Social control through more drastic criminal punishments (Critical analysis to the Bill of Citizen Security)

On December 22^nd of 2021, the Senate and the House of Representatives approved the Bill 266/21S, also known as the Citizen Security Act. The purpose of this Bill is "the strengthening of Citizen Security, through the inclusion of reforms to the Criminal Code and Criminal Procedure Code, the National Code of Security and Citizen Coexistence, the Extinction of domain Code, Regulation of weapons, less lethal elements and devices, sustainability of the National Registry of Ballistic Identification and other dispositions". 

It is surprising that our legislator in record time approved a Bill on citizen security with the sole purpose of creating a legal precedent to prevent acts of violence from happening again in mass protests. This is since the explanatory memorandum of the Bill states that it is necessary to implement measures that contribute to the security of citizens, with the purpose of avoiding the occurrence of serious violations to their rights as happened in the protests that took place throughout Colombia from April 28^th to June 30^th, 2021. These events were the result of serious and imminent alterations against security and citizen coexistence by targeted groups that camouflaged themselves in the peaceful protests, with the aim of attacking the Army and the Police, and in some cases, taking advantage of the situation to obtain their own benefit.  

Such protection to citizens is intended to be achieved by means of amendments to the existing articles of the Criminal Code and the Code of Criminal Procedure, among other laws. This, with the purpose of generating social control that avoids the commission of certain crimes by increasing penalties, adding aggravating factors to criminal conducts such as theft or damage to third parties property, among others, creating new figures such as privileged self-defense and creating new crimes in the Criminal Code. 

Thus, this Bill seeks an increase in the maximum prison sentence that may be imposed on a person who has been convicted of a crime, increasing it from 50 years to 60 years, except in cases of multiple charges. Likewise, there is an increase in the penalty for the crime of theft, which currently contemplates a prison sentence of 16 to 36 months when the amount does not exceed 10 Colombian minimum wages. Therefore, if this Project is implemented, the sentence contemplated for this type of crime would be from 32 to 48 months when the amount is less than four Colombian minimum wages, and if the amount is higher, the penalty to be imposed would be from 48 to 108 months of imprisonment. In relation to the crime of damage to property, a paragraph would be added to the aggravating factors, to impose a penalty of 48 to 144 months of imprisonment to punish the damage of infrastructure dedicated to "citizen security, the administration of justice, the mass public transportation system, military or police facilities". 

With the purpose of providing greater security and support to the authorities, it is intended to add aggravating circumstances to the crime of homicide, felony abortion, instigation to commit crime, among other crimes, when these conducts are carried out against public officials, as representatives of the State. This by understanding that when they are attacked the State is being directly injured.

On the other hand, this Bill intends to provide the citizen with a specific defense tool, which is why it creates the privileged legitimate defense, which is structured in those scenarios where a person intends to protect itself from the stranger that:

 "Using maneuvers that overcome barriers of property or by means of violence penetrates or remains arbitrarily in a private property or immediate dependencies, commercial property closed to the public or occupied vehicles. Lethal force may be exercised exceptionally to repel the aggression to one's own or another's right.

Paragraph. In cases of exercise of privileged self-defense, the assessment of the defense must apply a standard of proportionality in the element of rationality of the conduct.”

Consequently, there will be absence of criminal liability in those cases in which the judges consider that the element of proportionality is met when a stranger breaks into a home, commercial establishment or vehicle of another person overcoming the security barriers, using force or remaining in an arbitrary manner. In other words, the element of proportionality required in self-defense will be considered at the discretion of the judge. This puts at risk the parameters established by the Supreme Court of Justice in relation to the ex ante evaluation that judges must carry out in order to examine the specific context of each case, since the circumstances of each case are what determine whether the reaction was proportional or not. In this sense, it is possible that a judge no longer performs such contextual analysis but ends up ruling in a subjective manner in cases in which a privileged self-defense is alleged.

On the other hand, this Bill states that in those cases in which it is declared that the defendant is unable to be punished with prison due to socio-cultural diversity or due to culturally conditioned error that makes it impossible for him or her to understand that the criminal conduct is illegal, the Prosecutor in charge of the investigation will order the competent authority to implement educational measures. Meaning that, in cases where it is determined that there is no criminal liability because the person who committed the crime did not know that his conduct was unlawful because he belongs to another community, as is the case of indigenous people, pedagogical measures will be imposed. 

However, this rule clarifies that if after having received the pedagogical measures, this person continues to commit criminal conducts, the new actions will not be covered by the same grounds of absence of criminal liability. 

The fact that this Bill was made to increase penalties under the argument of guaranteeing citizen’s security, in the violent context that surged in social protests between April 28^th and June 30^th, 2021, shows that the National Government is ignoring the fact that the Constitutional Court in judgment T-762, December 16th of 2015 established the following:

“Criminal policy must have a preventive character. Use of the criminal law as last instance. Must respect the personal freedom principle, strictly and reinforced. It must seek as its main goal the effective re-socialization of the person found guilty.  Preventive detention measures must be exceptional. Must be consistent. Must be supported with empiric elements. Must be sustainable. Cost measuring in economics laws. Must protect prisoners’ human rights.” 

Considering the previous information, the criminal policy that should be implemented in Colombia must be oriented to create efficient strategies to prevent criminality scenarios or seek to enhance citizen’s life conditions so that they do not have to fall into criminal behaviors to improve their economic needs. Legislators must consider that the main goal of the penalty should be re-socialization, which is hardly achievable according to the overcrowding conditions of Colombian jails, circumstances that are not going to improve if penalties continue to increase as the level of overcrowding in the penitentiary system is increasing as well.

Different Colombian governments have adopted a populist speech that considers protecting the victims by punishing more severely the victimizer. What author David Garland says in his book “The Culture of Control: Crime and Social Order in Contemporary Society” that this is “a cero sum political game where what the criminal wins is what the victim losses” 1 Garland, D. (2001). La cultura del control: Crimen y orden social en la sociedad contemporánea. Pág. 46. Gedisa Editorial. . The author states that jail has been reinvented as a “disabling contention meant to contain criminals” 2 Ibídem. Pág 48. and therefore penalty re-socialization has received less importance and it turns to be almost mandatory to impose higher penalties over what would be considered as the just punishment 3 Ibídem. . 

Therefore, the Citizen’s Security Bill is an example of what is mentioned by Garland, where with no justification at all it is believed that the mean to protect people and prevent criminal behaviors is by increasing penalties. This does not consider that the origin of the criminal behaviors committed during the protests was mainly due to the social and economic circumstances that the country has faced for years. Moreover, conditions worsened with the pandemic caused by Covid-19, where the Colombian society real needs such as work and study opportunities were uncovered. 

This way of pushing people with aggressive laws, using legal penalties as a social control mechanism is the least appropriate in order to maintain a good coexistence within society. Raising legal penalties of criminal behaviors must be the last instance, since all possibilities the State has to persuade citizens must be exhausted. These alternative methods include means of communication, sensibilization campaigns, academic programs in schools and universities where students get to know their rights (protected by the Constitution) but also their boundaries (Criminal Law and Police Code) and they are also taught how to abide by law through educational ways and not repressive ones.

As it is mentioned in Fernando Velásquez book, “Manual de Derecho Penal”:

“In advanced industrialized societies, an increasingly marked trend can be spotted. It claims for a reduction in the specific function of law as a mechanism of social control. This results from two types of reasons: On one hand, in a parallel way to coactive controls such as law itself, persuasive mechanisms have been introduced (…) On the other hand, it is evident how law has been transformed into a preventive vehicle, instead of a repression instrument.” 4 Velásquez, F. (2004) Manual de Derecho Penal. Pág. 3. Editorial Temis.                                                                                                                        

Thus, before continuing to create new provisions, some of which, by the way, already exist in the Criminal Code, the Congress should have expanded the education budget, carrying out awareness  campaigns on criminal laws. This last part, as it was contradictorily stated for the cases where the defendant is not punishable with prison due to socio-cultural diversity, where the Prosecutors have the task of implementing educational measures for those who are covered under the figure of not culpable due to socio-cultural diversity or due to culturally conditioned error that impedes the defendant of knowing that his conduct is unlawful. In such cases, if the defendant continues to commit the conduct this protection will be lifted and they will be linked as any citizen who violates the Colombian criminal law.

Such educational measures should have been implemented for citizens from the first educational stages, to avoid issuing laws when the aggressions of citizens are real and imminent. In this way, the legislator intends to minimize and control the problem of insecurity that the country is experiencing by increasing penalties and creating new criminal offenses that turn out to be uneffective in guaranteeing the security of citizens, going against the National Criminal Policy Plan 2021-2025.

An example of this is the creation of privileged self-defense, which is unnecessary. This is due to the fact that this ground of justification can be alleged in any area and context as long as it is proven that the action was taken in defense of one's own or another's right in order to avoid an actual or imminent aggression and that this action is proportional in comparison with the attack. By virtue of the foregoing, it is unnecessary to limit self-defense to private spaces such as vehicles or commercial properties, since self-defense has always been possible in these contexts.

Now, the fact that the wording of the figure of privileged self-defense states textually that: "Lethal force may be used exceptionally to repel aggression against one's own or another's right", may result in a higher rate of violence since the aggressor may resort to more aggressive tools in order to prevent the victim from harming him. In this sense, the implementation of this figure turns out to be contrary to its objective since citizens would be exposed to a more violent scenario.

In conclusion, this Bill does not consider that part of the security problem that Colombia is going through is due to social and economic problems that the National Government has not solved and intends to solve by means of increasing penalties, creating crimes and criminal figures that the common citizen may not be aware of, and that may affect even more the security of Colombians. In addition, this Bill is an example of the populist discourse adopted in recent years, where they try to convince citizens that harming and removing criminals is the most effective solution to prevent crime, forgetting that the main objective of the penalty is the re-socialization that prevents recidivism by those who have committed crimes. 

Bibliography:

• Corte Constitucional. Sentencia T-762 del 16 de diciembre de 2015. M.P. Gloria Stella Ortíz Delgado.
• Corte Suprema de Justicia. Sala de Casación Penal. Sentencia del 7 de marzo de 2018. Radicación N° 50095. M.P. Luis Guillermo Salazar Otero.
• Garland, D. (2001). La cultura del control: Crimen y orden social en la sociedad contemporánea. Pág. 46. Gedisa Editorial.
• Velásquez, F. (2004) Manual de Derecho Penal. Pág. 3. Editorial Temis.