Photo: Milad Fakurian/Unsplash


In March of this year, the government of El Salvador, headed by President Nayib Bukele, declared a state of emergency after police recorded a total of 62 homicides in a single day. It marked the most violent day in 30 years for the Central American country, which has contended with criminal gangs for decades. El Salvador has since extended the state of emergency.

According to human rights groups, from March to August, there have been more than 50,000 people subjected to informal or preventive detention (jail without bail) in El Salvador, due to the state of emergency. The abuse of preventive detention, however, has already been prevalent throughout Latin America for the past several years, which prompted the Inter-American Commission on Human Rights (IACHR) to label it as “a chronic problem since 2017.”

Automatic preventive detention has been thrust into the spotlight in Mexico recently, after Supreme Court Justice Luis María Aguilar Morales authored a proposal in August to replace it with justified preventive detention, in which the Prosecutor’s Office has to produce evidence to justify keeping the accused in jail. However, on Monday, Sept. 5, four justices of Mexico’s Supreme Court voted to reject the proposal, which would have needed approval of eight of the court’s 11 judges.

Constitutionally, Mexico has a list of crimes in which, automatically, the presumed guilty can be held in pretrial detention.

Mexican President Andrés Manuel López Obrador is one of the staunchest defenders of pretrial detention, and has argued that it prevents the accused from continuing to commit crimes and guarantees that they are subjected to the rule of law. Critics allege that it is prone to abuse and unjustly imprisons the accused for years, without the benefit of a trial or being convicted of any crime.

A notable example of this is former Secretary of Social Development (Sedesol) and former Secretary of Agrarian and Urban Territorial Development (Sedatu) Rosario Robles Berlanga, who was recently released after more than three years of detainment without bail and, so far, without facing a trial.

“It is worrying and somewhat hypocritical for the president to say that this is a government that wants to defend the poor, when the reality is that this excessive use of preventive detention ends up generally harming the powerless and those without resources,” said Tamara Taraciuk, interim director for Washington-based Human Rights Watch.

Taraciuk, in an interview with Mexican daily newspaper El Universal, described what is happening in Mexico as “very worrying” because “almost half of the prison population is in preventive detention.” Official figures put the prison population in Mexico at 228,254.

Moreover, the current Mexican government used the practice against consistently against white-collar, nonviolent crimes, thus violating the concept of the preventive detention law that was designed to prevent violence criminals from doing further harm.

“The excessive use of preventive detention, not only in Mexico but in Latin America in general, contributes to prison overcrowding and poor conditions,” Taraciuk said. “It should not be automatic preventive detention. It must be justified why the deprivation of liberty of the person accused of a crime is necessary.”

From 1993 to 1995, there were 85,646 men and women in preventive detention in a total prison population of 239,857 in the Latin American countries of Brazil, Colombia, Costa Rica, Chile, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Panama, Peru and Uruguay, based on government and NGO data. The total number of people in preventive detention in Latin America, according to human rights groups, increased by 69 percent from 1998 to 2018.

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