34
78.
The Commission has also identified the following factors that
contribute to the non-exceptional use of pretrial detention: criminal justice policies that,
using different names and mechanisms, promote greater flexibility and increased use of
incarceration as a way to combat crime rates, as well as challenges related to the
actions of the judiciary, regarding both respect for the independence of the authorities
responsible for ordering pretrial detention and other aspects of judicial practice. Given
the importance of these factors, they will be dealt with in greater detail in this section.
1.
Criminal justice policies that promote increased incarceration as a
solution to citizen security problems
79.
The Inter-American Commission has observed a trend in the region
whereby many States, in response to the challenges of citizen security or to the
demands of society, have proposed legislative and institutional measures consisting
basically of the increased use of incarceration to resolve those problems. Such legal
reforms, which have been adopted in various countries around the region over the past
decade, are intended to restrict or curtail the legal guarantees that apply to the denial
of people’s liberty; to promote the use of pretrial detention; to increase prison terms
and expand the list of offenses punishable by custodial sentences; to refrain from
offering alternatives to prison; and to restrict access to or the granting of some rights
that convicts gradually receive during the execution of the sentence (e.g., works permits
or parole).
80.
In general, these reforms have not been adopted as a result of
scientific reflection and a serious and inclusive debate about their relevance, viability,
and consequences. Instead, in many instances, they have arisen as an immediate
reaction to specific momentums in which social and media pressure has been brought to
bear in connection with general concerns about law and order, or in response to specific
incidents; as part of populist discourse intended to gain political advantage from
subjective perceptions of crime; and, in some cases, as a response to the specific
116
interests of given economic sectors. Those initiatives often revert progresses made
116
The Twelfth United Nations Congress on Crime Prevention and Criminal Justice found that
community pressure was another of the causes that fuel high levels of overcrowding in prisons. Thus: “within
communities concerned with safety and security, there may be de facto support for legislation and policies
that contribute to prison overcrowding, including the extensive use of pretrial detention. The pressure that
citizens exert on Governments, often through the media, to penalize offenders is one of the reasons why
prisons remain the primary instruments of punishment.” UN, Twelfth Congress on Crime Prevention and
Criminal Justice, held in Salvador, Brazil, April 12-19, 2010. See: Background paper on the Workshop on
Strategies and Best Practices against Overcrowding in Correctional Facilities, A/CONF.213/16, published
January 25, 2010, para. 15. This situation has also been observed by other United Nations mechanisms, in
countries such as Brazil and Uruguay. See: UN, Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Report on Mission to Uruguay, A/HRC/13/39/Add.2, published
December 21, 2009, para. 82; and UN, Working Group on Arbitrary Detention, Statement upon Conclusion of
its Visit to Brazil (18 to 28 March 2013). In this regard, the SRT, after observing the situation in several
countries, has stated that some politicians and political parties have exploited the fear created by general
perceptions of inadequate citizen security for electoral purposes. UN, Special Rapporteur on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on Mission to Brazil,
E/CN.4/2001/66/Add.2, published March 30, 2001, para. 159.
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