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ABSTRACT
During and since the Pinochet dictatorship, Chile has entertained and implemented new criminal justice policies and practices. Many of these ideas originated in the United States, and are tied to neoliberal initiatives. Advocates of these new initiatives, both inside and outside Chile, equate them to panaceas, and solely and/or disproportionately emphasise the benefits that can be achieved by implementing these policies and practices, while neglecting their downsides, particularly the growing empirical evidence which calls into question some of these developments. This article documents Chile’s experience with the new neoliberal criminal justice initiatives that have been considered, where they have gained traction, which constituencies championed their merits, and which policies and practices were eventually chosen and implemented. This case study concludes with a series of hypotheses amenable for testing.
Acknowledgments
Special thanks to Jarrett Blaustein, Nathan Pino, Rachel Reynolds, and the anonymous reviewers of this journal for comments on an earlier version of this article.
Notes
1. Translated this means “To big cautions, greater ones”.
2. The identification and association of these kinds of policies and practices as neoliberal has been criticised by a handful of scholars (e.g., Lacey, Citation2013; O’Malley, Citation2016). It is not the intent of this paper to debate this issue, nor does a failure to engage with this perception detract from the overall mission of this particular research effort.
3. We have chosen not to formally define neoliberal criminal justice policies and practices because we believe that readers of this article should be familiar with the scholarship on neoliberal initiatives and because of the variety of policies and practices that have been subsumed by this definition (most of which we list). Again see, for example, Lacey (Citation2013) and O’Malley (Citation2016) for a discussion.
4. Readers should not assume that we are conflating the term “neoliberal” with “punitive,” as some of the policies and practices are focused on rehabilitation (e.g., drug courts) and/or decreased reliance on prisons (e.g., electronic monitoring), or better police accountability (e.g., police body cameras). Likewise, not all intiatives that are transferred are punitive even though this may be the end result.
5. See also, Fonseca (Citation2018) for an alternative explanation of changes in the Brazilian criminal justice system.
6. To be fair, in other articles that he published, and we cite, he goes into greater detail with respect to particular criminal justice agencies in one or more Latin American countries.
7. The revision of the constitution is now a more prominent public policy issue in the wake of the 2019 riots, but it has stalled because of the government’s handling of the COVID-19 pandemic.
8. Its administration was privatised during the dictatorship through a system designed by José Piñera (a Chilean economist and noted “Chicago Boy”).
9. Thus, this analysis sits at the crossroads of scholarly literature on comparative criminal justice, globalisation, and policy dissemination/diffusion.
10. There is a steady trickle of Chileans who have chosen to earn masters and doctorate graduate degrees in the field of Criminology/Criminal Justice in the US and the UK, and may have either studied with an expert or be exposed to their work. For an example of this process, with students from the Peoples Republic of China, see for example, (Ross & Dai, Citation2012).
11. Fundación Paz Ciudadana was started in 1992 by Agustín Edwards, a wealthy media owner. It was run by economists trained at the University of Chicago, as well as individuals who had expertise in propaganda, and received financing from the principal Chilean corporations at the time. “The FPC put crime at the center of the political agenda right after transition and promoted the municipalization of the police” (Hathazy, Citation2013b, p. 21). On the other hand, Libertad y Desarrollo was created in 1989, and they advised the Independent Democratic Union (UDI), a right-wing party, on crime control, as well as the “crime control policies of Joaquín Lavín” (Hathazy, Citation2013b, p. 21).
12. At the time of writing of this article, Piñera was in office for his second term, which will end on 11 March 2022.
13. Because of space limitations, this article does not discuss the detailed US historical precedents of each new neoliberal policy or practice. Also, although a Juvenile Justice Bill was passed in 2005 (Ley 20.084 de Responsabilidad Penal Adolescente) and was influenced by non-Chilean statutes, it responded to a need to implement better human rights standards regarding children and teenagers. This law was passed due to Chile’s international human rights commitments, specifically those of children and teenagers, after the country signed and ratified the Convention on the Rights of the Child. Also, there was an effort to make the whole criminal justice system more efficient in the context of the Reforma Procesal Penal that took place between 2000 and 2005 (Langer & Lilo, Citation2014).
14. The inquisitorial system is characterised by the decision being made by the judge based on an investigation conducted by him/herself, while the adversarial one is characterised by the judge’s decision being based on evidence presented by the public defenders and public prosecutors. These latter type of trials are public and oral.
15. This bill was signed by President Bachelet, the Minister of Justice Carlos Maldonado, the Minister of Domestic Affairs (Ministro del Interior) Edmundo Pérez Yoma, and the Minister of Finance (Ministro de Hacienda) Andrés Velasco.
16. It was approved by Law 20.502, which was passed on 21 February 2011, and later modified in 2014, 2015, and 2016.
17. A Harvard Law school graduate, former Ford Foundation fellow, and academic advisor to the human rights organisation Vicaría de la Solidaridad during the dictatorship.
18. As of 2020, the prison capacity declared by the Gendarmerie is of 40,376 people. This could be explained by a change in the calculation of the capacity.