Punishment in Latin America: Explorations from the Margins

This introduction sets the scene for the book. It touches upon the recent growth of a literature on punishment in global peripheries within the wider punishment and society scholarship. It then briefly develops on two topics that constitute key elements of the whole book: knowledge production and exchange and peripheral punishment. In highlighting some common aspects, trends, and features of punishment in Latin America, it prepares the ground for the specific chapter contributions that are based on local experiences of different Latin American countries. In so doing, we also acknowledge the works of scholars who have initially advanced a movement for the understanding of punishment and the criminal question our marginalised Latin American realities.

The central hypothesis of the chapter is that Brazilian colonialism and slavery produced different material conditions or different governmentalities, from those at the base of the disciplinary project of the Global North, conditions that re-signified the penitentiary reform proposal. This chapter is structured into five sections: the first section introduces the hypothesis that the houses of correction were not the institutions that originated the Brazilian penitentiary system. The following section develops this idea based on an analysis of the social and economic dimensions of Brazil’s colonial formation. Unlike the global North, which officially envisioned the penitentiary as the institutional foundation of a democratic society, the penitentiary in Brazil was first envisioned as a mere symbol of modernity, then as an instrument for preserving order. The third section describes how the first prisons emerged without industrialization and how the material conditions for a prison reform discourse based on discipline remained absent. The fourth section indicates the inapplicability of the original conception of discipline in a context without Protestantism, presenting the Jesuit experience as the one closest to a project of moral reform and constraint to work. Being absent the category of disciplinary power in its original form, at least regarding its economic dimension, the national penitentiary project was born from the dungeons where public and private power overlapped for the corporal punishment of the enslaved. The last section analyzes the importation of the penal reform discourse and its adaptation in the context immediately following the abolition of slavery in 1888.

Criminological research, particularly in the Anglo-Saxon academic realm, has extensively examined the sharp increase in incarceration rates since the mid-1970s. Referred to as the “sociologies of the punitive turn” (Carrier, 2010), these studies argue that this surge reflects a sudden and harsh transformation in the logic governing penal practices and discourse. Some findings even suggest that this punitive shift has a global reach, impacting regions like Latin America. This broader narrative prompts an inquiry into whether a similar punitive turn occurred in Ecuador, a South American nation. Examination of prison demographics and legal frameworks in this country reveals a notable increase in incarceration rates during the 1990s, closely linked to drug trafficking control policies led by the United States. Consequently, I suggest that while the influence of neoliberal rationality, characteristic of the punitive turn, is evident, it’s more aptly described as a manifestation of punitive imperialism. Thus, it is imperative to analyze shifts in punishment trends within the framework of imperial dynamics, particularly considering the economic dependency of peripheral countries.

This chapter addresses the hypothesis that the criminal justice reforms toward an accusatory/adversarial model produced in Latin America from the 1980s onwards have meant a mutation in its way of functioning that can be read as an “Americanization.” Specifically, this general question is addressed by analyzing the introduction, in these reform processes, of mechanisms of conviction without trial – in their majority inspired by the “plea bargaining” of the Anglo-American tradition – that have a significant impact on the way in which the power to punish is exercised in most of the countries of the region today. This discussion is elaborated from a case study on the Province of Santa Fe (Argentina). It is argued that in the “law in books” the introduction of this type of mechanism has frequently implied a “weak Americanization,” since it was a “legal translation” (Langer, 2006) that not only generated “adoptions” but also “innovations” with respect to the parameters of the Anglo-American tradition. But it also shows how this can be combined with a “strong Americanization” in the “law in action,” differentiating the dimension of the dynamics from the dimension of the effects, based on two key observations: the weakness and infrequency of judicial control of the agreements reached by the parties and the enormous preponderance of convictions without trial. In this way, it is intended to make the idea of “Americanization” of criminal justice more complex, differentiating levels (in books/in action) and dimensions (dynamics/results).

Prison constitutes one of the main forms of managing punishment in penal systems (Dammert & Zúñiga, 2008; Garland, 2001; Sozzo, 2016). However, the study of prisons presents different emphases and scenarios depending on the context of observation. In this chapter, we analyse one of the most solid and structured prison systems in Latin America, the Chilean system, which aims to regulate all aspects of prison life, from those related to basic needs to those related to social reintegration. However, its intention of control clashes with the actual functioning of the prisons, producing tensions that are addressed by the staff under different strategies: some with a more punitive profile and others under more consensual margins. In order to explore this scenario, a documentary review of institutional reports on the Chilean prison system is carried out, which is combined with a descriptive qualitative study that, through in-depth and semi-structured interviews. The work carried out allows us to conclude that although order can be achieved through control and surveillance, that is, by imposing rules vertically, without listening to the people involved, demanding only the fulfilment of tasks, isolating and neutralising inmates in the event of any misconduct, this position creates a perception of injustice, which cumulatively can lead to violence (Byrne & Hummer, 2008). However, it is also possible to achieve order through legitimacy, that is, through relational mechanisms through which the problems of the people affected are identified and small agreements are reached, making them participants in the search for solutions.

We propose to see, regarding the Venezuelan context and at the same time in dialogue with the literature on Latin American prisons, the prison through the prison-neighborhood correspondence. This includes, for example, looking at how the prison organizes crime outside, attributes social and reputational capital, extracts and redistributes illegal profits, export/import modes and logics of action and domination. The purpose is to (a) discuss the “hydraulic” theses on prison gangs, dominant in North American literature, which explain their emergence through conditions endogenous of the prison, and instead put the emphasis on the dynamics of exclusion and the “lumpen economies” in which the poor subsist, and (b) nuance the perspectives on the relations between prison and community from the point of view of the peripheral South, marked by high rates of exclusion, informality, and an economy strongly dependent on commodities and a significant labor surplus population, in contrast to the industrial economies of the Global North.

This chapter examines the context in which the risk model began to permeate prison management in Uruguay during the prison reform that took place from 2010 to 2020. Based on the general debate surrounding the introduction of the risk paradigm in prison policy, we focus on the particularities of importing a specific model and its associated assessment tools into a Latin American prison system. This chapter draws on interviews conducted with authorities and experts involved in the importation of this risk-based model, as well as with staff responsible for the implementation of risk assessment tools in Uruguayan prisons. The findings highlight the importance of the “intangible” aspects of prison policy, as well as the limitations of transferring programs and tools developed in the Global North to the Global South.

In this chapter, we show how physical violence is a central part of the prison experience in Latin America. Such a violence is perceived both a legally admitted and forbidden practice. In this sense, corporal punishment appears not as an imperfection, but rather an ordinary element of punitive power in the region. This strange existence of corporal punishment as permitted and forbidden violence ends up by legitimizing the punishment of the inmates in their physical body and their existence as a subject of law. This juxtaposition places prisoners’ bodies “betwixt and between” the natural world and the normative world of punishment. Thus, the life of prisoners is protected by law. Their indemnity is recognized, and their fundamental rights are guaranteed. However, at the same time, their lives are expendable.

This chapter aims to trace how the theoretical frameworks of actuarialism and managerialism have been slowly introduced into the Latin–American scientific debate, focusing on the Argentinian and Chilean examples. With this objective in mind, we explore the journey of these theories in our region focusing on the work. Additionally, we address other academic contributions that highlight “actuarial techniques” of risk as central features to analyze contemporary penalty, policing tactics, or criminal court outcomes and practices (Hannah-Moffat, 2013a, 2013b; Harcourt, 2007; Marutto & Hannah-Moffat, 2006), even overlapping concepts like actuarialism and managerialism (Barker, 2009; Kohler-Hausmann, 2018). Subsequently, we describe the acclimation of these theories in Argentina and Chile, characterized for a limited impact on the scientific debate. We suggest that the main reason for this little impact is the different stages of the criminal justice system between Global North and Global South countries. While in the first one, actuarialism and managerialism were born to explain especially the field of risk analysis, and secondarily, the role of the new public management; in the case of Latin America, managerialism has been observed through the criminal justice system reform developed in the last three decades. This observation has focused especially on some organizational transformations and, for this reason, the analysis about actuarialism and risk assessment have been marginals. We concluded that although the influence of the literature about actuarialism and managerialism from the Global North in Latin–American is real, it is not possible to extrapolate all its elements to the penal systems in the region.

This chapter makes a critique of contemporary definitions of vigilantism in the social sciences. I demonstrate that many scholarly definitions, especially those that conceptualize vigilantism as an extralegal practice, involve problematic normative assumptions. Such definitions, I argue, often preconceive that state legal classifications are neutral, objective, timeless and universal. The critical question is whether the state is the only possible locus of legality. An affirmative response would deny the existence of plural or hybrid legal orders. Furthermore, with respect to vigilantism, extralegality is an external, state-dependent property. Using it as a definitional feature thus comes with the risk of reducing vigilantism to a secondary and subordinated political order vis-á-vis the state. That risk reminds us of the importance of epistemological vigilance in every research operation–especially concept formation. The chapter finally discusses possibilities for a normative-free definition of vigilantism.

Building upon the working notion of Southern green victimology, the presentation explores the case of Andalgalá, Province of Catamarca, Argentina, where international corporations have been trying to develop a mining project that would affect the environment and the health of the local population. Facing the lack of support from the state, the organised local community tried to prevent their actual environmental victimisation and they committed to stop this damaging undertaking. Following these intents, the Argentinean criminal justice system acted to the detriment of these local actors (over-criminalisation) and favour mining corporations that can cause irreparable damage to the local water and air resources (under-criminalisation). In short, the case study will shed light on the common features of Southern green victimisation: (1) attempts to consolidate corporate investments involving extensive environmental harms in forms already banned in the Global North, (2) a committed resistance by the local environmental groups, (3) the harsh selectivity of the criminal justice system, and (4). immunity of corporate environmental harms/crimes.