Prison Detainees in Bolivia: Bad Fruit of a Slow Judiciary System (AIN)
Background article by Bolivia Diary from March 2012: Murders in El Alto spark debate on Bolivian Justice system.
On June 3, 2011, the Bolivian antidrug police arrested Jacob Ostreicher, an Orthodox Jew from Brooklyn, New York, for money laundering and involvement with drug trafficking. Ostreicher, a flooring contractor who had invested in a rice-growing agricultural venture, had come to Santa Cruz to oversee his business venture when he was arrested. Ostreicher has been in the Palmasola prison in Santa Cruz, Bolivia for over a year awaiting trial. After several hearings, the judge ordered on September 23, 2011 that Ostreicher be released. A week later, the judge reversed his decision. A new judge was assigned to the case, but this judge recused himself, and no other judge has been appointed.
Bolivian Prisons: Poor Conditions and Severe Overcrowding
Jacob Ostreicher is not the only prisoner in Bolivia detained for over a year without trial. On June 25, 2012, the National Prison Administrator reported that 84 percent of Bolivian prisoners are detainees, like Ostreicher, waiting for trial.[i] The article also pointed to the slow court system that continuously postpones trial dates, as well as citing the statistics provided by the 2011 annual report of the United Nations High Commissioner for Human Rights, stating that Bolivia prisons designed to house 4,700 inmates actually house 7,500 persons.[ii] The UNHCR office also highlights that recusal of judges, changes in prosecutors, and extension of judicial deadlines in cases like Ostreicher’s are extremely common, and that “the delays that have occurred in Mr. Ostreicher’s case are not unusual.”[iii]
Origins of Prison Overcrowding in US-Imposed Drug Legislation
Part of the problem is rooted in legislation passed under substantial pressure from the US government. Law 1008, passed in 1988, overhauled Bolivia’s anti-drug legislation, greatly intensifying punishment for drug-related crimes. Among many other things, the law imposed longer and harsher sentences than those of non-drug-related crimes and placed the burden of proof of the accused (which violates the Bolivian constitution), the majority of whom lack the financial resources for an attorney. Before its partial reform in 1999, Law 1008 also stipulated that those charged under the law were not eligible for pretrial release or parole once convicted. (See: “Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions” for more analysis of the US role in the passage of Law 1008 and issues with the law.)
The impact of the harsh law was further exacerbated by “Bolivia’s notoriously weak, corrupt, and slow judiciary,” which simply did not have the capacity to deal with the sudden increase in cases.[iv] After the imposition of Law 1008, “Trials often lasted five years or more before a sentence was declared.”[v] As a result, Bolivian prisons soon swelled with people detained on low-level drug charges. For example, “In one Cochabamba prison that receives prisoners from the Chapare, twenty times more prisoners entered the prison in 1994 than in 1987, the year before Law 1008 was passed.”[vi] At the peak of the drug war, over 90 percent of all inmates were prosecuted under Law 1008.[vii] Although law has since been reformed,[viii] the number of current inmates prosecuted by Law 1008 still hovers around 85 percent.[ix]
In summary, US-imposed drug legislation provided the framework that facilitated prison overcrowding by funneling a massive influx of prisoners into a judicial system that lacked, and still lacks, the infrastructure to handle that volume of cases.
Additional Analysis from Legal Expert
To further understand the Bolivian prison system, the Andean Information Network interviewed Joseph Loney, a lawyer who has practiced law in both the United States and Bolivia.
Why are there so many pre-trial detainees in Bolivia?
Actually, the percentage of people whose cases have not come to trial yet is more like 30-40 percent. The configuration of rights of the accused in Bolivia includes the right to a speedy trial (debido proceso—due process). In Bolivia, it takes two to three years to get to trial, as opposed to six months in Michigan.
Before 2010, a prisoner was free to go if his or her case did not come to trial within three years’ time. After two years, the accused had a right to be released on personal bond or bail. In 2010, the Bolivian Constitutional Court ruled that there is no time limit in drug cases and other serious crimes.[x]
Why has the prison population increased?
In 2010, there were approximately 1,600 prisoners in Cochabamba; in 2012, there are 2,500 prisoners, reversing a previous trend[xi] and exacerbating prison overcrowding. There are multiple explanations for this phenomenon. Urban growth has increased the crime rates and caused per capita police-to-person rate to drop. Newly autonomous departmental governments often failed to disburse nominally larger law enforcement budgets, and international and federal funding for police appeared insufficient. Growing public concern about law enforcement and mob violence in peri-urban environments led to pressure on legal authorities to “get tough on crime.” Unfortunately, many criticisms unfairly blamed the 1999 Criminal Procedures Code, which instituted significant due process guarantees for the accused, for citizen insecurity. The Bolivian legal system has responded to public opinion with the following measures.
- Sentences have increased. For example, first-degree offenders for aggravated sexual assault receive 20 years, which is a mandatory minimum sentence, and could be sentenced up to 25 years. Judges have increasingly handed out longer maximum sentences to appear tough on crime.
- The accused are detained before trial. Judges want to allay public fears by locking up the accused immediately, in an effort to prevent a “revolving door” syndrome, where the accused may be given “pre-trial release” but commit another crime before his or her trial.
- In 2010, the passage of Law 007 modified criminal procedures and expanded the pre-requisites for pre-trial release, making it even more difficult to obtain bail.
- The judges’ dockets are overflowing with cases. The courts have few resources to make the “speedy trial“ a reality.
- Even if the accused is initially acquitted, the prosecution can repeatedly appeal the ruling, and the person must stay in jail throughout this lengthy appeal process. Although the Criminal Procedures Code attempted to restrict this type of appeal, the practice has become commonly accepted again.
- A recently passed Citizen Safety law establishes harsher penalties for some crime, but also sets badly-needed guidelines and quotas for law enforcement budgets and oversight, and creates division of labor between local and national entities as well as other measures designed to reduce crime.
[Background article by Bolivia Diary from March 2012: Murders in El Alto spark debate on Bolivian Justice system]
Why is plea-bargaining rare in Bolivia?
The Bolivian legal system began to employ plea-bargaining in 2003, although infrequently. In the United States, over 90 percent of the criminal cases are resolved through plea bargains. Realistically, only about 10 percent of the cases in the US can be tried before a jury or judge. In Bolivia, a plea-bargain is an option for only six months, even though trials average about two years from the time of initial detention. Trial and detention periods in drug trafficking cases can be even longer. As a result, virtually all cases go to trial, creating further judicial backlog.
Bolivia has inherited the Spanish model of justice: the trial is the tool to discover the historical truth; in an ideal world, judges try to determine what factually occurred through testimony. Unfortunately, the number of judges has not increased to meet the swelling caseloads. Constant vacancies even at the highest level of the judiciary[xii] and long interim replacements, often reticent to make unpopular rulings, exacerbate the problem. In Bolivia, detainees awaiting trials, those awaiting further appeals, and those who have exhausted all their appeals reside in the same facilities.
Why are prerequisites for pre-trial release hard to meet?
- The accused must have an established domicile. For renters, there must be a rental agreement[xiii], something low-income Bolivians rarely possess.
- The accused must demonstrate that they have employment (a written contract, in which the employer pays taxes).[xiv] Many employers refuse to provide these contracts in order avoid paying workers’ benefits and to avoid audits. About 70 percent of the Bolivians are employed in the informal sector—self employed or working “under the table.”
- Third, the accused must have family ties in the area where the trial is to take place, such as a spouse, children, parents or siblings. Many people in the lower classes have trouble showing that they have ties to the community.
- The risk of flight can keep the judge from granting pre-trial release.[xv]
- The risk of the accused obstructing justice, as for example, influencing the witnesses,[xvi] can prevent the judge from granting bail. Even if the first four requirements can be fulfilled, it is hard for the accused to prove a negative–he or she will not flee. The judge is inclined to keep the accused in prison to avoid any possible obstruction of justice. The Criminal Procedures code states that there need only be “sufficiently convincing elements that the accused is probably the author of or a participant in a punishable act.”[xvii]
Although Bolivian law respects the right to a defense, the public defenders’ office is grossly underfunded and under-staffed—a huge impediment for low-income people facing trial. Furthermore prisons, with some exceptions like El Abra near Cochabamba, do not have space for private attorney-client conference. Time alone with the client is essential for the accused to develop trust in the lawyer and prepare the defense.
What legal benefits exist for prisoners?
Several legal options exist in Bolivia to reduce time served in prison. With the exception of sexual assault, drug trafficking, and first-degree murder, crimes in which the offender must serve “flat time,” or time in calendar years, the inmate can work off his or her sentence.
Two for one: For every two days of work/school, one’s sentence is reduced by one day. If one works for 365 days, one reduces one’s sentence by six months. This is called good time, redención (reduction of the sentence).[xviii]
Early release: After serving half of their sentence, inmates may get formal, legal employment outside the prison. This is called extramuro[xix](outside the walls), a work release program. People convicted of three crimes: sexual assault, drug trafficking, and first-degree murder are ineligible for this benefit. All prisoners, however, can qualify for parole after serving two thirds of their sentence.
Legislation has been proposed to begin to address the deplorable living conditions within the prisons and the slow judiciary process. One, the Humanitarian Pardon bill, seeks to provide release or home detention for 40 percent of Bolivia’s prisoners. People under 21 or over 60 years old, people with terminal illnesses, first time offenders, or prisoners with sentences of less than eight years would potentially benefit from the legislation. Current legislation allows home detention for people over 60 and terminally ill inmates, but this is rarely enforced. New measures would enable some of the accused to wear electronic surveillance bracelets in lieu of imprisonment. Other proposed reforms including new regulations to provide access to social services, psychological care, lawyers, and the judiciary. Cameras would be implemented to reinforce security.
The Bolivian law and constitution provide guarantees that cannot always be enforced. For example, the accused have a right to an interpreter if Spanish is not his or her first language. But the system cannot pay for this, so the benefit rarely materializes. Also, if the trial takes place close to the scene of the crime, but the accused is imprisoned in another city, he or she must pay for transportation to court and the meals for the accompanying guards. If prisoners cannot pay for transportation, they cannot show up for trial.
Unfortunately, the Bolivian justice system is stymied by a lack of resources, inefficiency and harsh, sometimes externally imposed legislation. The system is not set up for speedy trials. New facilities geared for rehabilitation with an included facility for young offenders and the passage of legal reforms that ensure social, psychological, and legal services show that the wheels of the Bolivian justice system are grinding slowly along towards its idealized goals. But in the meantime, tragically, many detainees are behind prison walls, waiting for their trials, even their initial hearings, in an overextended, underfinanced judicial system.
[ii]See also the Department of State report on “Bolivia Report on Human Rights Practices 2011,” in which the human rights violations are identified as “arbitrary or unlawful deprivation of life, arbitrary arrest or detention, and denial of fair public trial. Other human rights problems included harsh prison conditions, official corruption, lack of government transparency, violence and discrimination against women, and trafficking in persons.” The report also states that the government “took steps in some cases to prosecute officials who committed abuses, whether in the security services or elsewhere in the government.” See http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper
[iii] Email Communication, Report on Meeting with UNHCHR” from Felicia D. Lynch. 12 July 2012 included in http://foreignaffairs.house.gov/112/HHRG-112-FA16-WState-MooreS-20120801.pdf
[iv] Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of US Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.
Source: Linda Farthing, “Social Impacts Associated with Antidrug Law 1008,” in Coca, Cocaine, and the Bolivian reality, Madeline Barbara Leones and Harry Sanabria, eds. (New York: SUNY Press, 1997), p.256.
[v] Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of US Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.
[vi] Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of U.S. Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.
Source: Juzgado de Vigilancia, Informe Annual 1995, Cochabamba, Bolivia.
[viii] See “USAID helps draft current Criminal Procedures Code” in the AIN report “Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions”
[x] Loney explained, “The interpretation at this time is that drug cases do not have a time limit because they are ‘crimes against humanity.’” As AIN has reported in 2004, drug trafficking was classified as a “crime against humanity” in the anti-drug law passed by the Bolivian Congress in 1988, Law 1008. (See AIN report “Bolivia’s Prisons and the Impact of Law 1008.”) The three-year time limit for trials was intended to insure that the defendant had a speedy trial. But in Loney’s view, the courts perceive that this deadline is too politically and socially difficult to implement as written. Further, the judges are should examine how the complexities of each case, the number of defendants, and whether or not the defense is responsible for delays and other factors. Finally, a recent interpretation is that the defendant the three year rule can violate the accused’s right to a defense.