“Please tell Americans that many of us in prison are here only because we are poor. If the United States wants to stop drug trafficking, they should start by helping Bolivia confront its poverty, not by enacting unfair laws like Law 1008.”
–Prisoner in San Sebastian Men’s Prison in Cochabamba, Bolivia.
History of Law 1008
In Bolivia, the third poorest country in the Western Hemisphere, most citizens wage a daily struggle to survive. That struggle is even worse for Bolivia’s prison population. Often considered inferior citizens, prisoners are subject to substandard lives in the best economies; in Bolivia’s unforgiving financial crisis, their plight is bleak. Overcrowding caused by a U.S. sponsored and imposed anti-drug law, Law 1008, exacerbates already severe prison conditions. The harsh terms of this law account for approximately 41% of Bolivia’ total prison population. (Los Tiempos, March 10, 2004). Dr. Eloy Avendaño, Director of the Prison System for the department of Cochabamba, which includes the coca-growing Chapare tropics, estimates that 65% of the approximately one thousand prisoners there are incarcerated under Law 1008.
The Bolivian congress passed Law 1008 on July 19, 1988 under strong pressure from the U.S. government. The law defined the legal status of coca cultivation and its relationship to cocaine, and enacted a system of harsh penalties for drug trafficking offenses. The law made illegal, with the exception of expressly permitted circumstances, the cultivation of the coca leaf, a traditional herb used in Bolivian society for centuries. The law also characterized narcotrafficking as a “crime against humanity,” and criminalized a wide range of drug-related activities, including manufacturing, distribution and sale. Under the original terms of the law, Bolivians charged with drug offenses – no matter how minor – were imprisoned without the possibility of pre-trial release. If acquitted, they remained in prison until the Supreme Court reviewed the trial court’s decision — a process that took years. The law presumed the guilt of the accused; did not allow the accused to fully exercise their right to legal defense; prohibited bail or provisional liberty; and established an excessively long judicial process. Some of the rigid terms of Law 1008 were in direct conflict with rights guaranteed in the Bolivian Constitution.
As a result of Law 1008, Bolivia’s prison population soared. In 1992 the population was as high as 8,500, and 92% were imprisoned without a sentence. (Los Tiempos, March 10, 2004). By way of illustration, in 1987 eight men entered San Sebastian as opposed to 175 in 1994. (Children of Law 1008, Andean Information Network, p. 1). Bolivia’s jails were inadequate to deal with the rapid increase in prison population, and overcrowding was so severe that many prisoners slept in open patios. The harsh terms of Law 1008 prompted national and international outcry. The Bolivian legislature responded in 1996 by passing the Law of Judicial Bond. This law helped to mitigate some of the more Draconian effects of Law 1008 by allowing for provisional liberty in many cases, eliminating the requirement of mandatory appeals, and authorizing increased judicial discretion.
The severe consequences of Law 1008 were further alleviated in 1999 when the Bolivian legislature passed the Criminal Procedure Code which made substantial procedural changes in the criminal justice system by providing for the use of oral hearings before citizen juries, mandating procedural time limits, and eliminating the use of special courts imposed by Law 1008. In theory, the Criminal Procedure Code also reinstates constitutional rights denied under Law 1008.
Pre-existing Prison Conditions Worsened by Continued Overcrowding
Officials and prisoner advocates agree that the Law of Judicial Bond and the Criminal Procedure Code mitigated Law 1008 and helped reduce the prison population. A prison census released in March of 2004 confirms a reduced population: at the time of the census, the prison population in Bolivia was at 6,768; 5,947 male and 821 female. Even so, the census revealed that Law 1008 accounts for 40.70% of the current prison population. And, of the total prison population, 77.08% are being held without a conviction/sentence. (Los Tiempos, March 4, 2004).
In practice, therefore, the overreaching effects of Law 1008 are the cause of continued overcrowding, as the terms of the law restrict personal liberties by keeping some prisoners incarcerated longer, frequently without formal convictions or sentences. San Pedro Prison in La Paz was built 130 years ago to hold 250 prisoners; currently the prison population is over one thousand. The focus of this report, San Sebastian Men’s Prison, was constructed in the city of Cochabamba at the turn of the century to hold 60 prisoners. Before Law 1008 the prison was rarely at full capacity. Currently, approximately 250 men are incarcerated there. Of that number, the prison governor estimates that 90% are incarcerated for alleged violations of Law 1008.
The substantial overcrowding is intensified by the utter lack of government funding for Bolivia’s prisons. Dr. Avendaño confirmed that the Prison System, responsible for overseeing Bolivia’s prisons, lacks adequate resources to provide even basic necessities to prisoners. He pointed out that, pursuant to Law 1008, a percentage of the value derived from goods confiscated during a drug-related arrest is to be routed to the Prison System to provide resources for the prison system. He decried the fact that, to date, the department has not received one cent for use in the prisons. In fact, the lack of resources is abysmal. Only 300 police officers are available to staff Bolivia’s entire prison population of almost 7,000. Dr. Avendaño earns a monthly salary of only $250 US. From that amount, he is expected to pay for his own transportation to visit the various prisons in the department. His sparsely furnished office has no telephone or fax machine, and there is only one computer in the office which he brought from his home, and which he jokingly claims “was one of the first computers invented.” He readily admits that this lack of resources is more pronounced within the prisons themselves, and results in appalling conditions. Dr. Avendaño expressed anger that he is responsible for the welfare of the prisoners, yet must witness conditions “that would make you cry.” Pointing to a manual on his desk, he explained that it contained the mandates of the basic goods to be provided to prisoners and declared, “I should be giving the prisoners things like cots, mattresses, blankets and soap, but I can’t give them anything.”
Inside the prison walls, the harsh reality of Bolivia’s prisons is obvious. At San Sebastian’s Men’s Prison, the shift between the outer doors of the facility and the entryway into the prison itself is dramatic. On the outside are various police officers requiring any visitors to leave behind identification, inside it appears to be the sole domain of the prisoners. There are no restrictions on visitation as long as identification is provided. Visitors must pay an entry fee of two pesos to the “prisoner in charge” once inside the door. That money is used to buy common supplies such as light bulbs and toilet paper. As you enter, the visitor tells an inmate, the “caller,” the purpose of the visit, and he announces the name on the intercom system. Several prisoners mill at the front door, immediately beyond them is a small patio where there is constantly a game of “fulbolito,” a version of soccer for small spaces, going on. On the outer perimeter of the patio are small stores run by the more financially stable prisoners. There are also small kitchens and tables where food is prepared by the prisoners for sale to others. Several workshops are also located in the outer area. On the second level, surrounding the patio, are original cells, a library, a meeting room and additional work areas. Behind the original construction on both levels is a maze of cells in what used to be open areas. Doors are often nothing more than remnants of cardboard boxes; cells are small and prisoners must often climb crude wooden ladders and crawl into their cells. Spaces built on the upper levels are layered into the original structure; the only ventilation is where pieces of corrugated roofing have been raised slightly to allow for light and air. In those open spaces, and on available railings, prisoners’ washed clothing hangs to dry.
And as distinctive as this scenario is to the foreign visitor, it is not what immediately captures the attention: that is accomplished by the presence of the numerous wives and children roaming about, most of whom live in the prison with their husbands/fathers. Children have always lived in the prisons with their parents in Bolivia. Research demonstrates that this situation exists because of the strong sense of family within Bolivian society; the lack of financial resources to the average prisoner to provide for family living outside of the prison; and the lack of formal prohibitions in most Bolivian prisons against families living with inmates. (Children of Law 1008, Andean Information Network, p. 5). Wives leave during the day to work; children go off to school. For those that are not school age, nongovernmental organizations have established daycare centers and volunteers arrive early in the mornings to escort the children there. Both prisoners and officials acknowledge that families sharing jail life is not an optimum situation; at the same time families, particularly children, add a distinctive human element to prison life that takes the edge off an otherwise harsh environment. Equally important, the Bolivian state does not provide for the welfare of its impoverished majority. In many situations, if families did not reside in the prisons, they would be on the street, an even more dangerous proposition for children.
The other unique component of Bolivia’s prison system is how the system’s lack of funds has created an admirable level of resourcefulness among the prisoners themselves. Despite appalling conditions, there is a conspicuous level of gentility and cooperation. Most prisons barely have the personnel to guard the prison exterior; internal administration, security, and discipline are managed by the prisoners themselves. Basic goods are not provided by the prison system. Inmates must buy or rent cells from other prisoners and purchase furnishings and toiletries. The only thing the government provides is a daily stipend known as a “prediario” of three bolivianos (roughly the equivalent of 0.35 U.S.) to be used to purchase food. Payment of this minimal amount is generally several months in arrears. The state is responsible for water and electricity, but payments from La Paz lag behind, and services to the prisons are often cut for days. Minimally necessary medical assistance is provided by the state. Almost anything else required by the prisoners is financed by the prisoners themselves or with the assistance of nongovernmental organizations, or “NGOs”.
In most Bolivian jails, prisoners have developed a highly organized system of representation to manage economic and administrative matters. At San Sebastian, a 14-member council exists, and delegates, elected through a secret ballot process, represent labor guilds or units responsible for things such as hygiene, discipline and education. The president of the counsel and three separate delegates form a governing committee with the “prison governor,” or police official responsible for that particular facility. Because prisoners must find ways to support themselves, several trade shops exist. Products include jewelry, furniture, decorative pillows, wooden children’s toys and traditional crafts. These products are sold at a plaza across the street from the prison, through NGOs, and directly to customers who come to the prison. Inmates and NGOS provide all tools, equipment, and maintenance. Delegates are responsible for controlling and managing income. Working together with NGOs, delegates also provide educational programs to prisoners in topics ranging from literacy to music to computer skills.
Other delegates are responsible keeping the prison relatively clean and safe. Dr. Avendaño pointed out that the prisoners frequently advise officials what steps need to be taken to make the physical environment more secure. If there are severe disciplinary problems with a particular prisoner, the governing committee delegates report this to the prison governor, with recommendations for appropriate measures, including solitary confinement. For minor infractions, the delegates may impose punishment in the form of additional or undesirable labor. According to prisoners, most of the inmates at San Sebastian Men’s Prison incarcerated under Law 1008, are there for transporting small amounts of coca paste or for working in coca maceration pits; this percentage of the prison population does not have a history of violence. Prisoners claim that, as a result, discipline and violence are rare.
Poor Conditions Compounded by Judicial Delay and Corruption
In interviews with numerous prisoners, the obvious complaint is the lack of state resources and resulting prison conditions. For prisoners held under Law 1008, the more urgent protests relate to injustices under the law and corresponding judicial delays. Indigent prisoners are entitled to Public Defenders, but those attorneys have few resources, little experience and too many clients to work effectively. For poorer prisoners, the absence of counsel translates into the lack of an advocate to search out necessary documentation. Prisoners from remote areas lacking proper identification or birth certificates are most likely to languish in prison for long periods of time. As existing requirements for provisional release make the situation particularly difficult for prisoners with fewer resources and no families to assist them, prisoners from impoverished rural coca-growing areas are more profoundly affected. More often than not, family members must gather information for the prisoner; those prisoners with no financial resources who have no families or whose families do not live nearby are at risk of becoming “lost within the prison system” according to Juan Carlos Pinto, a former prisoner who now works with the Catholic Church Prison Ministry in La Paz.
Most independent observers and prison advocates agree that, in addition to understaffing and delay, the Bolivian justice system is plagued by corruption. Juan Carlos Pinto explains that the process allows for a certain “room for negotiation” between prisoners, judges, and prosecutors. In many situations this means that those with money are less likely to be incarcerated pending formal trial and sentence. Wealthier suspects, arrested for more severe offenses, often obtain provisional releases with little problem. Corruption extends to prison guards who turn a blind eye to prostitution and other illicit activity within prison walls.
Remarkably, despite the lack of resources, judicial delay, and corruption, Bolivia has a re-offender rate of 22%. Other countries in Latin America have recidivist rates as high as 75%. (La Razon, February 8, 2004). When asked the reasons for this low recidivist rate, Juan Carlos Pinto speculates it may be due to the influence of families in the prisons in combination with the evolution of a unique social structure that requires prisoners to take care of each other. Regardless of the reason, it is obvious that the government has ignored its obligations to meet prisoners’ basic needs and for rehabilitation. Most prisons serve merely as holding tanks while the majority waits for a belated version of due process, requiring prisoners to formulate a daily survival strategy.
Prisoners and prison advocates argue that, in most arrests for violations of Law 1008, the underlying crime is actually one of poverty leading individuals to engage in isolated criminal activity; a more reasonable approach to prevent drug-related offenses in coca-growing areas would provide a means of subsistence for that area’s impoverished population. Instead, Law 1008, drafted by and enacted under pressure from U.S. officials, focuses on arrests and detentions as signposts of success in the War Against Drugs; this success translates into increased U.S. aid. Such a policy is an inducement for arbitrary arrests rather than an effective tool against drug use and addiction within the U.S. Equally important, the law wholly ignores the reality of Bolivia’s crumbling prison system.