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DEMOCRACIES WITHOUT CITIZENSHIP:
CRIME AND PUNISHMENT IN LATIN AMERICA
Manuel Iturralde*

The aim of this article is to show how, despite the politicaland economic re-
forms of the last three decades, which have embraced the ideals offree markets
anddemocracy, socialandeconomic exclusion, as well as authoritarianism,are
still the mainfeatures ofmost ofLatin American societies. For this reason, they
may be considered democracies without citizenship. The articlefocuses on the
impact that these features have had on the configuration of Latin American
crime controlfields, which in most cases are highly punitive. It also discusses
how Latin American crime controlfields have contributed in turn to the ad-
vancement ofsuch reforms.

INTRODUCTION

In most of Latin America the criminal justice system struggles to prosecute

organized crime and the most violent forms of delinquency; the investiga-
tive capacity of the police and the security forces is very limited, and only
a very low percentage of criminal cases reach the courts.' Additionally,
Latin American state security agencies traditionally have been responsible

*Associate Professor, Department of Law, Universidad de los Andes, Bogoti, Colombia.

miturral@uniandes.edu.co. I am very grateful for the comments and suggestions I received
from the people participating in the Modern Law Review Seminar Citizenship and
Criminalisation in Contemporary Perspective, where I presented a paper based on an earlier
version of this article. I am particularly grateful to Peter Ramsay and Ely Aharonson, who or-
ganized the seminar and gave me detailed comments on my paper. Alejandro Chehtman also
provided me with insightful comments, which helped to improve my arguments.
i. Paulo Sirgio Pinheiro, Introduction, in The (Un)Rule of Law and the Under-
privileged in Latin America ix (Juan E. Mandez et al. eds., 1999).

New CriminalLaw Review, Vol. 13, Number 2, pps 309-332. ISSN 1933-4192, electronic
ISSN 1933-4206. 0 zoio by the Regents of the University of California. All rights re-
served. Please direct all requests for permission to photocopy or reproduce article content
through the University of California Press's Rights and Permissions website, http://www.
ucpressjournals.com/reprintlnfo.asp. DOI: Io.1525/nclr.zoso.13.z.309.

I 309

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310 1 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 2 1 SPRING 2010

for human rights violations and an excessive use of force. The usual vic-
tims of such abuses are the marginalized social classes, which in Latin
America account for the majority of the population. Thus, it is hardly sur-
prising that the majority of Latin Americans regard the law and the judi-
cial system mainly as instruments of oppression on behalf of the elites; fear
and mistrust of the justice system are common.
The inefficiency and lack of credibility of law and the justice system are
crucial factors that at least partially explain the contested legitimacy of
Latin American states and the feeble embeddedness of democracy in the
region. But at the same time, the law and justice systems in many Latin
American countries are ineffective and arbitrary precisely because the po-
litical regimes in which they are grounded have been traditionally author-
itarian and exclusionist.
Such a bleak sight seems to have been changing during the last thirty
years as most of Latin American states have embraced the ideals of democ-
racy and free markets. Nonetheless, this has not been an easy task because,
despite all the economic and political changes, the region still remains the
most unequal in the world 2-half of its population lives in poverty and
does not have access to health care, education, social welfare, and the la-
bor market. Meanwhile, power groups that largely control the political
and economic spheres have been the only ones to take full advantage of
the recent transformations. The implantation of the neoliberal model
across the region has widened the gap between the wealthy and the un-
derprivileged classes.
The aim of this article is to show how, despite the political and eco-
nomic reforms of the last three decades, which have embraced the ideals
of free markets and democracy, social and economic exclusion, as well as
authoritarianism, are still dominant features of most Latin American soci-
eties. For this reason, they may be considered "democracies without citi-
zenship."' I will focus on the impact that these features have had on the

2. Among the nine countries with major income inequality in 2000, seven were Latin
American countries. According to the World Bank, Sub-Saharan Africa and Latin America
have the highest rates of inequality in the world, with a Gini coefficient above 0.50 since
the 1960s. United Nations Development Program, Human Development Report zoo, 183
(2oo2); Guillermo Perry et al., Poverty Reduction and Growth: Virtuous and Vicious
Circles 53 (2006).
3. Pinheiro, supra n. i, at 2.

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 DEMOCRACIES WITHOUT CITIZENSHIP | 311

configuration of Latin American crime control fields, which in most cases

is highly punitive. I will also discuss how Latin American crime control
fields have contributed in turn to the advancement of such reforms.
This article tends to take a very broad approach (both spatially and
temporally) toward these topics, which entails a certain degree of simpli-
fication and generalization to present major features and transformations
that have shaped the region. Thus, I will start from the presupposition
that, despite their variety and unique particularities, Latin American
countries have a shared past, similar historical trajectories, and common
features that distinguish them from their North American neighbors and
other regions of the world.
Nevertheless, the last decade has witnessed major transformations in
Latin America, particularly in the political landscape, which may be too
recent to allow for broad and definitive conclusions. The most important
feature of the political scene during this period has been the political re-
alignment of Latin American countries, with a distinguishable polariza-
tion between left and right. Countries such as Venezuela, Bolivia,
Ecuador, and Nicaragua are undergoing intense political processes under
the lead of leftist governments, which claim to defend socialism in quite
radical terms, at least at the discursive level.
On the other hand, countries like Colombia, Mexico, Per, and until re-
cently, El Salvador,' have been led by right-wing governments with a strong
neoliberal tendency and a keen desire to form a strong political and economic
alliance with the United States, a key player in the region. At the center of the
political spectrum are a number of countries not so easy to classify, like Brazil,
Argentina, Uruguay, and Chile. They are ruled by social-democratic gov-
ernments with a leftist leaning (although in the case ofArgentina, this may be de-
batable) that nevertheless have accepted market capitalism rules and principles as
the economic background on which they must operate.'

4. Mauricio Funes, from the Frente Farabundo Marti para la Liberaci6n Nacional
(FMLN, a former leftist guerrilla group), won the presidential elections on Mar. 15, 2009,
thus defeating the conservative party Alianza Republicana Nacionalista (ARENA), which
has ruled the country since the end of the bloody civil war in 1992.
5.The case ofChile is very telling- with the return of democracy, after a ruthless military dic-
tatorship that lasted sixteen years (from 1973 to 1989) and that firmly established the neoliberal
economic model, social democratic governments have come to dominate the political scene
most of the time. For an interesting analysis of the new left in Latin America, see Cisar
Rodriguez et al., La nueva izquierda en Amdrica Latina: Sus origenes y trayectoria fuitura (2005).

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312 NEW CRIMINAL LAW REVIEW | VOL. 13 | NO. 2 1 SPRING 2010

Considering all these important transformations, it is very likely that

the crime control field has undergone important changes in countries like
Venezuela, Bolivia, El Salvador, and Nicaragua, which are experiencing in-
tense social and political conflicts that affect violence and crime rates6 as
well as state penal policies. Such recent transformations exceed the grasp
of this article (though it will reference them), but they constitute a theo-
retical challenge, begging for explanation, which one hopes will be ad-
dressed in a future article.

1. LATIN AMERICAN LEGAL FIELDS: INSTRUMENTAL

INEFFICACY AND AUTHORITARIANISM

To understand the configuration of Latin American institutions of punish-

ment, as well as their shortcomings, I will describe the major features of the
legal fields to which they belong and how they came into existence. This
entails a historical account of the formation of the Latin American nation-
states after their independence from Spain and Portugal in the eighteenth
century, and their struggle to cope with the Western modern project to
which they were introduced, forcibly, by the European colonial powers.
This is a complex and ongoing process; during the last three decades Latin
American countries have enacted ambitious economic, political, and legal
reforms to leave behind a violent past characterized by the proliferation of
authoritarian regimes (in the form of restricted democracies or military dic-
tatorships) and to keep pace with the rapid process of globalization.
Latin American legal fields mirror the hierarchical and discriminatory
practices that traditionally have marked social relations. The political and
legal changes experienced by most of the Latin American countries during
the last three decades have not reversed this trend. The end of military dic-
tatorships during the 1980s and the broad legal and political reforms car-
ried out through the 1990s did not result in a strong consolidation of the
rule of law in the region. Many of the authoritarian practices of Latin

6. For instance, in Venezuela the murder rate has increased notably during recent years:
from 8 per ioo,ooo inhabitants in 1996, to 33 in 2000, 44 in 2003, and 45 in 2006 (one of
the highest in the world), which became the most violent year in Venezuela's modern his-
tory. Between 1986 and zoo6, the murder rate increased 438 percent. Alcaldfa de Chacao,
Plan 18o: Propuesta para la justicia y la seguridad en Venezuela (2007).

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 DEMOCRACIES WITHOUT CITIZENSHIP 1 313

American governments did not change, and the gap between the law and
its actual practice is still significant, as the high levels of impunity prove.
In many areas the state's monopoly of force is relaxed or does not exist at
all. For instance in Colombia, although the accuracy of the statistics may
be debatable, it is estimated that during the 1990s only 5 percent of crimes
were investigated by the authorities. The conviction rate has decreased
during the last three decades, from 20 percent in the 1960s, to 5 percent
in the 1970s, to I percent in the 199os.'
Thus, Latin American legal fields still present at least two long-
established features: instrumental inefficacy and authoritarianism. The
instrumental inefficacy of law consists in the difference between what is
established in the law and the actual behavior of social actors. Though this
is a common feature of contemporary legal systems-for none of them
can claim a complete degree of efficacy-in the Latin American case the
significant gap between state norms and social practices must be stressed.
Such a trend mirrors the weak penetration of the law in everyday social
life, regardless of the appearance of strength, even open authoritarianism,
that most of the Latin American states have attempted to show during the
twentieth century. The weak penetration of the law in Latin America has
resulted in the development of social practices, some of which constitute
parallel legal systems, which call into question the exclusivity and preva-
lence of the state's legal presence in society.9
Authoritarianism refers to the permanent use of state force through le-
gal and extralegal mechanisms. Most of the Latin American states have at-
tempted to address (and conceal) their weakness through the continuous
use of force, either through the rupture of the legal order (that is, the mil-
itary dictatorships in Brazil, Perti, Bolivia, Venezuela, the Southern Cone,
and most of Central America during the second half of the twentieth cen-
tury) or through a systematic use of emergency mechanisms (that is, the
almost uninterrupted use of the state of emergency in Colombia during
the same period) established by the legal order and abused by the execu-
tive branch of power.'o

7. Grace Livingston, Inside Colombia: Drugs, Democracy and War 32 (2003).

8. Mauricio Garcia & Csar Rodriguez, Law and Society in Latin America: Toward the
Consolidation of Critical Sociolegal Studies, 9 Beyond Law it (Jan. 2003).
9. Id. at 40.
1o. Id. at 18, i9; Pinheiro, supra n. i, at s; Juan E. Mndez, Problems of Lawless
Violence: Introduction, in Mindez et al. eds., supra n. i, at 20.

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Such features of the legal fields in Latin America are tendencies and not
generalized or monolithic phenomena." Their historical presence in the
region does not mean that the law has been always and in all places and
situations ineffective and authoritarian. This is why the description of the
main features of the legal fields in Latin America is only a starting point
to frame the general context of more particular analyses. Moreover, the
characteristics of the legal fields do not result merely from the policies and
political decisions that governments have adopted throughout Latin
American history. Rather, they result from broader factors and complex
processes in the region's social fields. These fields have created conditions
that limit the maneuverability of social actors, including governments.
The legal field, therefore, is the outcome of the interaction between its
structure and the actions, beliefs, representations, and imagination of
those who form it.12
To understand the phenomena that are central features of Latin
American legal fields, it is necessary to depict their origins and manifesta-
tions by means of a brief analysis of the political, economic, and sociocul-
tural conditions in which the law has been shaped since colonial times
(from the fifteenth through the nineteenth centuries).

II. HISTORICAL ROOTS OF THE LEGAL FIELDS IN LATIN

AMERICA: THE TORTUOUS ROUTE TO MODERNITY

Besides the geopolitical position of Latin American countries in the global

order, the sociocultural factors that have characterized them since colonial
times have had an important effect on the constitution of their legal fields.
Such factors result from the routes followed by Latin American countries
into and through modernity; that is, the way that they have assimilated
the Western sociocultural project of modernity. According to Santos, the
original route to modernity was the European one.' Most of the non-
European countries never addressed modernity as a broad sociocultural

ii. Garcia & Rodriguez, supra n. 8, at 19, 20.

12. Pierre Bourdieu, The Logic of Practice (1990); Pierre Bourdieu, The Force of Law:
Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805 (1987); Pierre Bourdieu,
Outline of a Theory of Practice (1977).
13. Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and
Politics in the Paradigmatic Transition, 270-72 (1995).

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project. For these countries, modernity was a partial and largely painful
experience of unequal contact and exchange with European imperialistic
powers. Because of their position in the world system, Latin American
countries were not able to set their own agenda or pace toward modernity,
and only to a very limited extent have they been able to modify and adapt
it to their advantage. Such a path-marked by conquest, genocide, and
widespread violence in the Colony and Independence periods-has left
traces in the contemporary legal practices and culture in Latin America.
The transitional period from Spanish and Portuguese colonial rule to
independence (in the first half of the nineteenth century) is of great im-
portance to understanding the legal fields of Latin American countries and
the ambivalent attitude of their citizens toward state law. It is in this pe-
riod that the historical roots of such fields are to be found. The criollos-
that is, the creole elite, sons of Spanish and Portuguese conquerors, who
led the independence movement-received, adapted, and transformed the
Enlightenment and revolutionary ideas coming from France and North
America, and blended them with the authoritarian, conservative, and
Catholic Spanish and Portuguese traditions.
This particular combination is partially explained by the lack of politi-
cal and administrative experience and by the elitist origin of the inde-
pendence leaders who adopted the models of political organization
coming from the American and French revolutions (that is, a democratic
and republican regime), even as they kept most of the legal structures and
laws imposed under colonial rule. From a conservative and pragmatic per-
spective, the criollos acknowledged that, to avoid chaos and retain politi-
cal power, they should pay lip service to the new revolutionary ideas while
conserving most of the colonial legal system, together with the social and
institutional practices that surrounded it, to rule the emerging states.14 The
new elite of criollos was eager to adopt liberalism, particularly its ideal of
economic freedom guaranteed by the government's submission to the rule
of law, while their commitment to the protection of civil liberties was con-
siderably weaker.

14. John Lynch, Hispanoambrica, 1750-185o: Ensayos sobre la sociedad y el Estado 35

(1987).
is. Jeremy Adelman & Miguel Centeno, Between Liberalism and Neoliberalism: Law's
Dilemma in Latin America, in Global Prescriptions. The Production, Exportation and
Importation of a New Legal Orthodoxy (Yves Dezalay and Bryant Garth eds., zooz).

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Such asymmetrical adoption of the liberal ideals by the ruling elite

shaped a particular political and economic model: authoritarian liberal-
ism,' 6 a combination of capitalism and authoritarian rule that has charac-
terized Latin American countries since the Independence period. The
authoritarian liberalism of the new Latin American republics resulted in
the dissociation between the development of formally democratic institu-
tions and legal reformism, on the one hand, and a social reality marked by
insecurity, widespread social marginality, and inequality, on the other.
Since the Independence period, the constant creation and reformation
of the law performed by the elite to achieve institutional stability, rather
than social change, has been a main feature of Latin American legal fields.
This fact explains, at least partially, the precariousness of the law's re-
gulatory power among the bulk of the population and its instrumental in-
efficacy, which nonetheless serves other purposes. Thus, the considerable
gap between law and reality in Latin America may be regarded not merely
as a dysfunction or a failure of the democratic paradigm, but rather as a
political strategy that favors the twin model of free markets and authori-
tarian states.

III. LEGAL AND ECONOMIC REFORMS OF THE LAST

THREE DECADES

During the last thirty years a widespread and far-reaching set of reforms
have transformed the legal, political, and economic landscape of the re-
gion. While most Latin American countries have undergone important
constitutional reforms to democratize their political regimes, the region
has embarked on a more specific and technical reform of certain features
of the legal systems to make them more effective. Most Latin American
countries are changing their criminal systems, following the U.S. model,

16. Jayasuriya uses the term "authoritarian liberalism" in a different context, to refer to
a postwar form of economic governance, particularly in East Asia, which enables the emer-
gence of the regulatory state-a strong state the purpose of which is to safeguard and reg-
ulate a liberal market economy (318, 319). Kanishka Jayasuriya, Authoritarian Liberalism,
Governance and the Emergence of the Regulatory State in Post-Crisis East Asia, in Politics
and Markets in the Wake of the Asian Crisis (Richard Robinson et al. eds., 2000). Cristi
also uses this term to explain Carl Schmitt's authoritarian conception of the state, accord-
ing to which a strong state is a precondition for a free economy. Renato Cristi, Carl
Schmitt and Authoritarian Liberalism: Strong State, Free Economy, 4 n. 6, 175 (1988).

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 DEMOCRACIES WITHOUT CITIZENSHIP | 317

which implies a change from an inquisitorial to an accusatory model."

Efforts have been made to improve the legal education of judges. Most of the
constitutional reforms have included the creation of agencies under the judi-
cial branch to govern the judiciary, in order to give it autonomy and inde-
pendence, particularly from the executive branch, which traditionally had
controlled it. The ways that judges are appointed, and their terms and con-
ditions in office have also been reformed to ensure that public policies on the
judiciary are not only in the hands of politicians but also in those of judges."
The independence and autonomy of the judiciary is a particularly sen-
sitive issue in Latin America, for in most countries the judicial branch has
been an unstable and weak institution because of its lack of independence
from politics and the traditional instability of democracy in the region.
The caudillismo, the authoritarian populism that has prevailed in Latin
America, led to the overgrowth of the executive branch (run by a caudillo
with a messianic profile), to the detriment of the other two branches of
power and civil society. The judicial branch thus became an appendix of
the government, which controlled and manipulated it. It became a vast
bureaucratic office where politicians could appoint their partisans, who in
turn rewarded their appointers.
This is one of the reasons why the poor and marginalized classes have
seen the judiciary as a tool of injustice and oppression." Hence, it is a mat-
ter of no little interest to know why the judicial branch, traditionally ig-
nored, has become during the last thirty years one of the main targets of
the process of democratization and legal reform in Latin America. The an-
swer lies in the factors and interests that have influenced such a trend.

A. Judicial Reform and Free Markets: The Adoption

of the Neoliberal Model

The recent wave of reformism has been orchestrated and financed mainly
by the United States (particularly by its international aid agency, USAID)

17. Cristiin Riego & Mauricio Duce eds., Prisi6n preventiva y reforma procesal penal
en America Latina (2009).
iS. Jorge Correa, Judicial Reforms in Latin America: Good News for the
Underprivileged?, in Mndez et al. eds., supra n. i; Juan E. Mndez, Institutional Reform,
Including Access to Justice: Introduction, in Juan E. Mndez et al. eds., supra n. I; Pinheiro,
supra n. i.
19. Correa, supra n. 18, at 258.

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and international institutions (such as the International Monetary Fund,

IMF, the Inter-American Development Bank, IDB, and the World
Bank). Accordingly, it is not surprising that the model endorsed by such
reforms is a neoliberal one that follows the U.S. pattern, with a particu-
lar focus on the stabilization of the rule of law in the region, the pre-
dictability of which is essential for the consolidation of free markets and
foreign investment.2 0
As a matter of fact, these international institutions have conditioned
their economic aid to Latin American countries, demanding that they ad-
just their finances, liberalize their markets, make their labor legislation
more flexible, and strengthen their democratic institutions and the judici-
ary. These international programs and aid for judicial reform generally are
implemented without a thorough knowledge of the social, cultural, and
economic context and needs of the region, as well as the impact of such
reforms on the legal field. Thus, it may be argued that these reforms are
usually ethnocentric transplants of Anglo-American and European legal
institutions."
Accordingly, Latin American countries have implemented a set of lib-
eralizing economic reforms that follow the recipe of the "Washington
consensus, "22 which calls for smaller states with lower deficit and infla-
tion rates, and with fewer powers of intervention in the economy. The
traditional regulatory state 23 is gradually being dismantled in many Latin
American countries. Most of the decision-making process and resolution of
conflicts are being transferred directly to the market, which is controlled by

2o. Cisar Rodriguez, La globalizaci6n del Estado de derecho (2009); C6sar Rodriguez,
Neoliberalism and the Transformation of the State in Latin America. A Comparative Study
of Argentina, Brazil and Colombia (2005); Csar Rodriguez & Rodrigo Uprimny, Justicia
para todos o seguridad para el mercado? El neoliberalismo y la reforma judicial en Colombia
y en Ambrica Latina, in La falacia neoliberal: Critica y alternativas (Dario Restrepo ed., 2003).
21. Rodriguez (2005), supra n. 20; Csar Rodriguez, Globalization, Judicial Reform and
the Rule of Law in Latin America: The Return of Law and Development, 7 Beyond Law
13 (Feb. zoo).
22. According to Dezalay and Garth, the Washington consensus is "a phrase developed

in 1990 to suggest that the U.S. government and the multilateral organizations in
Washington had come to an agreement on what kind of state and economy would be ap-
propriate in Latin America." Yves Dezalay and Bryant Garth eds., Global Prescriptions:
The Production, Exportation and Importation of a New Legal Orthodoxy, xv (zooz).
23. According to this political model, the state is the main investor in the economy,
controls prices and trade unions, and is the main employer.

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 DEMOCRACIES WITHOUT CITIZENSHIP 319

economic groups and foreign investors." The market is the main forum
where such groups advance their interests and resolve their conflicts.
When this is not possible, they take their conflicts to court. Therefore, the
justice system becomes an important forum for the enforcement of mar-
ket transactions. The deregulation of the economy leads to a significant in-
crease in the amount and complexity of litigation, which explains the need
to adapt the judiciary to such changes."
Nevertheless, the political and economic reforms have not been able to
ease the structural social and economic problems of the region. Quite the
contrary, the liberalization of the Latin American economies has made
them more vulnerable to the global market. This has led to strong eco-
nomic crises in most parts of the region, soaring unemployment rates, and
26
most serious of all, a widening gap between rich and poor.
The reforms' failure to address poverty, inequality, and exclusion has
undermined the already fragile legitimacy of Latin American democratic
regimes. A recent study carried out by the United Nations Development
Program in Latin America showed that 54 percent of Latin Americans
would prefer dictatorships to democracies if the former solved their eco-
nomic problems; 56 percent of Latin Americans consider that economic
development is more important than democracy. It also showed that 43
percent of Latin Americans believe in democracy, while 30.5 percent have
doubts.17 Despite political and legal reforms, Latin American democratic
regimes still lack legitimacy, and without legitimacy, most of the popula-
tion feels that the law and the state serve private, not public interests.
Thus, the rule of law faces a fundamental and long-lasting challenge: "its
inability to bear equally upon the rulers and the ruled.""

24. Correa, supra n. i8.

25. Rodriguez & Uprimny, supra n. 20.
26. Jos6 Antonio Ocampo, Lights and Shadows in Latin American Structural
Reforms, in Economic Reforms, Growth and Inequality in Latin America (Gustavo
Indart ed., 2004); Alejandro Portes & Kelly Hoffman, Latin American Class Structures:
Their Composition and Change during the Neoliberal Era, 38 Latin Am. Res. Rev. 41
(Feb. 2003); Albert Berry, Confronting the Income Distribution Threat in Latin America,
in Poverty, Economic Reform and Income Distribution in Latin America (Albert Berry
ed., 1998).
27. Programa de las Naciones Unidas para el Desarrollo, La democracia en America
Latina (2004).
28. Adelman & Centeno, supra n. I, at 158.

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B. Democracies without Citizens

The reluctance shown by governments and economic groups to respect the
rule of law, redistribute wealth, and achieve social justice has been hidden
by the fact that during the last three decades, most Latin American coun-
tries have embraced democratic regimes. This leads to a reductionist idea
of the rule of law, for the political sphere, with the support of economic
groups, fosters the belief that if civil and political rights are legally guar-
anteed and if popular elections take place regularly, democracy has been
or is being achieved.2 9 Despite the political and legal changes, Latin American
societies are still broadly based on social and economic exclusion; therefore,
they may be termed "democracies without citizenship"" in which the idea of
democracy is limited and rendered banal by the political elites that hold
power. In a broader sense, democracy is also about providing social justice"
and guaranteeing "common rights of citizenship"32-something that Latin
America lacks.
The political and legal reforms that Latin American countries have
embarked on also depend on the economic reforms to adapt the Latin
American institutions to the needs of the global market and the geopo-
litical interests of foreign governments and investors, which are not se-
riously concerned with the structural economic and social problems of
the region. In great measure, these reforms focus on the effective pro-
tection of property rights and foreign investment, and on the prompt
resolution of disputes brought about by the liberalization of the econ-
omy in the region."

29. Roger Plant, The Rule of Law and the Underprivileged in Latin America: A Rural
Perspective, in Mindez et al. eds., supra n. I, at 92; Boaventura de Sousa Santos, Derecho
y democracia: la reforma global de la justicia, in El caleidoscopio de las justicias en
Colombia (Boaventura de Sousa Santos & Mauricio Garcia eds., 2001); Boaventura de
Sousa Santos, Law and Democracy: (Mis)Trusting the Global Reform of Courts, in
Globalizing Institutions: Case Studies in Regulation and Innovation (Jane Jenson &
Boaventura de Sousa Santos eds., 2000).
30. Pinheiro, supra n. i, at 2.
31. Mainly understood as the equitable distribution of resources, and the fairness of op-
portunity to economic and social welfare and advancement. Plant, supra n. 29, at 92.
32. Robert Reiner, Law and Order: An Honest Citizen's Guide to Crime and Control,
139 (2007).
33. Yves Dezalay & Bryant Garth, The Internationalization of Palace Wars. Lawyers,
Economists, and the Contest to Transform Latin American States (2000).

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 DEMOCRACIES WITHOUT CITIZENSHIP 1 321

As Brody suggests, international assistance to judicial reform is not

neutral; it seeks to promote certain interests.14 The interests of donors
and lenders may coincide with those of the elites in power, but not with
the interests of the potential beneficiaries: the users of the justice system
as well as those who provide it on a daily basis (judges, judicial clerks,
defense attorneys, and prosecutors). Usually, the donors and lenders
may wish that judicial reforms facilitate a transition to a free market
economy that will open opportunities to them and the interests they
represent. This reinforces the idea that, in the global South, judicial re-
forms are key components of economic reforms; judicial reforms are
subjected to the objectives and pace of economic reforms. This kind of
vision, as well as the vocabulary that accompanies it (where "free mar-
kets," "the rule of law," "democracy," and "a strong judiciary" form part
of the same mantra) is commonplace in international organizations and
the aid agencies of core countries, and is welcomed by Latin American
governments."
Such a trend is evident in the areas of labor law, commercial law, and
criminal law. The latter case is noteworthy. For instance, the United States
of America, as well as other countries from the global North and various
international institutions, which focus on the fight against crimes that
they find relevant (such as narcotrafficking, terrorism, money laundering),
have unilaterally imposed on Latin American countries their own policies
on such crimes. Their governments reduce then complex social problems
to a policy of social control that actually has weakened the rule of law and
increased violence in the region. According to the United Nations Office
on Drugs and Crime, Latin America and the Caribbean is the most vio-
lent area of the world, presenting the highest violent crime rates: "By any
reckoning, Venezuela, El Salvador, Guatemala, and Jamaica are among the
countries with the highest rates of murder, while rates are nearly as high
in countries as diverse as Colombia, Brazil, the Dominican Republic, and
Trinidad and Tobago." 6 (See Table 1.)

34. Reed Brody, International Aspects of Current Efforts at Judicial Reform:

Undermining Justice in Haiti, in Mndez et al. eds., supra n. I, at 227.
35. Maria Dakolias, A Strategy for Judicial Reform: The Experience of Latin America,
J. Int'l L. 36, 167-68 (1995).
36. United Nations Office on Drugs and Crime, The Threat of Narcotrafficking in the
Americas 3 (2oo8).

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Table 1. Murder rate by region and continent per 100,000 population'

Region/Continent Murder rate

Africa 10.1
North America 5.6
Latin America 19.9
Asia 2.1
Caribbean 16.3
Europe 1.2
Oceania 1.3
*Julio Jacobo Waiselfisz, Mapa de la violencia: los j6venes de Amdrica Latina (2008).

IV. LATIN AMERICAN CRIME CONTROL FIELDS

Despite the recent reforms, violence and authoritarianism are especially

apparent in Latin American crime control fields. During recent decades,
penal institutions have acted as a barrier to contain the social turmoil pro-
duced by market liberalization." Although democratic constitutions
broadly protect political and civil rights, the exercise of full citizenship
(understood as the effective enjoyment of political, civil, and social rights)
is actually denied to the bulk of the population, which is economically and
socially excluded. Latin American political regimes have thus supported
penal institutions that punish primarily petty crimes, committed by com-
mon criminals who usually are poor and marginalized, while governments
have proved unable (or unwilling) to address crimes carried out with im-
punity by state agents and the elites (such as the violation of human rights,
political corruption, and white-collar crimes).
State violence is largely directed against the "dangerous classes" and
rarely affects the privileged sectors of society. Crime prevention policies,
especially those proposed during electoral campaigns, are concerned less
with crime control than with diminishing the fear and anxiety of the vot-
ers." Alternative approaches to punishment, intended to address the struc-
tural problems at the root of crime and violence, are seldom attempted.
On the contrary, in many cases the Latin American authorities, largely

37. Rodriguez and Uprimny, supra n. 20.

38. Paul Chevigny, The Populism of Fear: Politics of Crime in the Americas,
Punishment & Soc'y 77 (Jan. 2003).

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 DEMOCRACIES WITHOUT CITIZENSHIP 323

unaccountable to a political or judicial body," see the rule of law as an ob-

stacle to, rather than as a guarantee of, social control.4 0
Even though the new leftist governments of the region have attempted
to detach themselves from the criminal policies and discourse of their
right-wing predecessors, their actual policies and approaches are very sim-
ilar to those of their political opponents. This may be result partly from a
lack of original and feasible ideas coming from such governments, but also
from a fear of weakening their political stance if they look too soft on
crime, and from a fear of confronting the state security forces, which are
very powerful and many of whose members are still very attached to the
methods and ideas of authoritarian regimes.
Many members of the security forces are used to fight crime and exercise
social control in the same fashion as they fought political opposition under
previous dictatorships. In addition, they are seldom subjected to objective,
outside investigations and thus have come to believe that they are not ac-
countable to civilian courts or other civilian authority for their actions.
Paradoxically, on several occasions such practices have been committed
with the acquiescence of the majority of the population (not just the elites),
who live in a constant state of fear of what is perceived as a rise in crimi-
nality and social insecurity. This fosters the popular belief that the defeat of
a dangerous enemy (by whatever means available) will improve the general
standard of living. Hence, police or military authoritarianism is widely tol-
erated by considerable sectors of society, who regard it, at least, as a neces-
sary evil. The absence or precariousness of state institutions that may solve
community and individual conflicts, combined with the private forms of
justice-that fill such a vacuum, builds a vicious circle of violence and im-
punity that becomes part of an authoritarian legal and popular culture.4 2

A. The Impact of Late Modernity on Latin American

Crime Control Fields

The tendency to resort to penal measures to address social turmoil has increased
during the last two decades in Latin America as a result of the globalization
process, which has caused dramatic economic fluctuations and instability in

39. Mndez, supra n. 13, at zo.

40. Pinheiro, supra n. I, at 5-6.
41. Mndez, supra n. 13, at 22.
42. Pinheiro, supra n. I, at to; Mndez, supra n. i0, at 22.

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324 1 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 2 | SPRING 2010

countries that are incapable of controlling the rhythm and rules of the global
economy and its negative effects in terms of social and economic equality. As
a response to such instability, Latin American governments, both left and
right, tend to adopt emergency measures (in the economic, social, and crime
control fields) that are authoritarian, temporary shock remedies to complex
problems. Furthermore, these short-term measures weaken even more fragile
Latin American democracies, for important decisions are unilaterally taken
by the executive branch of government, thus excluding the pluralist debate
that ought to take place in the legislative branch.
Instead of strengthening the rule of law, neoliberalism has fuelled the
authoritarian character of most Latin American governments whenever
they seek to impose social order, mainly through the use of emergency
powers. But this is not a situation peculiar to Latin American countries; as
Agamben points out, the state of exception "tends increasingly to appear
as the dominant paradigm of government in contemporary politics."43
Globalization, together with the triumph of market capitalism and liberal
democracy as the prevailing economic and political models of late modernity,
have been deeply felt throughout the world. A world that changes at a vertig-
inous pace, and the sense of anxiety and fear that produces, has prompted a
social demand for safety that governments tend to interpret as a problem of
crime control." This tendency of governing through crime"5 has encouraged
the rise of conservatism, the so-called New Right in the Anglo-Saxon world,
which understands democracy as a combination of the free market economy
and a smaller state, 46 but nonetheless a stronger one in addressing social insta-
bility through crime control strategies.47 This has certainly been the case in the
United States, many European countries (headed by the United Kingdom),

43. Giorgio Agamben, State of Exception, 2 (zoos).

44. Zygmunt Bauman, Globalization: the Human Consequences, 117 (1998).
45. Jonathan Simon, Governing through Crime: How the War on Crime Transformed
American Democracy and Created a Culture of Fear (2007); Jonathan Simon, Governing
through Crime, in Legal Culture in the Age of Globalization: Latin America and Latin
Europe (Lawrence Friedman & George Fisher eds., 1997).
46. Andrew Gamble, The Free Economy and the Strong State: The Politics of
Tatcherism, 34 (1994)-
47. David Garland & Richard Sparks, Criminology, Social Theory and the Challenge
of Our Times, in Criminology and Social Theory, 16 (David Garland & Richard Sparks
eds., 2ooo).

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 DEMOCRACIES WITHOUT CITIZENSHIP 325

and in other parts of the world including most of Latin America, which is a
major recipient of the U.S. economic and political models.
Even though it would be inaccurate to talk about a global homoge-
nization of punishment, as Lacey notes," there is certainly a drift toward
penal convergence." This is the case particularly among countries with a
neoliberal political economy, with high income inequality and a strong
tendency toward social exclusion. 0 In such countries penal institutions
tend to be more punitive and exclusionary than in those countries that are
broadly egalitarian, spend a greater proportion of their GDP on welfare,
and have a very limited tendency toward social exclusion. In such coun-
tries, penal institutions tend to be more inclusionary and less punitive
than those of countries with a neoliberal political economy." (See Table 2.)
The ways in which many Latin American countries have adopted the
neoliberal model is crucial to explaining the current configuration of their
penal systems and their responses to crime. Chile, El Salvador, Mexico,
Colombia, and even Brazil are very good examples: they have adopted a
neoliberal political economy, have high levels of inequality, significant lev-
els of violence (with the exception of Chile), and high prison rates (see
Table 2). The economic and political reforms of the last three decades have
been coupled by significant processes of penal reforms, which were fi-
nanced to a large extent by the United States through USAID, and which
were accordingly influenced by the U.S. penal culture."
Latin America also features two important aspects that, similar to the
United States and other Western European countries, have marked the
punitive turn of late modernity: a significant increase in crime rates,
which have made crime a normal social fact," and of imprisonment rates.
(See Tables 3 and 4.)

48. Nicola Lacey, The Prisoners' Dilemma: Political Economy and Punishment in
Contemporary Democracies (zoo8).
49. Michael Cavadino & James Dignan, Penal Policy and Political Economy, 6
Criminology & Crim. Just. 435, at 438, 441 (Nov. 2oo6).
50. The United States (first and foremost), the United Kingdom, Australia, New
Zealand, and South Africa are archetypical cases; id. at 441. In Latin America, countries
like Colombia, M6xico, Pert, El Salvador, and even Chile and Brazil--despite the recent
rise to power of leftist governments-also fit this model.
51. Cavadino & Dignan, supra n. 49, at 441. David Downes & Kirstine Hansen,
Welfare and Punishment in Comparative Perspective 2, 21-23 (2005).
52. Rodriguez, supra n. 2o; Rodriguez & Uprimny, supra n. 20; Santos (zoos) supra n. 29.

53. David Garland, The Culture of Control, 90-93 (2001).

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326 1 NEW CRIMINAL LAW REVIEW | VOL. 13 | NO. 2 SPRING 2010

Table 2. Statistics on Gini index, imprisonment rates, and murder rates

(each per 100,000 population) in numerous countries
Gini index Imprisonment rate Murder rate
Country (year) (year), (1998-2000)'

United States 40.8 (2000) 750 (2006) 4.28

United Kingdom 36.0 (1999) 148 (2007) 1.40
Australia 35.2 (1994) 125 (2006) 1.50
South Africa 57.8 (2000) 335 (2007) 49.60
Russia 39.9 (2002) 628 (2007) 20.15
Germany 28.3 (2000) 93 (2006) 1.16
France 32.7 (1995) 85 (2006) 1.73
Italy 36.0 (2000) 67 (2006) 1.28
Spain 34.7 (2000) 147 (2007) 1.22
Portugal 38.5 (1997) 120 (2007) 2.33
Netherlands 30.9 (1999) 128 (2006) 1.11
Switzerland 33.7 (2000) 79 (2006) 0.92
Norway 25.8 (2000) 75 (2007) 1.06
Sweden 25.0 (2000) 79 (2006) 1.88 (2001 )d
Finland 26.9 (2000) 68 (2007) 2.83
Denmark 24.7 (1997) 67 (2007) 1.06
Japan 24.9 (1993) 61 (2006) 0.49
India 32.5 (2000) 30 (2004) 3.44
Colombia 58.6 (2003) 128 (2007) 61.78
Brazil 54.0 (2004) 219 (2007) 26.90 (2001)*
Mexico 47.3 (2006) 198 (2007) 13.02
Argentina 52.8 (2003) 163 (2005) 7.17
Chile 53.8 (2003) 262 (2007) 1.47
Peru 54.6 (2002) 139 (2007) 4.91 (2001)'
Venezuela 44.1 (2000) 74 (2005) 31.61
El Salvador 52.4 (2002) 205 (2007) 34.60 (2001)9
Bolivia 60.1 (2002) 82 (2006) 3.74 (2001)h

United Nations, Development Report 335-38 (2006).

'International Centre for Prison Studies, World Prison Brief (2007).
'United Nations Office on Drugs and Crime, The Seventh United Nations Survey on Crime Trends and
the Operations of Criminal Justice Systems (1998-2000), 13-15 (2004).
'United Nations Office on Drugs and Crime, The Eightth United Nations Survey on Crime Trends and the
Operations of Criminal Justice Systems (2001-2002), 28-29 (2005).
*United Nations Office on Drugs and Crime, Country Profile: Brazil 10 (2005).
'Supra n.d.
-Observatorio Centroamericano sobre Violencia, Tasas de Homicidios Dolosos en Centroambrica y
Republica Dominicana par 100,000 habitantes (1999-2007) (2007).
hSupra n.d.

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 DEMOCRACIES WITHOUT CITIZENSHIP 1 327

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 DEMOCRACIES WITHOUT CITIZENSHIP 329

Three relevant examples will be illustrative. According to the United

Nations Office for Drug Control and Crime Prevention, between 1989 and
1999, Latin America displayed the highest levels of victimization in the
world: more than 75 percent of people living in cities were victims of crime
at least once, compared to 73 percent in Africa and 6o percent in Western
Europe." Between 1980 and 1995, the region experienced a generalized in-
crease in the homicides rate (though with relevant differences among coun-
tries"), making it the most violent in the world in 1995, with an average rate
of 2o homicides per ioo,ooo inhabitants. 6 Finally, the Latin American rate
of imprisonment has increased 68 percent during the last decade. 7
Despite these similarities with the United States and Western Europe,
Latin American countries have their own historical trajectories and peculiar-
ities, marked by serious problems of governability, whereas the United States
and most Western European countries enjoy consolidated and relatively sta-
ble democracies. The other noteworthy difference between Latin American
and the global North is the extent of social inequality and exclusion. Despite
recent increases in social inequality and exclusion in many countries of the
global North, among them the United States and the United Kingdom," in

54. United Nations Office for Drug Control and Crime Prevention, Global Report on
Crime and Justice, z6, 64 4999)-
55.The regional average homicide rate is significantly affected by the extraordinarily
high rates of El Salvador and Colombia, which were facing bloody armed conflicts during
this period. Portes and Hoffman, supra n. 26, at 66.
56. Ibid.
57. Libardo Ariza, Reformando el infierno: prisi6n e intervenci6n judicial en
Latinoamirica (2007). The Latin American countries with the highest imprisonment rates
are: Cuba (about 531 inmates per ioo,ooo inhabitants in 2006); Panami (337), Chile (262),
Brazil (219), El Salvador (205), Mexico (198), Uruguay (193), and Costa Rica (187). Mid-
range imprisonment rates compared with the regional average are found in: Argentina
(163), Honduras (161), Peru (139), Colombia (128), Nicaragua (114), Paraguay (98), and
Ecuador (94). Low-range rates are found in: Bolivia (82), Venezuela (74), and Guatemala
(57). International Centre for Prison Studies, World Prison Brief (2007).
58. The United States and the United Kingdom show worrying levels of inequality and
social exclusion. Thus, in the United States i percent of the population owns one-third of
the wealth, and 95 percent of the increase of wealth in this country between 1979 and 1996
has benefited the wealthiest 5percent of the population. Jock Young, The Exclusive Society,
28 n. s (1999); Loic Wacquant, Las circeles de la miseria, 78 (2000). In the United
Kingdom income inequality also has increased notably-18 percent in the last two decades
(vs. 14 percent in the United States). Currently, the wealthiest i percent of the United
Kingdom's population own more than half of the wealth, whereas the wealthiest half of the
population owns 94 percent of the country's wealth. Reiner, supra n. 32, at 4.

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330 1 NEW CRIMINAL LAW REVIEW VOL. 13 1 NO. 2 1 SPRING 2010

Latin America these are extreme (see Table 2) and long-standing problems,
closely related to social disorder and violence."
Neoliberal reforms have not improved the situation, as they promised.
According to the World Bank, during the last fifteen years, poverty in
Latin America has decreased only 1.2 percent, while inequality rates, after
a slight improvement during the 196os and 1970s, increased during the
1980s and 199os.60 In Colombia, the very high inequality rates of the 1990s
were similar to those of 19386; the Gini coefficient has fluctuated between
0.54 in 1978, 0.58 in 2003, 0.53 in 2oo6, and 0.59 in 20o8.6 Thus, in terms
of social exclusion and inequality, the advent of late modernity has been
more traumatic in Latin America than in the global North, since the frag-
ile states of the region lack the social security nets of Western European
societies and the United States, which at some point have enjoyed the ben-
efits of the welfare state. In Latin America, collective social and economic
rights have been for the most part a political aspiration that, at best, has
been only partially fulfilled.
Also, in a similar way to many Western European countries and the
United States, the recent transformations made an impact on at least three
aspects of the Latin American crime control field: the increase in crime al-
ready mentioned, the inefficacy of criminal justice systems to tackle it, and
the governmental tendency to resort to punitive measures to confront so-
cial upheaval (evidenced by the considerable increase of the prison popu-
lation), which mainly affects the lower classes.' Hence, the socioeconomic
profile of Latin American inmates clearly shows predominantly young,
unemployed, uneducated men who lived in urban centers. This has led
some authors to claim that imprisonment in Latin America is an extreme

59. Portes & Hoffman, supra n. 26, at 68.

6o. Perry et. al., supra n. 2, at 21, 22.
61. Id. at 54.
62. Luis Carlos Ossa & Luis Jorge Garay (2002), Colombia: entre la exclusi6n y el de-
sarrollo: Propuestas para la transici6n al Estado Social de Derecho, xxiv (2002);
Departamento Nacional de Planeaci6n, Poliftica social: Estado comunitario: desarrollo para
todos, Resultados 2007, 6 (2007); Departamento Nacional de Planeaci6n y Departamento
Administrativo Nacional de Estadistica, Resuitados Fase i: empalme de las series de mer-
cado laboral, pobreza y desigualdad (2009).
63. Magali Sinchez, Insecurity and Violence as a New Power Relation in Latin America,
6o6 Annals of the American Academy of Political and Social Science 178-95 (July 2oo6).

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 DEMOCRACIES WITHOUT CITIZENSHIP 331

and habitual form of managing and controlling poverty, which in some

cases (Brazil is a case in point) has tones of racial segregation, for the black
population is disproportionally punished and incarcerated."
The neoliberal model has also influenced the penal paradigm that sus-
tains punishment institutions in Latin America. The tendency to punish
severely in order to impose order and guarantee free markets has been
based to a great extent on an economicist view of crime that increasingly
dominates official discourse.6 1 In a very similar way to the "criminologies
of everyday life" and of "the other"" of countries of the global North, the
economicist view of crime that prevails in Latin America dissociates it
from its economic and social causes, while focusing on its effects and the
culprits. The situational and preventive crime policies in Latin American
cities have come to center stage; examples of this are the increased control
of public spaces through more police, surveillance technologies, and the
active participation of the private sector, as well as zero-tolerance policies
against petty crimes and misdemeanors.
As for the offenders, the economicist view of crime does not see
them as people coming from marginalized social groups who are ex-
posed to violent forms of social and economic exclusion, but rather as ra-
tional individuals who act shrewdly and are motivated by greed, individuals
with no moral values who resort to crime to satisfy their ambitions
and desires.

64. Maria Jimdnez, La Circel en Latinoambrica en las tres iltimas ddcadas, Capitulo
Criminol6gico Z2 (1994); Rosa del Olmo, La funci6n de la pena y el Estado
Latinoamericano, in La experiencia del penitenciarismo contemporaneo: aportes y expec-
tativas, 67-80 (Comisi6n Nacional de Derechos Humanos 1995); The State of Prison and
Prisoners in Four Countries of the Andean Region, in Comparing Prison Systems: Toward
a Comparative and International Penology (Robert P. Weiss & Nigel South eds., 1998);
Loic Wacquant, Towards a Dictatorship over the Poor? Notes on the Penalization of
Poverty in Brazil, 5Punishment & Soc'y 197 (Apr. 2003).
65. Rodriguez & Uprimny, supra n. 2o, at 424. Regarding the Colombian case, these
authors have undertaken economic analyses of violence and criminality and offer clear ex-
amples of such vision: Armando Montenegro & Carlos Esteban Posada, Criminalidad en
Colombia, 25 Coyuntura Econ6mica (1995); Montenegro & Posada, La violencia en
Colombia (2001); Mauricio Rubio, Crimen e impunidad (1999); and Las cuentas de la vi-
olencia: Ensayos econ6micos sobre el conflicto y el crimen en Colombia (Fabio Sinchez
ed. 2007).
66. Garland, supra n. 53, at 127-37.

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CONCLUSION: LATIN AMERICA'S FUTURE

TRAJECTORY-DIFFICULTIES AND CHALLENGES

As has been shown, the main features of Latin American crime control fields
during late modernity are not simply the result of the political decisions and
the policies that elitist and authoritarian governments have adopted to control
an unruly population. They are also the outcome of complex social processes
that go back as far as colonial times, that continued after independence from
colonial powers, and that nowadays are increasingly interlinked with
the political and economic transformations that occur on a global level.
The modern project of "the incorporation of the population into full citi-
zenship" 67 has not been fulfilled, despite the elites' rhetorical commitment to
free markets as well as civil and political rights. As Young notes, referring to
TH. Marshall's essay "Citizenship and Social Class," full citizenship is not
simply about legal and political rights, but also about social rights: "a mini-
mum of employment, income, education, health and housing."' Political and
economic elites, having secured their social rights, are more concerned with
those individual rights (such as private property and free enterprise), which
may protect and advance their wealth, political influence, and social status.
The neoliberal political economy that predominates in the region, de-
spite the rise of leftist governments in many countries, has not improved
the situation. Quite the contrary: through a reformist discourse, it has
provided the elites new tools to secure a very restricted form of democracy.
Such a political regime is actually authoritarian and exclusionary, for it le-
gitimizes the excessive use of punishment and emergency powers to con-
trol social upheaval, which is treated mainly as a crime problem. In the
meantime, the social rights of significant sectors of the population, which
are excluded by market forces and criminalized by state penal institutions,
are left in the background of the political agenda.
The real challenge for the new wave of leftist governments in the region
consists in reversing this trend by bringing full citizenship to the whole of
the population and implementing criminal policies that, instead of ex-
cluding the most vulnerable and marginalized, address their security
needs, and not only those of the elites that have a craving for protection
from the "dangerous classes."

67. Young, supra n. 58, at 4.

68. Id.

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