Riots and protests put prisons on the spotlight

7th May 2020

By Luciana Bertoia

Riots and protests put prisons on the spotlight

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The government of Alberto Fernández has been under fire due to the possibility of prisoners being released or placed under house arrest to deal with overcrowding risks during the COVID-10 pandemic. Faced with riots in prison units and protests promoted by the opposition, Fernández unloaded the responsibility on the judges, arguing the decision is not one for the Executive branch to make.

Devoto riots

The Villa Devoto prison, the most emblematic penitentiary unit in the country and the last one standing in Buenos Aires city, was at the center of the conflict over the last few weeks. The government only managed to seal a peace agreement with prisoners yesterday, after a series of violent protests which started on April 24.

Prisoners were demanding release in view of the risk of COVID-19 contagion after seven prison officers tested positive for the virus. When the protests were subdued, three prisoners also ended up testing positive and hospitalized for care and isolation.  The Devoto penitentiary currently has 1612 inmates. Of these, only 370 are serving a firm sentence, with 805 still awaiting trial or serving less than three years — the threshold for prison sentences to become effective in Argentina.

The conflict lasted two weeks. Dialogue with the prisoners was mostly in the hands of Secretary of Justice Juan Martin Mena, a young lawyer with previous experience under Cristina Fernández de Kirchner’s administration. Mena is a key ally of the current vice-president, who designated him as the number two in the Federal Intelligence Agency (AFI) during the crisis triggered by prosecutor Alberto Nisman’s death. Mena is currently seconding Justice Minister Marcela Losardo, a friend and former partner in the law firm of President Fernández.

Pressure building up

“There was a lot of pressure to start a revolt in Devoto,” a Justice Ministry source told The Essential.

Federal prisons house 12,324 people today, down from about 14,000 when Fernández took office. In March of last year, then-minister Germán Garavano had declared a prison emergency, still in force today, because of a ten percent overcrowding rate.

The situation is more serious in Buenos Aires province, where riots have also taken place since the pandemic. More than 50,000 inmates live in Buenos Aires prisons and police stations, more than twice the provincial capacity of 24,000.

Nationwide, the prison population was 95,000 in 2018, the year of the latest available statistics, 12 percent up when compared to 2017.

Judicial response

After the pandemic was declared, both the World Health Organization and the United Nations High Commissioner for Human Rights, as well as the Inter-American Commission and Court of Human Rights, recommended reducing the prison population.

The Federal Court of Criminal Cassation, the country’s highest criminal court, recommended that the rest of the judges grant home detention to those who are vulnerable to COVID-19 (elderly and sick prisoners and women who are pregnant or have small children). According to its resolution, judges should apply it for minor offenses and not serious crimes — such as homicide, rape or crimes against humanity. Days later, the National Court of Cassation — the highest criminal court in the city of Buenos Aires — issued a recommendation along the same lines.

The two recommendations generated reactions within the Judicial Branch. A federal judge, Germán Castelli, declared the recommendation of the Federal Court of Cassation unconstitutional. Another judge, Jorge De Santo, did the same with the National Court of Cassation’s writ. In this case it was at the request of the Usina de Justicia association, represented by a lawyer linked to former Security Minister Patricia Bullrich.

“Santo has some difficulty understanding Spanish: it is repeatedly said in the resolution that each judge is autonomous and will decide according to the particularities of the specific case,” Judge Daniel Morin, who chairs the National Court of Cassation, told The Essential. “A recommendation is not a rule, therefore, it cannot be declared unconstitutional,” he added.

Government response

Since April 25, the number of cacerolazos (banging pots and pans in protest) against the release or house arrest of prisoners has been on the rise. The first protest was only promoted by a prosecutor and poorly observed. But since then, the government has been forced to toughen up its crime discourse, on the one hand, while simultaneously offering alternative possibilities to those who are deprived of their liberty, on the other.

President Fernández said he was not willing to commute sentences and that, in any case, the issue was ultimately in the hands of judges. Buenos Aires Governor Axel Kicillof targeted provincial Attorney General Julio Conte Grand — an official close to his predecessor María Eugenia Vidal — for promoting house arrest.

The truth is that both the judges and the government have at least two polls showing that 80 percent of those polled are against prisoners getting out of prison. One of the first members of the governing coalition to understand this social climate was Lower House Speaker Sergio Massa, who announced last week that he will push for impeachment orders for judges who order releases or house arrest without consulting the victims first — a step that is not binding.

Judges’ organizations rejected the threats of impeachment proceedings. The conservative Magistrates’ Association stressed the independence of judges and recalled that the government is responsible for the situation in prisons. For its part, Legitimate Justice (a league of lawyers closer to Kirchnerism) responded that the three branches of government are responsible for what happens in prisons.

The numbers

Prisoner releases in Argentina due to the pandemic have been smaller than in other countries. According Ministry of Justice data, 320 people were sent home to serve their sentences since the beginning of the pandemic — 33 of them convicted for crimes against humanity during the last dictatorship.

According to the Buenos Aires provincial Ministry of Justice, 599 people were placed under house arrest between March 17 and April 17. About 1,600 others were released after serving their sentences. Among them, there were at least 38 sex offenders and 42 murderers.

Faced with the popular rejection to prison releases, Governor Kicillof announced that it would build about 1500 more prison cells and provide eight mobile hospitals to isolate inmates with coronavirus. At the national level, Minister Losardo promised improvements in the prisons of Devoto, Marcos Paz, Ezeiza, Güemes (Salta), Rawson (Chubut) and the construction of isolation spaces.

A source who participated in the dialogue with Devoto prisoners told The Essential that assisting prisoners in their living conditions will be prioritized over the possibility of freeing them.

Liberalizing the lockdown

On Wednesday, Fernández met with the team of infectious disease experts who are advising him on the pandemic. They told the president that some activities could resume, with special focus on industry, but mass-scale events and overcrowded public transport should still be avoided. Fernandez will have to announce how the lockdown will continue after the latest May 10 extension expires this weekend. Full flexibilization is unlikely in the Buenos Aires Metropolitan Area, due to population density issues and given that more than 70 percent of confirmed cases come from the region, although other areas could be given further leeway.

Luciana Bertoia

Luciana Bertoia is a journalist specialized in judicial, political and human rights issues. She has published in Ámbito Financiero, Página/12, the Buenos Aires Herald and the International Justice Tribune.