Brazilian Prosecutors: Crossing the Line?

By Fabio Kerche*

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PSB Nacional 40 / Flickr / Creative Commons

Brazil’s Federal Prosecutors – treated as heroes by parts of Brazilian society and the mainstream press – have become so powerful and aggressive that they face growing allegations of violating some civil and political rights. The Lava Jato (Car Wash) investigation that helped bring down President Dilma Rousseff is not the first time that prosecutors have been in the spotlight; they are often easier to find in newspapers political section than among crime news. For instance, during the 1990s State Prosecutors sued hundreds of mayors and became protagonists in the Mensalão, a campaign finance scandal during the administration of President Lula da Silva. But their activities have never been as intense as recently, leading to the unprecedented “judicialization” of politics, a term that political scientists use to refer to over-reliance on the judicial system to mediate policy debates and political disputes.

The roots of prosecutors’ extraordinary power are in the 1988 Constitution, which assured their autonomy and gave them extensive civil and criminal tools with which to act. At the same time, lawmakers created few processes to ensure prosecutor accountability, making them autonomous even in relation to the Procurador-Geral da República, who is supposed to be the chief Federal Prosecutor but cannot provide effective oversight under current law. After passing the pre-employment examination, prosecutors cannot be fired or demoted. They are an army of 10,000 who are entirely independent of politicians and society. Unlike in the United States, where the President can dismiss a U.S. Attorney and electors can vote out a District Attorney, Brazil lacks analogous mechanisms for ensuring prosecutors’ professionalism.

Two innovations during the Partido dos Trabalhadores (PT) governments of Presidents Lula and Dilma fed the powers that now try to devour them.

  • While nominating Chief Prosecutors for their two-year terms, they essentially waived their right to choose by going with the candidates with the most support from their own agency colleagues, at times based on institutional interests (such as wages) rather than professional integrity and vision. Not only did this weaken the influence of the incumbent President; it opened the way for leading prosecutors friendly with past administrations to become relentless pursuers of PT leaders. Dilma also approved legislation expanding prosecutors’ authority to offer plea bargains, reducing suspects’ sentences in exchange for information about accomplices and their bosses. Prosecutors and the judge responsible for Lava Jato have been constantly ordering arrests of officials, whose only ticket out of prison is to turn over information. Yet, since potential snitches cannot receive credit for reporting cases and names that have already been provided by others, this process has created a voracious accusation market and a deluge of new “facts” and new names, particularly including PT leaders. Suspects are condemned by public opinion, creating a true cycle that feeds on itself.

A survey released last week by Vox Populi and Brazil’s largest trade union federation, the Central Única dos Trabalhadores (CUT), shows that 43 percent of Brazilians think prosecutors are “fair” and treat all politicians equally. But an almost equal number – 41 percent – claim prosecutors persecute politicians from the PT and do not act against politicians from its principal adversary, the PSDB. With Brazilian society split over the Brazilian Prosecutors Office’s integrity, the lack of any instrument for punishing or rewarding prosecutors is particularly problematic. Brazilian citizens have few political and legal tools to wield against prosecutors whom they believe abuse power. When institutions fail and do not shape behavior, personal and political agendas become paramount. This is not a good democratic model, even when prosecutors are supposedly fighting against corruption. It opens the door to political witch hunts and erodes popular confidence in democracy and its institutions.

October 27, 2016

 

* Fabio Kerche is a CLALS Research Fellow and Researcher at Casa de Rui Barbosa Foundation, Rio de Janeiro.

A Divided Court on U.S. v. Texas: A Safety Net for the Administration?

By Dennis Stinchcomb

Supreme court Scalia

Photo Credit: Ted Eytan / Flickr / Creative Commons

The passing of Supreme Court Justice Antonin Scalia reshuffles the deck of possible outcomes in the highly politicized case involving President Obama’s executive actions on immigration.  When the White House petitioned the Court to review its dispute with Texas and 25 other states, it could not have imagined a result that now appears to be possible: a tie.  An evenly split decision would mean that the injunction against the measures issued by the lower court – the Fifth Circuit – would stand, an outcome that critics of Obama’s executive actions would herald as a triumph.  It may, however, also prove to be a safety net for the Administration and the over five million undocumented immigrants whose status is at stake because the law stipulates that a tie vote is not precedent-setting.  That means that the underlying case would proceed to trial in Texas district court – and could then potentially find its way back onto the Supreme Court’s docket, perhaps under more favorable conditions for a future Democratic administration.

This is, of course, purely speculative as a complex web of scenarios remain in play, including:

  • A 5-3 Decision in Favor of the Administration: If the Court finds that the states do not have the right (or standing) to sue the President, the case will be immediately dismissed.  A decision recognizing the states’ right to sue would force the Court to address the other two matters at stake – whether the President’s actions are consistent with existing immigration law, and whether he met the requirements for public notice and comment.  Some experts believe that members of the Court’s conservative wing may side with the Administration on these questions, striking down the injunction and allowing the deferred action programs to proceed.
  • A 3-5 Decision in Favor of Texas: A majority ruling against the Administration seems most plausible on the constitutional issue of whether the President abdicated his responsibility to “take care that the laws be faithfully executed.”  Though the Court had appended the separation-of-powers question to the roster of issues under consideration, it is under no obligation to hand down such a wide-reaching decision.  But should the case become a constitutional showdown, it is not inconceivable that a member of the Court’s liberal bloc might side with conservatives to prevent what would amount to be a significant expansion of executive authority – and an undermining of the judiciary’s ability to curb excesses.  Observers say it is less likely that a liberal would find the Administration in violation of immigration law or public notification procedures.

Beyond the struggle between the President and his opponents in the U.S. Senate over whether a successor to Scalia should be confirmed this year, the prospect of a tie in U.S. v. Texas and the potential for a rematch down the road has raised the stakes in this U.S. election year.  Candidates from both parties have been calling on voters to transform the November election into a referendum on the Supreme Court.  At least on the immigration front, the presidential nominees and voters alike will have to wait until the Court announces its decision in mid-summer to find out what exactly has been won or lost, and what more can be done or undone.  Though a tie would leave open the door for the legal merits of the case to be revisited by a full complement of justices under a new president during a non-election year, such a scenario is hardly ideal for the outgoing Administration.  The possibility that victory in the short-term for immigration conservatives could translate into a permanent victory should the Republican nominee win the presidency is a gamble the Administration would rather not face. 

 February 29, 2016

 

U.S. Immigration: In Need of Procedural Reform Too

By Maya Barak*

Photo Credit: Victoria Pickering / Flickr / Creative Commons

Photo Credit: Victoria Pickering / Flickr / Creative Commons

Migrants appear unlikely to get relief soon from President Obama’s appeal to the Supreme Court to overturn the November decision of the 5th Circuit Court of Appeals in New Orleans to continue blocking his 2014 executive actions on immigration.  With the injunction still in place, the President cannot go ahead with expansion of the President’s programs for Deferred Action for Childhood Arrivals (DACA) and the creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  Assuming that the court will grant the case a writ of certiorari (which is not certain), it is unlikely to hear it before June 2016 – at the height of the U.S. presidential campaign.  Furthermore, as AULABLOG has reported, even if the Supreme Court upholds the President’s authorities on DACA and DAPA, it would also be confirming his successor’s power to reverse them.  The next President could easily terminate these actions, leaving many DACA and DAPA recipients in a precarious legal state.  Immigrants, activists, and scholars alike are following the Democratic and Republican primaries with baited breath.

While the uncertainty demoralizes immigrants and their attorneys, so too do the many procedural problems they face.  In 45 in-depth interviews I have conducted over the past two years with Central American immigrants and their lawyers, the need for procedural reform ranked high among the concerns of attorneys.

  • The processes of the Executive Office for Immigration Review, or “immigration court,” are the subject of strident complaints. Good and affordable legal representation and guidance are lacking.  Cultural and linguistic barriers preclude adequate communication between immigrants and judges in the courtroom, as well as between immigrants and asylum officers.  Videoteleconferences during removal (deportation) hearings, wherein the immigrant – and in some cases the judge – appear in a “virtual” courtroom via a two-way video, are often characterized by poor sound quality and shoddy images.
  • Detention during removal proceedings pose particularly serious difficulties for migrants and their attorneys. Accessing legal representation, case information, and necessary documents such as passports or birth certificates is extremely difficult.  Detention centers are often in distant rural areas, far from attorneys.
  • Immigration court backlogs have skyrocketed in recent years, with many courts scheduling hearings as far out as 2020 – forcing immigrants to put their lives “on hold,” unable to obtain a driver’s license or permission to work.

Despite these problems, immigrants say they feel listened to and respected by interpreters, judges, and government attorneys, which increases their belief in the legitimacy of the immigration system.  As problematic as the procedural issues are, immigrants’ greatest concern is that U.S. law as it currently stands does not afford the vast majority pathways to legalization.  Immigrants who truly want to be law-abiding – attracted to the U.S. because it is a country where the “rule of law” exists – regret that they must violate the law to escape the violent and unstable countries from which they come.  Immigration reform and procedural reform are complementary objectives and should go hand-in-hand.  While attorneys’ fixation with due process is understandable, so are immigrants’ desires for a chance to fully (and legally) participate in American society.  Just as U.S. political infighting has prevented comprehensive immigration reform and delayed – and could kill – implementation of DAPA and DACA, so too do the prospects for procedural reforms look bleak as the country enters an extremely political year.

January 14, 2016

* Maya Barak is a PhD candidate at American University’s School of Public Affairs specializing in Justice, Law and Criminology.

Judicial Activism Prolongs Immigrants’ Angst

By Maya Barak*

Photo Credit: Justin Valas and David Schexnaydre / Flickr / Creative Commons

Photo Credit: Justin Valas and David Schexnaydre / Flickr / Creative Commons

Legal maneuvering to block President Obama’s executive actions on immigration is keeping up to 4 million undocumented immigrants in limbo and, with the U.S. election campaign gaining momentum, dims prospects for them to participate in society more fully and openly anytime soon.  Texas and 25 other states filed suit in February hoping to overturn Obama’s expansion of his 2012 Deferred Action for Childhood Arrivals (DACA) and creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  A panel of three judges for the 5th Circuit Court of Appeals (New Orleans), one of the most conservative courts in the country, heard the case in July, but the case is still pending – and the court’s temporary injunction remains in place.  Observers call their behavior judicial activism because the panel has deliberately eschewed its normal practice of 60-day decisions in order to prevent a rapid appeal by the Obama administration from reaching the Supreme Court during the Court’s current term.  The deadline for appeals to the Supreme Court was October 23.

If the courts – the 5th Circuit Court of Appeals (unlikely) or the Supreme Court (unknown), ultimately decide in favor of the Obama orders, DACA and DAPA would permit undocumented immigrants who entered the U.S. prior to 16 years of age and have lived in the U.S. continuously since 2010, along with eligible parents of U.S. citizens and lawful permanent residents, to apply for temporary relief from removal (deportation) and a work permit for three years.  In any case, the next President, who takes office in January 2017, could terminate the actions, throwing applicants for DACA and DAPA protections back into a precarious legal state – with their identities and whereabouts registered with immigration authorities and lacking relief from deportability.  A Central American asylee told me his immigration process, if all goes well, will have taken him 21 years.  “That’s a lifetime,” he said.  “To really feel like a citizen, like this is my home, that they can’t kick me out … So that’s where the system is failing me, is failing us.”

The delay for President Obama’s executive actions to take effect is just one of many lengthy waits individuals, both with and without legal status, experience while caught up in the U.S. immigration system.  Wait times for visa applicants can extend into the double digits – more than 20 years for family-sponsored visas for Filipinos, for example.  Not only are the U.S. Customs and Immigration Services (USCIS) and the State Department, which are primarily responsible for visa processing, backed up; the Executive Office for Immigration Review (EOIR), the nation’s immigration court system, is experiencing multi-year delays as well.  Fifty-nine immigration courts handle an average of 300,000-400,000 cases per year.  Detained immigrants spend months in detention waiting for hearing continuances and final hearings, while non-detained immigrants spend years awaiting their final case outcomes.  These individuals are forced to put their lives on hold, not sure if they will be allowed to stay or forced to leave, many unable to obtain work permits or driver’s licenses.  The expansion of DACA and creation of DAPA would alleviate some of the tension on America’s overburdened immigration system while individuals around the country and the world await meaningful and comprehensive immigration reform.  In the meantime, agencies managing U.S. immigration have little incentive and too few resources to speed up processing.  Like millions of immigrants, they are simply biding time.

October 29, 2015

* Maya Barak is  PhD candidate at American University’s School of Public Affairs specializing in Justice, Law and Criminology.

Colombia: Historic Progress, Historic Challenges

By Fulton Armstrong

Colombia Peace

The leadership shown by Colombian President Santos and FARC Commander “Timochenko” – encouraged by the Vatican and the governments of Cuba, Norway, and the United States – will be tested as challenges to completion and implementation of a final accord are certain to be intense.  The President and FARC leader announced last week that they’d resolved the thorny issue of justice for guerrilla and government commanders accused of serious crimes and set a deadline of 23 March 2016 to sign a peace agreement.  The most important – and controversial – provision covers “transitional justice” for a range of offenses, including crimes against humanity.  Most of the estimated 6,000 rank-and-file FARC combatants will get amnesty, while commanders will choose between confessing their crimes and serving five- to eight-year terms performing labor in institutions other than prisons, or refusing to cooperate at the risk of much longer terms in prison.  (The same procedures will be established for government military officers accused of atrocities and those guilty of financing the paramilitary fighters who ravaged the countryside through the mid-2000s.)  The FARC also agreed that guerrillas would begin handing in their weapons when the final accord is signed.  Negotiators had previously agreed on rural development strategies, political participation, and counterdrug policies.

Almost universally, the agreement has been hailed as an historic achievement.  The announcement in Havana capped three years of talks facilitated by “guarantors” Cuba and Norway and later supported by the United States, represented by former Assistant Secretary of State Bernard Aronson.  During a mass in Cuba several days earlier, Pope Francis had implored the two sides to strike a deal, noting that “we do not have the right to allow ourselves yet another failure on this path of peace and reconciliation.”  U.S. Secretary of State Kerry called the Havana accord a “major breakthrough” and pledged that Aronson would stay closely engaged.

Latin American peace accords – most ending wars much shorter than the five decades of Colombia’s – provide ample evidence that the road ahead, however historic, will not be without difficult challenges.   

  • The accord will require a constitutional amendment, and President Santos will have to submit it for congressional approval and a national referendum. Former President Uribe, who leads Centro Democrático, has already declared war on it, calling it “a coup against democracy” that will lead to a “new dictatorship backed by guns and explosives.”  (Uribe also attacked Kerry’s statement as “deplorable.”)  Public discussion of details of guerrilla abuses, including forced youth recruitment and sexual violence, will play into opponents’ hand.
  • Colombian Prosecutor General Alejandro Ordóñez, an Uribe ally, said last week that any accord that does not entail prison terms for FARC commanders guilty of crimes would be “legally and politically untenable.” He claimed that it would violate victims’ rights and international law, which requires that punishment for war crimes be “proportional to the crimes committed.”  Human Rights Watch also condemned the provision and predicted the International Criminal Court would do so as well. 
  • Fulfilling commitments in the agreement to address the longstanding lack of government infrastructure in huge expanses of the country, help even modestly the resettlement of the more than 5 million persons displaced by violence, and expand programs to alleviate poverty and income inequality will have price tag beyond Colombia’s current ability to pay. Informal estimates of the 10-year cost are $30 billion.  The willingness of Colombian elites, who only grudgingly paid a war tax, to help foot the bill is far from certain.
  • The FARC’s ability to enforce discipline among its rank and file is also untested. There are reports that some commanders oppose any agreement.  Moreover, like demobilized paramilitary combatants, many combatants know no life other than rural combat and will be tempted to keep their weapons and join criminal networks that continue to terrorize rural communities.
  • The outstanding U.S. warrants for the extradition on drug-trafficking charges of reportedly dozens of FARC commanders may require some finessing, but Colombia’s peace commissioner, Sergio Jaramillo, suggested confidence that Washington will not demand extraditions if, as is almost certain, they would be a deal-breaker.

September 29, 2015

Brazil: Jailing the Youth

By Paula Orlando*

Brazilian Penitentiary System.  Photo Credit: Marcelo Freixo / Flickr / Creative Commons

Brazilian Penitentiary System. Photo Credit: Marcelo Freixo / Flickr / Creative Commons

A push for legislation to lower the age of criminal responsibility to 16 years could worsen court backlogs and overcrowding in Brazil’s notorious prisons.  According to the International Center for Prison Studies (ICPS), the country’s jails now hold the fourth largest prison population in the world, behind the United States, China, and Russia.  The Brazilian inmate population has doubled in the past ten years – from 296,919 people in 2005 to over 615,000 now – boosted by arrests of young and black people.  The Map of Incarceration, a study released this month by researchers at the Federal University of Sao Carlos (UFSCAR), shows that prisoners are increasingly between the ages of 18 and 29 (54.8 percent) and black (60.85 percent), with a growing presence of females (from 4.35 percent in 2005 to 6.17 percent in 2012).  The study also notes that the main reasons for arrest are crimes against property and “involvement in drug trafficking.”  Further, on average 38 percent – or four in every ten inmates – are awaiting trial.  According to a report by the OAS’s Inter-American Commission on Human Rights, the wait times may vary from months to years – sometimes longer than the actual sentence for the crime committed.  Of the total jail population, over 18 percent would be eligible for alternative sentences, but they either haven’t gone to trial yet or the judges have opted for heavier sentences.

A group of hardline conservative legislators – the “bullet caucus” – is pushing aggressively for a law that would lower the age of criminal responsibility from 18 to 16 and consequently place more youth in the already overcrowded adult jails.  Currently, the Child and Adolescent Statute (ECA) establishes that those between 12 and 17 years of age who committed a crime should be sent to juvenile centers, and for a maximum of three years.  The proposal to lower the age has received overwhelming popular support. This support is generally based on the perception that minors commit more violent crimes because they are not currently accountable as adults – and that harsher sentences would deter them.  However, official data shows that, among those in the juvenile system, only 9 percent committed violent crimes.  On the other hand, homicide is the leading cause of death of young people between the ages of 15 and 29.  Out of the 56,000 yearly homicides, 30,000 victims are young.  By crossing data from the Ministry of Justice and the 2014 Map of Violence, the report also debunks the popular perception that more arrests lead to safer cities.  On the contrary, just as incarceration grows, homicide rates have also steadily risen in the country.  According to press reports and other observers, there’s a good chance the legislation will move forward in the next few weeks.

Since the bill amends the Brazilian Constitution, it must pass both the Chamber of Deputies and the Senate with at least two-thirds of the votes.  In addition to increasing youth incarcerations, if passed, the initiative will undermine the 1990 Child and Adolescent Statute, considered a landmark by children’s rights advocates.  It will further remove the state from its responsibility for the protection and education of the youth, essentially eliminating any chance of youths’ rehabilitation while broadening the “school-to-prison pipeline” that envelopes many.   Moreover, passage of this reform, under the banner of law and order, will strengthen the ultra-conservative sectors – including some religious leaders and representatives of agribusiness – who already dominate the Brazilian Congress in an open crusade against social welfare policies and minority rights. 

 June 29, 2015

*Paula Orlando is a CLALS fellow and a PhD candidate at the School of Communication at American University.

Honduras: Dare Anyone Criticize?

By Fulton Armstrong

Hernandez Honduras

Honduran President Juan Orlando Hernandez. Photo Credit: Presidencia de la Republica del Ecuador / Flickr / Creative Commons

The decision last week by the Constitutional Chamber of the Honduran Supreme Court to legalize presidential reelection appears to have benefited a man – current President Juan Orlando Hernández – whose political fortunes got a shot in the arm from the 2009 coup that removed President Mel Zelaya for proposing a constitutional assembly to consider just such an action.  A Liberal Party magistrate said he wanted to recant his vote the next day, but the ruling party published the decision in the Gaceta Oficial before he could.  The Supreme Court, ruling in favor of petitions by former Nationalist President Rafael Callejas and several members of Hernández’s National Party, repealed two key articles of the Honduran Constitution, including one that says “the citizen who has served as the head of the executive power cannot be president or presidential candidate.”  Callejas immediately announced that he was resurrecting his Callejista movement, called MONARCA, which won him the presidency in 1990, and his campaign literature appeared in the streets of Tegucigalpa soon after.

The Court did not explicitly overturn Article 4 of the Constitution, which states that an “alternation in the exercise of the presidency of the republic is obligatory.”  That action reportedly will fall to the National Party-led Congress, but President Hernández is almost universally seen as the big winner from the Court decision, culminating his effort to continue as President.  After the coup that removed Zelaya from power, Hernández had a hand in congressional strategies to give a constitutional and legal framework – widely debunked – to Zelaya’s military ouster and later, while serving as president of the Honduran Congress and while campaigning for president, Hernández engineered the removal of four of the five justices of the constitutional chamber of the Supreme Court and replaced them with more sympathetic judges.  He subsequently had a role in selecting a replacement for the fifth, who became Attorney General – making for a court unanimously indebted to him.  (He was sworn in as national President in January 2014.)  Reacting to the court decision last week, Hernández noted that “reelection is something that is a general rule around the world … Prohibition of it is the exception … [and] Honduras has to make progress.”  His opponents have vowed to fight the repeal.  Leaders of the Partido de Libertad y Refundación (LIBRE) have accused the justices of “betrayal of the fatherland.”  One said the court “guaranteed the impunity” of the Hernández government, but the opposition’s legislative strategies have failed before.

Representing Central America’s most violent and most corrupt nation, President Hernández is seen in Washington as essential to success of U.S. policy in Central America and initiatives such as the “Alliance for Prosperity of the Northern Triangle.”  With a request for a billion dollars on its way to the U.S. Congress, the Obama administration can ill afford to point out Hernández’s hypocrisy for doing what he condemned former President Zelaya for trying to do in 2009.  Political inconveniences aside, the political cynicism and tensions that his and former President Callejas’s maneuvering will incite in violence-ravaged Honduras can hardly be seen as helpful to the goals of good governance and democratic consolidation that all profess.  When Nicaraguan President Daniel Ortega engineered a similar judgment by his Supreme Court in 2009, allowing him to run for an additional term, the State Department did not mince words about its “concern” for its implications.  Hernández, in contrast, was in Washington securing support for funding when his court announced its decision.  The U.S. Southern Command’s new task force of some 250 Marines is expected to arrive in Honduras and begin training of security forces involved in “fighting the drug traffickers.”

May 1, 2015

Historic August for LGBT Rights in Colombia

By Juliana Martínez

Colombia Diversa / Flickr / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Colombia has again shown itself to be a country of contrasts – a society ostensibly ruled by Catholic and conservative morals with one of the hemisphere’s most progressive Constitutional Courts – with two important legal decisions on LGBT rights.  The Court has defended the democratic, pluralistic, and inclusive spirit of the Colombian Constitution against powerful authoritarian and conservative forces for years.  In 2007 and 2008, it granted pension, social security, and property rights to registered same-sex couples, and it ruled that same-sex couples “constitute a family” in 2011.  In spite of some recent rulings tarnishing its liberal record, last month the Court made two decisions that, though limited, have historic implications.

  • It ruled in favor of step-child adoptions by gay couples.  After much political, legal, and even religious debate, the Court broke a four-year silence on the highly contested issue, ruling 6 to 3 that Verónica Botero could legally adopt the biological children of her wife, Anna Leiderman.  The ruling does not explicitly allow joint adoption by gay couples, but the decision cites ample scientific evidence and declares that parental homosexuality cannot be considered a risk factor for children, thus leaving the door open for further LGBT-friendly jurisprudence in the matter.
  • The court recognized the gender identity of trans women by declaring that they do not have to comply with the compulsory military service required of all Colombian males.  The case centered on Gracy Kelly Bermúdez, a transgender woman who filed a lawsuit against the mayor’s office in Bogotá when she was denied a job for failing to provide proof of her military service.  Bermudez had not entered the military because she identifies as a woman, and therefore did not have the Military Service Registration Certificate (libreta militar) required when applying for jobs, studying at the university level or accessing health care services.  She would have been exempted if she had undergone an official sex change – the right to change one’s sex has been protected in Colombia since 1993 – but this can only be legally done after undergoing sex realignment surgery, a procedure that most trans women do not have access to, cannot afford, or do not want.  Therefore, despite their gender identity and expression, the legal sex of the majority of trans women continues to be “male.”  The Court decided in favor of Bermúdez and ordered the mayor’s office to hire her immediately.

These decisions are far-reaching.  In the Bermúdez case, the Court was essentially prioritizing gender identity over assigned sex at birth.  It declared that asking trans women for the Military Service Registration Certificate when hiring them is unconstitutional because it violates their right to define their own gender.  Furthermore, the Court told Congress to draft a bill that regulates the rights of transgender people in Colombia, paving the way for a much-needed Gender Identity Law.  The ruling also has deep regional implications.  Since Argentina passed a groundbreaking Gender Identity Law in 2012, many countries have been struggling to achieve similar results – and the Colombian legal precedent can become a viable alternative for impact litigation.  Currently, at least ten countries in Latin America have compulsory military service with different levels of enforcement attached to non-compliance.  But as the Bermúdez case illustrates, military conscription mandates can turn into strange, yet effective platforms to denounce how the state routinely imposes gender identity on its citizens, often against their own will, and to catalyze legal reform that advances LGBT rights in the Americas.

* Dr. Juliana Martínez teaches gender and sexuality and Latin American Literature in the Department of World Languages and Cultures at American University.

September 25, 2014

Prison Reform in Latin America: Lessons from Costa Rica

By Geoff Thale and Adriana Beltran*

Steven and Darusha / Flickr / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Steven and Darusha / Flickr / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Prison overcrowding is a widespread problem in Latin America, primarily because of harsh drug-sentencing laws and inadequate budgets, but Costa Rica may be setting a useful example for dealing with it.  In most countries, guards control the perimeter, but groups of prisoners or criminal gangs organize and control life inside the prison compound.  Rehabilitation and re-integration programs are limited.  Not surprisingly, there is little political leadership for prison reform; the issue wins few points with the general public.  Even dramatic events – like prison riots in Venezuela or prison fires in which hundreds of young men die as in Honduras – don’t generate interest in prison reform.  A key component of the criminal justice system – as a deterrent, a punishment, and as a provider of rehabilitation and reintegration services that will reduce recidivism – the prisons are often neglected.

While Costa Rica faces growing drug-related problems, a multi-country analysis by the Washington Office on Latin America of persistent criminal justice and prison problems in Latin America – aimed at identifying strategic solutions – indicates that the country stands out as having undertaken at least modest reforms of its prisons to prevent them from becoming the breeding grounds for increasingly hardened criminals and gangs.  Prison conditions in Costa Rica have not been among the worst in Latin America, although the U.S. State Department said in its Human Rights Report for 2013 report that they were “harsh” and that “overcrowding, inadequate sanitation, difficulties obtaining medical care, and violence among prisoners remained serious problems.”  Until very recently, when new drug sentencing laws and tough anti-crime measures pushed the prison population up, the system generally did not exceed capacity.  Even today, the system is at 140 percent of capacity – far less than the 200-300 percent seen in other countries.  Prison conditions also seem less abusive than those seen in other countries.  An external oversight body was created to protect the rights of prisoners.  Moreover, the government, with support from the Inter-American Development Bank (IDB), is reaching out to local businesses to support vocational training programs for inmates.

This process has been driven by reformers inside the government and prison system, in contrast to most reforms elsewhere in the hemisphere driven by international donors.  This is a rare example of how reformers inside and outside the system worked to achieve institutional changes that increase citizen security while respecting human rights.  In this case, long-standing mid-level and senior staff of the penitentiary system, with the support of successive Ministers of Justice appointed by President Laura Chinchilla, played a key role in resisting pressures from legislators who want to toughen sentencing, which would increase prison populations.  They have advocated measures to ease overcrowding and ensure proportionality in sentencing.  At the same time, they have also used the IDB loan to both defend and expand the rehabilitation and re-insertion programs in the prison system.  Every country’s situation is unique, and Costa Rica has advantages — a relatively low crime rate, a relatively strong state structure, a relatively well-established respect for the rule of law – that others lack, but San José has shown that reform in this difficult, politically sensitive area is possible.

*Geoff Thale and Adriana Beltran, of the Washington Office on Latin America (WOLA), recently led a small delegation to visit Costa Rican prisons.

Is Affirmative Action in the U.S. Dead?

By Lázaro Lima*

Photo credit: commonwealth.club / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Photo credit: commonwealth.club / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

The U.S. Supreme Court’s decision two weeks ago to uphold a law that prohibits colleges from considering applicants’ race in the admissions process underscored U.S. conservatives’ power on the issue – but also the forceful vision of Justice Sonia Sotomayor.  In the decision of “Schuette v. Coalition to Defend Affirmative Action,” six out of the nine Justices supported Michigan’s “Proposal 2”; Sotomayor and one other opposed it, and Justice Kagan, who had worked on the case as President Obama’s Solicitor General, recused herself.  Ironically named “Michigan Civil Rights Initiative,” MCRI was passed in a state referendum with the support of 58 percent of Michigan’s voters in 2006.  It outlawed the use of all race considerations in public college admissions, resulting in a decline of 25-30 percent of the minority population at universities and colleges in the state.  The majority argued that “there is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”  They cited it as a case of respecting states’ rights and claimed that “it is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

In a 58-page dissent, Justice Sonia Sotomayor made the case against the law, arguing that Michigan schools were within their rights and responsibilities to society to take reasonable steps to encourage minority presence on state university and college campuses.  She plaintively stated the obvious: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race and to apply the Constitution with eyes open to the unfortunate effects of racial discrimination.”  She wrote: “Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. […] And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away.”

The U.S. debate on affirmative action has deep roots and will surely continue.  The Supreme Court decision – and Sotomayor’s candid and necessary assessment of race relations – came over 35 years after the Court in 1978 ordered a University of California medical school to admit a white man who claimed that affirmative action unfairly led to the rejection of his application.  The “Bakke Decision” outlawed racial and gender quotas and delimited “race” to the managerial interests of academic institutions and employers.  Historical accounts of affirmative action policies often trace back to President John F.  Kennedy’s Executive Order 10925 of 1961, which required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”  President Lyndon Johnson extended these mandates through the Civil Rights Act and with his own executive order.  But it was Sotomayor, decades later, who shined in her statement last month.  When she read her dissent from the bench, for the first time in her five years, her colleagues – who already had made up their minds – were not her intended audience.  Her audience was the democratic commons.

*Lázaro Lima is a professor of Latin American literature and Latino Studies at the University of Richmond, and a CLALS research fellow.