01/03/2023

The Prisons of El Salvador: A Challenge for Latin America

El Salvador represents a major challenge to Latin American democracies and constitutionalism: fighting insecurity with draconian policies that are nowhere near representative of a legitimate rule of law. However, the results to date in terms of crime have been impressive. To put it in simple terms: El Salvador managed to cut crime substantially despite violating the spirit of the rule of law.

This small Central American country with a population of six and a half million has imprisoned 65,000 young people since March 2022, most of whom belong to the country's gangs. These detainees are in addition to the 40,000 prisoners already held in the country's penitentiaries. In total, the 105,000 inmates are predominantly young males under the age of 35. Not only does El Salvador have the highest incarceration rate in the world (over 1500 detainees per 100,000 inhabitants), but also 1 in 10 males between the ages of 16 and 35 is now behind bars

Simultaneously, the homicide rate has plummeted. While in 2018 El Salvador had one of the highest homicide rates in the region (51 homicides per 100,000 inhabitants), in 2022 it recorded an official rate of 7.8 per 100,000 inhabitants, slightly higher than that of Argentina and Chile, but lower than that of Uruguay and Costa Rica. This phenomenal fall is due to the mass incarceration of "mareros", which also led to a drastic reduction in other crimes such as extortion, which is rampant in the country.

To address this level of incarceration, one of the largest prisons on the planet was built with a capacity of 40,000 people. Photographs and videos in the media and social networks show young people shackled and grouped together bare-chested. The aim of the authorities is perhaps to expose discipline and the tattoos that identify these prisoners as members of one of the groups. Nevertheless, little is known about how such large prisons are managed and whether they will be able to steer clear of corruption and criminality over time. I am not aware of any prison that holds tens of thousands of inmates. The largest prisons in Latin America (Reclusorio Norte and Reclusorio Este in Mexico City) have more than 12,000 inmates and are very difficult to operate, with pockets of criminality by prison gangs. The coin has been flipped.

This unprecedented rate of incarceration in the region has several implications: the first one is the cost for a small country such as El Salvador to provide for such a large number of prisoners. Although official data is not available, assuming a minimum cost per prisoner of 5,000 dollars a year (including prison staff salaries and prisoner living expenses), the country will need at least 525 million dollars a year, that is, almost 2.5% of its GDP to fund it, an enormous and perhaps unsustainable figure over time. In all likelihood, families will end up supporting their loved ones in prison, thus causing a host of future problems (including crimes outside the prison, illicit trading within the prison, and corruption of prison staff, among others).

Another key factor is that the overwhelming majority of those imprisoned not only lack convictions but also formal indictments for the commission of specific crimes. This exceptional regime allows the authorities to detain and prosecute people with dubious evidence and without clear guarantees of due process. In short, it is unknown how many of those detained actually committed crimes, and which ones warrant imprisonment. Furthermore, it is also unclear how so many cases will be prosecuted within an appallingly weak criminal justice system. In summary, young people with tattoos who inhabit the country's slums have been imprisoned indiscriminately, probably by arresting them without a clear roadmap. The only goal appears to be to lock them up.

Another noteworthy development is the expansion of these highly repressive measures. The remarkable success in reducing criminal activity in El Salvador is beginning to be observed favourably in the region.  Several politicians seeking to win elections are proposing tough measures to reduce crime along the lines of the Central American country. Nonetheless, it is almost impossible in South American countries for such a violation of rights to take place. Likewise, the easy identification of "mareros" through their tattoos is not applicable as a method of identifying "'potential suspects" in other countries. These and other factors make it almost impossible to replicate the mass imprisonment that is taking place in El Salvador

Another important variable to monitor will be the response of neighbouring countries, especially the US, to such repressive measures. Aside from some formal complaints questioning the violation of rights, the reaction of its northern neighbour, which has clear interests in El Salvador, will have to be closely scrutinised: the US has a vested interest in reducing crime and violence in these countries in order to curtail the relentless flow of illegal migrants from Central America. It remains to be seen whether this concern will lead US politicians to "tolerate" the violation of rights in the pursuit of self-interest.

The most important question to be asked is how Nayib Bukele managed to implement this policy. The simple answer is the huge popular support he is receiving. Today the Salvadoran president enjoys more than 80% of approval, the highest for any Latin American politician. His re-election is practically guaranteed and so are future constitutional reforms to remain in power. It suffices to go through social networks to see the enthusiasm of Salvadorans in support of this policy. There is a sort of feeling of indiscriminate vengeance towards young people from marginalised neighbourhoods and gang members, where other ethnic and class factors surely play a role. Undoubtedly, the overwhelming majority of El Salvador's inhabitants have no problem with the violation of safeguards and rights in order to reduce insecurity.

The dilemma of how to break away from the regime of exception has not yet been seriously debated. Perhaps Salvadorans seek to perpetuate such a regime, undermining the foundations of a democratic republic based on the rule of law. Or perhaps the country will eventually be pacified and this massive incarceration will not leave any major repercussions. However, the latter seems unlikely, especially in a country that has experienced civil wars and high levels of violence. The question we must ask ourselves is whether we are facing the end of a road where the state controls criminality, or whether this large-scale imprisonment is sowing the seeds of a backlash in 5- or 10-years’ time. Is this incarceration sustainable over time or will social policies be developed to pacify the country when the "mareros" eventually return to their communities?.

The logical conclusion is that high criminality is corrosive. El Salvador and several other countries in the region have experienced severe problems of insecurity for years, with widespread murders, kidnappings and extortion. These high-crime scenarios, where traditional means of deterrence fail against criminal threats, are also extremely hazardous to the health of the republic. In the long run, they tend to create recurrent cycles of high levels of crime that are very difficult to address.  The most appropriate solution is to prevent such high-crime balances from becoming stable, as it is very difficult to recover from them.

The lesson for Latin America is that vast segments of society cannot withstand very high crime rates, and that in extreme cases a significant proportion of the frustrated population is willing to forego the rule of law if violence is rampant. The logical conclusion for democrats in the region, both from the left and the right, is that high rates of impunity and the development of high crime environments can undermine the foundations of the rule of law.

Marcelo Bergman is the Director of the Centre for Latin American Studies on Insecurity and Violence at the Universidad Nacional de Tres de Febrero.