Envío Digital
Central American University - UCA  
  Number 64 | Octubre 1986



Jails and Justice in Nicaragua

Nitlápan-Envío team

Prison officials and human rights advocates from all over Latin and North America and Western Europe gathered in Managua in September for a major conference on "Penitentiary Systems of the Americas." Called the "first" seminar on the subject, with the clear expectation that there would be more, the conference aimed at a serious discussion of penitentiary philosophy and policy. Nicaragua also anticipated that other countries might learn from its accomplishments with more humane and open prisons.

The conference, sponsored by Nicaragua's Interior Ministry, with participation from the Supreme Court, Justice Ministry and National Commission for the Promotion and Protection of Human Rights, attracted representatives from Argentina, Brazil, Colombia, Costa Rica, Cuba, the Dominican Republic, Ecuador, Guatemala, Mexico, Panama, Venezuela, Canada and the United States, plus Italy and Spain.

Inevitably, a conference on prisons in North and Latin America provides a mix of experiences. Delegates presented papers discussing everything from extra-judicial agencies such as death squads (Colombia) to the possibility of abolishing prisons altogether (Canada and Venezuela). Prison reform activists from wealthy countries, in particular the United States and Italy, reported that prison conditions and general prison philosophy are growing worse, not better in their own societies. Latin America human rights advocates denounced the tendency to use prisons to extend totalitarian control over society rather than serve justice, protect the public or rehabilitate prisoners. The head of the Guatemalan prison system, who came to his job last March with the inauguration of Christian Democratic President Vinicio Cerezo, declared that a new day had dawned in Guatemala and that he had come to the conference to learn. He received one of two standing ovations in the conference, perhaps more as a gesture of hope than anything else. (The other was given to Nicaraguan Interior Minister Tomás Borge, who delivered the opening speech.

Is prison any use?

Opinions at the conference coalesced around two, somewhat contradictory positions. The first viewed prison as an appropriate solution to crime, but put more emphasis on rehabilitating prisoners than on punishing them. The other position expressed doubt that prison serves much real purpose at all, and stressed that it should only be used in cases where it seems necessary to protect society from those who pose a violent danger to their fellow citizens. Anyone else, it was suggested, should be dealt with by alternative methods. Nicaragua's own position, as became clear in the discussion and in a tour of several prisons during the conference, as well as in our own research, leans toward depenalizing in principle, and emphasizes rehabilitation in current practice.

Canadian delegates made strong appeals for reducing the world's prison population drastically, asserting that prison is a failure and always has been. John Bock, deputy minister for corrections in the Canadian province of Manitoba, where a social democratic government has made major steps toward prison reform, dismissed point by point each of the usual justifications for incarceration.

Imprisonment rarely deters crime, he argued, since most crimes are committed impulsively, often under the influence of alcohol or drugs, without the least thought to the consequences for the victim of the crime or even its author.

The justification of "protecting society" is also questionable, he said, except possibly for those who have become uncontrollably violent—a group that represents only a tiny percentage of the prison population worldwide. Most individuals in prison in Canada, for example, are there for nonviolent offenses, usually crimes against property. Since criminological studies have irrefutably demonstrated that imprisonment increases the possibility of a return to crime, Bock argued, society is operating against its own best interests, not in favor of them, by throwing large numbers of people in prison.

Finally, he pointed out, "rehabilitation" is difficult to accomplish in a coercive and repressive environment like prison, cut off from the rest of society,. "It is obvious that when the deprivation of freedom and rights is used as punishment, the consequences for the individual include the loss or reduction of self-esteem, self-confidence, dignity and sense of responsibility. Rage and frustration increase, while the opportunity to learn to express these feelings diminishes. These results are completely opposed to the aim of rehabilitation."

One American who spent time in a US prison for anti-Vietnam War activities provided an example of what’s wrong with "rehabilitation" in a repressive environment like prison. He reported that in the last few months of his sentence he was transferred to a "halfway house" in downtown Chicago, where prisoners were to live while they attempted to get jobs and reenter civil society. One night
they were ordered to come to a meeting to discuss their readjustment problems. When none of the men volunteered to tell his story, the young woman leading the session—"probably there to do a Masters' degree in psychology," the teller mused—called on one 18-year-old. The youth looked
extremely uncomfortable, and hesitated before saying anything. "Look," he finally said, "none of us can be open about what we think and feel here."

"That pretty much ended the meeting," the young man recalled. "The men in the room weren’t even on parole yet, and could be sent back without a hearing, without even an explanation." In such an environment, he pointed out, rehabilitation is difficult since, as in any oppressive situation, those who are oppressed either say nothing or say whatever they think their masters want to hear.

The initial step, one delegate remarked after the tour of Nicaraguan prisons, was the one Nicaragua is taking of "making the punishment fit the criminal and his needs" rather than the traditional one of "making the punishment fit the crime." He expressed the hope that other countries would follow Nicaragua's search for alternatives to a traditional view of prisons.

Nicaragua's prison system

Delegates agreed that Nicaragua's government is as advanced as any in prison reform and alternatives to prison. In all of Nicaragua's prisons, enormous efforts have been put into education. Primary schooling is provided to all who need it. Prisoners have the opportunity to leave the prison, unaccompanied, to attend high school classes. Major emphasis is placed on artistic and cultural activities: some members of prison musical groups report that they learned to play their instrument there, and had no musical experience before.

In Nicaragua, socially useful vocational training is provided for prisoners, and the carpentry and crafts that are turned out are of extremely high quality. Those who choose to work in prison receive some pay for the type of work they do. If they increase their skills, for example by becoming a carpenter, their wages are increased. By rule, half the wages are for their families and prisoners can decide what to do with the other half. Many report that they devote all but about 10% to their families, using the rest to buy soft drinks, cigarettes and pastry at the prison commissary.

Ties with families and friends are maintained. Prisoners have broad visiting rights, and can have conjugal visits. Those who have reached the "open" stage of the penitentiary system can go home for a full week every six months.

Prisoners pass through five stages in the system. When they first enter prison, they are in a closed, maximum security system. Once they have demonstrated good conduct, they move to a stage in which they are provided opportunities to work and are allowed greater possibilities for visits and privileges. Instead of visits every month, for example, they can have them every two weeks.

As they acknowledge the offense they have committed, they move to the "semi-open" phase, which represents a major change in their living conditions. Security is minimal: there’s only one armed guard and the traditional measures common to prisons—heavy doors, locks, high walls—are nowhere to be found. "It’s here that security begins to lose ground and the inmate's consciousness begins to take over," says Deputy Penitentiary System Director Franco Montealegre.

"The institution still exercises influence and control over the inmate's life, however," he adds. "Prisoners work where they are sent, there’s no self-management." It is in this phase that inmates begin to resume their relationship with society, with the aim of overcoming the stigma of prison. Prisoners obtain permission to go home for visits during this period.

They then pass to the "open" phase, with a total absence of security measures and armed guards. Prisoners organize their own work arrangements through an inmates' council, setting up farms and often developing agricultural techniques to improve yields. Contact with family and community is ongoing: prisoners have all-day visits once a week, go home once a month and have a week of home leave every six months.

In the fifth and final stage of the penitentiary system, the prisoner simply goes home, but maintains contact with the police. According to regulations, prisoners can move into this period after completing 60% of their original sentence. In fact, as with other passages, prisoners sometimes move faster than that if their conduct merits it. For example, some prisoners found in the fourth, or "open" stage of the system, are ex-Somocistas with sentences of up to 30 years, among them such trusted members of the old regime as Somoza's bodyguard, who has a 23-year sentence.

Who goes to prison and why?

Several Latin American human rights advocates in the conference provided theoretical and historical views of what’s wrong with prisons. First, they reported, the notion of crime and criminals varies to an astounding degree from one society to another. As Venezuelan participant Lolita Aniyar de Castro noted, "One cannot speak without differentiation of a penitentiary system for a liberal capitalist country, an authoritarian system, a socialist country, or a country moving toward humanistic models of a socializing tendency, such as Nicaragua." In any society, she added, the social class to which people belong determines whether their crimes lead them to prison, or to power. Stealing a pair of shoes is considered a punishable offense in liberal capitalist societies, for example; environmental pollution, or fraud in food or medical supplies is not, even though it can have disastrous consequences for millions of people.

Prison, said Aniyar de Castro, was used in the early days of the bourgeois liberal revolution for uprooted peasants who failed to take part in the social pact—i.e., an agreement by the proletariat to show up every day to work for the capitalists. The use of prison to enforce this began to fail in the 18th and 19th centuries, when the working class started to consolidate itself, far from its peasant origins. "At that point the prisons became places for official terrorism, as they are in our countries now, although for different reasons." In other words, she elaborated, "the prison has served to contain massive social conflicts in moments and places where human beings have no economic value."

Colombian participants Ivan González Amado and José Germán Marroquín Grillo discussed prison conditions in their country, noting that they were generally the same as elsewhere in South America. Their description was a testimony to Aniyar de Castro's thesis of official terrorism. They reported that there is no legal regulation regarding treatment of political prisoners inside the prisons, and death squads operate with impunity outside. Meanwhile, they added, the prisons go on collecting the marginalized elements of the poorer classes. No effort is made at rehabilitation. “The prisons are propitious centers for perfecting criminal conduct and associations; drug use and sale, theft, swindling, bribery, personal injury and homicide are relatively frequent among inmates.... Prison guards are recruited from former police and soldiers, most of whom have only primary school educations, if that; those who reach a higher educational level quickly abandon their careers in the prison system." The two Colombians added that the Supreme Court ruled unconstitutional an effort to reduce the prison population by paroling some convicted of minor crimes: the police and government appeared to have pressured the court after an increase in street crime.

"In Victorian England," one delegate remarked during the break, "people were hanged for all sorts of crimes, such as petty theft. It was a desperate measure to try to cut the crime rate, yet crime continued to rise. It only dropped when people formed labor unions and found decent paying jobs."

The use of prisons to serve the dominant social class is not restricted to Latin America, and nobody was under any illusion that the exchange of ideas at the conference would change anything much. Ironically, the week following the conference, Nicaraguan national television showed the US film "Brubaker," in which a warden's attempt to reform a slave-labor prison farm in the United States is broken by powerful local economic interests.

Penitentiaries were adopted early on in US history as a more humane way to deal with offenders than flogging them or putting them into stocks, said Canadian corrections official John Bock. "It was believed that if people did penance in a cell, equipped only with a Bible, they would see their errors and become good citizens. The idea didn’t work, and since then we’ve only been trying to make adjustments in the penitentiary system in hopes of making it function. We’ve never faced the fact that the premises on which incarceration are based are false in at least 80% of the population for whom it’s designed."

Bock said his office stopped constructing new prisons a couple of years ago and threw the money into community projects for handling crime and criminals. He said his office estimated that 50% of all prisoners in Canada could be granted conditional releases.

Rehabilitation, decriminalization or depenalization?

Prison may be more humane than flogging, but it means 10, 20, 30 years off a person's life, during which time the individual is segregated from the society to which he’s supposed to be readapting. While "open prisons" like Nicaragua's have attempted to solve that problem through progressive reintegration into society, no one has decided what to do about the "fixed sentence." If the accused was sentenced to 30 years in prison for murder but appears to have reformed himself in the first six months, should he be released? How does that sit with the victim's family, which is demanding retribution? On the other hand, if the accused is not released, the whole idea of "rehabilitation" is meaningless.

Tamar Pitsch, from Italy, remarked that "studies done in many countries on the effect of alternatives to prison, inspired by ideologies like rehabilitation and reeducation, offer little comforting news. Instead of diminishing the frequency of imprisonment, they seem to extend 'soft' control measures over ever larger elements of the population. They also involve less visible extra-judicial control methods, less subject to legal guarantees and often aimed at exercising totalitarian control over individual personalities," she added.

Canadian criminologist W. Gordon West told the conference that "when we criminologists suggest that the majority of prisoners are not violent and that 'probation' is as successful as a prison sentence, the system uses probation more, but without reducing the prison sentence!"

Despite the prison system's promise to reform the criminal element of the human race, it has only built more prisons, he said. "And today we’re discussing how to reduce the use of this failed system.... Our theoretical answer is decriminalization, greater police discretion, depenalization, more community social services and, finally, abolition of the prison."

"The best penitentiary system," Aniyar de Castro added, "is the one that doesn’t exist. The trend should be toward ever greater deinstitutionalization (including through 'open prisons') and greater participation by both sides in resolving their conflicts. Greater decriminalization is a fast route toward this end." She added that meanwhile the prison system must be subject to the same principles of legality that prevail with other penalties; the state must observe the UN’s Minimal Rules; "re-socialization" must not be coercive; and there must be greater democratization, participation and prisoner self-management in the running of the prison. Even with these guarantees, however, she concluded that "nobody can be 'resocialized' in a place outside of a life in freedom. This is the maximum limit of any reform of a penitentiary system."

W. Gordon West reported that his studies had shown that young men from poor backgrounds and marginalized ethnic groups, the main criminal element in North American societies, abandoned crime once they got a good job and a love relationship, not as the result of a couple of terms in prison. He urged countries to set up criminology institutes to study what makes people turn to crime and how to prevent it, instead of building more prisons.

Bock, too, emphasized alternatives to prison, although he didn’t address the question of decriminalizing any actions now considered crimes. Conditional freedom, or probation, he said, was the most useful. The offender could stay out of prison provided he fulfilled certain requirements (avoiding liquor or drugs, not frequenting certain establishments, etc.). "Temporary absences" from prison was another possibility: a prisoner would have time off to work or attend school, which could become permanent based on the prisoner's behavior. Yet another was community service work: "Simply working together with 'honest people' can be a beneficial experience for an offender."

Most important of all for Bock was mediation between offender and victim. This was particularly effective with youthful offenders. The aggressor asks forgiveness of the victim and experiences the victim's description of what he or she underwent. This also helps undercut the victim's desire for vengeance through a lengthy prison sentence. For any of this to work, Bock added, traditional community attitudes of retribution must be overcome. These are at work in any society, and prison and justice officials often cave in to them.

Nicaraguan system defies revenge

When the revolution triumphed in 1979, the Sandinista leadership was faced with 7,000 captured National Guard members who, while happy to be alive, had no intention of assuming a cooperative attitude. A revolution that doesn’t treat the losers to firing squads has a real problem on its hands. Many Somocistas were released at the beginning, and promptly joined the counterrevolution. Even so, the government pledged to make the values of the new society work in the penitentiary system.

As a country at war, Nicaragua inevitably has a rising prison population, largely because of captured contras. Interior Ministry officials say the number of prisoners would be rising much faster if it weren't for the amnesty decree that frees any contra who lays down his arms, no matter what crimes he has committed, and the release from prison of large numbers of ex-Somocista National Guard members. Currently, the country has approximately 8,000 prisoners, about half of whom are ex-National Guardsmen and/or contras.

(This amnesty law has forced many Nicaraguan communities to confront their desires for revenge. It provides that fighters with the counterrevolution who turn themselves in and hand over their weapons will be returned to civil society. Those who take advantage of the law are often peasants who joined the contras under duress or deception. Nonetheless, it is asking a lot of a population that suffered 50,000 deaths during the 1978-79 insurrection and thousands more in the past few years of war to welcome back someone who may be responsible for the death of a loved one. It becomes almost superhuman, given that the war is still going on. Nonetheless, it’s a daily phenomenon.)

In an address at the start of the conference, Interior Minister Tomás Borge noted that the number of prisoners in Nicaragua as a percentage of the population is the same as the US, a country that is not at war. He held up aerial photos released by the Reagan Administration of new Nicaraguan prison construction, and explained that it was to develop better accommodations for prisoners to replace squalid leftovers from the Somoza regime, not to enlarge the number of penal institutions. A new prison is being built in Granada to replace the particularly grimy one in that city. Conference participants attended groundbreaking ceremonies for the first "semi-open" women's prison: up to now, women have been confined in a closed facility.

Limits to rehabilitation

As the conference demonstrated, the whole question of rehabilitation sparks considerable controversy among prison reformers. Nicaraguan prison officials have a realistic view of how much rehabilitation can be accomplished in a prison and have designed the penitentiary system accordingly. Three fundamental principles are at work. First, prisoners are afforded opportunities for work and a new start after release. Second, they know that the system will keep order within the institution; there are no internal gangs of inmates, for instance, who really run the prison with black market operations and gang-orchestrated violence. Third, the system grants certain material benefits such as pay and the prospect of future employment as rehabilitation incentives to inmates who are willing to work and study.

Visits to the granjas abiertas, or open farms would impress anyone remotely familiar with prisons around the world. There are 15 of these farms, all built since 1983, which now house 10% of the prison population. The government plans to increase the figure to 30% as more are built. Their dormitory facilities are comparable to sleeping conditions in the $2-a-night "hospedajes" frequented by tourists in Managua. ("But we don't charge in foreign currency," says an affable lieutenant at a granja near Leon.)

These are the best parts of the Nicaraguan penal system, and they are admirable indeed. But however humane, a prison is a prison, not a university campus or a vacation camp in the country. It is the most repressive institution in society. No matter how much "rehabilitation" has been grafted on, a prison is still a place of punishment and humiliation, day in and day out, for years.

Some delegates expressed the fear that Nicaragua's attempt to build a humane prison system would run up against the same problems that have stymied every effort at prison reform throughout the world. Any relationship in which one person guards another carries elements that are destructive to each, and it usually doesn’t take long before reports of sadism and brutality begin to surface, no matter how carefully the guards have been trained. Four Interior Ministry officials were recently dismissed and sent to prison for abusing prisoners. This is a dramatic distinction between Nicaragua and many other countries of Latin America, and is what one would expect from any humanitarian system, but it doesn’t solve the problems inherent in prisons.

"We’ve had scandals over corruption, brutality and riots since the beginning [of the Canadian penitentiary system]," Canadian delegate Gordon West told the penitentiary conference. "In almost every decade, these scandals recur; we set up a government commission to investigate them; the government receives the report, which always says the system is a failure, and our governors do nothing except build more prisons!"

Rehabilitative penal system, punitive judicial system

Inevitably, the question arises whether all prison inmates even belong there. In Nicaragua, for example, there are serious problems with the judicial system that sends people to prison. The legal procedures code—involving trial conduct and other provisions—dates from 1879 and really isn’t much changed from an 1805 code written under King Carlos IV. The legal code itself was written during the Somoza regime and is based on the idea of "retributive" justice, which puts the penal system’s rehabilitative philosophy in serious contradiction with the judicial philosophy still in effect.

Retributive justice turns up in places that often surprise. According to a philosophy that still exists in Nicaragua and some other Latin American countries, for example, if a driver of a car causes an accident by human error that results in a loss of life, that driver must "pay" with a prison sentence, although there’s general agreement that this in no way benefits the dead victim's family, or anyone else. In many countries the state would have to prove that the driver was willfully negligent (drunk, speeding), rather than momentarily distracted or confused. The result is that a goodly number of people are in Nicaraguan prisons because they accidentally caused the death of a loved one in a car crash.

The law’s supporters argue that the driver has assumed control of a murder weapon (the car) and must handle it responsibly. All the same, it’s hard to see what purpose is served by incarceration. It’s not "rehabilitative" since there’s no evidence that the accused is a professional criminal in need of education and job training. Nor does the punishment represent "deterrence" to others, since no one deliberately causes an accident. "Protecting society" could be better done, if necessary, by revoking the accused driver's license.

The opposing view, that there are two victims in any accident, the dead person and the one who caused the accident, and that the latter, to be helped, deserves not imprisonment but support, solidarity and love, is not written into the current Nicaraguan legal code. The police, the Ministry of Justice, some judges and in the final analysis the penitentiary system sometimes try to invoke it anyway. Prison officials immediately promote anyone convicted of such a "crime" to the minimum-security "semi-open" system, without passing through the first two stages.

In some cases, Nicaragua’s Ministry of Justice or other organizations have been able to skirt the legal code in such cases. In one recent case, an adolescent and his girlfriend, both militia members, were cleaning their guns and the boy's gun went off accidentally, killing the girl. He was imprisoned to await trial and sentencing and fell into extreme depression. When the Justice Ministry heard about it, they not only freed him (with approval by the girl's family) but went on to provide psychological help, and sent a representative of the Ministry's social affairs department to his workplace to inform his companions of the tragedy and solicit their emotional support for him.

That story had as happy an ending as could be hoped from such a situation, but there are other cases that are harder. In one recent case, for example, a lieutenant in the Sandinista Army wandered away from camp for a moment in a mountainous war zone at night. When he came back, another lieutenant, his best friend, heard the rustling in the bushes and, without shouting "Quién
vive?" ("Who goes there?"), fired his gun. He is expected to go to prison for unintentional homicide. The case is a tough one, for the lieutenant should have demanded the password, something any raw recruit would know. On the other hand, it’s hard to see what purpose is served by sending the lieutenant to prison for accidentally killing his best friend, or how not doing so would undermine military discipline. A Military Auditor for the Sandinista Popular Army, asked about the case, promised to do what he could to reduce the sentence to practically nothing, provided the family of the dead lieutenant agrees, but added that the law decrees that "of course, he has to pay something."

Other people are in prison in Nicaragua who have done little wrong. Some police and prison officials point to an ongoing tendency to give prison sentences to people for extremely minor offenses, such as disturbing the peace, disrespect for a police officer, or "habitual vagrancy." In their view, a few hours in a police station and a talk with someone there might be more than sufficient in many cases. If the case involves a youthful offender, summoning a parent to the police station and involving the youth in a community project could help. The Sandinista Police have initiated a number of community projects for youths, which have proved highly successful in reducing delinquency in areas where they exist.

The police sentencing system, although introduced as a reform to skirt the lengthy delays in trials caused by an overloaded judiciary, has caused more problems. Under Nicaraguan law, the arresting police station can find a defendant guilty and impose a sentence of between six months and two years for various misdemeanors. The defendant can appeal, initially to the regional head of the Ministry of Interior, and then, only on procedural grounds, to the Supreme Court.

Unfortunately, many accused don’t have lawyers in such police-sentencing cases. While Supreme Court justices claim that there are cases of appeals to the Court, they admit that there are very few, since it frequently takes longer to make the appeal than a six-month sentence, which may be cut anyway for good behavior. In practice, the system leaves enormous discretion in the hands of the regional office of the Interior Ministry: both the police and the regional prisons are directly under its command and the misdemeanor charges include vague ones like disorderly conduct (possible six-month sentence).

Under the same ancient judicial procedures code, innocent bystanders who were present at the scene of a serious crime can be jailed for questioning for a few days. This is not calculated to endear anyone to the judicial process, and some police officials worry that it can undermine the generally close and indeed affectionate relationships existing between the Sandinista Police and the population.

There are myriad other problems, new and old, large and small, that the seven-year-old revolution has not yet been dealt with. (Ironically, the recent inflationary spiral has meant that stealing almost anything constitutes grand larceny. According to laws written years ago but still on the books, someone stealing anything worth 300 córdobas—the price of two bottles of Coca Cola nowadays—can be sentenced to 300 days in prison.

Ignorance of the law is a major problem for large parts of the population. The war has raised new difficulties. Judicial resources are badly strained. While provisions for bail and suspended sentences exist, and a good lawyer can win them for his client, most people don’t have good lawyers. In misdemeanor cases, they frequently have no lawyer at all. Defendants are guaranteed court-appointed lawyers for felonies, but the lawyers aren’t paid and thus devote little time to their cases.

The result of all this, as Supreme Court Chief Justice Alejandro Serrano complains, is that many people are in prison who have done little wrong or represent no real threat to society. This is hardly an unusual situation in the world, but that’s scant comfort to a prisoner in Nicaragua.

The very humaneness of the prison system seems sometimes to hinder the search by police, prosecutors and judges for alternatives to prison. A progressive judge in the United States would be reluctant to imprison a 17-year-old who stole a car for a weekend joyride, realizing that US prisons are barbaric, violent and little more than schools for crime. There’s no such fear of the consequences of prison in Nicaragua, so people can spend a month or two there for very petty offenses indeed. First offenders are often sentenced to prison for such minor infractions as disturbing the peace or disrespect for a police officer.

"Unnecessary prison sentences"

"Any prison sentence that is unnecessary is an error," one foreign delegate told the conference. He could have added that it’s unjust, an extraordinary waste of social resources and a severe blow to morale. Any incarceration affects not only the prisoner but easily a hundred friends, relatives and co-workers, and if it is felt that the penalty was undeserved, the social reaction may only be an increased distrust of the judicial system, not a decline in crime.

With a clear understanding of how severe a blow to morale a prison sentence can be, the army stipulates in its Disciplinary Code for minor infractions that any form of incarceration should be the last resort, not the first. It adds that "military discipline is not sustained by coercion or fear of punishment," and gives equal emphasis to recognition for good work as to any form of correction. (Lesser sanctions, which the Code stipulates should be applied first, include reprimand, extra work detail, etc. Detention in the unit or jailing should only be applied when all else has failed, or when the offense is very severe.) This view, however, is not to be found in the existing civilian legal code, nor has it been fully accepted by civilian society.

Revising legal procedures

The criminal justice system is in for a major overhaul in the coming year. In an effort to develop a judicial process that is at once fair and realistic, given Nicaragua's limited legal resources, the government launched a pilot project in 1984 in Region IV, encompassing the provinces of Masaya, Granada, Carazo and Rivas. The system has been judged a success and the new judicial procedures being worked out by the Supreme Court, Interior Ministry and Ministry of Justice incorporate the lessons learned. In the draft of the new procedural code, tribunals made up of one lawyer and two laypeople are to be established, with an appeals tribunal composed of two lawyers and one layperson. The accused can also appeal to the Supreme Court. The tribunals replace both regular felony courts and the police sentencing procedure for misdemeanors. The combination of lay members and trained jurists was designed to overcome the traditional problem of judges who are too distant from the social conditions of many of the accused to render fair verdicts or sentences.

Release from detention while awaiting trial, rarely used in many countries with Roman law traditions, is encouraged in the new draft code. This system is designed to be available to all, not only those who have money to afford bail. Release can be granted based on statements by grassroots organizations supporting the accused, for example.

The Sandinista government established broad rights for the accused after the revolution, and they are codified in the draft procedural code. Its article 54 stipulates that before being questioned the accused must be informed of his or her rights, which include the right not to testify against oneself and the right to legal counsel. Additionally, close family members of the accused cannot be compelled to testify, nor, obviously, can people whose professional duties preclude giving testimony. The new code prohibits, in addition to all forms of torture or brutality, anything that limits the rights of the person being accused or questioned, such as giving false information to a person being questioned, multiplying the questions in order to disorient the person, or running unduly long interrogation sessions aimed at wearing the person down. Should any of these be violated, the case can be thrown out on procedural grounds.

Trials are to be oral and held in open court. (The current legal system, still based on the 1805 code’s investigative system, provides for written trials.) This serves to increase both popular knowledge of the law and legal safeguards.* Through a variety of mechanisms—mainly speeding up the trial calendars—Nicaragua is also reducing the percentage of the prison population awaiting sentencing. In the United States, slightly over half of all prisoners are awaiting trial and/or sentencing, often for as much as a year. In Latin America and the Caribbean, according to the UN's Latin American Institute for the Prevention of Crime and Treatment of Delinquency, 68.47% of the prison population is awaiting sentencing. Nicaragua has managed to reduce its figure from 53.56% in 1983 to 34% in 1986, according to prison system figures. (The UN says the other Latin countries surveyed vary between Costa Rica, with 47.40%, and Paraguay, with 94.45%.)

*These 1805 investigative (inquisitional) procedures particularly damage a defendant's rights in police station sentencing cases. Police authorities can arrest someone, interrogate him, often without a lawyer, and interrogate any other witnesses they choose to, without informing them of who is being charged or for what. In most cases, this constitutes the entire trial. The Interior
Ministry becomes arresting officer, prosecutor and judge. If there’s no lawyer, there’s no defense. The defendant has no right to confront his accusers. The defendant's best hope is that some of the witnesses will speak in his behalf, although this is by no means certain. As witnesses do not even have to be told who’s being charged, they may spend most of their time trying to extricate themselves from the case rather than coming to the aid of the accused.

The problem of lawyers is harder to solve. Many Nicaraguan lawyers were schooled in the old tradition that the law is a road to personal enrichment rather than a responsibility to clients, and their fees are beyond the reach of many of the accused. In misdemeanor cases, defendants frequently have no lawyer at all, although the maximum sentences for their offenses can range from six months to two years. Defendants are guaranteed court-appointed lawyers for felonies, but the lawyers are not paid, so devote little time to such cases.

One military judge complains that defense lawyers do little for their clients in the army as well. Most defenses rely on letters of support written by friends of the accused testifying to his good conduct before committing the offense with which he’s charged. They rarely dispute the facts of the case or bring to light extenuating circumstances, perhaps because it would involve much more work. (The military judge is now working on a project to improve legal defenses.)

Persons who have been accused of offenses say that, despite the problems with lawyers, the system works well if abuses or errors are brought to the attention of proper authorities. Interior Ministry officials are empowered to cut misdemeanor sentences dramatically, and they do. The Ministry of Justice, or prosecutor's office, frequently intervenes to kill cases before they come to trial when it is thought that no useful purpose would be served by imprisonment, whatever the law says. But these agencies are more likely to take action if the case is drawn to their attention, simply because it means that the file will be taken out and examined. A family member of one former prisoner has high praise for the justice system since the revolution. "People work hard to overcome the problem of the lack of legal resources," she says.

A person arrested in Nicaragua probably stands a better chance at justice than a defendant without money in a criminal court in a large US city.* The comparison is important, for it was the United States that allowed the current system to exist over the long years it controlled Nicaragua through the Somoza regime, without making the least effort to change it. It is the same US government that is now attacking Nicaragua for the shortcomings of the inherited system, while Nicaragua attempts to reform it in the midst of the difficulties and shortages caused by the war.

*No one pretends that much justice is being dispensed in most cases in US criminal courts, unless the accused has the money to hire a good lawyer. Most defendants do not, and are given a court-appointed attorney. Court-appointed attorneys are overloaded with cases, and frequently have no more than two minutes to consult with a defendant before going before the judge. The US is supposed to rely on the Anglo-Saxon "adversary" system, in which the case hangs on confrontation in open court between the prosecution and the defense. In fact, court costs are so high that the US has drifted into "plea bargaining" arrangements: backroom deals between the prosecution and defense in which the defendant, who may be entirely innocent, is told he stands little chance of acquittal and is pressured to plead guilty to reduced charges. As a result, few cases actually come to trial.

Holes in the system

As in any country, people unfamiliar with the system don’t fare so well. Nicaraguan Supreme Court Chief Justice Alejandro Serrano says that when he first took up his post a year and a half ago, he found that not a few prisoners had fallen through the holes in the system. "There was no malice intended," he says. "It was simply the result of a slow and cumbersome system inherited from the past."

There was no central list of prisoners, for example. That and the lack of any computerization meant massive bookkeeping problems. Some prisoners at the Zona Franca prison in Managua complained to him that they had been held awaiting trial for longer than the maximum sentence they could receive.

The Supreme Court has now compiled a central prisoner list with details of the date and circumstances of arrest, trial, length of sentence and so on. The entire list is being computerized to make sure that prisoners receive equal protection and are released on the date their sentence is up rather than when prison officials get around to it. People held for longer than the maximum possible sentence are being pardoned.

The new judicial procedures should be approved by the National Assembly and in effect by late 1987 or early 1988. The revisions of the legal code must wait on the finishing of the new Constitution, now before the National Assembly. In the meantime, the penitentiary system is working to overcome shortcomings in the law by "making the punishment fit the criminal's needs." Although there’s little provision for parole in the current Nicaraguan legal code, prison officials parole people anyway, under the rubric of "convivencia familiar" (family living), the fifth stage of the penitentiary system.

"Basically, we're breaking the law," says Penitentiary System Deputy Director Captain Franco Montealegre. This interim arrangement isn’t ideal, but it has gone a long way toward overcoming what one Nicaraguan prison official at the conference called "a legal code written by our enemies."

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