Escudo de la República de Colombia Escudo de la República de Colombia
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Periódico UNAL
Release detainees and convicted inmates: between the prison crisis and COVID-19

This Court has an essential task in the country, provided by the Colombian Political Constitution which is to keep the integrity and supremacy of its contents and therefore the protection of the rights and essential freedoms of all people without exception.

Read more: COVID-19 in prison, will anxiety and fear arrive first? (in Spanish.)

Therefore, the Constitutional Court of Justice has played an essential role in warranting human rights in the face of abuses of power and also turned into a reviewer of the authority actions, and an active role in coordinating and speaking with all powers of society to make the social and democratic state of law proclaimed by the Political Constitution of 1991 increasingly effective and current. Hence its task is to overcome the current challenges regarding the respect and guarantee of human rights as currently there are structural voids and failures in the national life, as the case of the penitentiary system, allowing a systematic violation of the fundamental rights of nationals and migrants, impacting the basic principle of the social rule of law.

Concerning the prison crisis, the Court has set out a list of rulings since 1998 comprised of the following rulings:  T-153-98, T-256-00, T-388-13, T-815-13, T-861-13, and T-762-15, cautioning against a crisis that would threaten the integrity and life of inmates, leading the high tribunal to declare the Unconstitutional State of Affairs for the penitentiary system of Colombia.

Read more: What is a pandemic and how is it determined? (in Spanish).

From this ruling, the authorities have provided up to now six semiannual reports to the Tribunal on complying with the rulings and the actions taken to overcome the Unconstitutional State of Affairs; regretfully after more than 20 years, history debates the effectiveness of this Court resource to avoid the massive and systematic transgression of rights, that persists to this day.

The most recent attempt by the Colombian government is decree 546 of last April, which does not solve the problem and does not even save hundreds of inmates, but is a measure to try ease the overcrowding, substituting prison sentences and preventive detention orders in penitentiary centers for home detentions and arrests, that just turned into a declaration of good intentions. This decree stifles its good intentions in more than 700 exclusions in article 6 as well as those included in paragraphs 1, 2, 3, 4, and 5.

Listen: Covid-19, an addition to the penitentiary crisis (in Spanish).

These exclusions apply to the inmates including those in greater vulnerability situations in the face of the COVID-19 virus, as well as people over 60, pregnant or breastfeeding women or the underaged, among others. Meaning that the decree is a death sentence to obligate them to stay confined in the prison system, as the measure is insufficient to battle overcrowding and prevent and mitigate the risk of propagation inside the prisons.

Read more: The effects of the commercialization of healthcare in Colombia.

The arrival of the pandemic

The crisis inside prisons has been aggravated due to the most lethal threat to people in this century 

To avoid contagion, governments around the world have proposed social distancing and lockdown.

In Colombia, prison inmates are at high risk due to the grave prevailing overcrowding as well as for the poor diet and the malnutrition status of many prisoners –especially pregnant, lactating women and the elderly– and having many people with preexisting diseases and for the incapability of the penitentiary authorities to provide sufficient and adequate areas to warrant the health of interns, which is ticking time bomb.

For some months and even before the coronavirus outbreak the UNal "Extrema Ratio" Systemic Criminal Policy International Network has been aware of the situation and cautioned about the threat of the recluse population in a contrast report to the Constitutional Court, claiming that after more than 20 years without solving the situation and as a last resort measure to overcome overcrowding, suggests the Constitutional Court research, analyze and consider a massive release of prisoners, taking into account what happened in the United States, particularly in 2011, in California, when a Federal Court ruled the release of prisoners as a necessary measure to solve the violation of their constitutional rights.

According to the California Department of Corrections and Rehabilitation (CDCR), this measure has been sped up lately as a consequence of the pandemic, compelling authorities to hasten the supervised release of inmates to avoid or mitigate the spread of the virus; as the disease not only endangers the recluse population but also the lives of guards and other personnel of the prisons and the community at large.

The CDCR estimates that in the coming weeks they will release up to 3,500 people and place them under parole. To reach this goal, the CDCR is preparing multidisciplinary teams in each prison to rush the process. Inmates will be placed under state-controlled parole or local probation or even completely discharged depending on the individual sentences.

The actions taken in the United States to relieve overcrowding of its penitentiary system and avoid a massive contagion of the virus opens the debate the actions taken by the authorities in Colombia, inclusively the debate over the declaration of the Unconstitutional State of Affairs, which has not been an efficient resource, as it has not guaranteed the basic rights of inmates to carry out their sentences under dignity conditions.

This example helps the Colombian authorities and the Constitutional Court to do not endanger the superior and essential values of inmates, as maintaining illegal overcrowding threatens their health, physical integrity, and lives as well as the penitentiary personnel.

It would be convenient to reflect on the objective of the penitentiary treatment established in Article 10 of Law 65 of 1993: “obtaining resocialization of the offender of the penal law” and preparing people for life outside of prison walls is not preparing people to die as a cause of the pandemic as occurred in New York prisons.

Read more: It’s time for Congress to get in the game.

If there is not any immediate action from the government, it will be responsible for the massive death of people in recluse situation, which would be a tragedy, as the efforts, the human and economic resources for more than 20 years would have been useless and a vain endeavor to try to solve a forgotten and preannounced crisis.

It is cheaper for the Colombian society to just release all the detainees and convicted than to pay the costs implied, not only to sustain, but to pay millionaire sums for the deaths of inmates, and the families suing the government. These funds could have been earmarked from the beginning to improve the Colombian hospital network.



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