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DEMOCRACIES WITHOUT CITIZENSHIP:

CRIME AND PUNISHMENT IN LATIN AMERICA

Manuel Iturralde*

The aim of this article is to show how, despite the politicaland economic re-

forms of the last threedecades, which have embraced he idealsoffree markets

anddemocracy,socialandeconomic exclusion, as well as authoritarianism, re

still the main eaturesofmost ofLatin American societies.For this reason, they

may be considereddemocracies without citizenship. The article ocuses on the

impact that these features have had on the configurationof Latin American

crime control ields, which in most cases are highly punitive. It also discusses

how Latin American crime control ields have contributed in turn to the ad-

vancement ofsuch reforms.

INTRODUCTION

In most of Latin America the criminal justice system struggles to prosecute

organized crime and the most violent forms of delinquency; the investiga-tive capacity of the police and the security forces isvery limited, and only

a very low percentage of criminal cases reach the courts.' Additionally,

Latin American state security agencies traditionally have been responsible

*Associate Professor, Department of Law, Universidad de los Andes, Bogoti, Colombia.

[email protected]. I am very grateful for the comments and suggestions I received

from the people participating in the Modern La w Review Seminar Citizenship and

Criminalisation in Contemporary Perspective, where I presented a paper based on an earlier

version of this article. Iam particularly grateful to Peter Ramsay and Ely Aharonson, who or-ganized the seminar and gave me detailed comments on my paper. Alejandro Chehtman also

provided me with insightful comments, which helped to improve my arguments.

i. Paulo Sirgio Pinheiro, Introduction, in The (Un)Rule of La w and the Under-

privileged in Latin America ix (Juan E. Mandez et al. eds., 1999).

New CriminalLaw Review, Vol. 13 , Number 2, pps 309-332. ISSN 1933-4192, electronic

ISSN 1933-4206. 0 zoio by the Regents of the University of California. All rights re-

served. Please direct all requests for permission to photocopy or reproduce article content

through the University of California Press's Rights and Permissions website, http://www.

ucpressjournals.com/reprintlnfo.asp. DOI: Io.1525/nclr.zoso.13.z.309.

I 309

HeinOnline -- 13 New Crim. L. Rev. 309 2010



310 1 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 2 1 SPRING 2010

for human rights violations and an excessive use of force. The usual vic-

tims of such abuses are the marginalized social classes, which in LatinAmerica account for the majority of the population. Thus, it is hardly sur-

prising that the majority of Latin Americans regard the law and the judi-

cial system mainly as instruments of oppression on behalf of the elites; fear

and mistrust of the justice system are common.

The inefficiency and lack of credibility of law and the justice system are

crucial factors that at least partially explain the contested legitimacy of

Latin American states and the feeble embeddedness of democracy in the

region. But at the same time, the law and justice systems in many Latin

American countries are ineffective and arbitrary precisely because the po-litical regimes in which they are grounded have been traditionally author-

itarian and exclusionist.

Such a bleak sight seems to have been changing during the last thirty

years as most of Latin American states have embraced the ideals of democ-

racy and free markets. Nonetheless, this has not been an easy task because,

despite all the economic and political changes, the region still remains the

most unequal in the world 2-half of its population lives in poverty and

does not have access to health care, education, social welfare, and the la-

bor market. Meanwhile, power groups that largely control the politicaland economic spheres have been the only ones to take full advantage of

the recent transformations. The implantation of the neoliberal model

across the region has widened the ga p between the wealthy and the un-

derprivileged classes.

The aim of this article is to show how, despite the political and eco-

nomic reforms of the last three decades, which have embraced the ideals

of free markets and democracy, social and economic exclusion, as well as

authoritarianism, are still dominant features of most Latin American soci-

eties. For this reason, they may be considered "democracies without citi-zenship."' I will focus on the impact that these features have had on the

2. Among the nine countries with major income inequality in 2000, seven were Latin

American countries. According to the World Bank, Sub-Saharan Africa and Latin America

have the highest rates of inequality in the world, with a Gini coefficient above 0.50 since

the 1960s. United Nations Development Program, Human Development Report zoo, 183

(2oo2); Guillermo Perry et al., Poverty Reduction and Growth: Virtuous and Vicious

Circles 53 (2006).

3. Pinheiro, supra n. i, at 2.




DEMOCRACIES WITHOUT CITIZENSHIP | 31 1

configuration of Latin American crime control fields, which in most cases

is highly punitive. I will also discuss how Latin American crime controlfields have contributed in turn to the advancement of such reforms.

This article tends to take a very broad approach (both spatially and

temporally) toward these topics, which entails a certain degree of simpli-

fication and generalization to present major features and transformations

that have shaped the region. Thus, I will start from the presupposition

that, despite their variety and unique particularities, Latin American

countries have a shared past, similar historical trajectories, and common

features that distinguish them from their North American neighbors and

other regions of the world.Nevertheless, the last decade has witnessed major transformations in

Latin America, particularly in the political landscape, which may be too

recent to allow for broad and definitive conclusions. The most important

feature of the political scene during this period has been the political re-

alignment of Latin American countries, with a distinguishable polariza-

tion between left and right. Countries such as Venezuela, Bolivia,

Ecuador, and Nicaragua are undergoing intense political processes under

the lead of leftist governments, which claim to defend socialism in quite

radical terms, at least at the discursive level.On the other hand, countries like Colombia, Mexico, Per, and until re-

cently, El Salvador,' have been led by right-wing governments with a strong

neoliberal tendency and a keen desire to form a strong political and economic

alliance with the United States, a key player in the region. At the center of the

political spectrum are a number of countries not so easy to classify, like Brazil,

Argentina, Uruguay, and Chile. They are ruled by social-democratic gov-

ernments with a leftist leaning (although in the case ofArgentina, this may be de-

batable) that nevertheless have accepted market capitalism rules and principles as

the economic background on which they must operate.'

4. Mauricio Funes, from the Frente Farabundo Marti para la Liberaci6n Nacional

(FMLN, a former leftist guerrilla group), won the presidential elections on Mar. 15 , 2009,

thus defeating the conservative party Alianza Republicana Nacionalista (ARENA), which

has ruled the country since the end of the bloody civil war in 1992.

5.The case ofChile is very telling- with the return ofdemocracy, after a ruthless military dic-

tatorship that lasted sixteen years (from 1973 to 1989) and that firmly established the neoliberal

economic model, social democratic governments have come to dominate the political scene

most of the time. For an interesting analysis of the new left in Latin America, see Cisar

Rodriguez et al., La nueva izquierdaen Amdrica Latina: Sus origenes y trayectoria fuitura (2005).




312 NEW CRIMINAL LAW REVIEW | VOL. 13 | NO. 2 1 SPRING 2010

Considering all these important transformations, it is very likely that

the crime control field has undergone important changes in countries likeVenezuela, Bolivia, El Salvador, and Nicaragua, which are experiencing in-

tense social and political conflicts that affect violence and crime rates6 as

well as state penal policies. Such recent transformations exceed the grasp

of this article (though it will reference them), but they constitute a theo-

retical challenge, begging for explanation, which one hopes will be ad-

dressed in a future article.

1. LATIN AMERICAN LEGAL FIELDS: INSTRUMENTAL

INEFFICACY AND AUTHORITARIANISM

To understand the configuration of Latin American institutions of punish-

ment, as well as their shortcomings, I will describe the major features of the

legal fields to which they belong and how they came into existence. This

entails a historical account of the formation of the Latin American nation-

states after their independence from Spain and Portugal in the eighteenth

century, and their struggle to cope with the Western modern project to

which they were introduced, forcibly, by the European colonial powers.This is a complex and ongoing process; during the last three decades Latin

American countries have enacted ambitious economic, political, and legal

reforms to leave behind a violent past characterized by the proliferation of

authoritarian regimes (in the form of restricted democracies or military dic-

tatorships) and to keep pace with the rapid process of globalization.

Latin American legal fields mirror the hierarchical and discriminatory

practices that traditionally have marked social relations. The political an d

legal changes experienced by most of the Latin American countries during

the last three decades have not reversed this trend. The end of military dic-tatorships during the 1980s and the broad legal and political reforms car-

ried out through the 1990s did not result in a strong consolidation of the

rule of law in the region. Many of the authoritarian practices of Latin

6. For instance, in Venezuela the murder rate has increased notably during recent years:

from 8 per ioo,ooo inhabitants in 1996, to 33 in 2000, 44 in 2003, and 45 in 2006 (one of

the highest in the world), which became the most violent year in Venezuela's modern his-

tory. Between 1986 and zoo6, the murder rate increased 438 percent. Alcaldfa de Chacao,

Plan 18o: Propuesta para la justicia y la seguridad en Venezuela (2007).




314 1 NEW CRIMINAL LAW REVIEW I VOL. 13 | NO . 2 I SPRING 2010

Such features of the legal fields in Latin America are tendencies and not

generalized or monolithic phenomena." Their historical presence in theregion does not mean that the law has been always and in all places an d

situations ineffective and authoritarian. This is why the description of the

main features of the legal fields in Latin America is only a starting point

to frame the general context of more particular analyses. Moreover, the

characteristics of the legal fields do not result merely from the policies and

political decisions that governments have adopted throughout Latin

American history. Rather, they result from broader factors and complex

processes in the region's social fields. These fields have created conditions

that limit the maneuverability of social actors, including governments.The legal field, therefore, is the outcome of the interaction between its

structure and the actions, beliefs, representations, and imagination of

those who form it.12

To understand the phenomena that are central features of Latin

American legal fields, it is necessary to depict their origins and manifesta-

tions by means of a brief analysis of the political, economic, and sociocul-

tural conditions in which the law has been shaped since colonial times

(from the fifteenth through the nineteenth centuries).

II. HISTORICAL ROOTS OF THE LEGAL FIELDS IN LATIN

AMERICA: THE TORTUOUS ROUTE TO MODERNITY

Besides the geopolitical position of Latin American countries in the global

order, the sociocultural factors that have characterized them since colonial

times have had an important effect on the constitution of their legal fields.

Such factors result from the routes followed by Latin American countries

into and through modernity; that is, the way that they have assimilated

the Western sociocultural project of modernity. According to Santos, the

original route to modernity was the European one.' Most of the non-

European countries never addressed modernity as a broad sociocultural

ii. Garcia & Rodriguez, supra n. 8, at 19, 20.

12. Pierre Bourdieu, The Logic of Practice (1990); Pierre Bourdieu, The Force of Law:

Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805 (1987); Pierre Bourdieu,

Outline of a Theory of Practice (1977).

13. Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and

Politics in the Paradigmatic Transition, 270-72 (1995).




DEMOCRACIES WITHOUT CITIZENSHIP | 31S

project. For these countries, modernity was a partial and largely painful

experience of unequal contact and exchange with European imperialisticpowers. Because of their position in the world system, Latin American

countries were not able to set their own agenda or pace toward modernity,

and only to a very limited extent have they been able to modify and adapt

it to their advantage. Such a path-marked by conquest, genocide, and

widespread violence in the Colony and Independence periods-has left

traces in the contemporary legal practices and culture in Latin America.

The transitional period from Spanish and Portuguese colonial rule to

independence (in the first half of the nineteenth century) is of great im-

portance to understanding the legal fields of Latin American countries andthe ambivalent attitude of their citizens toward state law. It is in this pe-

riod that the historical roots of such fields are to be found. The criollos-

that is, the creole elite, sons of Spanish and Portuguese conquerors, who

led the independence movement-received, adapted, and transformed the

Enlightenment and revolutionary ideas coming from France and North

America, and blended them with the authoritarian, conservative, and

Catholic Spanish and Portuguese traditions.

This particular combination is partially explained by the lack of politi-

caland administrative

experienceand by the elitist origin of the inde-

pendence leaders who adopted the models of political organization

coming from the American and French revolutions (that is, a democratic

and republican regime), even as they kept most of the legal structures and

laws imposed under colonial rule. From a conservative and pragmatic per-

spective, the criollos acknowledged that, to avoid chaos and retain politi-

cal power, they should pay lip service to the new revolutionary ideas while

conserving most of the colonial legal system, together with the social and

institutional practices that surrounded it, to rule the emerging states.14 The

new elite of criollos was eager to adopt liberalism, particularly its ideal of

economic freedom guaranteed by the government's submission to the rule

of law, while their commitment to the protection of civil liberties was con-

siderably weaker.

14. John Lynch, Hispanoambrica, 1750-185o: Ensayos sobre la sociedad y el Estado 35

(1987).

is. Jeremy Adelman & Miguel Centeno, Between Liberalism and Neoliberalism: Law's

Dilemma in Latin America, in Global Prescriptions. The Production, Exportation and

Importation of a New Legal Orthodoxy (Yves Dezalay and Bryant Garth eds., zooz).




316 1 NEW CRIMINAL LAW REVIEW VOL. 13 | NO . 2 SPRING 2010

Such asymmetrical adoption of the liberal ideals by the ruling elite

shaped a particular political and economic model: authoritarian liberal-ism,' 6 a combination of capitalism and authoritarian rule that has charac-

terized Latin American countries since the Independence period. The

authoritarian liberalism of the new Latin American republics resulted in

the dissociation between the development of formally democratic institu-

tions and legal reformism, on the one hand, and a social reality marked by

insecurity, widespread social marginality, and inequality, on the other.

Since the Independence period, the constant creation and reformation

of the law performed by the elite to achieve institutional stability, rather

than social change, has been a main feature of Latin American legal fields.This fact explains, at least partially, the precariousness of the law's re-

gulatory power among the bulk of the population and its instrumental in-

efficacy, which nonetheless serves other purposes. Thus, the considerable

gap between law and reality in Latin America may be regarded not merely

as a dysfunction or a failure of the democratic paradigm, but rather as a

political strategy that favors the twin model of free markets and authori-

tarian states.

III. LEGAL AND ECONOMIC REFORMS OF THE LAST

THREE DECADES

During the last thirty years a widespread and far-reaching set of reforms

have transformed the legal, political, and economic landscape of the re-

gion. While most Latin American countries have undergone important

constitutional reforms to democratize their political regimes, the region

has embarked on a more specific and technical reform of certain features

of the legal systems to make them more effective. Most Latin American

countries are changing their criminal systems, following the U.S. model,

16. Jayasuriya uses the term "authoritarian liberalism" in a different context, to refer to

a postwar form of economic governance, particularly in East Asia, which enables the emer-

gence of the regulatory state-a strong state the purpose of which is to safeguard and reg-

ulate a liberal market economy (318, 319). Kanishka Jayasuriya, Authoritarian Liberalism,

Governance and the Emergence of the Regulatory State in Post-Crisis East Asia, in Politics

and Markets in the Wake of the Asian Crisis (Richard Robinson et al. eds., 2000). Cristi

also uses this term to explain Carl Schmitt's authoritarian conception of the state, accord-

ing to which a strong state is a precondition for a free economy. Renato Cristi, Carl

Schmitt and AuthoritarianLiberalism: Strong State, Free Economy, 4 n. 6, 175 (1988).




DEMOCRACIES WITHOUT CITIZENSHIP | 317

which implies a change from an inquisitorial to an accusatory model."

Efforts have been made to improve the legal education of udges. Most of theconstitutional reforms have included the creation of agencies under the judi-

cial branch to govern the judiciary, in order to give it autonomy and inde-

pendence, particularly from the executive branch, which traditionally ha d

controlled it. The ways that judges are appointed, and their terms and con-

ditions in office have also been reformed to ensure that public policies on the

judiciary are not only in the hands of politicians but also in those of judges."

The independence and autonomy of the judiciary is a particularly sen-

sitive issue in Latin America, for in most countries the judicial branch has

been an unstable and weak institution because of its lackof independence

from politics and the traditional instability of democracy in the region.

The caudillismo, the authoritarian populism that has prevailed in Latin

America, led to the overgrowth of the executive branch (run by a caudillo

with a messianic profile), to the detriment of the other two branches of

power and civil society. The judicial branch thus became an appendix of

the government, which controlled and manipulated it. It became a vast

bureaucratic office where politicians could appoint their partisans, who in

turn rewarded their appointers.

Thisis one of the reasons why the poor and marginalized classes have

seen the judiciary as a tool of injustice and oppression." Hence, it is a mat-

ter of no little interest to know why the judicial branch, traditionally ig-

nored, has become during the last thirty years one of the main targets of

the process of democratization and legal reform in Latin America. The an-

swer lies in the factors and interests that have influenced such a trend.

A. Judicial Reform and Free Markets: The Adoption

of the Neoliberal Model

The recent wave of reformism has been orchestrated and financed mainly

by the United States (particularly by its international aid agency, USAID)

17. Cristiin Riego & Mauricio Duce eds., Prisi6n preventiva y reforma procesal penal

en America Latina (2009).

iS. Jorge Correa, Judicial Reforms in Latin America: Good News for the

Underprivileged?, in Mndez et al. eds., supra n. i; Juan E. Mndez, Institutional Reform,

Including Access to Justice: Introduction, in Juan E. Mndez et al. eds., supra n. I;Pinheiro,

supra n. i.

19. Correa, supra n. 18, at 258.




318 1 NEW CRIMINAL LAW REVIEW VOL. 13 | NO . 2 1 SPRING 2010

and international institutions (such as the International Monetary Fund,

IMF, the Inter-American Development Bank, IDB, and the World

Bank). Accordingly, it is not surprising that the model endorsed by such

reforms is a neoliberal one that follows the U.S. pattern, with a particu-

lar focus on the stabilization of the rule of law in the region, the pre-

dictability of which is essential for the consolidation of free markets and

foreign investment.2 0

As a matter of fact, these international institutions have conditioned

their economic aid to Latin American countries, demanding that they ad -

just their finances, liberalize their markets, make their labor legislation

more flexible, and strengthen their democratic institutionsand the judici-

ary. These international programs and aid for judicial reform generally are

implemented without a thorough knowledge of the social, cultural, and

economic context and needs of the region, as well as the impact of such

reforms on the legal field. Thus, it may be argued that these reforms are

usually ethnocentric transplants of Anglo-American and European legal

institutions."

Accordingly, Latin American countries have implemented a set of lib-

eralizing economic reforms that follow the recipe of the "Washington

consensus,"22

which calls for smaller states with lower deficit and infla-tion rates, and with fewer powers of intervention in the economy. The

traditional regulatory state23 is gradually being dismantled in many Latin

American countries. Most of the decision-making process and resolution of

conflicts are being transferred directly to the market, which is controlled by

2o. Cisar Rodriguez, La globalizaci6n del Estado de derecho (2009); C6sar Rodriguez,

Neoliberalism and the Transformation of the State in Latin America. A Comparative Study

of Argentina, Brazil and Colombia (2005); Csar Rodriguez & Rodrigo Uprimny, Justicia

para todos o seguridad para el mercado? El neoliberalismo y la reforma judicial en Colombia

y en Ambrica Latina, in La falacia neoliberal: Critica y alternativas (Dario Restrepo ed., 2003).

21 . Rodriguez (2005), supra n. 20; Csar Rodriguez, Globalization, Judicial Reform and

the Rule of Law in Latin America: The Return of La w and Development, 7 Beyond Law

13 (Feb. zoo).

22 . According to Dezalay and Garth, the Washington consensus is "a phrase developed

in 1990 to suggest that the U.S. government and the multilateral organizations in

Washington had come to an agreement on what kind of state and economy would be ap-

propriate in Latin America." Yves Dezalay and Bryant Garth eds., Global Prescriptions:

The Production, Exportation and Importation of a New Legal Orthodoxy, xv (zooz).

23. According to this political model, the state is the main investor in the economy,

controls prices and trade unions, and is the main employer.




DEMOCRACIES WITHOUT CITIZENSHIP 31 9

economic groups and foreign investors." The market is the main forum

where such groups advance their interests and resolve their conflicts.When this is not possible, they take their conflicts to court. Therefore, the

justice system becomes an important forum fo r the enforcement of mar-

ket transactions. The deregulation of the economy leads to a significant in-

crease in the amount and complexity of litigation, which explains the need

to adapt the judiciary to such changes."

Nevertheless, the political and economic reforms have not been able to

ease the structural social and economic problems of the region. Quite the

contrary, the liberalization of the Latin American economies has made

them more vulnerable to the global market. This has led to strong eco-nomic crises in most parts of the region, soaring unemployment rates, and

most serious of all, a widening gap between rich and poor.26

The reforms' failure to address poverty, inequality, and exclusion has

undermined the already fragile legitimacy of Latin American democratic

regimes. A recent study carried out by the United Nations Development

Program in Latin America showed that 54 percent of Latin Americans

would prefer dictatorships to democracies if the former solved their eco-

nomic problems; 56 percent of Latin Americans consider that economic

development is more important than democracy. It also showed that 43percent of Latin Americans believe in democracy, while 30.5 percent have

doubts.1 Despite political and legal reforms, Latin American democratic

regimes still lack legitimacy, and without legitimacy, most of the popula-

tion feels that the law and the state serve private, not public interests.

Thus, the rule of law faces a fundamental and long-lasting challenge: "its

inability to bear equally upon the rulers and the ruled.""

24. Correa, supra n. i8.

25. Rodriguez & Uprimny, supra n. 20.

26. Jos6 Antonio Ocampo, Lights and Shadows in Latin American Structural

Reforms, in Economic Reforms, Growth and Inequality in Latin America (Gustavo

Indart ed., 2004); Alejandro Portes & Kelly Hoffman, Latin American Class Structures:

Their Composition and Change during the Neoliberal Era, 38 Latin Am. Res. Rev. 41

(Feb. 2003); Albert Berry, Confronting the Income Distribution Threat in Latin America,

in Poverty, Economic Reform and Income Distribution in Latin America (Albert Berry

ed., 1998).

27. Programa de las Naciones Unidas para el Desarrollo, La democracia en America

Latina (2004).

28. Adelman & Centeno, supra n. I, at 158.




320 1 NEW CRIMINAL LAW REVIEW I VOL. 13 I NO . 2 | SPRING 2010

B.Democracies without Citizens

The reluctance shown by governments and economic groups to respect the

rule of law, redistribute wealth, and achieve social justice has been hidden

by the fact that during the last three decades, most Latin American coun-

tries have embraced democratic regimes. This leads to a reductionist idea

of the rule of law, for the political sphere, with the support of economic

groups, fosters the belief that if civil and political rights are legally guar-

anteed and if popular elections take place regularly, democracy has been

or is being achieved.29 Despite the political and legal changes, Latin American

societies are still broadly based on social and economic exclusion; therefore,

they may be termed "democracies without citizenship"" in which the idea of

democracy is limited and rendered banal by the political elites that hold

power. In a broader sense, democracy is also about providing social justice"

and guaranteeing "common rights of citizenship"32-something that Latin

America lacks.

The political and legal reforms that Latin American countries have

embarked on also depend on the economic reforms to adapt the Latin

American institutions to the needs of the global market and the geopo-

litical interests of foreign governments and investors, which are not se-

riously concerned with the structural economic and social problems of

the region. In great measure, these reforms focus on the effective pro-

tection of property rights and foreign investment, and on the prompt

resolution of disputes brought about by the liberalization of the econ-

omy in the region."

29. Roger Plant, The Rule of Law and the Underprivileged in Latin America: A Rural

Perspective, in Mindez et al. eds., supra n. I, at 92; Boaventura de Sousa Santos, Derecho

y democracia: lareforma global de la justicia, in El caleidoscopio de las justicias en

Colombia (Boaventura de Sousa Santos & Mauricio Garcia eds., 2001); Boaventura de

Sousa Santos, La w and Democracy: (Mis)Trusting the Global Reform of Courts, in

Globalizing Institutions: Case Studies in Regulation and Innovation (Jane Jenson &

Boaventura de Sousa Santos eds., 2000).

30. Pinheiro, supra n. i, at 2.

31. Mainly understood as the equitable distribution of resources, and the fairness of op-

portunity to economic and social welfare and advancement. Plant, supra n. 29, at 92.

32. Robert Reiner, Law and Order: An Honest Citizen's Guide to Crime and Control,

139 (2007).

33 . Yves Dezalay & Bryant Garth, The Internationalization of Palace Wars. Lawyers,

Economists, and theContest to Transform Latin American States (2000).





As Brody suggests, international assistance to judicial reform is not

neutral; it seeks to promote certain interests.1

4

The interests of donorsand lenders may coincide with those of the elites in power, but not with

the interests of the potential beneficiaries: the users of the justice system

as well as those who provide it on a daily basis (judges, judicial clerks,

defense attorneys, and prosecutors). Usually, the donors and lenders

may wish that judicial reforms facilitate a transition to a free market

economy that will open opportunities to them and the interests they

represent. This reinforces the idea that, in the global South, judicial re-

forms are key components of economic reforms; judicial reforms are

subjected to the objectives and pace of economic reforms. This kind ofvision, as well as the vocabulary that accompanies it (where "free mar-

kets," "the rule of law," "democracy," and "a strong judiciary" form part

of the same mantra) is commonplace in international organizations and

the aid agencies of core countries, and is welcomed by Latin American

governments."

Such a trend is evident in the areas of labor law, commercial law, and

criminal law. The latter case is noteworthy. For instance, the United States

of America, as well as other countries from the global North and various

internationalinstitutions, which focus on the fight against crimes that

they find relevant (such as narcotrafficking, terrorism, money laundering),

have unilaterally imposed on Latin American countries their own policies

on such crimes. Their governments reduce then complex social problems

to a policy of social control that actually has weakened the rule of law and

increased violence in the region. According to the United Nations Office

on Drugs and Crime, Latin America and the Caribbean is the most vio-

lent area of the world, presenting the highest violent crime rates: "By any

reckoning, Venezuela, El Salvador, Guatemala, and Jamaica are among the

countries with the highest rates of murder, while rates are nearly as high

in countries as diverse as Colombia, Brazil, the Dominican Republic, and

Trinidad and Tobago."6 (See Table 1.)

34. Reed Brody, International Aspects of Current Efforts at Judicial Reform:

Undermining Justice in Haiti, in Mndez et al. eds., supra n. I, at 227.

35 . Maria Dakolias, A Strategy for Judicial Reform: The Experience of Latin America,

J. Int'l L. 36, 167-68 (1995).

36. United Nations Office on Drugs and Crime, The Threat of Narcotrafficking in the

Americas 3 (2oo8).




322 1 NEW CRIMINAL LAW REVIEW I VOL. 13 | NO. 2 | SPRING 2010

Table 1. Murder rate by region and continent per 100,000 population'

Region/Continent Murder rate

Africa 10.1

North America 5.6

Latin America 19.9

Asia 2.1

Caribbean 16.3

Europe 1.2

Oceania 1.3

* ulio Jacobo Waiselfisz, Mapa de la violencia: los j6venes de Amdrica Latina (2008).

IV. LATIN AMERICAN CRIME CONTROL FIELDS

Despite the recent reforms, violence and authoritarianism are especially

apparent in Latin American crime control fields. During recent decades,

penal institutions have acted as a barrier to contain the social turmoil pro-

duced by market liberalization." Although democratic constitutions

broadly protect political and civil rights, the exercise of full citizenship

(understood as the effective enjoyment of political, civil, and social rights)

is actually denied to the bulk of the population, which is economically and

socially excluded. Latin American political regimes have thus supported

penal institutions that punish primarily petty crimes, committed by com-

mon criminals who usually are poor and marginalized, while governments

have proved unable (or unwilling) to address crimes carried out with im-

punity by state agents and the elites (such as the violation of human rights,

political corruption, and white-collar crimes).

State violence is largely directed against the "dangerous classes" and

rarely affects the privileged sectors of society. Crime prevention policies,

especially those proposed during electoral campaigns, are concerned less

with crime control than with diminishing the fear and anxiety of the vot-

ers." Alternative approaches to punishment, intended to address the struc-

tural problems at the root of crime and violence, are seldom attempted.

On the contrary, in many cases the Latin American authorities, largely

37. Rodriguez and Uprimny, supra n. 20.

38 . Paul Chevigny, Th e Populism of Fear: Politics of Crime in the Americas,

Punishment&

Soc'y 77 (Jan. 2003).




DEMOCRACIES WITHOUT CITIZENSHIP 323

unaccountable to a political or judicial body," see the rule of law as an ob-

stacle to, rather than as a guarantee of, social control.

4

0Even though the new leftist governments of the region have attempted

to detach themselves from the criminal policies and discourse of their

right-wing predecessors, their actual policies and approaches are very sim-

ilar to those of their political opponents. This may be result partly from a

lack of original and feasible ideas coming from such governments, but also

from a fear of weakening their political stance if they look too soft on

crime, and from a fear of confronting the state security forces, which are

very powerful and many of whose members are still very attached to the

methods and ideas of authoritarian regimes.Many members of the security forces are used to fight crime and exercise

social control in the same fashion as they fought political opposition under

previous dictatorships. In addition, they are seldom subjected to objective,

outside investigations and thus have come to believe that they are not ac-

countable to civilian courts or other civilian authority for their actions.

Paradoxically, on several occasions such practices have been committed

with the acquiescence of the majority of the population (not just the elites),

who live in a constant state of fear of what is perceived as a rise in crimi-

nality and social insecurity. This fosters the popular belief that the defeat ofa dangerous enemy (by whatever means available) will improve the general

standard of living. Hence, police or military authoritarianism is widely tol-

erated by considerable sectors of society, who regard it, at least, as a neces-

sary evil. The absence or precariousness of state institutions that may solve

community and individual conflicts, combined with the private forms of

justice-that fill such a vacuum, builds a vicious circle of violence and im-

punity that becomes part of an authoritarian legal and popular culture.42

A. The Impact of Late Modernity on Latin AmericanCrime Control Fields

The tendency to resort to penal measures to address social turmoil has increased

during the last tw o decades in Latin America as a result of the globalization

process, which has caused dramatic economic fluctuations and instability in

39. Mndez, supra n. 13, at zo.

40. Pinheiro, supra n. I, at 5-6.

41. Mndez, supra n. 13, at 22.

42. Pinheiro,supra n. I, at to; Mndez, supra n. i0, at 22.




324 1 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO . 2 | SPRING 2010

countries that are incapable of controlling the rhythm and rules of the global

economy and its negative effects in terms of social and economic equality. Asa response to such instability, Latin American governments, both left and

right, tend to adopt emergency measures (in the economic, social, and crime

control fields) that are authoritarian, temporary shock remedies to complex

problems. Furthermore, these short-term measures weaken even more fragile

Latin American democracies, fo r important decisions are unilaterally taken

by the executive branch of government, thus excluding the pluralist debate

that ought to take place in the legislative branch.

Instead of strengthening the rule of law, neoliberalism has fuelled the

authoritarian character of most Latin American governments wheneverthey seek to impose social order, mainly through the use of emergency

powers. But this is not a situation peculiar to Latin American countries; as

Agamben points out, the state of exception "tends increasingly to appear

as the dominant paradigm of government in contemporary politics."43

Globalization, together with the triumph of market capitalism and liberal

democracy as the prevailing economic and political models of late modernity,

have been deeply felt throughout the world. A world that changes at a vertig-

inous pace, and the sense of anxiety and fear that produces, has prompted a

social demand for safety that governments tend to interpret as a problem ofcrime control." This tendency of governing through crime"5 has encouraged

the rise of conservatism, the so-called New Right in the Anglo-Saxon world,

which understands democracy as a combination of the free market economy

and a smaller state, 46 but nonetheless a stronger on e in addressing social insta-

bility through crime control strategies.47 This has certainly been the case in the

United States, many European countries (headed by the United Kingdom),

43. Giorgio Agamben, State of Exception, 2 (zoos).

44. Zygmunt Bauman, Globalization: the Human Consequences, 117 (1998).

45. Jonathan Simon, Governing through Crime: How the War on Crime Transformed

American Democracy and Created a Culture of Fear (2007); Jonathan Simon, Governing

through Crime, in Legal Culture in the Age of Globalization: Latin America and Latin

Europe (Lawrence Friedman & George Fisher eds., 1997).

46. Andrew Gamble, The Free Economy and the Strong State: The Politics of

Tatcherism, 34 (1994)-

47 . David Garland & Richard Sparks, Criminology, Social Theory and the Challenge

of Our Times, in Criminology and Social Theory, 16 (David Garland & Richard Sparks

eds., 2ooo).





and in other parts of the world including most of Latin America, which is a

major recipient of the U.S. economic and political models.Even though it would be inaccurate to talk about a global homoge-

nization of punishment, as Lacey notes," there is certainly a drift toward

penal convergence." This is the case particularly among countries with a

neoliberal political economy, with high income inequality and a strong

tendency toward social exclusion. 0 In such countries penal institutions

tend to be more punitive and exclusionary than in those countries that are

broadly egalitarian, spend a greater proportion of their GDP on welfare,

and have a very limited tendency toward social exclusion. In such coun-

tries, penal institutions tend to be more inclusionary and less punitivethan those of countries with a neoliberal political economy." (See Table 2.)

The ways in which many Latin American countries have adopted the

neoliberal model is crucial to explaining the current configuration of their

penal systems and their responses to crime. Chile, El Salvador, Mexico,

Colombia, and even Brazil are very good examples: they have adopted a

neoliberal political economy, have high levels of inequality, significant lev-

els of violence (with the exception of Chile), and high prison rates (see

Table 2). The economic and political reforms of the last three decades have

been coupled by significant processes ofpenal

reforms,which were fi-

nanced to a large extent by the United States through USAID, and which

were accordingly influenced by the U.S. penal culture."

Latin America also features two important aspects that, similar to the

United States and other Western European countries, have marked the

punitive turn of late modernity: a significant increase in crime rates,

which have made crime a normal social fact," and of imprisonment rates.

(See Tables 3 and 4.)

48. Nicola Lacey,The Prisoners' Dilemma: Political Economy and Punishment in

Contemporary Democracies (zoo8).

49. Michael Cavadino & James Dignan, Penal Policy and Political Economy, 6

Criminology & Crim. Just. 435, at 438, 441 (Nov. 2oo6).

50 . The United States (first and foremost), the United Kingdom, Australia, New

Zealand, and South Africa are archetypical cases; id. at 441. In Latin America, countries

like Colombia, M6xico, Pert, El Salvador, and even Chile and Brazil--despite the recent

rise to power of leftist governments-also fit this model.

51. Cavadino & Dignan, supra n. 49 , at 441. David Downes & Kirstine Hansen,

Welfare and Punishment in Comparative Perspective 2, 21-23 (2005).

52. Rodriguez, supra n. 2o; Rodriguez & Uprimny, supra n. 20; Santos (zoos) supra n. 29.

53 .David Garland, The Culture

of Control, 90-93 (2001).




326 1 NEW CRIMINAL LAW REVIEW | VOL. 13 | NO . 2 SPRING 2010

Table 2. Statistics on Gini index, imprisonment rates, and murder rates

(each per 100,000 population) in numerous countries

Gini index Imprisonment rate Murder rate

Country (year) (year), (1998-2000)'

United States

United Kingdom

Australia

South Africa

Russia

Germany

France

Italy

SpainPortugal

Netherlands

Switzerland

Norway

Sweden

Finland

Denmark

Japan

India

Colombia

BrazilMexico

Argentina

Chile

Peru

Venezuela

El Salvador

Bolivia

40.8 (2000)

36.0 (1999)

35.2 (1994)

57.8 (2000)

39.9 (2002)

28.3 (2000)

32.7 (1995)

36.0 (2000)

34.7 (2000)38.5 (1997)

30.9 (1999)

33.7 (2000)

25.8 (2000)

25.0 (2000)

26.9 (2000)

24.7 (1997)

24.9 (1993)

32.5 (2000)

58.6 (2003)

54.0 (2004)47.3 (2006)

52.8 (2003)

53.8 (2003)

54.6 (2002)

44.1 (2000)

52.4 (2002)

60.1 (2002)

750 (2006)

148 (2007)

125 (2006)

335 (2007)

628 (2007)

93 (2006)

85 (2006)

67 (2006)

147 (2007)120 (2007)

128 (2006)

79 (2006)

75 (2007)

79 (2006)

68 (2007)

67 (2007)

61 (2006)

30 (2004)

128 (2007)

219 (2007)198 (2007)

163 (2005)

262 (2007)

139 (2007)

74 (2005)

205 (2007)

82 (2006)

4.28

1.40

1.50

49.60

20.15

1.16

1.73

1.28

1.222.33

1.11

0.92

1.06

1.88 (2001 )d

2.83

1.06

0.49

3.44

61.78

26.90 (2001)*13.02

7.17

1.47

4.91 (2001)'

31.61

34.60 (2001)9

3.74 (2001)h

United Nations, Development Report 335-38 (2006).

'International Centre for Prison Studies, World Prison Brief (2007).

'United Nations Office on Drugs and Crime, The Seventh United Nations Survey on Crime Trends and

the Operations of Criminal Justice Systems (1998-2000), 13-15 (2004).

'United Nations Office on Drugs and Crime, The Eightth United Nations Survey on Crime Trends and the

Operations of Criminal Justice Systems (2001-2002), 28-29 (2005).

*United Nations Office on Drugs and Crime, Country Profile: Brazil 10 (2005).

'Supra n.d.

-Observatorio Centroamericano sobre Violencia, Tasas de Homicidios Dolosos en Centroambrica y

Republica Dominicana par 100,000 habitantes (1999-2007) (2007).

hSupra n.d.





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Three relevant examples will be illustrative. According to the United

Nations Office for Drug Control and Crime Prevention, between 1989 and

1999, Latin America displayed the highest levels of victimization in the

world: more than 75 percent of people living in cities were victims of crime

at least once, compared to 73 percent in Africa and 6o percent in Western

Europe." Between 1980 and 1995, the region experienced a generalized in-

crease in the homicides rate (though with relevant differences among coun-

tries"), making it the most violent in the world in 1995, with an average rate

of 2o homicides per ioo,ooo inhabitants. 6 Finally, the Latin American rate

of imprisonment has increased 68 percent during the last decade. 7

Despite these similarities with the United States andWestern Europe,Latin American countries have their own historical trajectories and peculiar-

ities, marked by serious problems of governability, whereas the United States

and most Western European countries enjoy consolidated and relatively sta-

ble democracies. The other noteworthy difference between Latin American

and the global North is the extent of social inequality and exclusion. Despite

recent increases in social inequality and exclusion in many countries of the

global North, among them the United States and the United Kingdom," in

54. United Nations Office for Drug Control and Crime Prevention, Global Report onCrime and Justice, z6 , 64 4999)-

55.The regional average homicide rate is significantly affected by the extraordinarily

high rates of El Salvador and Colombia, which were facing bloody armed conflicts during

this period. Portes and Hoffman, supra n. 26 , at 66.

56. Ibid.

57. Libardo Ariza, Reformando el infierno: prisi6n e intervenci6n judicial en

Latinoamirica (2007). The Latin American countries with the highest imprisonment rates

are: Cuba (about 531 inmates per ioo,ooo inhabitants in 2006); Panami (337), Chile (262),

Brazil (219), El Salvador (205), Mexico (198), Uruguay (193), and Costa Rica (187). Mid-

range imprisonment rates compared with the regional average are found in: Argentina

(163), Honduras(161),

Peru(139), Colombia (128), Nicaragua (114), Paraguay (98), and

Ecuador (94). Low-range rates are found in: Bolivia (82), Venezuela (74), and Guatemala

(57). International Centre for Prison Studies, World Prison Brief (2007).

58. The United States and the United Kingdom show worrying levels of inequality and

social exclusion. Thus, in the United States i percent of the population owns one-third of

the wealth, and 95 percent of the increase of wealth in this country between 1979 and 1996

has benefited the wealthiest 5percent of the population. Jock Young, The Exclusive Society,

28 n. s (1999); Loic Wacquant, Las circeles de la miseria, 78 (2000). In the United

Kingdom income inequality also has increased notably-18 percent in the last two decades

(vs. 14 percent in the United States). Currently, the wealthiest i percent of the United

Kingdom's population own more than half of the wealth, whereas the wealthiest half of the

population owns 94 percent of the country's wealth. Reiner, supra n. 32, at 4.





and habitual form of managing and controlling poverty, which in some

cases (Brazil is a case in point) has tones of racial segregation, for the blackpopulation is disproportionally punished and incarcerated."

The neoliberal model has also influenced the penal paradigm that sus-

tains punishment institutions in Latin America. The tendency to punish

severely in order to impose order and guarantee free markets has been

based to a great extent on an economicist view of crime that increasingly

dominates official discourse.6 1 In a very similar way to the "criminologies

of everyday life" and of "the other"" of countries of the global North, the

economicist view of crime that prevails in Latin America dissociates it

from its economic and social causes, while focusing on its effects and theculprits. The situational and preventive crime policies in Latin American

cities have come to center stage; examples of this are the increased control

of public spaces through more police, surveillance technologies, and the

active participation of the private sector, as well as zero-tolerance policies

against petty crimes and misdemeanors.

As for the offenders, the economicist view of crime does not see

them as people coming from marginalized social groups who are ex-

posed to violent forms of social and economic exclusion, but rather as ra-

tional individuals who act shrewdly and are motivated by greed, individualswith no moral values who resort to crime to satisfy their ambitions

and desires.

64. Maria Jimdnez, La Circel en Latinoambrica en las tres iltimas ddcadas, Capitulo

Criminol6gico Z2 (1994); Rosa del Olmo, La funci6n de la pena y el Estado

Latinoamericano, in La experiencia del penitenciarismo contemporaneo: aportes y expec-

tativas, 67-80 (Comisi6n Nacional de Derechos Humanos 1995); The State of Prison and

Prisoners in Four Countries of the Andean Region, in Comparing Prison Systems: Toward

a Comparative and International Penology (Robert P. Weiss & Nigel South eds., 1998);

Loic Wacquant, Towards a Dictatorship over the Poor? Notes on the Penalization of

Poverty in Brazil, 5Punishment & Soc'y 197 (Apr. 2003).

65. Rodriguez & Uprimny, supra n. 2o, at 424. Regarding the Colombian case, these

authors have undertaken economic analyses of violence and criminality and offer clear ex-

amples of such vision: Armando Montenegro & Carlos Esteban Posada, Criminalidad en

Colombia, 25 Coyuntura Econ6mica (1995); Montenegro & Posada, La violencia en

Colombia (2001); Mauricio Rubio, Crimen e impunidad (1999); and Las cuentas de la vi-

olencia: Ensayos econ6micos sobre el conflicto y el crimen en Colombia (Fabio Sinchez

ed. 2007).

66. Garland, supra n. 53, at 127-37.




332 1 NEW CRIMINAL LAW REVIEW | VOL. 13 | NO. 2 | SPRING 2010

CONCLUSION: LATIN AMERICA'S FUTURE

TRAJECTORY-DIFFICULTIES AND CHALLENGES

As has been shown, the main features of Latin American crime control fields

during late modernity are not simply the result of the political decisions and

the policies that elitist and authoritarian governments have adopted to control

an unruly population. They are also the outcome of complex social processes

that go back as far as colonial times, that continued after independence from

colonial powers, and that nowadays are increasingly interlinked with

the political and economic transformations that occur on a global level.

The modern project of "the incorporation of the population into full citi-

zenship" 67 has not been fulfilled, despite the elites' rhetorical commitment to

free markets as well as civil and political rights. As Young notes, referring to

TH. Marshall's essay "Citizenship and Social Class," full citizenship is no t

simply about legal and political rights, but also about social rights: "a mini-

mum of employment, income, education, health and housing."' Political and

economic elites, having secured their social rights, are more concerned with

those individual rights (such as private property and free enterprise), which

may protect and advance their wealth, political influence, and social status.

The neoliberal political economy that predominates in the region, de -

spite the rise of leftist governments in many countries, has not improved

the situation. Quite the contrary: through a reformist discourse, it has

provided the elites new tools to secure a very restricted form of democracy.

Such a political regime is actually authoritarian and exclusionary, for it le-

gitimizes the excessive use of punishment and emergency powers to con-

trol social upheaval, which is treated mainly as a crime problem. In the

meantime, the social rights of significant sectors of the population, which

are excluded by market forces and criminalized by state penal institutions,

are left in the background of the political agenda.

The real challenge for the new wave of leftist governments in the region

consists in reversing this trend by bringing full citizenship to the whole of

the population and implementing criminal policies that, instead of ex-

cluding the most vulnerable and marginalized, address their security

needs, and not only those of the elites that have a craving for protection

from the "dangerous classes."

67. Young, supra n. 58, at 4.

68. Id.

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