Women deprived of liberty and excessive use of pre-trial detention in Peru

In this blog, Jérôme Mangelinckx considers the drivers and implications of the growing female prison population in Peru, examining the overuse of detention for those awaiting trial, and how to move towards greater use of non-custodial alternatives to detention. 

2020 marked the tenth anniversary of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). There are over 740,000 women and girls in prison worldwide, and although they are a minority compared to the number of men in prison (2 to 9% of national prison populations), their number increases every year, more often at a higher rate.

Drug policies in Latin America have resulted in increasingly harsh penal responses to drug-related offences and have disproportionately affected women. These policies provide very little space to explore non-custodial alternatives and reduce the number of women in prisons, bearing in mind that women are often single mothers who are the primary carers for their children and families.

Unfortunately, Peru is no exception to this trend. In the current context of the so-called War on Drugs there is an increasing need to prioritise the use of non-custodial measures for women who become involved with the criminal justice system. Indeed, women detained for drug-related offences in Peru – almost six out of ten – are all too often in a situation of increased vulnerability or socioeconomic precariousness. Still, they usually are minor actors in the drug trade, especially cocaine trafficking in Peru (and Latin America at large), who bear the full brunt of the law. In addition, like many countries, Peru’s burdened prison system was built to accommodate a male population and takes little account of the specific needs of women – from harsh security measures to scarce work and education programmes, family and conjugal visits and differentiated health-care services.

The enforcement of custodial measures must be based on fundamental human rights principles contributing to the resocialisation and rehabilitation of offenders. It is therefore essential that people who have been detained do not leave prison in a state of increased precariousness, resulting in further desocialisation. The same applies to pre-trial detention which – let us not forget – should be the exception and not the rule (unfortunately this happens all too often in Peru). There is an urgent need to promote the use of non-custodial measures, especially in the case of women who are first-time offenders, accused or convicted of non-violent crimes and who do not necessarily pose a risk to society, who are pregnant, breastfeeding or are the primary carers of their children and families (especially the elderly), as required by the UN Bangkok Rules.

The prison situation in Peru

According to data from Peru’s National Penitentiary Institute (INPE), as of December 2020, there were 86,955 people incarcerated (82,627 men and 4,328 women). One third of them are in pre-trial detention, i.e. they are not serving sentences and are presumed innocent while waiting for court dates, often for several years, due to the overloading of the courts and an administrative system that still struggles to adapt to new information and communication technologies.

Table 1: Evolution of the Number of Men and Women in Pre-trial Detention or Sentenced (December 2018 – December 2020)Source: Developed by the author based on INPE (2021)

Whereas the number of men in pre-trial detention has decreased over the last three years (from 39% in December 2018 to 33% in December 2020), the number of women in pre-trial detention has remained quite stable at around 40%. In addition, 2% of women are imprisoned with their children until they reach the age of three. As of December 2020, there were 84 mothers and 84 children in prison (39 boys and 45 girls).

Table 2: Number of Mothers and Children in Prison (December 2020)Source: Developed by the author based on INPE (2020)

In addition, it should be recalled that as of December 2020 the number of people incarcerated in Peru reached 86,955, with a capacity of 40,827, which means that the Peruvian penitentiary system is under immense strain not only due to high levels of overcrowding, but also due to a limited access to basic sanitary facilities and quality medical care, thus exacerbating tensions as was the case during the COVID-19 pandemic, resulting in protests and unrest, many injured, and some fatally.

Finally, the budget for the Peruvian penitentiary system in 2020 was PEN 840,275,412 (that is, €190,949,390.80). If we divide the total budget by the number of people incarcerated (86,955) per 365 days, we can see that the budget per person per day is incredibly low at PEN 26.47 (€5.99) for housing, security, health care, water, sanitation, food, work, education, etc.

Table 3: Prison Overcrowding and Prison Population Inflation (December 2020)Source: Developed by the author based on INPE (2021)

According to official data, one in five people (18.1%) in pre-trial detention or sentenced are imprisoned for drug-related offences. However, the indicators show a notable gender disparity with regard to these specific offences. Indeed, 16.2% of men are imprisoned for drug-related offences compared to 53.2% of women. According to the policy working paper on women and drugs in the Americas developed by Inter-American Commission of Women (2014), the number of women involved in the drug trade in Peru has increased over the years and has resulted in more women in pre-trial or sentenced for drug-related offences. This is largely due to a lack of access to education, poverty and social exclusion. Women tend to play minor parts in the drug trade, whether it be as mules, intermediaries in the purchase and sale of drugs, or small dealers.

Women in pre-trial detention in Peru: Towards a new approach

It is worrying that one in two women is imprisoned for drug-related offences in Peru. It should be remembered that their incarceration often has a profound impact on their families and communities. In addition to precarious living conditions and isolation, women generally face the difficulties of poverty and constant social stigmatisation – much greater than that suffered by men who have been incarcerated – due to their traditional role as mothers who are the primary carers for children. Prison therefore amounts to a double or triple punishment for these women who are at risk of losing their rights and being rejected by society, thus making their reintegration more difficult, if not impossible. It is therefore necessary to break this vicious circle of vulnerability and social exclusion.

Let us start at the beginning. How can the use of pre-trial detention under the Peruvian of Criminal Procedure Code (Articles 143 and 286 to 290) be rationalised? Is it possible to apply alternative non-custodial measures – especially in the case of women in pre-trial detention who are pregnant, breastfeeding or are the primary carers of their children and families?

It should be remembered that pre-trial detention is a legal concept of a provisional nature and of limited duration (it is in no way an anticipatory sentence, although in practice often serves as one). The state has an obligation to prosecute offences pursuant to its criminal code in order to protect the freedoms of its citizens, which is why the right to freedom of the defendant may be restricted in some cases. Pre-trial detention seeks to ensure the due course of the criminal proceedings, to bring the defendant to trial, and to guarantee the proper collection and processing of evidence (thus preventing any obstruction of justice, evidence tampering or bribery).

However, the UN Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) encourage States to consider and implement new non-custodial measures (Rule 2.4) and to consider pre-trial detention as a measure of last resort (Rule 6). Similarly, the UN Bangkok Rules call on States to implement non-custodial measures and to treat women fairly in the criminal justice system – that is, taking into account their background and the reasons for committing an offence (Rule 57-58). In addition, it should be mentioned that pursuant to Article X of Peru’s Criminal Execution Code, the prison system welcomes the provisions, conclusions and recommendations of the United Nations on crime prevention and the treatment of offenders.

However, in practice, pre-trial detention often has an impact that goes beyond the personal circumstances of the defendant. This is especially the case for women who are pregnant, breastfeeding or the primary carers for children. Most are also single mothers (nearly eight out of ten women) and one can therefore assume that they are for the most part the sole breadwinners of their families, which means that their detention or imprisonment may accentuate the feeling of abandonment of their children.

In accordance with article 268 of the new Peruvian Code of Criminal Procedure a series of criteria must be met in order to justify the use of pre-trial detention:

• The existence of evidence of guilt;
• The offence entails liability to a sentence of at least four years; and
• The defendant, because of their background or other circumstances, will try to evade justice or obstruct the investigation.

It should also be recalled that pursuant to the Peruvian legal system the above-mentioned criteria must be met concomitantly. In other words, if there is not enough evidence of guilt, the judge must automatically apply a non-custodial measure.

In addition, Administrative Resolution 325-2011-P-PJ stipulates that judges may incorporate in their analysis other criteria to justify or advise against the application of pre-trial detention. In this sense, judges may take into account, for example, gender differences before justifying harsh and lengthy custodial measures such as pre-trial detention. Other criteria may include:

• Being pregnant, breastfeeding or being the primary carer for children;
• A high likelihood of social exclusion (lack of access to education, work, health care);
• A high likelihood of having suffered sexual abuse or other forms of violence;
• The reasons (often socio-economic) that have led to the commission of an offence (as is often the case of drug-related offences);
• The impact of pre-trial detention on their children (inside and outside prison walls); and/or
• The current state of the Peruvian prison system.

Pre-trial detention is a preventive measure of exceptional nature that can only be applied as a last resort (ultima ratio), in a rigorous manner, and based on the principles of reasonableness, necessity and proportionality and, above all, in accordance with the best interests of the child, as entrenched in Peru’s Political Constitution and several other instruments of international law. However, given the highly burdened prison systems, the endless War on Drugs and the rise of punitive populism in Latin America and Peru in particular, there is still a long way to go.