality and social inclusion, and on its crime control fields. In this way, it will be possible to evaluate just how relevant the theories of neoliberalism and, more particularly, of the globalization of the neoliberal penal State US style turn out to be when seeking an explanation for the transformations that Latin America has undergone. This type of analysis also addresses specific features of Latin American countries’ distinct economic, political and social contexts, as well as their historical backgrounds.
The impact of neoliberalism on Latin America
Beginning in the 1980s and reaching its peak in the 1990s, a wave of democratization began in Latin America which brought authoritarian or openly dictatorial regimes to an end: in 1930, only five regional governments were democracies; in 1948, seven; and, in 1976, only three (Ocampo, 2001: 3). Thanks to peace treaties, the armed conflicts in Nicaragua (in 1989), El Salvador (in 1992), Guatemala (in 1996) and Colombia (2016) came to an end; meanwhile military dictatorships were replaced by democratic governments in Peru (1980), Bolivia and Honduras (1982), Argentina (1983), Brazil and Uruguay (1985), Paraguay (1989) and Chile (1990).
This democratic upsurge took place, particularly from 1985 on, in the midst of grand economic reforms that sought greater commercial openness, the liberalization of national financial markets and the flow of international capital. A rise in private initiative for the production of goods and services ensued, as did private-sector provision of basic services and social protection which came about thanks to the privatization of state-owned enterprises (CEPAL, 2001: xi, 27). In spite of the differences and unique circumstances under which these economic reforms took place in numerous Latin American countries, such changes among neighbours reflect a degree of homogeneity. This is so due to the fact that the reforms met the conditions set by international regulations and institutions, such as the IMF and the World Trade Organization (WTO), whose task is to reduce regulatory differences from one national marketplace to another (CEPAL, 2001: 15).
Even as open markets and deregulated financial and economic systems, characteristic of the neoliberal model, have turned the region in recent decades into one of the most attractive for foreign investment, and have also brought about an increase in exports (Ocampo, 2005: 9–10), the region’s social welfare indicators leave much to be desired. In 1997, poverty rates in the majority of Latin American countries were above 1980 levels—on average 36 per cent of homes were ranked as poor; as a result of the financial crisis at the end of the 1990s, nearly 20 million people fell below the poverty line (Ocampo, 2001: 8). Nearly half the countries in the region, already classified as among the most inequitable in the world, 2 maintained the same levels or underwent a worsening of income distribution during the 1990s, and only a few showed signs of improvement (CEPAL, 2001: 203–204).
Although it is not possible to claim that these specific outcomes are directly or exclusively related to the embedding of neoliberalism in Latin America, since many of them are due to lasting historical causes (García and Rodríguez, 2003), it does seem to have nurtured the persistence, as well as the ascent, of these factors (Portes, 1997; Portes and Hoffman, 2003; Rodríguez, 2009; Rodríguez and Uprimny, 2006). Market liberalization and the transformation of the economic model, in line with deregulation policies, have combined to make the region’s economies more vulnerable to global economic fluctuation, which in turn spawns economic crises, high unemployment and an informal job market—to say nothing of the widening gap between the rich and the poor (Berry, 1998; CEPAL, 2001, 2009; Portes and Hoffman, 2003).
As the 1990s came to a close, one-quarter of Latin America’s entire revenue was in the hands of 5 per cent of the population, and 40 per cent of all revenue was held by the richest 10 per cent. 3 In contrast, the poorest 30 per cent of the population received a mere 7.5 per cent of total income—less than in any other part of the world, where on average this same sector’s share of total income surpasses 10 per cent (BID, 1998: 13). Additionally, from the 1980s, the income gap between the richest and the poorest widened considerably: during the 1980s, the highest income decile boosted its income share by 10 per cent, whereas the poorest 10 per cent suffered a 15 per cent loss in national income distribution (BID, 1998: 17).
Regarding social protection programmes, that, according to Harvey (2005) and Wacquant (2009), under neoliberal regimes are reduced, focalized, conditioned and emphasize individual responsibility as a form of social control over the poor, in many Latin American countries they were also affected by neoliberal policies, especially during the nineties. The new ‘social liberalism’ ended up taking apart and scaling down Latin America’s weak, public social protection institutions (Lo Vuolo, 2006: 694). The privatization of social protection programmes became the rule in the entire region. The most conspicuous case was that of pension funds—between 1980 and 2000, eight countries in the region reformed and privatized their pension funds to varying degrees (CEPAL, 2001: 223–224).
From the beginning of the 21st century, post-neoliberal regimes (Sozzo, 2016a) in countries like Venezuela, Ecuador, Brazil, Argentina and Bolivia, who openly rejected the neoliberal regimes and policies that preceded them, and which had a negative impact in terms of social inclusion and equality, have shown a better record in the reduction of poverty and inequality than their counterparts that embraced the neoliberal model, or at least some of its most significant traits (i.e. Chile, Colombia, Panama, Peru and Mexico). In Brazil, under the government of the PT (Partido dos Trabalhadores—Workers Party) the Gini index improved—from 0.594 in 2002 to 0.533 in 2011 (under President Lula), and to 0.526 in 2012 (under President Rousseff); the lowest index of inequality in decades (Azevedo and Cifali, 2016: 36). In Venezuela, under the ‘new socialism’ of President Hugo Chávez, poverty levels went down from 50.4 per cent of the population in 1998 to 31.6 per cent in 2011, while the Gini index was reduced from 0.48 to 0.39 (Grajales and Hernández, 2016: 122). In Ecuador, under the government of la Revolución Ciudadana (Citizen Revolution) of President Correa, the Gini index was reduced from 0.543 in 2007 to 0.453 in 2014; the level of poverty went down from 37.6 per cent of the population in 2006 to 25.6 per cent in 2013, while extreme poverty was reduced from 16.9 per cent to 8.6 per cent (Paladines, 2016: 150–151). In Argentina, under the leadership of social-democrats Néstor Kirchner and Cristina Fernández (who ruled between 2003 and 2015), the Gini index went from 0.547 in 2003 (one of the highest levels in Argentinian history after the economic and social havoc brought about by the radical neoliberal reforms undertaken by their predecessor Carlos Menem) to 0.427 in 2014 (Sozzo, 2016b: 223; World Bank, 2016). In Bolivia, the indigenist movement led by President Evo Morales (who came to power in 2005) reduced the Gini index from 0.584 in 2005 to 0.462 in 2011, even though it increased to 0.484 in 2014 (World Bank, 2016). Finally, after a profound economic and social crisis, Uruguay voters elected President Tabaré Vázquez in 2005, who led a leftist coalition—Frente Amplio. He was succeeded in 2010 by José Mujica, member of the same coalition, who ruled the country until 2015; in the ensuing presidential election Vázquez was re-elected President for the period 2015–2020, thereby granting the left an unprecedented government of 15 years. Frente Amplio also succeeded in reducing the Gini index from 0.458 in 2005 to 0.416 in 2014 (World Bank, 2016).
Even if post-neoliberal regimes have proved to be more successful in reducing high levels of inequality and poverty than their neoliberal counterparts, Latin American countries still face social and economic exclusion as some of the most serious and destabilizing problems in their agenda, for they are still considerably high under international standards. 4 These structural problems of Latin American societies are connected with high levels of violence and criminality, which in the last decades have sparked an emotional social reaction, inflamed by the media, which in its turn has been influential in a punitive upsurge and an expansion of the penal State, under the rhetoric of punitive populism. This has been a common trend both in neoliberal and post-neoliberal regimes of the region.
The penal State in Latin America
The significant levels of violence, despite sizeable variations among countries, and high incarceration rates that have risen sharply in the past three decades in Latin America have coincided with the period in which the wave of democratization and the neoliberal reforms described above were being applied throughout the region (Iturralde, 2010a: 40–44, 2010b: 325–328; Müller, 2011). Also in post-neoliberal regimes, from the first decade of the 21st century, a steep increase in prison rates was the norm. Improved levels of social inclusion, in other words, did not go hand in hand with the reduction of the penal State, raising doubts about whether a neoliberal political economy was the main, or only, factor explaining the expansion of punishment in Latin America during the last decades.
Insofar as the indexes for violence are concerned, they have constantly been on the rise during the past three decades. Between 1984 and 1994, the homicide rate in Latin America went up by 44 per cent (Kliksberg, 2007: 1). Whereas in the year 2000 the homicide rate was 20 per 100,000 inhabitants, in 2008 it had risen to 26 homicides per 100,000 inhabitants, with an average of 22 homicides per 100,000 inhabitants during the period 2000–2008. The countries that occupy the northern triangle of Central America (El Salvador, Honduras and Guatemala) had homicide rates which varied from 40 murders to 50 murders per 100,000 inhabitants, the highest rates in the region along with Colombia (50) and Venezuela (41) (Costa, 2012: 2). According to the United Nations Office on Drugs and Crime (UNODC, 2008: 3), by 2008, Latin America and the Caribbean together made up the most violent region in the world and had the highest crime rates, as well. Among the ranking of the 50 most violent cities in the world in 2010, 35 were in Latin America (Costa, 2012: 5). 5
With regards to the prison population in Latin America, during this period, it rose sharply in almost every country (see Table 1). On average, the incarceration rate in Latin America doubled (107 per cent) during the last two decades. By 2015, the average incarceration rate for Latin American countries was 237 inmates per 100,000 inhabitants, while at the turn of the 21st century it had been 126 per 100,000 inhabitants.
Changes in prison population rates of Latin American countries (1995–2016).
Sources: INPEC (2016: 17); International Centre for Prison Studies (2016); Paladines (2016: 182).
As these figures show, during the first two decades of the 21st century, the expansion and intensification of punishment was a stark and common trend in the region, political and economic models aside. Although countries characterized as following the neoliberal path displayed higher imprisonment rates than post-neoliberal regimes, the latter doubled their own rates in two decades (see Table 2).
Changes in prison population rates of Latin American countries according to political regime (1995–2016).
Therefore, there must be different, more complex and varied explanations, other than the importation of US neoliberalism, to account for the expansion of the penal State in Latin America during this period. There are several common features worthy of discussion. In the following pages the most salient ones will be sketched in order to entice a more detailed comparative analysis—which escapes the scope of this article.
The transformation of Latin American penal systems
In the first place, over the past 20 years, almost every country in Latin America has gradually transformed its penal system through the adoption of the US adversarial model (Ambos et al., 2000; Paladines, 2016: 153; Riego and Duce, 2009: 21–22). In most cases, these reforms started during the neoliberal wave of the 1990s. Nevertheless, the model remained unchanged in its basic structure and logic in post-neoliberal regimes like Venezuela and Ecuador (Grajales and Hernández, 2016; Paladines, 2016).
Penal reform was supported by the United States (in particular, through its international cooperation agency, the United States Agency for International Development (USAID)) and by international entities like the IMF, the Inter-American Development Bank (IADB) and the World Bank. Unsurprisingly, these reforms followed the dictates of the United States, with special emphasis on strengthening the rule of law throughout the region, which is deemed a basic factor in consolidating free markets that privilege private investments made by nationals as well as foreigners (Rodríguez, 2009; Rodríguez and Uprimny, 2006; Santos, 2001). Even though comparative data and analyses are not available, it could be argued that the reform of Latin American penal systems, as their backers promised, resulted in more efficient institutions and procedures to fight crime and secure convictions, which, at least to some degree, could explain the increase of the prison population.
On the other hand, it is simplistic and counterfactual to claim that these reforms were a mere transplant of neoliberal punitiveness. The adversarial model was adopted under a political context of democratization and constitutional reforms, which seek not only to strengthen the rule of law, but also to reinforce the protection of basic human rights of the accused, like due process and personal freedom. Thus, the New Constitutionalism movement, as well as criminal lawyers who identified with a ‘guarantee-based’ liberal perspective (garantismo penal) embraced the new system as a way of limiting the State’s abuse of power. Oral and more efficient processes, the separation of prosecution (now in the hands of the attorney general office) from judicial functions (in the hands of criminal courts), the creation of a public defence system, the limitation and judicial control of pre-trial detention, were perceived by constitutionalists and criminal lawyers as welcomed improvements in the criminal justice system.
The abuse of pre-trial detention was a common feature of Latin American crime control fields. In many countries, prisoners on remand were more numerous than sentenced inmates and were deprived of their freedom for prolonged periods, which made pre-trial detention an illegal form of punishment. Thus, the abuse of remand imprisonment was one of the main causes of high incarceration rates and of overcrowding in Latin American prisons (Binder, 2016). Once these reforms were implemented, independent judicial control over pre-trial detention drastically reduced its use in countries with different political regimes, which had a significant impact in the reduction of prison populations, at least during the first years of the reforms.
The ‘war on drugs’ and ‘law and order’ policies
Regarding the travel of criminal policies and discourses commonly supported by the USA and international organizations—and therefore suspected of being neoliberal in nature, it is worth mentioning at least two that have had a considerable impact in most of Latin America: the ‘war on drugs’, which predates neoliberalism, and ‘law and order’ policies (or políticas de seguridad ciudadana—citizen security—as they are known in the region). The repressive US approach towards the drug problem has no doubt been of great influence in Latin America. US military and financial aid to Latin American countries have been conditioned to the cooperation of such countries in the war on drugs. Which means adopting a police-oriented, even military, and repressive approach that implies the use of the armed forces to combat drug trafficking, the criminalization of the whole chain—from production to consumption—of the drug business, the strengthening and harshening of the criminal justice system, as well as military and police forces, and the extradition of drug dealers to the USA.
Such an approach has significantly increased the prison population, both in the United States and Latin America during the last three decades. The expansion has occurred in neoliberal and post-neoliberal regimes. Indeed, in the latter, despite their open opposition to neoliberalism, criminal policies towards drugs have largely remained unchanged.
Brazil is a case in point. By 2012, 25.3 per cent of the prison population was held for drug-related crimes. From 2006, under the centre-left Lula government, this population has increased and has been, together with pre-trial detention, the main cause of the upsurge of incarceration rates during the last decade. Law 11.343 of 2006, passed through Congress (Asamblea Nacional) by the Lula government, increased minimum sentences for drug-related offences—from three to five years. Even though the law aimed at decriminalizing drug use, it backfired, for without a legal definition of drug possession for personal consumption, police authorities increased arrests of drug users charging them with drug trafficking. Urban young, excluded males became the main targets of police intervention who ended up in prison (Azevedo and Cifali, 2016: 54, 71).
Across the region, drug offences are at the top of the lists of crimes that lead to a term in prison. A comparative study showed that, by 2003, persons imprisoned for drug-related offences fluctuated between 9 per cent and 34 per cent of the prison population (WOLA, 2010: 93). And they are not kingpins, nor even middle or top-level members of criminal organizations, but rather the weakest links of the chain—mules, street corner sellers, transporters, even users, who are more easily targeted by police forces, and who usually enter the drug business to support their habit or their families (WOLA, 2010: 98).
As to ‘law and order’ policies, since the 1990s they have been widely discussed and implemented throughout Latin America as a State response to social demands for increased security and a firm hand against crime, thus echoing the political and social phenomenon of penal populism (Chevigny, 2003; Pratt, 2007), which is not exclusive to neoliberalism. The seguridad ciudadana policies have spread together with policing technologies, as well as a particular criminological discourse, mainly coming from the Global North. Such discourse defines the causes of crime and the best ways of dealing with it, placing in the foreground the rational actor model deprived of a context, who must be persuaded through increased punishment and evidence-based, situational crime prevention technologies that increase the risks and costs of committing crimes, but do little in the sense of preventing it through social and economic inclusion.
These ‘toolkits’ for dealing with crime are usually designed by Global North ‘experts’, including criminologists, police officers and even politicians like Rudolph Giuliani (Wacquant, 2014). They are financed and promoted by multilateral organizations, who are profoundly invested in implementing and naturalizing the neoliberal economic model. Such organizations seek to manage the fragmentation produced by neoliberal economization rather than facilitate genuine integration, as evidenced by the IADB and its Citizen Security Initiative (CSI) (Blaustein, 2016: 166).
Like, broader, economic policies, these toolkits also have been imported, adapted and expanded by Latin American think tanks, technocrats, academics and politicians educated in the United States who, for ideological, political and pragmatic reasons, have found them useful to advance their political agendas, legitimize government actions or simply to act against crime, and to respond to social pressure, through ready-made and, purportedly, effective policies. Even if many of these policies could be labelled as neoliberal in their origins, the fact is that both neoliberal and post-neoliberal regimes have adopted and adapted them, ideological reasons aside, for they are the common currency to fight crime, have a ‘pedigree’ granted by the experts’ support, are popular among voters and are more likely to be financed and supported by the international organizations and Global North countries that promote them.
The fragmentation and internal struggles of Latin American crime control fields
Post-neoliberal regimes, just like the neoliberal ones, have implemented punitive criminal polices to a great degree as a response to social and media pressure, but also because key members of the State, and of multilateral organizations hold that this is the correct way of fighting crime. They advocate these policies as well as means of gaining legitimacy and popularity among an anxious population. In other words, internal political fragmentation and struggles must be taken into account to explain Latin American countries’ responses to crime.
In Venezuela, though the Chávez regime portrayed a ‘socialist’ view of crime, which called for the reduction of the use of prison and for the expansion of social and economic programmes to prevent crime, it was opposed by Congress (Asamblea Nacional), which was controlled by the political coalition that took Chávez to power. The majority of the Legislature claimed that the rise in crime and violence 6 which worried the Venezuelan population had to be met with harsher criminal policies, such as the increase of retributive sanctions and the restriction of the defendants’ legal guarantees (especially for drug-related offences and illegal possession of weapons); this view was also supported by the Judiciary, particularly the higher courts (Grajales and Hernández, 2016: 103–104). Thus, both the Legislature and the Judiciary used punitive discourse as a legitimating device, to wash their hands and put the blame on the executive for the increasing violence and criminality—accusing it of being too soft on crime.
In Brazil, the leftist governments of Lula and Rousseff also held a progressive criminal policy discourse and tried to push forward policies that focused on a more inclusive perspective of crime prevention. Such views were supported by liberal criminal lawyers and academics, garantistas, who advised the government, drafted laws and held high positions at the Minister of Justice. Nonetheless, such views were met with stern resistance by a majority of Congressmen and women, the Attorney General Office and higher courts, which claimed that there was a public demand for increased security since the lenient government policies fostered criminality and impunity. Thus, the reforms attempted by Lula and Rousseff in their first years of government were opposed by counter reforms enacted by Congress, despite that the PT led a majoritarian coalition, which resulted in a punitive turn and higher incarceration rates (Azevedo and Cifali, 2016: 84–86). Criminal courts, through a very restrictive and conservative interpretation of criminal law and procedures, also contributed to the expansion of the prison population, particularly of inmates on remand.
Two additional factors, also very common in the region, may also explain the schizophrenic relationship between governmental discourse and State acting during the ruling years of the PT. On the one hand, the government’s progressive discourse was met with the stern resistance of the Brazilian police forces, a strong corporatist body, known for its violence and corruption, used to act on its own during military dictatorial times and which, despite institutional reforms and purges, has persisted in criminalizing the ‘undesirable’—usually young, excluded men from the favelas, involved in drug use and trafficking as a way of life—and performing ‘social cleansing’ actions against them. As Denyer Willis (2015) suggests, killing this population in the name of social order has become normalized among police forces—and even accepted by broad sectors of society, which actually operate according to a logic of murder parallel to that of organized crime.
On the other hand, a penal populism ‘from below’ (Sozzo, 2016b) in the name of progressive causes has contributed to the punitive upsurge. A range of social organizations, such as women’s and human rights organizations, and environmentalist groups, have mobilized to demand State harsher actions against those involved in crimes against women, domestic violence, human rights abuses and crimes against the environment. In this way, a ‘punitive left’ has also contributed to the expansion of the penal State to solve social problems (Azevedo and Cifali, 2016: 84).
In Ecuador, a first period (2006–2010) of progressive, guarantee-based criminal reforms, that led to a 40 per cent reduction of the prison population under the socialist government of Rafael Correa, was followed, under the same regime, by a ‘police State period’ (Paladines, 2016: 167). After an attempted coup d’état led by the police forces, the Correa government reacted to political and social unrest (as well as to media and political opposition accusations that a soft government on crime promoted impunity, disorder and violence), through a counter reform that, with the support of Congress, led to an expansion of the penal State. In less than four years (between 2010 and 2014), the imprisonment rate increased more than 120 per cent—even more than the upsurge experienced under the previous neoliberal regime, between 2000 and 2006 (Paladines, 2016: 171).
Finally, the Argentinian case is also marked by different and contradictory periods that oscillate between the expansion of the penal State, supported at different times by the penal populism from ‘above’ of the 1990s, led by politicians and the media, and the penal populism ‘from below’ (Sozzo, 2016b), led by popular movements, of the first years of the 21st century (as a result of social demands for a tougher stance against crime and violence amidst a context of social, economic and political crisis brought about by the neoliberal reforms of the 1990s). And, on the other hand, a period of penal moderation under the centre-left government of Néstor Kirchner (2003–2007) which sought to put at the centre of the political agenda economic and social reforms, and a period of penal hesitation, under President Cristina Fernández (2007–2015). Fernández tried to follow the policies of her predecessor, but encountered stiff opposition, both inside and outside her political coalition, and at a federal state level, that pressed for and enforced penal populist measures (Sozzo, 2016b, 2016c). During all these periods, as in the other cases, there was a political struggle, both inside and outside the ruling political coalition, between liberal and guarantee-based stances (also supported by a professional elite of criminal lawyers and academics that advised the government) towards the treatment of crime, on the one hand, and penal populism, both from above and from below, on the other (Sozzo, 2016b), which opposed a ‘technocratic liberal elite’ that was not in touch with popular needs and social realities (Sozzo, 2016b, 2016c).
The usual suspects: The criminalization of urban excluded young men
A last common feature of Latin American crime control fields is the discrimination, criminalization and violence exerted against particular social groups. The usual targets of crime control policies and dynamics are young men, unemployed, with low levels of education who survive on the fringes of society, mainly in the poorest sectors of cities. Crime control discourses and policies regard them as violent, problematic, incorrigible and vicious; as often involved in petty crime and drug trafficking and drug abuse, while violently expressing their masculinity. Their main form of interaction with the State is with the repressive action of the police forces, as well as the indifference and contempt of courts, prosecutors, public defenders and even society at large. Thus, crime control fields are an expression of the highly unequal and exclusive Latin American societies, which tend to see the young ‘underclass’ as a cause of crime and violence, rather than the outcome of high levels of economic and social exclusion.
Kliksberg (2007: 23) points out that there exists a strong correlation between the alarming indexes of social exclusion among Latin America’s youth and the rise in juvenile delinquency. In Argentina, for example, unemployment among young people rose from 15.2 per cent, in 1990, to 26.4 per cent in 1999. During the same period the number of crimes rose significantly, especially those committed by the young; in Buenos Aires, these went up from 17,678 in 1990 to 26,827 in 1998 (an increase of 51 per cent). This is not surprising in light of the fact that in the Province of Buenos Aires 44 per cent of young people between the ages of 14 and 24 received no schooling of any kind, and half were unemployed. As a result, 1.3 million (out of a total of 6,337,000) found themselves socially excluded. In Chile, between 1995 and 1997, the participation of minors under age 18 in armed robberies went from 21 per cent of cases to 32 per cent. In 1997, out of the total number of those held on homicide charges, 74.8 per cent were between 15 and 34 years old (CEPAL, 1999: 20). In Central America, particularly in El Salvador, Honduras, Guatemala and Mexico, the poverty and exclusion among young people is disquieting; these have played a fundamental role in the formation and growth of juvenile gangs, referred to in this region as maras, 7 who are involved in criminal activity (particularly drug trafficking) and who are the object of intense social stigmatization that has resulted in their being made the targets of iron-fisted policies in these countries (Dammert and Salazar, 2009: 62).
When faced with the exclusion of young people and their problematic conduct, the preferred reaction on the part of Latin American governments has been punishment. Consequently, in numerous countries in the region, the legal age has been lowered so that the young may be prosecuted as adults; new crimes have been defined and prison sentences have been lengthened—all of which are measures aimed at the unruly youth on the urban periphery. The range of legal age that allows for imprisonment varies from 12 years old in Bolivia, Costa Rica, El Salvador and Peru; 13 years of age in Uruguay; and 14 in Chile, Colombia, Panama and Paraguay. The length of prison sentences for youth may be up to eight years, in either Colombia or Paraguay (Dammert and Salazar, 2009: 37).
Finally, it is important to note that in many Latin American countries, in addition to the criminalization of urban excluded young men, there is a disproportionate punishment of the black population and of women—in the latter case, for drug-related offences. As Chevigny (2003: 88) and Wacquant (2003: 199–200) point out, in Brazil most of the victims of police violence are poor and black. This ethnic group is also discriminated against by judicial bureaucracies, because its members face greater obstacles to receive legal aid, and get harsher prison sentences than white people for similar offences. The war on drugs has also disproportionately affected women of low income and who are heads of family. In many Latin American countries, women imprisoned for drug-related offences make up 50 per cent, or more, of the women’s prison population (WOLA, 2010: 99).
Widening the debate on the neoliberal penal State
On the basis of this sketch of Latin American social fields during the era of ‘triumphant neoliberalism’, as Wacquant (2009: 304) has termed it, it is possible to conclude that, despite similarities between the countries of the Global North and those of the Global South, there are important differences that cannot be overlooked. Even though US style neoliberalism had a deep impact on most of the region, especially throughout the 1990s, it is not the only, nor even the main, cause in many countries of the punitive turn that most of Latin America has experienced during the last three decades. This fact compels us to discuss the thesis of the global expansion of the neoliberal penal State, so that critical studies may be developed, especially in relation to Latin America.
Neoliberalism has spread and normalized through the war on drugs and seguridad ciudadana programmes, supported by international organizations, such as the World Bank and the IADB, that promote them as technical and ideologically neutral toolkits that Latin American countries ought to implement if they want to effectively control crime and violence. Such programmes have been adopted, and adapted, both by neoliberal and post-neoliberal regimes, which, at least partially, accounts for the similarity of penal policies and the expansion of the penal State throughout the region. In this sense, it may be said that a neoliberal logic towards crime has permeated—although it has been adapted and transformed—even post-neoliberal regimes.
Having said this, the thesis of the global expansion of neoliberalism as a ‘firestorm’ that devastates everything in its path, to put it in Wacquant’s (2014) words, has serious limits in explaining complex transformations of very different societies, polities and democratic regimes and processes across Latin America. It may be said that an epochal change, driven towards a punitive upsurge, has occurred in the region, as well as in other parts of the world. Such epochal change may share similar structural, cultural and political aspects in a globalized world (higher levels of social and economic exclusion, a new stage of capitalism, the cultural ascendance of punitive populism, a redefinition and restructuring of contemporary democracies and forms of citizenship), which nevertheless may not be reduced simplistically to side-effects of neoliberalism US style as a unique and new form of governance that rapidly spreads, with no adaptation or resistance. The transformations of the Latin American crime control fields that have been discussed show that they are riddled by contradictions, ambiguities and struggles not only between political opponents, but also among political coalitions, professional, bureaucratic and state elites, social and popular movements, and scholars who defend particular interests and worldviews, both in neoliberal and post-neoliberal regimes.
The study of the social and political processes that occur in the Global South, often ignored or debated superficially by academics from the Global North, provides fertile ground for research and is highly useful, not only as a means to enrich the debate, but also of extending it, and opening it up to other experiences and perspectives. Such study may also contribute to overcoming the hurried analysis and erroneous ideas on Latin America’s exceptional character and unique authoritarianism, criminality and violence. These have been, more realistically, the results of deep-seated and complex social and political processes, as well as diverse economic and cultural factors, which, furthermore, have been linked to the transformations that continue to take place in these social spaces.
It is important that the changes that occur in other latitudes—particularly in countries in the Global North where the tone and meaning of globalization are set, as well as the interpretations that exist in reference to them, make up part of the research on Latin American crime control fields. The debate on the globalization of the neoliberal penal State is welcome and necessary in Latin America. The experiences and analyses originating in this region have much to contribute to this debate, not simply as being for or against a given issue, but rather as means that will enrich it and take it in new directions.
Footnotes
Acknowledgements
I would like to extend special thanks to Steven William Bayless, who translated a previous version of this article from Spanish into English, and to Michael Forrest, who proofread the current version. I would also like to thank the reviewers whose comments and suggestions to previous versions of this article helped me to improve its arguments.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship and/ or publication of this article: This research received a grant from the Vice-Rector of Research Office and the Law Department of Universidad de los Andes, Bogotá-Colombia.
