(Ed. Note: Gonzalo Berr?os D?az, author of the following op-ed article, is in charge of the justice branch of Chile’s Public Defense Office. Earlier this week his office released a report that measured the effects of the Adolescent Penal Responsibility Law in the law’s first year.
The Adolescent Responsibility Law seeks to encourage adolescents – Chileans between 14 and 18 years – to be accountable for their actions by mandating sentences for their criminal actions. With this, the law’s text stresses, “rehabilitation and social reintegration,” as the guiding principles for adolescent punishment (ST, Feb. 23).
Since its debut, the new law has sparked debate and controversy over its effects on the rights of juvenile offenders, much of which has been reignited by the Public Defense Office’s report.
The following article first appeared in the Chilean newspaper La Tercera.)
The recent study on the first year of the new Adolescent Penal Responsibility Law that Chile’s Public Defense Office offers a great deal of insight on the way the juvenile justice system works. Along with other information, their analysis favors a necessary evaluation of the recent reform and can foster legal, practical, and jurisprudential adjustments directed at its substantial improvement. Thus, juvenile justice could actually become a specialized justice, aimed at the social reintegration of the lawbreaker rather than mere punishment.
Today’s problems and challenges require such studies as a basis for serious and reasonable solutions.
One of the study’s most relevant facts is the evidence pointing out the excessive use of provisional detainment of adolescents awaiting trial. By law, minors may only be detained in exceptional cases, provided that the offense is an actual crime and the punishment is proportional to the offender’s potential sentence – criminally charged minors should only be provisionally detained if they face highly restrictive incarceration. Provisional detention (which all juvenile offenders face regardless of their ultimate verdict) should not be worse than the sentence itself. These are teenagers, not adults, who are innocent until proven guilty and whose imprisonment breeds antisocial behavior.
Despite what the law states, it is surprising that 2,495 adolescents were subjected to provisional detention during the first year of the juvenile justice reform, a number higher than that of the previous period. Of those minors, 618 were only 14 or 15 years old and 145 were girls. The average number of days that they were detained rose to 74, while in the old system it was only 60.
More serious still is that the 89 percent of those who were prisoners during the process were not, finally, sentenced to closed imprisonment (the sentence that most restricts a juvenile’s liberty). Even if one conceded that the option of lowered-security sentences was proportional to this preventative measure, there are still at least 1,000 young people who should never have been held in Chile’s National Service for Minors (SENAME) provisional detention centers in the first place.
The costs of the indiscriminate use of provisional detention take many forms. There are, for example, personal costs (prison diseases, living in the unsafe conditions found in many detention centers, suicide attempts), familial costs (abandonment, separation), social costs (stigmatization, affirmation of criminal identity), and economic costs (the need for new centers at the cost of more efficient alternatives). If we continue to ignore these issues, the question of using provisional detention is far from being an exclusively legal problem.
Hopefully, judges and prosecutors will limit their use of this measure – changing detention into something short and uncommon that follows the Unites Nations’ Convention on the Rights of the Child. In turn, the legislature could reinforce the rights of teenage prisoners to a prompt trial that takes priority, to periodic review of their status and to adequate defense and treatment. Moreover, early-release and work programs should be strengthened as a part of the social reintegration process.
Until there is a change, in many cases provisional detention will be not only premature punishment but also more severe and unjust than that which is deserved. As a result, the potential of these 1,000 young people will remain miles under that of their peers.