Of the total inmates, 33,844 have been charged with a crime but have not been sentenced, therefore they are presumed innocent, that their cases are in the process of investigation and they are confined to prison as a preventive measure. In the past, this has left real economic and grave consequences for the state finances in a penal system in permanent crisis; for instance, the Office of the Attorney General of Colombia has been continuously sued and condemned from people being acquitted after living through false imprisonment or for undergoing inhumane suffering for unjust incarceration.
Specifically and in terms of the situation of the country and this vulnerable situation in the face of the COVID-19, the situation is alarming. The country is looking at what is happening in the Villavicencio prison. The Office of the Governor updates the number of infected people daily and as of May 11, there were 859 cases in a prison with 1,773 inmates and 300 prison guards1.
According to data from the Ministry of Health, for the same date, the Province of Meta had 927 cases of coronavirus, therefore 92.6 % of the cases come from the city prison and 7.98% of the total reported in the country.
This situation is concerning if we take into consideration that what happens in Villavicencio is an example of what could happen in Colombia. The country has 28 prisons in 28 provinces and most with overcrowding issues and subpar facilities, besides deficient healthcare services and a small possibility of medical care. On the other hand, the lack of protection and sanitation for the guard staff and administrative personnel turns them into infection spreaders both for the prison as for the population at large.
Other of the worrisome cases is the outbreak in the prison of Leticia in the Province of Amazonas, where there are now 85 confirmed cases. As of May 11th, there were 718 cases in this province, which does not have hospitals equipped ICUs.
The concern for the prisons is now crossing borders, renown scientific and academic Colombian and foreign professors subscribed a manifesto against Decree 546 of 2020 in favor of a real improvement of the conditions for the inmates and prison staff affected by the coronavirus, given the lack of dignified life, the real threat of death of a vulnerable population and special treatment from the government. In said document, professors express their displeasure for the situation in the face of the exceptional risk and lack of action from the government and the Office of the Attorney General.
A few days ago, only 351 inmates were given house arrest (0,3 %), of the 4,000 (3.42%) the government calculated would be the beneficiaries of the decree; which in no way would alleviate the prison situation.
After assessing the situation of the Villavicencio prison the Colombian Constitutional Court of Justice issued an executive order (E.O 157 of May 6, 2020), establishing the constitutionality interpretation parameters for applying the regulations in favor of people deprived of their freedom and especially those in vulnerable conditions. It also ordered an important characterization due to the specific health conditions and also issued an order quick action through the Office of the Public Defender and the competent judicial authorities.
This measure was taken to reduce the spread of the disease; in consideration that real social distancing in prison overpopulation conditions would never be possible, therefore considering additional relief measures in penitentiary establishments. To mitigate the effect and prevent the anti-judicial effect, the government was imposed the obligation to focus its efforts on preserving the lives of both inmates and prison staff.
Regarding the decision, constitutionally, house arrest for people over 60 years of age need to be processed as a serious disease, determined by the Office of Forensic Services, and the corresponding exceptions to the decree. Therefore a person, certified by the prison physician, besides his/her age and having a serious disease such as diabetes, AIDS or other of the same nature, has the right to be granted house arrest without regard of the crime he/she was sentenced to and ordered by a judge.
On the other hand, judicial clerks should consider that assessing the behavior of an inmate during his sentence should take precedence over the seriousness of the behavior for what he/she was sentenced. This is important as many judges grip on the severity of the facts to deny substituting the sentence, which should not be, as the severity of the facts has already been assessed in sentencing and substituting the prior should not be taken into account for the denial.
In a Constitutional state, the guarantees and essential rights of all people should be protected, especially if their material o particular conditions are in vulnerability status.
Colombian society needs to evaluate if what should take precedence is punishment, discipline, and prison as a manner to transform society or if we need to seek social transformation coming from the real solution of social problems, overcoming inequality, corruption, and ethics.
Contemporary constitutional states do not–formally– have the death penalty as one of the consequences of punishable behavior. However, in materials terms, there are diverse manners of dying when falling from grace for suspicion of a serious crime or when one falls into the selective networks of punishable power.
French philosopher Michel Foucault claims that “punitive societies” such as in old Greece, the death penalty, was rather rare and reserved for specific faults; on the contrary, there were particular procedures which consisted on not executing the prisoner but place him in exile as a disguised manner of capital punishment.
Exile was without assets, prior exhibition to public vengeance, unlawfully, as anybody could slay the person in public and nobody taking responsibility for the killing or throwing a person from a cliff, depriving him/her of the “maternal ground” without any help than from the Gods.
As in the past, in time of the pandemic, vengeance and public rejection emerge in the media and social media, the fate of the convict is left at random; if death comes it will come of the contagion, not because of the prison. Public policy toward the inmate population seems to be the same as in ancient times: the death penalty does not exist in Colombia, but under the current circumstances, in jail, fate is defined randomly.
1 The Constitutional Court of Justice, in Executive Order 157 of 2020, establishes that “For April 31 of 2020 the establishment could harbor 899 inmates and was occupied by 1,773, with an overpopulation of 874 inmates and an overcrowding rate of 97.2 %.”
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