Problems of Lawless Violence:
Torture and Conditions of Detention in Latin America

Chair: Tom Farer,The University of Denver
Paper: Nigel Rodley, University of Essex, England
Discussant: Ligia Bolívar, PROVEA, Venezuela

The Helen Kellogg Institute for International Studies
Workshop on The Rule of Law and the Underprivileged in Latin America
9-11 November 1996

In the past, the Latin American region was characterized by illegitimate regimes which maintained their power by resorting to systematic torture and enforced disappearances of their opposition. Nigel Rodley pointed out that while most governments in the Latin American region now enjoyed political legitimacy, conduct amounting to cruel, inhuman, or degrading treatment, and conditions that must sometimes be described as torturous persisted, particularly in the treatment of criminal suspects, before and after conviction, in the hands of the police and prison authorities.

Enforced disappearances-the scourge of the region in the 1970s and 1980s-have now declined, with the exception of Mexico. They are still a problem in Colombia, Guatemala, Mexico, and Peru. In these countries, the military has not yet abandoned the practice of enforced disappearances, and civil authorities acquiesce in its use. The international community has given little attention to the problem.

Levels of torture are difficult to assess. Recent reports of the UN Special Rapporteur on Torture reveal that a substantial number of allegations of torture came from Colombia, Mexico, and Peru, with most of the complaints being in respect of acts allegedly committed by the military or other security agencies upon suspected "subversives." In Chile and Venezuela, common criminal suspects are also at risk. In Mexico, the problem appears to be confined to common criminal suspects. The demise of illegitimate governments has not put an end to torture. Police, who learned to coerce confessions in the past, have not forgotten their techniques. Poorly trained, underpaid, and under-respected as they are, police resort to torture. Public outcry in the face of escalating crime levels leads officials to turn a blind eye to malpractices. International standards call for the separation of remand and convicted prisoners-because remand prisoners have not been convicted their detention is preventive, rather than punitive. Overcrowding means that such standards are ignored. In Brazil, 30 percent of prisoners are on remand; in Mexico, 49 percent of prisoners charged with federal crimes and 70 percent of those charged with state crimes were unsentenced (November 1992). The figure for Peru is 77 percent.

Juveniles or minors do tend to be separated from adults. Some systems, however, allow for minors to be treated as adults where particular crimes are involved. Male and female prisoners are generally kept apart-though instances of mingling are reported in Mexico and Peru. International standards also require that prisoners be separated on the basis of their criminal record: murderers should not be imprisoned alongside petty thieves. This seems to be largely ignored.

Many of the problems discussed can be attributed to overcrowding. Brazilian prisons are reported at 250 percent above capacity. In 1993, Mexican prisons were at 126 percent of capacity. In 1991, two Peruvian prisons were respectively 416 percent and 312 percent above capacity. In Venezuela, the overcrowding problem was of a ratio of about two to one. Under such conditions, prisoners can barely find room to sleep, sanitation is severely compromised, and supervision becomes difficult. In Brazil, staff reportedly resort to beating prisoners. Prisoners abuse each other. Homosexual rape occurs with the complicity of officials. While governments do not wish to impose such conditions, they are the inevitable result of the fact that prisons are low on the budgetary priority; prison conditions are scarcely a concern of a society on the "outside" fearing escalating levels of crime. Public anxiety about law and order leads to pressure upon judges to send ever more suspects and convicted persons to jail.

Systems of prison governance are frequently either arbitrary and oppressive, or nonexistent-in that inmates are left to run the internal affairs of prisons themselves. Riots and mutinies in prisons are common. Authorities have often responded with shocking, indiscriminate use of lethal force. In Brazil, there have been three disturbing incidents-in which 18, 31, and 111 prisoners, respectively, died or were killed as a direct result of the action of authorities. Authorities have not been prosecuted for their actions. In Peru, armed forces were called in to quell uprisings in two prisons in 1986. Judges and prosecutors, prison authorities, and the government's own peace commission members were denied access. Over 200 inmates died. A military court investigation ended in prison sentences for only a handful of officers. In a 1992 uprising, 39 prisoners died and many more were reportedly wounded.

Conclusions

Prisons are unlikely to be granted greater priority in the allocation of resources. Detaining greater numbers of persons in prisons is not necessarily an appropriate response to calls for law and order, and justice; neither is the traditional Western model of prisons and prison governance necessarily appropriate in Latin America.

Following the presentation of the paper, in his capacity as chair, Farer identified three issues raised by Rodley's paper: Firstly, is the nature of criminal procedure in Latin American countries such that undue emphasis is placed on confessions at the expense of rights? Secondly, on the issue of prison governance: What sort of inmate participation in prison management is appropriate, and to what extent should inmate participation be encouraged? Finally, where and how should the bounds of acceptable forms of police practice in interrogation be drawn?

 

Discussant's Comments (Ligia Bolívar O.)

Bolívar focused on the relationship between poverty, discrimination, and human rights violations. She contended that poverty and discrimination were, at once, both a source and a consequence of the deprivation of fundamental rights. In particular, the right to physical integrity and the right to adequate prison conditions were at stake. New constitutional regimes in the Latin American region have been established in cultures deeply rooted in authoritarian patterns. Rigid structural adjustment programs have been imposed by these new regimes; the implementation of such programs has followed the authoritarian patterns of the past, becoming a source of acts of repression and exclusion. Because of the longstanding traditions of authoritarianism and history of regularized coercion of suspects, victims of torturous forms of coercion do not consider themselves tortured. Similarly, deplorable prison conditions are accepted; for those affected by such conditions, complaints can lead to victimization. (As regards prison conditions, international standards make no provision for policy on inmates' sex lives. This is a glaring omission. The lack of policies deprives prisoners of dignity, as homosexual rape becomes normal practice.) There is a double victimization: first, by the perpetrator of abuses, and second, by a system unwilling to take action on the victims' behalf.

Following the presentation of the pape

 

Actors

The replacement of dictatorial regimes with constitutional regimes has influenced the manner in which actors-be they states, NGOs, or the international community-contribute to or become an obstacle for the enforcement of the rule of law. Where states are concerned, constitutional regimes continue to wield their power in a manner similar to the dictatorships they replaced. Criminal procedure has remained unchanged; states' judicial systems emphasize written confessions, encouraging police to detain in order to coerce confessions, rather than investigate in order to detain. Police need adequate training in investigative skills. NGOs, which in the past geared themselves to focus upon the evils of dictatorships and advocated democracy, have lost sight of their primary purpose: to defend human rights, regardless of the context and the victim. Where they do so, they run the risk of confronting hostile public opinion because, fearing escalating levels of crime, the public has been willing to compromise fundamental rights. A task for NGOs is therefore to reconcile the rights of common criminal suspects with the rights of victims of crimes. The international community tends to regard democracies as being incapable of perpetrating human rights abuses, or it ignores such abuses-reasoning that the system has the ability to correct its own excesses, in that a government which violates human rights ought not be re-elected. Yet human rights abuses have continued to be normal practice, and cover-ups the order of the day. This is the "stable democracies myth": the international community allows or overlooks human rights abuses as long as a stable democratic government is in power. That these very abuses undermine the basis of the state is ignored.

 

Floor Discussion

Christopher Larkins (University of Southern California) questioned whether the prison conditions described arose as a result of a lack of state presence or an excess thereof. Rodley replied that it is difficult to generalize in this respect. However, the system of prison governance is one which fosters arbitrary and oppressive governance, allowing states to simultaneously avoid responsibility and exercise authority. Instead of the state providing adequate resources, prison uprisings are brutally suppressed; the lack of resources precludes governments from taking any alternative course of action. In some countries-for example, Brazil-collusion between the actual authority exercised over prisons and the state (the apparent authority) is considerably formalized.

Farer asked of Rodley where he would allocate further resources, were these to materialize. This, Farer observed, raised the more substantive issues of how rigorous prison conditions ought to be and the function prisons perform. Rodley declined to speculate on precisely where further resources would be allocated without knowing the extent of such resources. As to the substantive issues, the punishment meted out by society is deprivation of liberty, and deprivation of liberty alone.

Bolívar commented that the scarcity of resources should not be isolated from other factors informing the problems that confront prisons: prisons should be contextualized within the criminal justice system as a whole. Alternative punishments for perpetrators of "light" crimes should be considered-problems for prisons can be solved at other levels in the criminal justice system.

Echoing Rodley's earlier point, Mariclaire Acosta pointed out that prisons are frequently a source of revenue for the interests which govern them. This is the case in Mexico, where a maze of interests impedes prison reform. The tendency of the press to pressure the police for quick results in high profile crimes contributes to an environment in which police feel justified in resorting to torture in order to extract confessions. Guillermo O'Donnell drew attention to the motivations of persons staffing prisons which might inform a "self-selection" process in prospective prison warders. Rodley indicated that research in this area was scant. Bolívar commented that the training of prison warders was frequently inadequate. Farer postulated two scenarios in response to problems of control in prisons: In the first, authorities could seize control by force-to do so requires increases in the number of guards, and is expensive. In the second scenario, authorities could relegate guards to the role of securing the perimeter of a prison, allowing "self-government" of prisons-in which case, authorities should consider formulating incentives to encourage the organization of prisons along less anarchic and less brutal lines. By way of conclusion, Rodley drew attention to the fact that prison governance remains a local issue. Players at the international level are constrained to offering support at a local level. Where different levels are thus involved, progress is inevitably slow-communication between different levels is difficult, and new stakeholders and additional parties with their own set of interests and priorities enter at each level.