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  Number 322 | Mayo 2008
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El Salvador

A Penitentiary Crisis That Refuses to Go Hawai

Authorities deny any crisis in the country’s penitentiaries and claim any future crises will be resolved by building more prisons. Overcrowding, penitentiary system reforms, the anti-youth gang plans and prison administration by former military officers have deepened the never-resolved penitentiary crisis and are feeding a growing climate of insecurity, delinquency and criminality. Rehabilitating prisoners is the least of anyone’s concerns.

Amanda Mayen

During the first half of March eight prisoners were reported murdered in the Chalatenango and Ciudad Barrios penitentiary centers. Public Security and Justice Minister René Figueroa, whose ministry covers the Penal Centers Directorate, did not, however, view these crimes as representing a penitentiary crisis: “It would be a crisis if we didn’t have any solutions. But we do, because we’re building new prisons.”

The words of Minister Figueroa, who is also vice president in charge of ideology in the ruling National Republican Alliance (ARENA) party, are curious and provocative for several reasons. First, the national media have been continually referring to a “penitentiary crisis” since the nineties. Second, the minister was contradicted by his subordinate, Penal Center Director Gilberto Cáceres, who clearly stated, “Of course there’s a crisis and it’s being shown by the latest actions.” Third, these murders were followed by two more in the same prison just days later, for a total of 13-15 homicides counted by the end of March, although no official or definitive figure has been released. And finally, the daily life of the prisoners and their families represents a chronic crisis expressed in many different ways.

An ongoing crisis with
a parenthesis of relief

This crisis in the Salvadoran penal centers has been going on since the war years. The 1990 Legislative Review Commission report mentioned it already at that time. And in 1993-94, more than a hundred outbreaks of violence and protests occurred in the Gotera, San Vicente and Mariona Penal Centers, resulting in massacres, people being burned alive, games of Russian roulette and fires.

The penal legislation was redesigned in line with the recommendations of that Review Commission and the Peace Accords. The retooling of the Penal and Penal Procedures Code and approval of the Penitentiary Law in 1998 created expectations of speeding up the processes. Guillermo García, head of the Association of Former Penitentiary Inmates of El Salvador (AEIPES), recalled that “at that moment you could see a ray of hope that the crisis could be resolved. You could see a new spirit of how to apply penal law, based on respect for human rights.”

At that time, what turned out to be the transitory article 48 was approved: every day a prisoner spent in jail without being sentenced counted as three days of any eventual prison term. Prisoners who had been detained for a year without sentencing were thus automatically registered as having completed three years of their sentence, so if they got six years they would immediately be up for release for good behavior having served half of their prison term. Over 2,400 prisoners were released under this article during 1998-99 due to the pressure building up inside the jails. This helped calm down the outbreaks of “crisis.” But as no follow-up was provided to those released, many got caught up in acts of violence again and soon returned to jail. The legislative reforms provided temporary relief to the crisis, but were not a sustainable solution as the roots of the problem weren’t tackled.

Although the 1998 penal laws grew out of a broad consultation of governmental and nongovernmental bodies, universities, unions and other social organizations, this process also had its enemies. The most implacable were judges and justices affected by the corruption-reduction mechanisms. Also opposed was the National Association of Private Enterprise (ANEP). During the ensuing years, both groups successfully fought to get the Legislative Assembly to pass over 300 reforms that changed the spirit of the law and again spiked the prison population.

“Hard hand” plans fill up the jails

The 21st century brought with it state policies to combat the country’s youth gangs, significantly increasing the imprisoned population. The Hard Hand and Super-Hard Hand Plans of 2003 and 2004, respectively, were aimed at rounding up the gang members, leading to an increase in arrests and subsequent jailings. In addition, many actions previously considered misdemeanors not worthy of a jail term were reclassified and penalized in the penal legislation reforms. The prison population increased by almost 150% in 2003-2008.

In a country in which an average of 10 homicides with firearms or blades are committed every day, the government has proved unable to respond to criminality effectively. Prison has become the routine way to try to stop crime. In 2008, there were approximately 18,500 inmates in 19 penal centers built to house a maximum of 8,000. Among the most striking acts of mass violence during this period were the Mariona riot (August 2004), which left 31 dead, and the Apanteos massacre (January 2007).

More control, more isolation

Under the shadow of a media campaign that accused the prisoners’ visitors of smuggling drugs, arms and cell phones into the prisons, 30 more reforms to the penitentiary law were made to reduce visiting times, restrict visits to the direct family and limit intimate visits to one every two months. Now not just any relative or friend can visit a prisoner. The only people permitted are parents, children or spouses whose papers are in order, thus ruling out any partner not legally recognized as such. These visits now have a two-hour limit, when they used to last all day.

The reforms also limited access to educational programs. Most NGOs doing rehabilitation work in the penitentiary system were denied access, with the authorities launching campaigns accusing many of “collaborating with crime” although never offering proof or bringing any prosecutions.

None of these reformed have reduced the presence of illegal objects in the penal centers. From their approval to the present day, over 3,000 cell phones and chips have been confiscated inside the prisons. A year after they were applied, the penal centers director mentioned prisoners possessing grenades and even long-barreled firearms, as well as repeatedly mentioning the distribution of drugs.

Although the reforms did not reduce the amount of illegal material inside the prisons or communication between prisoners and criminal networks operating outside or in other penal centers, they did successfully break the prisoners’ limited support networks, generating desperation and generalized depression. As Guillermo García wondered, “How can they come and teach you to live in society when they’ve completely isolated you?”

Poor staff pay feeds into the crisis

The 2006 reforms to visiting rules have facilitated increased “business” in the penal centers. Former prisoner Armando Argueta explained that “the greater restrictions on getting objects into the center make the things we need cost more.” A cell phone that might cost US$200 on the open market is worth $1,200 in jail because “there’s a whole chain of intermediaries before things reach their final destination.”

Although 13 prison guards and members of multidisciplinary teams were prosecuted last year for introducing drugs and cell phones into penal centers, this business—headed up by the prison staff themselves—is hard to control. The guards are among the country’s worst-paid public employees. They work long shifts under great pressure in a high-risk environment for several days at a time and then get just 48 hours off. Over the years many prison guards have been murdered on the job. In 2006 salary by post was eliminated and everyone started working under six-month or one-year contracts. They thus lost not only their job stability, but also years of accumulated compensation pay stipulated by the Labor Code, which they never got regardless of how long they had worked in the system. As well as violating the Labor Code, this makes penal center staff members more likely to get involved in criminal activities. Prison guards can receive three or four times their monthly salary for smuggling in one cell phone.

Apanteos: A typical case

Last year’s Apanteos massacre clearly demonstrated how the authorities have historically responded to outbreaks of violence. On that occasion one inmate put up resistance to a routine search before the prisoners’ night lockup in their cells. When a scuffle broke out between him and a number of guards, a group of mainly youth gang members refused to be locked up. Although the National Civil Police set up a police and military cordon around the prison within half an hour, no prison or police force authorities intervened in the ensuing 12 hours of violence, including destruction of furniture to make sharp weapons, the breaching of walls and selected attacks on previously identified victims. Only the following day, when the murders had already taken place, did riot police go in to clear out the rioters.

María Julia Hernández, the Archbishopric of San Salvador’s legal aid director, later filed charges with the Attorney General’s Office against Apanteos Penal Center Director Neftalí Portillo, Penal Centers Director Jaime Vilanova Chicas, National Civil Police Commissioner Douglas Omar Garcías Funes and then-National Civil Police Director Rodrigo Ávila—now ARENA’s presidential candidate. The Penal Code clearly states that not preventing a crime constitutes “commission by omission.” If they lose the case, these officials will be guilty of “aggravated homicide” by omission. But a year after the charges were filed, there are still no signs of investigation from the Attorney General’s Office.

Former army officers
head up a great contradiction

Although the law establishes suitability and “learning in the area of penitentiary science” for penal center management posts, El Salvador has no penitentiary administration or even criminology career. In practice, roughly 16 of the 19 prison directors as well as the penal centers director are former military officers. Administering a penal center whose aim is to re-adapt inmates clearly cannot be done using the same criteria applied in a military barracks. Having former military officers head up prison administrations implies a series of risks. It is common knowledge that the El Salvador’s armed forces were the country’s most tenacious human rights violators, both historically speaking and during the recent armed conflict. The use of violence is a normal “disciplinary” measure in the armed forces, which is totally contrary to the idea of rehabilitation.

Intelligence and counter-intelligence may be basic elements in the functioning of a military force, but can only distort and encourage violent acts in a population that is, at least in theory, on the road to rehabilitation. The accumulated military experience consists of containing and dominating enemy populations and it is unthinkable that prison authorities can promote rehabilitation processes if they view the prisoners as enemies. This worrying contradiction is a daily reality in most of the country’s prisons.

Daniel García is a former prisoner with a history of denouncing human rights violations in penal centers. He spent 14 years of his life in 10 of El Salvador’s 19 penitentiaries, including the maximum security Zacatecoluca prison. He explained that the prisoners are physically tortured every time a search takes place, which is more or less every two weeks. “I would dare say this happens in all the penal centers,” he explains. “For example, on February 19, 2007, we were taken out to be searched in the Zacatecoluca prison. They threw me on the ground and dragged me along for about ten meters. That left a mark on my right thigh that’s going to be there the rest of my life. They broke one guy’s nose and left another unconscious from the beating. They shot off another one’s ear with a shotgun and applied electric shocks to another kid. They kept us in the sun with nothing to eat from eight am to six pm that day.”

Explaining the settling of scores

In cases like Apanteos and the recent murders of March 2008, the motive appears to have been the “settling of scores,” as a brief look at the most recent crimes demonstrates. The two prisons where most murders have taken place—Chalatenango and Ciudad Barrios—are designated for “highly dangerous prisoners” and both house members of the same youth gang. The March murders involved a “settling of scores,” consisting of executing prisoners assumed to be informing for the prison authorities.

There have always been snitches in penitentiaries, but in 2006 they were institutionalized through the setting up of “penitentiary intelligence” units. As well as being responsible for introducing new technological advances to provide greater control, these units offered prisoners legal benefits such as reduced sentences or the application of substitute measures in exchange for informing for the authorities. The work of these intelligence “collaborators” is to identify leaders among the prisoners, reveal structures and organizational levels and “blow the lid” on any movements or plans within the prisons.

Why is this so serious? To start with, information by a prisoner can’t legally be used against fellow inmates. The word of one prisoner against another has no legal value and thus is ineligible as evidence in a trial. The legal request for information as a procedure during a police investigation to prosecute a crime committed in a prison would be another thing altogether.

A prisoner who provides information on a fellow inmate is obviously considered a traitor by his prison mates. Among youth gang members this is even more serious and subject to the ultimate punishment. The authorities have done nothing to avoid this practice. On the contrary, they have transferred prisoners from one precinct to another, giving the impression that there’s some kind of complicity or collaboration with prison authorities. For example, prisoners from Ciudad Barrios were sent to Chalatenango for no apparent reason, so the other prisoners concluded they were taken out to stop them being killed. But they were then murdered in the other jail because there were members of the same gang there. Transferring them from one precinct where they were in danger to another doubled the danger.

You reap what you sow

According to the president of AEIPES, “Penitentiary intelligence is a way of sowing discord and distrust among the inmate population. It’s a mechanism used by the penitentiary administration to produce self-elimination. The system sees inmates as worthless, people who have to be destroyed. So it’s beneficial to the penitentiary administration if the prison population eliminates itself.”

This settling of scores directs the prisoners’ discontent, frustration and aggression over their lamentable prison living conditions against the other inmates rather than against the system or authorities. It also guarantees that no evidence is left behind, because the person who provided the information is simply snuffed out. Another advantage for authorities is that it reduces the problems of prison overcrowding: “one less Indian, one more tortilla…” as the saying goes. And finally, it reflects and reinforces society’s image of prisoners as uncivilized people who don’t deserve to have rights. Nobody asks for an explanation or investigates when scores are settled because it’s seen as “normal.” As Daniel García explained, “They forget that this becomes a two-edged sword for them, because each time there’s a riot it exposes the penitentiary crisis that the authorities are incapable of resolving.”

A critically skimpy budget

The budget for the country’s penal centers is currently US$22,269,565, of which 61% is for salaries and 38% for the purchase of goods and services. It is important to stress that even a significant percentage of the goods and services are purchased for administrative-level personnel and rarely if ever to improve the lives of the prisoners.

One report in La Prensa Gráfica stated that the Salvadoran state spent $3.50 a day on each prisoner in the system. But what does that daily amount include? In a communiqué of April 10, 2008, the Network for a Humanitarian Penitenciary System—a group of human rights organizations and NGOs that implement rehabilitation programs—called on government officials to explain to society “how much of the budget assigned to the penitentiary system is invested in food, medical attention and treatment to guarantee rehabilitation of the prison population.” There is as yet no response.

Being deprived of liberty in El Salvador is anything but a free ticket to “sponge off the state.” Lacking basic items such as water, floor cleaner and trash bags, the prisoners organize to buy them. According to one former inmate who just got out, a prisoner’s typical spending just to cover basic costs is between $5 and $10 a week. If you include personal hygiene items or food from the penitentiary shop—where the prices are “much higher than outside”— the amount quickly rises.

According to Astrid Torres, the “penitentiary vigilance and punishment execution” judge from the department of La Libertad, “The budget is very low, but it’s also badly used. There’s no investment in the technical area or in changing behavior. The technical teams are incomplete and the tools antiquated.”

Overcrowding creates desperation

In an interview with El Faro on March 31 of this year, Penal Centers Director Cáceres retracted his statement that the penitentiary system was in crisis to be more consistent with the discourse of his superior. He further explained that the overcrowding would be resolved by building three new prisons and that it was really only a problem when it came to locking the prisoners up for the night.

Daniel García described his experience: “The overcrowding generates illnesses and causes psychological problems because it makes you desperate. In Chalatenango the cells are small and they’ve stuck 106 inmates in each cell with only one bathroom. In 14 years I received medical treatment only 15 to 20 times, when the symptoms were already very serious. The psychologists, who are responsible for over 800 cases per prison, have even less capacity to treat the population. They have another function: to classify people for transfer to centers where they’ll be subjected to even harsher confinement conditions. So they’re always very busy and don’t have time when you go to them with your problems. The prison at San Francisco Gotera is one of the most overcrowded, with an inadequate infrastructure. There’s no water, no beds, nowhere to throw trash and nowhere to walk around. The inmates have to pay for their water and have the right to one bucket per person, which has to last for two days. You’ve got to wash yourself down, wash your clothes, do everything with that.”

Visitors discouraged,
tuberculosis ignored

The daily crisis affects visitors as well as prisoners. According to García, the visiting area is a 10 x 6 meter corridor with only one seat. If there’s not enough room for all the visits some take place outside under the sun or rain. Family members are often subjected to indecent searches and prison authorities sometimes turn up at the visiting area to offend them. “They tell the women they’re wretches, that they’re stupid for coming to visit people who aren’t worth it, that they’d be better off plying their trade on the streets to feed their children.” It’s all aimed at discouraging relatives who want to accompany prisoners and causes greater family disintegration.

A recent report by the Human Rights Ombudsman’s Office mentioned the presence of tuberculosis in the Ciudad Barrios prison, which is not surprising after a mass transfer to that establishment of prisoners from Chalatenango included several already diagnosed with TB.

Tuberculosis is a contagious disease transmitted through the air. As they have been neither treated nor quarantined, the infected inmates are not only in danger of losing their lives but also represent a risk to other prisoners, the penitentiary staff and all visitors. If the Pan-American Health Organization considers TB a serious public health risk, why doesn’t it represent a crisis for the penitentiary system?

The prison system’s phases

According to article 27 of the Salvadoran Constitution, the aim of the penitentiary system is “to correct criminals, molding their work habits, procuring their re-adaptation and preventing crimes.” If one only looks at the “penitentiary policies” approved by the penal centers director in 2006, it would appear there’s a strategy to guide prisoners in that direction.

A fundamental part of these laws is the application of the system’s “phases” established in the penal legislation of 1998. These phases establish a series of actions and benefits geared to the prisoners’ gradual re-adaptation and integration into society. The adaptation process lasts for two months, during which time the prisoners must receive psychological accompaniment to overcome the trauma of being imprisoned. Then they go through the ordinary phase, in which they serve their sentence. This is followed by the trust phase, after serving a third of the sentence, and the semi-liberty phase, after half of the sentence. During the semi-liberty phase, prisoners may leave the penal center for limited amounts of time for educational or work activities and to meet relatives. The logic behind these phases was for half of the planned-for 10,000 prisoners to be in the semi-liberty phase, excepting people with pathological characteristics that make them a social risk.

Compliance with these phases would help reduce the effects of overcrowding, but very few prisoners have gotten access to the trust and semi-liberty phases, even if they fulfill all the requirements. The decision to pass an inmate from one phase to another is made by the penitentiary authorities, and prisoners only have access to the judicial system after exhausting all internal appeal bodies.

Collaborating to get out sooner

The penitentiary system’s phases appear to be used by the authorities to favor collaborators and punish “enemies.” Opting for the trust phase tends to be an opening bid to promote collaboration with penitentiary intelligence.

In a recent case that became public, the Attorney General’s Office pressured a female prisoner to declare against Santa Tecla’s examining magistrate. According to Nelson Flores of the Penal Studies Center, which is part of the Foundation of Studies for the Application of the Law (FESPAD), the prisoner says that “two prosecuting attorneys came to tell her to
lie about the situation regarding Judge Posada, accusing him of procedural fraud. In a press conference the prisoner explained that the judge’s sentence in her case had been correct.” They told her that the possibility of opting for the benefits offered by the system depended on her willingness to collaborate. With respect to this case, Judge Astrid Torres wondered “What relationship does the Attorney General’s Office have with the penitentiary technical team to go around offering such privileges? None at all. But it’s obvious that even if a prisoner has the right to the system’s privileges, to its different phases, getting out is only going to depend on collaborating with the system.”

A safe country?

The real purpose of the penitentiary system doesn’t seem to be rehabilitating anyone. Like the country’s whole anti-crime policy, the penitentiary system’s functioning seems to be more a publicity campaign by the ruling party than an effective strategy for combating crime. The Hard Hand and Super-Hard Hand Plans were examples par excellence that this policy doesn’t produce results. Arrests increased exponentially during their implementation, but so did crime rates, particularly homicide, and the crisis only deepened in the streets and prisons.

There’s a clear link between management of the anti-crime policy and political-electoral processes. The publicity slogan of the ARENA party, which is currently launching a former Civil National Police director as its presidential candidate, is
“El Salvador: A safe country.” For Judge Torres, “That safety is obtained by grabbing all the criminals and throwing them in jail. We’re using one of this country’s resources, which should serve to facilitate rehabilitation processes, as warehouses at the service of a political campaign. I serve a political party and the party is telling me ‘a safe country.’ And to have a safe country, the ‘bad guys’ have to be in jail.”

The challenge of
depoliticizing the prisons

Depoliticizing the penitentiary system means first of all stopping viewing public safety as an electoral tool. Obviously a citizenry that cites “public safety” as its main concern in most opinion polls wants responses and has security on its mind when it goes to vote. But manipulating this feeling against the human rights of “the world’s saddest of the sad,” to borrow a phrase from Salvadoran Poet Roque Dalton’s “Love Poem,” can’t be the basis for constructing a just society.

Depoliticizing it also implies the system’s staff being right for the job and capable of promoting re-adaptation processes that benefit the prisoners. This involves not only replacing staff members who have a military background with mental health professionals, criminologists and rehab specialists, but also dismantling the practice of influence peddling to obtain posts. If this practice is damaging for all government organizations, it’s even more serious in the penal centers, where some authorities have the possibility of collaborating with criminal networks.

The penitentiary system’s posts require a level of proven professionalism and honesty and the system’s staff must be organized to attend to and readapt the prisoners. It’s also illegal to fill bureaucratic offices with personnel while the teams inside the penal centers are still incomplete. And finally, depoliticizing the penitentiary system means recognizing the real situation. Those who don’t want to hear talk of a crisis in the system argue that everything gets politicized in a pre-electoral year. But how can we solve a problem if we stick our heads in the sand and pretend it doesn’t exist?

“Of course they can build more prisons,” argues Guillermo García, “but that’s not going to solve the crisis. In 1998 there were approximately 9,000 prisoners. The prison population dropped to 6,600 with the new regulations, but the reforms and counter-reforms saw it increase again as the result of the bad policies applied by the state. The National Assembly is about to approve a new Penal Processing Code that will hike the maximum sentence from 30 to 75 years, criminalize social protest and increase the investigation period following a person’s detention from 6 days to a year. According to García, “In about ten years there won’t be enough room in the new prisons they’re building either.”

How long?

It’s difficult to glimpse any hope of change right now. “As long as the roots of the problem aren’t dealt with through a real preventive, democratic and inclusive criminal policy, the crisis is going to get worse,” says Guillermo García. Will the new government prove capable of listening to the voices of those calling for a humanitarian policy to respond to crime? A number of proposals have already been made. FESPAD designed one that was supported by the Network for a Humanitarian Penal System. The United Nations Development Programme and a commission including several deans from university faculties produced another. But up to now all these proposals have been shelved.

It’s difficult for the Salvadoran population to support initiatives of this kind. It’s much easier to believe the promise of “a safe country” where the “good guys” are reassured by seeing “bad guys” get locked up rather than assume the challenge of creating a system that respects what the Universal Declaration considers “unalienable” human rights, i.e. for everybody. For such initiatives to prosper, those who consider themselves committed to justice and social change have to be convinced that changing the penal system favors their own interests and those of the rest of society.

The situation is similar in neighboring Honduras, which led Jesuit Ismael Moreno to ask: “What will the new government
do about the justice system’s crisis, institutionalized impunity, the widespread power of organized crime and the rebellion of marginalized youth organized in youth gangs? All these expressions of social and political crisis are reflected in the macabre massacres occurring in the country’s prisons.” (“Honduras’ Prison Massacres Reflect a Social and Political Crisis,” envío, 2006). A new country, a just society has to be reflected in another kind of mirror.

Sociologist Amanda Mayen is an international specialist on social violence issues .

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