In recent days, as a result of the current pandemic situation, the debate has emerged with strong action on what measures to take in respect of the prison population. In this context, the Inter-American Commission on Human Rights (IACHR), within the framework of its Timely and Integrated Coordination and Response Chamber to the crisis in relation to the COVID-19 pandemic (SACROI COVID-19), has recommended that States take urgent measures to address the very serious situation of persons deprived of liberty in the region and to ensure the health and integrity of this population and their families, the effects of the pandemic. In the specific case of pre-trial detention, it has recommended re-evaluating and identifying cases that may be replaced by alternative measures to deprivation of liberty (house arrests), giving priority to populations at greatest risk of health in the face of possible contagion.
In our country we have been able to appreciate that at the level of convicted people, there has been a concrete and timely response to these recommendations by the State, in publishing on 17 April last Law No. 21.228, which “grants general commutative pardon because of COVID-19 disease in Chile”, mainly to people because of their age rank (men over 60 years and women over 55) and pregnant women or children under two years of age, among others.
With regard to pre-trial detention, the Public Criminal Ombudsman has developed a strategy to review the action taking into account the recommendations of the IACHR and the parameters of the at-risk population that have been defined by the health authority: older adults, chronically ill and pregnant or nursing children.
Prior to verifying the impact of these measures, it is necessary to review the scenario of pre-trial detention in Chile prior to the pandemic, according to the data provided by Chile’s Gendarmerie:
Firstly, if we review the percentage of defendants in pre-trial detention in respect of the total prison population, we can find that in 2000 the population of inmates corresponded to 41.3%. The year 2005, at 31.7%, starting from there a sustained decline until 2010, where the figure reached its lowest historical point: 21.2%. Then, from 2011 to date, we have seen how this percentage has been increasing to 34.6% in March 2020.
At the level of criminal commitment of persons deprived of liberty. In 2018, of the 13,307 defendants subject to pre-trial detention, it was established that only 26.4% had a high criminal commitment, while 72.5% had medium and low commitment. Taking as a reference the total prison population, this trend continues as of April 2020, with 30.4% of people with high criminal commitment and 68.1% with medium and low commitment.
As for the form of enforcement of sentences (an aspect that is linked to the arguments used to apply for and decree pre-trial prisons), the total of the criminal population as of 16 April 2020 amounted to 113,810 people. Of these, 66,805 were serving alternative sentences or alternative (non-custodial) penalties and 28,047 effectively serving custodial sentences (in closed procedure).
Broadly speaking, these data would demonstrate:
1.- A percentage increase in people on remand compared to the percentage of prisoners convicted, which currently has us at similar rates for 2004, prior to the total implementation of criminal procedural reform throughout the country (time when the total of the closed population was 12,965, with those charged in pre-trial detention being 35.6%).
2.- That a high percentage of persons deprived of liberty do not have a high criminal commitment. In other words, we are bringing to re-trial detention defendants who do not present a significant criminogenous risk, giving the paradox that we are de facto exposing them to this risk, however there are a number of other personal precautionary measures that would be advisable for this profile of imputed.
3.- That a significant number of persons sentenced to custodial sentences (close to 60%), agree to serve them on an open basis by means of alternative sentences. This relates the argument of prognosis of punishment and possible effective compliance with it that is used at the time of decreeing pre-trial detention (as a parameter of danger of flight and/ or danger to the safety of society). Bearing in mind the data provided by Gendarmerie, if a projection of the sentence and its manner of compliance were to be made at the hearings where pre-trial detention is discussed, such projection would favour the accused, especially in the case of first-timers and without prior contact with the criminal system.
Having made this finding, let us see what the impact of the IACHR’s recommendations has been at the pre-trial detention level. As a first point, fragmentary can be found in the state response to these suggestions. As we will highlight, the Public Criminal Ombudsman has implemented an action plan to reduce the prison population of inmates in these risk groups.
In concrete terms, in the period from 3 March to 22 April this year, 2,995 pre-trial review hearings requested by the Public Criminal Defenders have been held, with the 913 courts being received from such petitions (30.4%). Regarding the behaviour of the Public Prosecutor’s Office in these debates, in 2,405 cases (80.3%) opposed the replacement of pre-trial detention with another personal precautionary measure.
These results are good news from the perspective of the pandemic we are living in, as they denote a coherence of the responses that most institutions and bodies of the State of Chile have been adopting on the basis of the recommendations made by the IACHR. In addition, there has been a significant impact on the figures associated with the application of pre-trial detention in our country, as they have helped reverse the trend of increase that we have experienced in recent years, both in the total number of inmates (from 14,546 in March 2020 to 12,043 to April 2020), as well as in the percentage of people in pre-trial detention relative to the total prison population on a closed basis (from 34.6% in March 2020 to 30% to April this year).
However, this reality has served to make visible, once again, the overuse we have been making of pre-trial detention and the way in which we have been moving it away from its own precautionary purposes. From an overview of the functioning of the system, we are depriving innocent people of their liberty, who in a majority percentage have medium or low criminal commitment, and then, in cases where their guilt has been proven, a percentage close to 60% meets their sentences in a substitute, that is, in freedom.
This does not mean that pre-trial detention should not be used, as it must obviously be used in cases where it is absolutely essential and to the extent that the other precautionary measures are insufficient. Therefore, this historical context is a valuable opportunity, taking into account the information provided by the system itself, to critically review the way in which we have been applying pre-trial detention, and to reflect on the search for rational, proportional and purely precautionary use of this measure.
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