Colombia: Life Sentences - A Perpetual Error
Gearóid Ó Loingsigh
09 July 2020
The recent decision of Colombia's Congress to pass a Life Sentence Law for rapists of children has provoked reactions from a wide range of jurists, politicians and social organisations. The most visible reactions are on the one hand from those who highlight its anti-constitutional character, arguing that it is a populist and ineffective measure that does not solve the problem of the sexual abuse of minors, and on the other hand those more reactionary elements who believe the current legislation to be potentially more severe.
Thus it is essential that we clearly identify the real problems with this controversial law and what the alternatives may be. So we are bound to put forward the following questions. 1. what can we learn from countries that have implemented life sentences for quite some time? 2. What is the reality of sexual crimes and the abuse of minors? And 3. What can be done about it?
Before we begin, it is worth pointing out that these questions were never asked by the proponents of life sentences at the time. Thus it was imposed as a punitive populism, a right wing vision of social problems that are always defined as an individual responsibility completely divorced from the social context. Perhaps the most obvious conclusion, not without any basis in fact, is that the proponents are not concerned about the sexual abuse of minors: a few days later, when the news broke that seven soldiers had raped a twelve year old indigenous child over a two day period, the Chief Prosecutor chose not only not to ask for a life sentence (which has yet to be regulated) but rather he chose to level the least serious charge possible. Meanwhile, Senator Cabal, a woman who usually gives voice to the most backward thoughts possible, suggested that it was a "Legal False Positive", that the indigenous girls often try to seduce the soldiers.(1) Both herself and the Chief Prosecutor ignore that as a minor she cannot consent to a sexual relationship, and consequently the responsibility lies with the seven soldiers - of legal age - that forcibly held her and subjected her to cruel, inhumane and degrading treatment over a two day period. In contrast to what the Prosecutor and Senator think, this is not an isolated incident.
"There are increasingly more cases of sexual abuse related to soldiers and police officers in which the victims are minors and from indigenous communities.
And the Prosecutor, having priortised these cases and carried out a national audit detected 506 cases that involve members of the security forces in presumed acts of sexual violence.On the basis of these events, our starting point is the fact (not a mere hypothesis) that the initiative has nothing to do with protecting minors. On the contrary, rather than prevention, what the law does is open the door further down the road to life sentences been handed down for an endless list of other crimes, as has happened in the majority of countries where such measures exist. One of the great concerns that we should have is precisely that the Oligargarchy aims to eventually reach a point where this measure can be used against the both armed and unarmed opposition, an issue which is missing from the current debate. How can we be so sure that the measure will not be extended to other crimes? This is exactly what has happened in the rest of the world and we know that in Colombia the stiffening of sentences is usually applied to all crimes, even if the initial justification is for one specific crime.
In total, there are 504 public servants in the sights of the Prosecutor, and there are even 333 processes that have reached the trial stage and 162 sentences have been handed down which include terms of between 15 and 30 years in jail."[ Canal Uno (06/08/2020) Investigan 506 casos de abuso sexual que relacionan a integrantes de la Fuerza Pública.(2)
Some Background On Life Sentences Internationally.
In the USA a life sentence was not the most severe sentence, that was the death penalty which still exists in 28 states. It was the decline in the use of the death penalty and even its temporary suspension in the 1970s following a Supreme Court decision that lead to an increase in its use and its severity, as there is more than one type of life sentence. There is a life sentence handed down by a judge, there is the life sentence without parole (LWOP) and a virtual life sentence i.e. a sentence so long that there is no possibility of the prisoner coming out alive, something which already exists in practice in Colombia.
Whilst it is true that what a life sentence means changes from one jurisdiction to another, in the majority of the countries, the prisoner has some chance, though no guarantee, but generally not discounted of recovering their conditional freedom, always under the supervision of the authorities. However, in the USA some states added a new element: a life sentence without parole. Prior to 1970, only seven states allowed it. But between 1972 and 1990, 26 further states approved the measure and between 1991 and 2012 another 17 states followed suit.(3)
At the same time the crimes for which these sentences can be handed down have broadened. Thus in many jurisdictions they began by applying it to homicide, held to be the most heinous of crimes, however, nowadays it can be applied to a wide range of crimes, such as sexual crimes, aggravated theft, unlawful possession of firearms and fraud, amongst others (these measures have also been applied in countries such as Great Britain and Ireland). In the USA non violent drug related crimes are specifically included.
So in the USA we now have an aging prison population, that does not represent a major threat to society, due to the use of life sentences and an increase in sentence length in general. Currently, the number of prisoners serving one or other variety of life sentence in federal and state prisons is greater that the entire prison population in 1970, (4) i.e. 206,000 life prisoners. This dramatic increase is partly due to mandatory sentences, which due to the nature of the crime the sentence is not at the discretion of the judge, but rather it has been decided upon in law as is the case with the new Colombian law.
This point is of fundamental importance, given that the harshest sentence in judicial systems functions as an anchor point for other crimes: as the punishments tend to be proportional or at least aim to be, a harsh punishment, such as the death penalty or a life sentence, acts as a reference point for other crimes and the punishment to be imposed, generally resulting in harsher sentences even for minor crimes.
This is not only to be seen in a country like the USA, which has taken a tough on crime policy, but also in countries such as Ireland with a small prison population. There the prison population is round 3,500, however, from the time they began to implement mandatory sentences the number of life prisoners increased 2.5 times between 2001 and 2017, year in which there were 359 lifers, 344 of them sentenced for murder and 12 for sexual crimes.(5) Furthermore, as happens in other parts and will certainly happen in Colombia where the judicial and prison system is inefficient and the functionaries look upon and treat prisoners with disdain, the time spent in prison before being paroled has slowly increased i.e. the time spent inside is longer. The average time spent inside was " 7.5 years from 1975 to 1984; 12 years from 1985 to 1994; 14 years from 1995 to 2004; 17 years from 2004 to 2009; and 19.5 years from 2010 to 2013. The average time served reached a peak of 22 years in 2012."(6) As can be seen, the time spent inside prior to a successful review of the loss of liberty has increased, despite being able to ask for such a review after seven years. In the case of Colombia, the measure approved by Congress does not allow for a review before 25 years have been spent in prison and without a doubt the majority of prisoners will have to wait a lot longer before they are freed.
Longer sentences inevitably lead to a prison population that is increasingly old. In the USA the population in state prison (excluding the federal system) over the age of 65 reached 29,100 in 2013, and of them 30% (8730) were lifers, but not all of them for serious crimes as such, as 126 were in for crimes against property and 64 for drug crimes.(7)
The USA reached this point of having the largest prison population in the world, with a high number of life sentence prisoners through the implementation of punitive policies and increasingly longer and disproportional sentences. One of the most famous cases was that of George Jackson who received a sentence of up to 70 years for the theft of 70 dollars.(8) It was not an isolated case, nor lost in time. Over the years sentences have increased and in the 1990s a Three Strikes policy was implemented where a life sentence was imposed for the third crime. More than half the states have laws that require a life sentence for the third crime.(9)
Many non violent people fell prey to these laws. One case that Mauer and Nellis cite is that of Fate Vincent Winslow, who was sentenced to life following his third crime. His crimes were burglary of a house in 1984 and 1994, and possession of drugs in 2004. In 2008 he sold marijuana with a value of 20 dollars to an undercover policeman. Winslow was homeless at the time of his crime and his was processed under the Three Strikes law, and so he was given a life sentence.(10) It is clear to anyone that the sentence is disproportional and no purpose is served by it. But it is a logical and integral part of the punitive policies in the USA.
The USA has reached a point in which, whilst in the state system 58.8% of lifers are in for murder and 17% for sexual crimes, in the federal system 66% of the prisoners serve their life sentence for non violent crimes.(11) It is a myth that life sentences are reserved for the most violent prisoners who have no chance of changing. These frequently mandatory sentences are imposed on those who commit a certain type of crime. The circumstances in which they happened are not taken into account, nor the chance that the prisoner might change and nothing in the prison system redeems the prisoner, it doesn't even aim to, although on paper there are programmes for just such a purpose.
If we take these elements into account, and those found in Colombian policy, we can be 100% certain that if this law is not overturned by the Constitutional Court, in a few years, rebellion, kidnapping, unlawful possession of firearms and even disobeying the authorities will be included in the list of crimes that will be deserving of such a sentence.
The Reality of Sentencing in Colombia and the Aim of the Life Sentence.
The Colombian prison system and the new life sentence law violates the United Nations Standard Minimum Rules for the Treatment of Prisoners known as the Nelson Mandela Rules. It specifically clearly violates Rule 4, Subparagraph 1 and 2.
1. The purposes of a sentence of imprisonment or similar measures deprivative of a personís liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.
2. To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners.(12)But the government will say that it works as a deterrent and it reduces recidivism. On the first point, in Colombia, the USA and in other parts of the world it is a total falsehood that borders on stupidity, as prison sentences do not act as a deterrent and it is obvious due to the increase in the number of prisoners in each country and that crimes continue to be committed. In Colombia, for example, due to the concern of the rich, they decided to severely punish kidnapping by increasing the sentence to 40 years. Not only did the insurgencies not stop kidnapping, common criminals didn't do so either. On recidivism, the argument is that the prisoners once freed will not commit further crimes having spent a long time in jail and the more people in prison the better as there will be fewer criminals on the streets committing crimes. However, given the prison conditions, in crisis for more than 20 years, this is not only impossible, but rather it has been stated that those serving time inside "are schooled in crime" in the prisons.
As far as minor crimes are concerned (those with the greatest number of arrests) crimes against property i.e. those crimes related to poverty, the prison is of no good, this cohort of prisoners is the one with the highest rate of recidivism as their economic situation doesn't change nor their ability to earn money and get a job. In fact, the stigma of having been inside a jail acts against their ability to seek jobs and pushes them towards crime as the only means of earning a living. In England and Wales (13) the figures on recidivism are telling. The recidivism rate in March 2018 was 28.7%, however, some cohorts such as those sentenced for theft had a recidivism rate of 51.6%, whilst sex offenders came in at 13.5%.
Alternatives On Sex Abuse: Less Punishment More Prevention
In the case of Colombia life sentences will, for the moment, only be handed down to abusers of minors. It is cohort of criminals who, for obvious reasons, gain no sympathy, not just from the general population but also from legal practitioners. However, if we are really concerned about the sexual violence exercised against minors, we should be clear about the reality of those crimes and the response to them.
Firstly, the majority of victims of sexual violence, both minors and those of legal age know their victimiser. The mythical unknown serial sexual predator popularised in US TV series, exists of course, but it is not common.
According to the statistics of the North American NGO RAINN (Rape, Abuse, Incest National Network) compiled in turn from official statistics, in the USA there are over 433,000 cases per year of rape or sexual aggression against people over the age of 12. Those between 12-17 years make up 15% of the cases and 18-34 years 54% of the cases. In general, around 80% of the victims know their victimiser, although in the cases of minors reported to the authorities the figure rises to 93% (59% were acquaintances, and 34% were family members).(14) Studies in other parts of the world come up with similar figures.
A meta-analysis of 65 studies in 22 countries found that 19.7% of girls and 7.9% of boys will be sexually abused before the age of 18.(15) And a study in the USA found that up to 40% of abused children are abused by older or more powerful children,(16) an aspect of the problem that clearly indicates that the response to sexual abuse must go beyond a populist reaction. In fact, many studies accept that a certain percentage of abusers were abused. This does not mean, of course, that all those abused will go on to abuse, or that all abusers were abused. On this point the figures from studies vary, however, a study in Australia which took into account other studies, places the figure around 30% of sentenced abusers.(17) This means that 30% of the prisoners for crimes of this nature were failed by the same state that did not protect them, did not give them treatment, support and so forth, and Congress wants to impose a life sentence on these people.
This same study states that amongst the impacts of sexual abuse on victims are PTSD, anti-social behaviour, suicide, food disorders, drug and alcohol abuse, post partum depression, childrearing difficulties, sexual revictimisation and sexual dysfunction. The Colombian state has nothing to say or do on this. Colombia lacks a good system of psychological and/or psychiatric care and less still is there one for sex offenders or victims of their crimes.
Neither are there any prevention programmes. What the Congress aims to do is cover up its disdain, indolence and ineptitude regarding a serious social problem with a punitive populism, which does nothing to prevent those crimes, nor try to support the victims.
Smallbone and Wortley's(18) study in Australia looked at the issue of prevention and they concluded that programmes on child development and intervention programmes which are known to reduce the general crime rate could be effective in reducing sex offences given that the childhood problem such as harsh parental discipline, parental rejection, and marital conflict and sexual abuse are common in the family background of abusers. They recommend treating the problem as broadly as possible and not just as a sex offence when it comes to prevention and treatment programmes. But the Colombian state has no interest in acknowledging the nature of the crimes, given that in the case of sexual abuse, the state is omissive and negligent in its duty to protect children and citizens in general.
(1) El Tiempo (25/06/2020)
El desafortunado trino de María Fernanda Cabal https://www.eltiempo.com/politica/partidos-politicos/maria-fernanda-hizo-un-desafortunado-trino-sobre-el-caso-de-la-nina-indigena-que-habria
(2) Canal Uno (06/08/2020)
Investigan 506 casos de abuso sexual que relacionan a integrantes de la
Fuerza Pública. https://noticias.canal1.com.co/nacional/investigan-casos-abuso-sexual-relacionan-integrantes-fuerza-publica/?fbclid=IwAR1mQK30tM0r5ZPG
(3) Mauer M. & Nellis A (2018) The Meaning of Life: The Case for Abolishing Life Sentences. The New Press. London & New York. § 13.6 Formato Epub.
(4) The Sentencing Project
(2020) People Serving Life Exceeds Entire Prison Population of 1970.
(5) Carr, N. (28/12/2018) Ireland needs to reconsider approach to life sentences. en The Irish Times https://www.irishtimes.com/opinion/ireland-needs-to-reconsider-approach-to-life-sentences-1.3742360
(6) Griffen, D. (2015) The Release and Recall of Life Sentence Prisoners: Policy, Practice and Politics en Irish Jurist April 2015. p.2 https://dx.doi.org/10.2139/ssrn.2550388
(7) Carson, E.A. y Sabol, W.J. (2016) Aging of the State Prison Population, 1993-2013. Washington. US Department of Justice. p.5
(8)Mauer, M. (2006) Race To Incarcerate. The New Press. London & New York. Format Epub, Chapter 3
(9) Mauer, M & Nellis, A. (2018) Op. Cit. §13.62
(10) Ibíd., §13.64
(11)Nellis, A (2017) Still Life: America's Increasing Use of Life and Long-Term Sentences. The Sentencing Project. Washington D.C. pp. 12-13 https://www.sentencingproject.org/publications/still-life-americas-increasing-use-life-long-term-sentences/
(12) UNODC (2015) The United Nations Standard Minimum Rules of the Treatment of Prisoners (the Nelson Mandela Rules) General Assembly Resolution 70/175 appendix, approved December 17th 2015 https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf
(13) In the legal and prison system of the United Kingdom, Scotland and Northern Ireland enjoy a certain independence and differences in the rules and procedures, thus the figures are gathered and published separately. Thus England and Wales are taken together and then Northern Ireland and Scotland collate their own figures.
(14) Figures taken from https://www.rainn.org/
(15)Pereda, N. et al. (2009) Clinical Psychology Review Volumen 29, No 4 pp 283-392
(16) Finkelhor, D. (2012)
Characteristics of crimes against juveniles. Durham, New Hampshire: Crimes
Against Children Research Centre. http://www.unh.edu/ccrc/pdf/CV26_Revised
Characteristics of Crimes against Juveniles_5-2-12.pdf
(17) Richards K. (2011) Misperceptions about child sex offenders. Trends & Issues in Crime and Criminal Justice No. 429 September 2011. Australian Institute of Criminology.
(18) Smallbone, S.W. y Wortley
R. K. (2001) Child Sexual Abuse: Offender Characteristics and Modus Operandi
en Trends and Issues in Crime and Criminal Justice No. 193. February 2001
Canberra. Australian Institute of Criminology