The Inter-American Commission on Human Rights raised its voice of protest against the situation experienced by prisoners, which, although it has been the same for several years, becomes more relevant in the midst of the danger of COVID-19 expansion, in that sense, the IACHR has been emphatic in pointing out who deserve special attention[1]. On the subject, our government issued a recent Emergency Decree[2] regulating the granting of Presidential Graces in certain cases provided for by law, such as pregnant women or those who are about to serve their sentence.
We welcome the good intention of such measure, but unless the integral system changes, we view such optimism with concern, because if it is not applied with due diligence by the Presidential Thanks Commission, it will not give the results that the Government intends.
Meanwhile, what has not yet been considered is the possibility of promoting mechanisms that could be more effective and even less costly for the government, we are referring to the forgotten electronic shackle, which, despite having been regulated several years ago, has not yet been implemented in the expected number of prison population. Thus, as of February 3, 2020, only 28 citizens had this mechanism, despite the fact that it represents a lower cost for the State, compared to the S/1,260.00 that Peru currently invests in keeping an inmate in prison[3].
The current regulation on the electronic shackle seeks to decongest prisons and is aimed at those inmates who are being processed or are serving a sentence, as long as they are not repeat offenders and their prison sentences (projected or imposed) are not longer than 8 years. This mechanism does not apply to serious crimes such as homicide, kidnapping, rape, among others[4].
However, although it was expected that the electronic shackle would serve as a tool against the problem of prison overcrowding, its application has not been satisfactory, since it seems that our legislators -once again- have not taken into account a factor that, particularly in this case, is usually decisive: The rule that regulates the use of Electronic Shackles expressly states that the cost of such device will be borne in full by the defendant or convicted person, we can find here then the answer to why this mechanism, so far, has not served to curb overcrowding in prisons: most inmates do not have sufficient economic resources.
Given the global crisis due to the danger of the spread of the virus, the question arises: should the State assume the economic cost of the device, which, by the way, would represent a lower cost than that currently reported for keeping the inmate in prison?
If what is really intended is to depopulate the prisons and this tool is taken with prudence and responsibility, we think that the answer is yes, we even think that this could be a much more effective measure than the recently proposed sentence conversion, not only to avoid putting the inmate’s health at risk, but also to stop the chain of contagions for the benefit of the entire national population, especially when the country’s prisons do not even have sufficient resources, such as medical personnel, to attend to emergencies inside the prisons. We must not forget that there are also other diseases that have always existed and no one has stopped to consider their mortality rate, as is the case of tuberculosis[5].
Whether or not we believe in the rights that still protect inmates, the government is obliged to adopt the best measures to ensure that prisons do not become a source of contagion to which we would all eventually be exposed. It is especially worrying that the last INPE report dated February 17, 2020, showed that only 36% of all inmates have a final sentence[6], the rest are either in the middle of a process or are in pretrial detention. We wonder then, would it not be better to invest in the electronic device and free up the prisons a little? Would it not be better for the State to assume the cost of S/. 800 soles per month instead of continuing to maintain overcrowded prisons at a higher cost, not only economically but also socially?
The electronic shackle means constant monitoring of what has been established by the Judicial Branch, i.e., this system involves the participation of trained personnel who are in charge of verifying the route followed by the defendant, in order to keep him under control, so that according to the Law itself[7], 7], this mechanism could serve as a perfect alternative to pretrial detention and would even be much better than house arrest[8], since, especially in the current context, using members of the Peruvian National Police to carry out surveillance of those under this regime would be, in our opinion, an unnecessary waste of the most valuable resources we have these days.
One of the greatest shortcomings of the implementation of this mechanism in COVID-19 times, beyond the economic aspect, is that the request for the use of the electronic shackle must first go through judicial control, since the inmate who meets the requirements will have to present them before the Judge and wait for a hearing to be scheduled where the appropriateness of the mechanism will be determined by assessing each specific case, which would be complex for the current Judicial System that has few personnel working.
This being so, the Government should not only allocate a budget to improve the conditions of the prisons, but also consider the most efficient mechanisms to face the problems of the Penitentiary System, which are not only recent.
1] Resolution No. 1/2020 entitled Pandemic and Human Rights in the Americas, approved by the IACHR on April 10, 2020. See: https://www.oas.org/es/cidh/decisiones/pdf/Resolucion-1-20-es.pdf
2] Emergency Decree No. 004-2020-JUS dated April 22, 2020.
3] Martínez, C. (February 3, 2020). INPE proposes that the State assume the cost of electronic shackles. Perú 21, See: https://peru21.pe/lima/inpe-propone-que-estado-asuma-costo-de-los-grilletes-electronicos-infografia-noticia/?ref=p21r
4] Legislative Decree No. 1322 – Legislative Decree that regulates Personal Electronic Surveillance dated January 05, 2017.
[5] Corzo Vargas, S. (April 09, 2020). Institute of Legal Defense (IDL). Retrieved from https://idl.org.pe/el-espejo-concavo-sobre-el-coronavirus-y-las-prisiones/
[6] Gianella, T. (February 20, 2020). Bionic Eye – Statement by the President of the INPE: César Cárdenas. Ojo Público, See: https://ojo-publico.com/1622/dato-de-presidente-del-inpe-sobre-presos-sin-sentencia-es-enganoso
Article 3.- Definition and modalities of the personal electronic surveillance(…)
3.2 In the case of defendants, personal electronic surveillance is an alternative to pretrial detention or a variation of it, to guarantee their permanence in the process.
8] Even though this case is not yet regulated in the current regulations on the application of the Electronic Shackle.
