It is urgent to accelerate immediate legal mechanisms to neutralize massive contagions in the country’s prisons.
AUTHOR: SOPHIA ICAZA IZQUIERDO
The global pandemic caused by Covid 19 has revealed the serious crisis that the public administration is going through both in Peru and in several countries in the region, highlighting that essential services such as health, education and security have been in a “state of emergency” for decades, This is because, in addition to the demagogic discourse of the ruler in power, there is structural, endemic and historical corruption, which continues to deprive us of huge economic resources to the detriment of the improvement of basic services for the benefit of citizens in general, thus placing us, from the outset, in a disadvantageous situation to attack the advance of the disease.
The government has no choice but to accelerate – in fits and starts – the adoption of containment measures to deal with the accelerated spread of this disease, with all that this implies in terms of management and control, with the ultimate aim of safeguarding the life, health and integrity of all citizens, including those deprived of their liberty, since prison only limits the right to freedom of movement, but not the respect for their fundamental rights inherent to their human condition, which in a democratic state governed by the rule of law must be guaranteed. However, it is no secret that the prison system in our country, as in the health sector, collapsed long before Covid 19 appeared, turning into a chaotic situation that has been increasing permanently and steadily, with multiple problems, headed by the rampant overcrowding and lack of infrastructure, against which – as it is obvious to deduce – the measures of social isolation and basic hygiene provided by the government are simply impossible to implement, The prison population and prison employees are seriously exposed to massive contagion, since there are no free spaces where to assign a certain group of inmates because everything is simply shantytowned, there are no minimum conditions to ensure adequate infrastructure and basic sanitation, so it is urgent the adoption of all effective legal mechanisms to achieve a high rate of prison deaccessioning.
There are 68 prisons in Peru, with an occupancy rate – according to INPE statistics reports – of 238%, which represents 138% prison overcrowding, with the highest overcrowding found in prisons in the central part of the country, with 352%, 342% in the south, 274% in the north and 261% in Lima. The historic Lurigancho prison, the largest in the country, has an overcrowding of 218% with 10,176 inmates when its capacity is for only 3,204 inmates, followed by the Chimbote prison in Santa with 3,298 inmates for a capacity of 930 inmates, which represents 285% overcrowding, followed by the Huacho prison in Carquin with 239% overpopulation, its capacity is 644 inmates but it houses 2,181 inmates.
Now, regarding the procedural situation of the prison population, as of December 2019, the number of processed inmates reached 34,879 people, representing 37% of the inmate population. According to the December 2019 Statistical Report of the National Penitentiary Institute (INPE), the increase in crime index rates is verified, going from 112,526 to 126,064, i.e. an increase of 13,538, out of 95,548 inmates, 34,879 are in processed status (pretrial prisoners) which constitute 36.50%. Of these, 32,769 are men and 2,110 are women.
Regarding the age factor, which also influences the progress and scope of the Pandemic, of the total population of 95,548 inmates, 15,154 inmates are over 50 years of age, according to statistics as of December 2019, released by the INPE. The population aged 60 years and over amounts to 4536 (5.0%), and in the case of women there are 225 (4.4%).
And finally, another relevant aspect for the viability of exceptional measures to reduce overcrowding in Covid 19 is the nature of the crime, in this regard we have that the first level is occupied by crimes against property, specifically aggravated robbery with 25.5% of the population, and crimes against sexual freedom.
CRIMINAL POPULATION BY SPECIFIC CRIMES ACCORDING TO LEGAL STATUS
Source: Prison Registry Units
Prepared by: INPE/Statistics Unit.
International law, as well as our Political Constitution, establishes that the State, through INPE, is primarily responsible for ensuring the physical and mental health of the prison population; and in order to comply with these obligations during the Pandemic, there are recommendations from international organizations, such as Resolution N. 1/2020 dated April 10, 2020, issued by the Inter-American Commission on Human Rights, which advocates to DISCOURAGE the prisons through various immediate and urgent legal mechanisms that allow mainly the release of vulnerable people who are at greater risk to their life and health in the face of COVID-19, being that in our prisons there is a large number of patients with tuberculosis, HIV, diabetics, within the group of older adults.
But the release and adoption of alternative measures through the emergency regulations should be carried out through criteria of necessity and urgency, giving priority to those vulnerable subjects due to age and pre-existing diseases, establishing legal locks to ensure that dangerous and convicted criminals cannot benefit from this type of mechanism, since another primary obligation of the State is to ensure public safety. To date, the following legal provisions and proposals have been issued:
At the Executive level.- 1.
1. On April 14, 2020, Legislative Decree No 1459 was enacted, which optimizes the application of the Automatic Conversion of custodial sentence for convicted for the crime of Omission of family assistance. It establishes as a condition for its application, the payment of the full amount of the civil reparation and the alimony debt accumulated up to the moment of requesting the conversion.
According to INPE statistics, there are a total of 2,821 inmates for this crime, which constitutes 3.0%, of which 1,067 are pretrial detainees and 1,754 are convicted.
To date, according to information recorded in the media, the sentences of 321 inmates for the crime of omission of assistance have been converted, which shows that the demand for full payment of reparations and the accrued pension is a barrier that delegitimizes the purpose of this measure, since what is being sought is the release from prison of a total of 2,700 inmates, a figure that is far from being achieved to date.
2. On April 23, Supreme Decree No. 004-2020-JUS was issued, which establishes special cases for the evaluation and proposal of recommendation of Presidential Graces, and determines its procedure, within the framework of the health emergency due to COVID-19.
The purpose of this regulation is to establish, on an exceptional and temporary basis, special cases for the Presidential Thanks Commission to proceed to evaluate and propose the granting of common and humanitarian pardons, as well as commutations of sentences, and to develop its procedure, within the framework of the health emergency declared at the national level by COVID-19.
Establishing the express prohibition, in that the recommendation of presidential pardon does not apply to inmates who have been sentenced for any of the following crimes, contemplated in the Second Book, Special Part of the Penal Code and special laws, if applicable: a) Title I, Crimes Against Life, Body and Health: arts. 106, 107, 108, 108-A, 108-B, 108-C and 121. b) Title III, Crimes Against the Family: art. 149. c) Title IV, Crimes Against Liberty: arts. 152, 153-A, 153-B, 153-C, 153-D, 153-F, 153-G, 153-H, 153-I, 153-J, 170, 171, 172, 173, 174, 175, 176, 176-A, 176-B, 176-C, 177, 179, 183, 183-A and 183-B. d) Title V, Crimes Against Property: arts. 189 and 200. e) Title XII, Crimes Against Public Safety: arts. 279, 289, 290, 291, 296-B, 297 and 303-A. f) Title XIV, Crimes against Public Tranquility: arts. 316, 316-A, 317, 317-A, 317-B. g) Title XIV-A, Crimes against Humanity, arts. 319, 320 and 321. h) Title XVI, Crimes against the Powers of the State and the Constitutional Order, arts. 346 and 347. i) Title XVIII, Crimes against the Public Administration, arts. 382, 383, 384, 385, 387, 388, 389, 390, 391, 392, 393, 393-A, 394, 395, 397, 397-A, 398, 399, 400 and 401. j) Terrorism (Law No. 25475, as amended by Law 29936). k) Financing of terrorism (art. 4-A Law No. 25475). l) Money laundering (Legislative Decree 1106, arts. 1-6. m) Crimes committed by violence against women and members of the family group (Law No. 30364).
To date, 50 convicted persons have been released from prison via pardon; however, this does not even represent 10% of the people who, according to statistics, should benefit from this presidential pardon at the national level.
At the judicial level.
By means of Administrative Resolution N. 120-2020-CE-PJ, the Executive Council of the Judiciary (CEPJ) urged the country’s criminal judges, including those who are part of the emergency jurisdictional bodies, to resolve ex officio and/or at the request of a party, the situation of the accused and convicted prisoners in order to evaluate the modification of their legal status. The rule also states that they are obliged to resolve the requests for variation of the detention order or termination of preventive detention. This exhortation was reiterated by Administrative Resolution N. 000061-2020-PCE-PJ, dated April 26, 2020.
4. Likewise, by means of Resolution No. 000105-2020-P-P-PJ, dated April 30, 2020, the Executive Council has ordered the creation of the Working Commission headed by the Presidents of the Permanent and Transitory Criminal Chamber of the Supreme Court of Justice of the Republic, who will reach proposals for measures that the Judicial Power can adopt to solve the problem of the risk of massive contagion of the prison population with COVID19, given the conditions of overcrowding of the prisons and the vulnerability of many of the inmates.
Today, the Government has announced Bill 5110/2020-CE sent to the Legislative, which seeks to establish exceptional measures to positively impact on the deactivation of the prison population and juvenile centers, through the immediate and ex officio granting of the conversion of preventive prisons for restricted appearance, due to the risk of contagion within the framework of this Pandemic.
However, it is subject to an express prohibition by type of crime, that is, it does not apply to defendants accused of: a) Title I, Crimes Against Life, Body and Health: arts. 106, 107, 108, 108-A, 108-B, 108-C and 121. b) Title III, Crimes against the Family: art. 149. c) Title IV, Crimes against Liberty: arts. 152, 153-A, 153-B, 153-C, 153-D, 153-F, 153-G, 153-H, 153-I, 153-J, 170, 171, 172, 173, 174, 175, 176, 176-A, 176-B, 176-C, 177, 179, 183, 183-A and 183-B. d) Title V, Crimes against Property: arts. 189 and 200. e) Title XII, Crimes against Public Safety: arts. 279, 289, 290, 291, 296-B, 297 and 303-A. f) Title XIV, Crimes against Public Tranquility: arts. 316, 316-A, 317, 317-A, 317-B. g) Title XIV-A, Crimes against Humanity, arts. 319, 320 and 321. h) Title XVI, Crimes against the Powers of the State and the Constitutional Order, arts. 346 and 347. i) Title XVIII, Crimes against the Public Administration, arts. 382, 383, 384, 385, 387, 388, 389, 390, 391, 392, 393, 393-A, 394, 395, 397, 397-A, 398, 399, 400 and 401. j) Terrorism (Law No. 25475, as amended by Law 29936). k) Financing of terrorism (art. 4-A Law No. 25475). l) Money laundering (Legislative Decree 1106, arts. 1-6. m) Crimes committed by violence against women and members of the family group (Law No. 30364).
And in the case of excluded crimes, the accused are entitled to the procedure for the termination of preventive detention, with certain nuances to be taken into account with respect to the state of vulnerability and morbidity of the inmate.
It is also proposed the conversion of prison sentences for convicts sentenced to up to 8 years of imprisonment for community service, also subject to the express prohibition by type of crime. A simplified procedure is also established for the granting of penitentiary benefits of semi-liberty and parole, which by legal mandate are also subject to prohibition based on the nature of the crime. Finally, it regulates the cessation and variation of the measure of internment with respect to the adolescent offender, subject to the same prohibition as in the case of those who can be charged.
It should be noted that the issue of personal electronic surveillance or so-called electronic shackles, provided for in art. 288.5 of the CPP, is also proposed as an alternative to the cessation of pretrial detention, subject to the approval of the judge and verification of its operability before the INPE. Incidentally, it should be mentioned that since the approval of the program for the use of electronic shackles in 2017, the debate for its massification has been promoted, since approximately 35 people have managed to access this mechanism, thus evidencing that it was never applied at the levels for which the regulation was introduced, which mainly responds to the fact that the cost of maintaining the shackle is borne by the inmate, a much lower cost than keeping a person in prison. Daily use of the shackle costs S/. 26.00 soles, compared to the cost of keeping a person in prison S/: 42.00, however this cost analysis has not led to its widespread implementation, probably due to operational issues related to satellite use.
Based on the statistical information recorded by the INPE, it is worth asking the question: Will the measures adopted to date really tackle the problem of prison overcrowding in the face of the challenge of the pandemic? If we really want to reduce the levels of overcrowding in our prisons, apart from attacking the real underlying issues or the root cause, some aspects should be relaxed or made even more flexible where the dangerousness of the inmate is analyzed according to the nature of the crime, his participation in the execution, whether he is a repeat offender or habitual offender, etc., bearing in mind that the highest crime rate in the country is the one of the highest in the world, taking into account that the highest crime rate is found in serious property crimes.
2. We need the Judiciary to propose the adoption of immediate urgent measures to achieve the depopulation of prisons, without losing sight of the duty to ensure public safety, which is being done through the imposition of legal locks, putting in the front line those vulnerable sentenced inmates who are fully identified in the national prisons, Perhaps through a proposal to modify the Penal Execution Code to facilitate the granting of penitentiary benefits in an “exceptional” and immediate manner for those who are close to completing their sentence and have not had administrative sanctions or pending proceedings, not being able to access those inmates for very serious crimes such as homicide, genocide, rape, etc.
In addition, it could be proposed to extend the scope of Legislative Decree No. 1459 to inmates sentenced to up to 8 years of imprisonment, subject to certain conditions for their release, such as the payment of a high percentage of the civil reparation, etc.
Also, Article 68 of the Criminal Code could be modified with respect to the exemption of punishment by the criminal judge and ex officio as an exception, in cases of crimes whose maximum sentence does not exceed 6 years of imprisonment, provided that the responsibility of the agent is minimal.
With respect to pre-trial detainees, it could be suggested to modify art. 268° of the CPP, to interpret the decay of procedural danger in the face of the Pandemic, and the measures of isolation, border closure, etc. that condition the immediate adoption of restricted appearance or house arrest. Vulnerable prisoners (over 60 years of age, with serious illnesses, physical or permanent disability, pregnant women, mothers of minor children) should be in the front line, regardless of the seriousness of the crime, since, as already mentioned, they are under a precautionary measure, have not been sentenced, and therefore enjoy the right to the presumption of innocence.
The Supreme Court’s Working Committee will surely come up with very interesting proposals, suitable and effective solutions to the ends sought, in which they will surely incorporate the obligation of criminal judges to immediately resolve the legal situation of inmates, mainly pretrial detainees, ex officio and exceptionally.
3. It should be remembered that in addition to prison overcrowding, there is another latent problem which is the lack of medical care for inmates, which continues to violate basic human rights and as long as this is not addressed, prisons will continue to be hotbeds of infection, hand in hand with degrading conditions plagued by violence, corruption and overcrowding, in which it is impossible to comply with the penitentiary treatment in the light of the purposes of punishment, which by constitutional mandate refer to the reeducation, rehabilitation and reincorporation of the convict into society, resulting in a real crisis of legitimacy. As José Ávila Herrera points out, people are not resocialized because of prison, but in spite of prison, since the penal system cannot and will not be able to guarantee the resocialization of the convicted.
4. We must begin to envision the regulation of an emergency criminal legal framework subject to the production of calamities and disasters, such as the global pandemic, a package of rules of a substantive and procedural nature, activated at the onset of emergency situations such as the current one, and which require immediate response by the authorities. For, although it is true that this crisis has restricted many aspects of our daily life, it has also allowed the generation of new forms of coexistence, and the law is no exception, even more so when it is predicted that nothing will ever be as it was before, so it will be increasingly necessary to have at hand a package of so-called emergency rules to be implemented precisely in this type of conjuncture.
5. Finally, we ask: Will this government be the driving force behind real structural change in the prison system in the face of the global health crisis?
After adopting urgent measures for the deaccessioning, will they really focus on the root of the problem, which is to banish the over-criminalization of behaviors, abuse of preventive prisons, lack of diligence in the processing of criminal proceedings, and a long etcetera?
Obviously, the answer to the problem should always be from a criminological perspective, which helps us to understand the causes of the criminal phenomenon, as well as to analyze the increase in crime rates in both Lima and the provinces, surely linked to social, educational and cultural aspects, where the State has no presence.
 RESOLUTION NO. 1/2020 – PANDEMIA AND HUMAN RIGHTS IN THE AMERICAS (Adopted by the IACHR on April 10, 2020) https://drive.google.com/file/d/1g62Ga__a_RQ_caD2n2hNyrh5uU6L5wqh/view
Persons Deprived of Liberty. 45. Adopt measures to address the overcrowding of detention units, including the re-evaluation of pretrial detention cases to identify those that can be converted into alternative measures to deprivation of liberty, giving priority to populations with higher health risks of COVID-19 infection, mainly the elderly and pregnant women or women with breastfeeding children. Ensure that, in cases of persons at risk in the context of a pandemic, requests for prison benefits and alternative measures to imprisonment are evaluated. In the case of persons convicted of serious human rights violations and crimes against humanity, taking into account the legal right affected, the seriousness of the facts and the obligation of States to punish those responsible for such violations, such evaluations require a more demanding analysis and requirements, in accordance with the principle of proportionality and applicable inter-American standards. 47. Adapt the conditions of detention of persons deprived of liberty, particularly with regard to food, health, sanitation and quarantine measures to prevent the intramural transmission of COVID-19, ensuring in particular that all units have medical care. 48. Establish protocols to guarantee security and order in detention units, in particular to prevent acts of violence related to the pandemic and respecting Inter-American standards on the matter. Likewise, ensure that any measure that limits contacts, communications, visits, outings and educational, recreational or work activities is adopted with special care and after a strict proportionality trial.
3] Article 139, paragraph 22) C.P 1993, “The purpose of the penitentiary regime is the education, rehabilitation and reincorporation of the convicted person into society. The 1991 Penal Code states in Article IX of the Preliminary Title that “punishment has a preventive, protective and re-socializing function”.