David Smilde and Hugo Pérez Hernaíz
Today the Ministry of Penitentiary Services celebrates its first anniversary. It is the Chávez administration’s tenth different initiative in thirteen years (not including the six reforms of the COPP, see below) to get a handle on the prison problem. In this analysis we will look at the nature of the problem and the government’s efforts over the past year.
Structure of the problem
As is the case in many Latin American countries, the Venezuelan prison system has long suffered from a cycle of overcrowding, inhumane conditions and violence that resists reform efforts. Probably the most important element of the problem is the large number of pre-trail detainees. In the Venezuelan judicial system, arrested subjects are most often put in preventative detention to await trial because of the fear that they will not show up if released. They then can spend years in prison waiting for their day in court due to a multitude of problems, most prominently the inefficiency of the justice system and complications with transportation. This latter is due not just to the lack of vehicles and the distance of most penitentiaries from the courts, but also to the corruption of jail officials and guards that make inmates pay to go to their trial dates; and prison mafias and their leaders—referred to as pranes—that frequently do not let inmates go to trial because they are considered valuable assets.
As a result, for the past several decades the percentage of prisoners who are pre-trial detainees has hovered around 50%. This contributes to overcrowding insofar as it can make people who would be declared innocent in a trial spend years in prison, and frequently leads untried inmates to spend more time in jail than the maximum sentence of the crime they committed.
The second important source of the problem is institutional dysfunction. Prison authorities and guards are frequently corrupt, and run multiple rackets in connection with prison mafias, demanding payment for everything from transportation, to food, to arms. As a result they do not exercise internal control but develop a sort of uneasy equilibrium with prison mafias. And the lack of trained prison guards means that National Guardsmen have to fill in the gaps, with little relevant training in corrections.
The final problem, of course, is aging and inadequate facilities, most of which were built decades ago and have not seen proper maintenance. Even without the problem of pre-trail detention the prisons would be seriously overcrowded.
The persisting problems with the Venezuelan prison system are not due to ignorance. During the 13 years of the Chávez administration, a collage of government commissions and round-tables, not to mention NGOs, have put together some excellent analyses and proposals for what needs to be done. Nor is it a problem of political will. The Chávez government has actually paid a good deal of attention to the problem. Rather the problem is one of execution and approach. Weak institutional capacity and continual change among ministers and top level bureaucrats has impeded sustained reform.
Historically, it was precisely this weak capacity of the central government to manage the prison system that led to a push towards decentralization in the 1990s and first years of the Chávez government. Indeed, Article 272 of the 1999 Constitution says that the government guarantees a penitentiary system “governed by a decentralized administration, directed by state or municipal governments, with the possibility of privatization…and it will seek the creation of a penitentiary institution that is autonomous and with exclusively technical personnel.” This decentralization was explored in the following two years but never really got off of the ground. With the political crisis of 2002-2004 it was put on the back burner and in 2004 a “penitentiary emergency” was declared, resulting in the creation of a Presidential Commission. From that point on decentralization was no longer part of the government’s approach to its prisons (nor any other issue of governance), and it has sought to gain increasing control over the problem from the executive branch. The creation of the Ministry of Penitentiary Services is simply the most recent expression of a centralized approach to the issue.
Accompanying this centralization has been an exclusion of non-governmental organizations focusing on prisoner rights, whose denunciations and demands are seen as “destabilization campaigns,” as well as frequent bows to the “tough on crime” demands of the media and the electorate. Indeed much of the problem of pre-trail detainees comes from the government’s desire to show it is getting criminals off the streets.
In the first month of its creation in July 2011, new Minister of Penitentiary Services, Iris Varela, announced that 2000 prisoners would be released. These were prisoners that had sentences of five years or less and had exhibited good behavior. Varela suggested that almost half of Venezuela’s inmates did not deserve to be behind bars. Over the coming year she also announced a stream of humanitarian plans that provided work for inmates, sporting opportunities, and training for their family members,
In June of this year Varela announced an initiative to address the problem of pre-trial detainees becoming long term inmates. She said they would construct 24 jails in 2 years—for which they already had the land and the resources—that would be dedicated exclusively to pre-trial detainees. The goal is for them to not pass more than 8 months awaiting trial. The idea of having separate prisons would be to keep pre-trial detainees away from the prison mafias generally run by long-term, sentenced prisoners, and thereby make it more likely they can show up for their trial dates.
But the elephant in the room is the simple fact that the authorities do not have control over the internal functioning of existing prisons. Rather, this control is exercised by pranes that are in cahoots with corrupt National Guardsmen, prison guards and officials. Beyond control of drugs and arms and deciding who gets to go to their trial dates, the pranes organize extended visits from family or female inmates. Some even control bars, restaurants and dance halls within the prisons. The pranes organize justice within the facilities and have executed child molesters or inmates who break the rules. Perhaps the most chilling practice of prison mafias is the organization of “coliseum” matches in which inmates fight to the death as gladiators with the rest of the inmates and guards watching as spectators and betting on the results.
Getting control over the internal dynamics of the prisons is no small task. In June the director of the Centro Penitenciario de Occidente and her husband were killed in a professional hit. The murder was apparently ordered by the pran of the prison where she was director of the women’s facility. Apparently she had prohibited visits from the women’s wing to the men’s wing, thereby preventing the pran’s girlfriend from visiting him. She was the second director of a Venezuelan jail to be killed in two months.
Indeed, most extended prison crises are in some way about prison authorities’ efforts to gain control. And when these crises reach resolution it is never clear who has actually won. While the recent crisis in La Planta prison was eventually settled it appears that the inmates were able to take their arms with them. And while the conflict in the Mérida penitentiary was finally resolved, its pran “Ever” was apparently taken to another prison with 100 of his followers.
Maria Gracias Morais, Venezuela’s leading scholar of prisons, and author of the indispensable El Sistema Penitenciario Venezolano durante los 50 años de la democracia petrolera, 1958-2008, suggests that the Ministry of Penitentiary Services will never get full control of the prisons because a centralized approach is not only unconstitutional but ineffective. A centralized system creates a bureaucratic chain of command that makes control difficult and slow and favors corruption and clientelism. It also tends to create unitary plans that are poorly adapted to the particular conditions of each penitentiary and its inmates. A decentralized system, in contrast, would facilitate both accountability and more efficient and timely control efforts that can take into account particular conditions in each facility.
Reform of the COPP
The most concerted recent effort at reform has probably come through reform of the penal code, the Código Orgánico de Procesos Penales (COPP). The COPP was originally passed in 1998 as a progressive effort to reduce pre-trial detention and unnecessary incarceration. However, it has now been reformed six times. In the past year it has been identified as the source of judicial delay and in need of yet another reform.
In his speech inaugurating the Supreme Court’s (TSJ) judicial year in January, Chávez warned that he would be using the Enabling Law to reform the COPP himself. There were criticisms of such an important reform not being debated in the National Assembly. Nevertheless, General Prosecutor Cilia Flores announced on June 12 that the new COPP had been approved through the Enabling Law and that it would be in effect starting January 2013.
The reform seems to have both progressive and regressive elements. One progressive reform is the establishment of community service as a sentence for many small crimes previously punished by incarceration. This change has been criticized by some. Delsa Solórzano, an opposition member of the Latin American Parliament, said “theft, fraud, corruption, and carrying illegal arms, will not be punished with prison, instead they will have only a symbolical punishment: to work in a [government] mission.” She argued that up to 70% of crimes could go unpunished. Morais says this criticism confuses liberty for impunity. Incarceration is not the only, and definitely not the best, form of punishment. She says incarceration is costly and generally has a negative impact on the personal development of the convict.
The reform also creates municipal courts with multiple public defenders, designed to accelerate the judicial processing of less serious crimes. These municipal courts would allow those accused to remain in freedom while on trial. Here as well, some are skeptical. For penal expert Alberto Arteaga: “The new municipal courts will handle crimes that are penalized with prison terms of 8 years or less, and are to let the accused free during the process, but with no guarantee of effective execution of the eventual sentence. This implies a consecration of impunity.”
Morais argues that other elements of the reform are regressive. The reform eliminates “mixed tribunals” which used escabinos-similar to jurors that deliberate with the judge. These were created in the 2009 reform of the COPP. Minister Varela declared that the escabinos had been an obstacle since many citizens refused to serve because of the fear of retribution. However, Morais says it is more likely that citizens who did not show up for duty as escabinos had never even been informed that they had been selected since there are massive communication problems within the justice system.
Another regressive element of the reform is that it raises the thresholds for a convict to enter the alternative regime of work release, open detention and probation. This change seems designed to prevent convicted criminals from quickly returning to the streets, but will contribute to the prison overcrowding that the reform was supposed to address.
Finally, the reform allows courts to try people in their absence. One of the biggest sources of judicial delay is that prisoners do not show up for their trials either because there is no available transportation or because corrupt prison officials or pranes do not allow them to show up. The reform allows the courts, under certain circumstances, to go ahead with the trial. Red de Apoyo por la Justicia y la Paz, a human rights NGO that has worked closely with the government on citizen security reform, put out a press release sharply criticizing the reform on this point, saying it violates the rights of the accused.
In sum, the government’s efforts at prison reform through the new ministry and reform of the COPP seem sincere but not of the scale needed to have a major impact. Furthermore, its ideological opposition to decentralization, exclusion of non-governmental organizations, institutional incapacity, and pressure to mix-in “tough on crime” policies, will make further progress difficult.