This Article seeks to address important questions raised by pretrial detention and judicial reform in Latin America. It analyzes the potential impact of criminal procedure reforms on pretrial detention rates. It also discusses whether more general ‘rule of law‘ reforms promoted by international donor organizations like the World Bank can affect the abuses associated with prolonged pretrial detention--whether, in other words, the circle may be squared between economic development and human rights. In addition, this Article describes the adoption of central elements of an American-style adversarial system in Latin America and its prospects for influencing judicial reform. It argues that while human rights advocacy and formal criminal procedure reforms constitute an integral part of combating prolonged pretrial detention, they must be accompanied by meaningful structural reforms that promote the independence of the judiciary, the adaptation of reforms to each country's unique political, social, and cultural history, the establishment of effective provisions for pretrial release such as bail statutes, and the adoption of lending policies by donor organizations that encompass criminal as well as civil law reform. Part I describes the problem of prolonged pretrial detention and its link to other human rights abuses in Latin American prisons. It also describes the causes of extraordinarily high pretrial detention rates, including the absence of effective provisions for pretrial release and the slow, archaic procedures of civil law inquisitorial criminal justice systems. Part II outlines the international human rights norms governing the detention of accused persons. It also summarizes legal challenges to excessive pretrial detention in Latin America as well as in other regions. Part III discusses the criminal procedure reforms adopted in several Latin American countries. It focuses on how the reforms affect not only pretrial detention but also the country's criminal justice system as a whole. This Part then discusses the more general judicial reform policies of international donor organizations and their potential impact on human rights abuses like prolonged pretrial detention. Part IV describes several strategies for reducing pretrial detention in the future. It underscores the need to establish effective mechanisms for pretrial release such as bail statutes. It also discusses the need to alter the behavior of key actors in the criminal justice system, especially judges, prosecutors, and defense attorneys, and to adapt reforms to the particular political and social climate within the target countries. Finally, it underscores the role leading international donor organizations can play by linking ongoing judicial reform projects with human rights abuses like pretrial detention.
Jonathan L. Hafetz,
Pretrial Detention, Human Rights, and Judicial Reform in Latin America,
26 Fordham Int'l L.J. 1754
Available at: http://ir.lawnet.fordham.edu/ilj/vol26/iss6/7