Note: This piece originally appeared in Spanish in Justicia en Las Américas. To read the original piece, click here.
The current health crisis demands the timely adoption of preventative measures. In reclusion, these must be general, forceful and immediate, and must be oriented to generate feasible conditions. An urgent moratorium on preventative detention, adopted under judicial control, is an effective means of significantly reducing the prison population and, from there, implementing the recommended preventative actions necessary.
The global health emergency recognized in Latin America has made certain social inequalities even more evident. One of them is the situation experienced by persons deprived of liberty. Independent from the penal responsibility they have been charged or proven with, persons deprived of liberty should not have to be forced to live in the overcrowded situation they are found in virtually all prisons in the region.
The recent appearance of the infectious COVID-19 virus and evidence of its high propagation, added to the prison overcrowding issues, creates a crisis within a crisis.
Various organizations—both public and private institutions—have spoken in favor of the urgent adoption of reasonable measures to guarantee the health and integrity of this population and their families. These include: The World Health Organization’s regional office for Europe, the Inter-American Commission on Human Rights (IACHR), the United Nations Subcommittee on the Prevention of Torture (SPT-UN), the United Nations High Commissioner for Human Rights and the United Nations Office on Drugs and Crime (UNOCD).
Faced with such international warnings, and coupled with internal complaints, regional countries have adopted dissimilar measures ranging from greater isolation of populations deprived of liberty—such as suspension of visits, activities, court hearings—to early release, limited to people convicted of lesser crimes or who are most vulnerable to the virus. However, tension remains consistent in a majority of countries and, as a consequence, have resulted in riots, some with fatal consequences.
The question now is, how to proceed. There is a general consensus, based on WHO recommendations, about two basic protection measures for prisons: social distancing and hand washing. The current prison occupancy rates in the region cast doubt on the effectiveness of the aforementioned measures and question the possibility of effectively carrying them out.
Therefore, based on the information available, in addition to the immediate release of people at greatest risk of contracting the virus, an urgent decision that should be considered is the ipso jure suspension of provisional detention. More than 40 percent of prisoners in the region have not been charged with a crime, rather, their arrest is justified for fear the individual might try to evade the judicial system or could result in the alteration of evidence.
The controversial legitimization of preventative prison is outweighed in the current context of a pandemic by the much greater damage, not presumed or potential, of uncontrolled contagion. In this sense, the principle of proportionality enshrined in the American Convention prevails over any previous judicial decision or legislative act and must be applied in support of the respective solutions.
This measure, objective and applicable under expedited judicial control, is alien to contingent or discriminatory criteria, such as the crime for which the individual is being tried.
The freedoms granted under this proposal will substantially reduce the prison population enough to allow health and administrative officials to have the operational space to prevent and control the epidemic in safe conditions for both personnel and those deprived of liberty. In this scenario, social distancing and health measures would become plausible and therefore, would avoid a humanitarian catastrophe.
If justice, public health and good sense were not enough, and the responsible authorities persisted in clinging to inaction—guided by the chimera that prisoners are “not a part of society”—they will see themselves portrayed by Bernhard Schlink in his book The Reader, when Nazi guards refused to release prisoners held in a burning church.
Finally, by granting the required liberties, there is a risk of falling into the false modernism of using ankle monitors or tracking devices—used to implant Orwellian models of surveillance in freedom. These electronic devices only allow us to know the last place in which a person could have been found before withdrawing from the action of justice. The limited public resources in the region should be geared toward meeting real needs, not illusions of security.
