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always contradicted by reality: imprisonment is imprisonment, despite any technical
distinctions.
XVI.
The state of prisons
64.
Despite the abundant literature regarding official deprivation of liberty, the most
disquieting matters that have persisted throughout the history, a long history, of this
means of prevention and punishment, are in plain view, with all their obvious problems.
That literature encompasses not only the accounts of prisoners and witnesses of
captivity, the studies of criminologists and specialists in penitentiary matters, and critical
interpretations, but also, most exuberantly, the explicit intentions in government
programs and projects, as well as abundant and detailed provisions: from constitutional
laws to circular letters, edicts, and regulations that announce one of the most often
proclaimed and least fulfilled endeavors: penitentiary reform. A reform that goes beyond
public statements and resolutions to enter, as it must and is expected to do, the prison
aisles, the corridors, the cells and the dungeons that still, despite everything, are a
widespread trait of the geography of prisons.
65.
Criminal and penitentiary congresses of the 19th century and the 20th century
efforts, including those sponsored by the United Nations, have led to multiplied
recommendations, statements, provisions, principles, and programs geared toward
improving the preventive or penitentiary internment system, for minors or for adults.
The First United Nations Congress on the Prevention of Crime and Treatment of
Offenders (Geneva, 1955) issued half a century ago a set of rules –which I mentioned
above- that have provided very useful guidance. They brought together the two trends
that were in vogue: a humanitarian one, derived from classical Law –the territory of
reformers-, and the therapeutic or finalist one, originating in the best ideas on social
defense, without sliding into the “dangerous dangerousness.”
Afterwards, other
documents have reaffirmed, in legal texts, the “standards” for management and
treatment of inmates: for example, the aforementioned set of principles of the United
Nations for the protection of all persons subject to any form of detention or
imprisonment, adopted on December 9, 1988, and the United Nations basic principles for
the treatment of inmates, adopted on December 14, 1990. If these are the standards,
which no one rejects –setting aside, of course, frontal challenges of criminal Law and
prison itself-, how has this been reflected in the reality of prisons?
66.
Prison is, ultimately –less than capital punishment, but that depends on the
circumstances under which each of them operates, specifically, on the dual level of
prevention and execution-, an extreme act of force by the State against a citizen,
legitimized by certain conditions that make it inevitable –rather than desirable or
commendable- and that, at the same time, strictly define its borders. Therefore,
precautionary or penal measures that entail deprivation of liberty must be rigorously
based on the requirements of lawfulness, necessity, and proportionality. This must apply
throughout the prosecutional function of the State: from criminal commination
(substantive Law, preventive establishment of punishability) and concrete procedural
matters (procedural law, ordering of precautionary measures) to execution of
punishment (executory law, final judicial adjustment of the legal consequences ordered
in the judgment of conviction or in the condemnatory section of a judgment that
encompasses the declaratory ruling and conviction).
67.
A deprivation of liberty is unacceptable if it is not set forth specifically in the law –
understood as the Court has in Advisory Opinion OC-6/86, of May 9, 1986, regarding the
term ‘laws’ in Article 30 of the American Convention on Human Rights-, if it is not truly
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