Report: Pretrial Detentions Continue to Plague Latin American Prisons

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A new US report documents how pretrial detentions are overcrowding Latin America’s prisons, leading to gang recruitment, violence and violations of prisoners’ human rights.

Latin American countries continue to exploit pretrial detentions — holding people who have been accused of crimes but yet to be tried — in order to deal with high crime rates, despite the fact that mass incarceration props up criminal organizations working inside prisons, the State Department’s 2019 Country Reports on Human Rights Practices shows.

In El Salvador and Colombia, more than 30 percent of the general prison population is made up of pretrial detainees, the report said. In Guatemala, that figure touches nearly 50 percent. And in Paraguay, it surpasses 60 percent. As a result, pretrial detainees— often kept in the same facilities as convicted inmates even when awaiting trial for petty crimes — must contend with gangs and other criminal groups in order to survive.

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Judicial systems across Latin America are swamped by an overwhelming number of pretrial detentions. In Mexico and Brazil, the report described officials failing to file charges against detainees within the legal time limit due to an ever-growing backlog of cases. In Guatemala, exhaustive investigations and court procedures have delayed trials for years. 

Extreme cases in the report include pretrial detainees in Mexico who were held for over a decade.

Pretrial detention laws have been designed in some countries to allow holding detainees for years, leaving them to languish in jails. People in Paraguay, for instance, can be held for up to five years, after which authorities can ask for a six-month extension. Guatemala has a one-year limit that can be extended indefinitely.

Other countries, such as Brazil, set the maximum pretrial detention period on a case-by-case basis. But the report pointed out that this hasn’t helped lower the average length of detentions. More than half of pretrial detainees in 17 states are held for more than three months.

InSight Crime Analysis

Alternatives to pretrial detention would likely ease some overcrowding in Latin American prisons, which has led to more career criminals and spikes in gang recruitment, while exacerbating a cycle of poverty and violence in many countries. 

In the United States, where high bail rates tend to trap the poor and people of color in the jail system, recent improvements include supervised release programs, and pre-trial release for misdemeanors and certain felonies. Uruguay has turned to treatment programs rather than jailing people accused of drug offenses. And countries could use probation in lieu of incarceration.

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The economic impact of lengthy pre-trial detentions can be devastating. Pretrial detentions can strangle families economically, when mothers or fathers lose work while waiting for a court ruling from behind bars, increasing pressure on them to find ways to provide for their children. In this bind, some turn to crime or drugs. 

Overcrowding in prisons also leads to other problems. The report documents violent or invasive use of force against inmates in Guatemala, Bolivia and Brazil, which in some cases constitutes torture. The report also details shortages of beds, food and medical supplies, furthering the spread of diseases. Most recently, Latin American countries have been  forced to rethink their liberal use of detention amid the coronavirus pandemic. Fear of contagion has led to deadly riots and escapes at prisons in Colombia and Brazil, among other countries.

As the report notes, some countries took steps last year to improve pretrial detention rates. In February, Mexico passed a constitutional reform that increases the amount and severity of charges that qualify someone for pretrial detention. El Salvador built new prisons in order to reduce overcrowding. And Paraguay encouraged judges to impose “alternative measures” to pretrial detention for people accused of pettier crimes.

While these policy changes are encouraging, it’s still a hard sell to officials and governments that anything but incarceration reduces crime. 

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