His position is summarized with an example: What happens if in an alternate world Colombia would’ve adopted that penalty in the ‘90s, the infamous Luis Alfredo Garavito would have been condemned to live the rest of his days in prison. Once in prison, he knows another person accused of child rape and homicide, and both decided to negotiate: For the money, Garavito would confess to all the crimes he was accused of, to save his life from life imprisonment. Garavito had nothing to lose, as being convicted to life in prison, what else would matter if we’re accused of one more killing or rape. From his perspective, it would prove even lucrative, a good deal and at the same time, it would propitiate impunity to another criminal.
The idea is that with a life sentence a criminal knowing the law would be tempted to maximize his criminal activity, as it implies real pardoning of any other crime: A serial killer, a pedophile assassin, would never really be sentenced for new crimes or previous crimes, without regard to the seriousness of the crime, nor the quality of the victims. All would be forgotten by the penal system, as they would only get one sentence, just one for all the crimes committed.
Therefore, the main argument favoring life in prison for child assassins and rapists is not allowing impunity, curiously the effect ends up propitiating the contrary.
Read more: Life imprisonment, an unconstitutional proposal in Colombia? (in Spanish)
Back in July of 2020, when the country was confined due to the coronavirus, Congress modified article 34 of the Constitution, which prohibited life in prison. According to the new bill, this penalty could only be exceptionally imposed when the person indicted was found guilty of murder in the second degree, or violent carnal abuse in children and youngsters.
This provision, developed under Law 2098 of 2021, was recently ruled unenforceable by the Constitutional Court, alluding to constitutional substitution.
In general, the Court sustains that when there is constitutional reform, at first it can only control the formal aspects (Congress filing, debates, majorities), and contradicts the essential principles of the Political Constitution of 1991, that reform ends up being interpreted as constitutional substitution and should be disallowed. This is what would happen if at any moment Congress would establish a monarchy in Colombia, or the life tenure of the president, so this is what happened, according to the Court with this constitutional reform.
In ruling C-294 of 2021 (presented by Justice Cristina Pardo S.), the Tribunal considered that the reform introduced substituted the Constitution because it contradicted the principle of human dignity, fundamental in the Colombian social state of law and transverse in western constitutionalism since 1949, as it precludes the resocialization warranty of convicts, which is how human dignity is manifested in penal law.
Therefore, up to now, there have been two arguments –in my view, valid– over the inconvenience and unconstitutionality of life sentencing: it propitiation impunity and impacts the contemporary constitutional standard, based, especially on human dignity. I would also like to add a third point, a historical one, which I will briefly mention.
The decision of the Court was received with enthusiasm and anger at the same time, and it is evident that an ample sector of public opinion is discontent with the ruling, because they think criminals should be punished and that punishment should be more exemplary as the seriousness of the crime.
From this perspective, it makes no sense to talk about the resocialization function of sentences. This is an anchored pre-modern thought of deep tradition, in this constitutional era. For hundreds of years, before the revolutions, the criminal penalties were allotted to exclude the criminal from the political community. Therefore, banishment and estrangement sentences were frequent.
From the three main nodes from where these revolutions came from, that is, the United States, France, and Hispanic America, the one that most introduced penal law rationalist and protective concepts were the former. While the United States still has life-sentencing and the death penalty, and while in France, they executed (privately) the last guillotine death in 1977, and abolished it in 1981, Colombia was the first country in the world to abolish life-sentencing for any type of crime in 1863. In that same Constitution, they banned prison for more than 10 years, instinctively from the crime committed.
Although the gothic movement of the Regeneration reinstated the death penalty and life imprisonment, when they were abolished again in 1910, Colombia continued to be a world pioneer. And not only in Colombia: Venezuela (1864), Costa Rica (1877), Ecuador (1897), and Uruguay (1907) were the first governments to ban the death penalty on the Constitutional level much before Germany (1949), Sweden (1972), or Spain (1995).
Conservatism movements that oppose and oppose this penal progress, always resort to the same argument: The terrible impunity of believing in human goodness. But this argument is easily rebutted, as has the avant-garde prehistory of the region saw and considered in these matters, we understand why the Constitutional Court mentioned in its press release on the alluded ruling before, “admitting to a step backward of this type (referring to life imprisonment) implies falling in the dehumanization of the penal system, a situation contrary to the will and spirit of the constituent.”
Then, the issue with life imprisonment is that it not only substitutes the Constitution or that it ends up being the flag for punitive populism but also ignores a unique and notable aspect of Colombian history: beyond our failures as a society, at some moment we thought there is something good in human beings that deserves to be rescued, and despite the moral turpitude of some, they all have the right to dignity.
Consejo Editorial: Fredy Chaparro Sanabria Director Unimedios, Nelly Mendivelso Rodríguez Oficina de Prensa, Liseth Sayago Cortes Oficina de Realización Audiovisual, Carlos Raigoso Camelo, Oficina de Producción Radiofónica, Ramiro Chacón Martinez Oficina de Proyectos Estratégicos.
Editora: Liliana Matos
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