The recent transfer from prison to house arrest of hundreds of people allegedly at high risk of complications from Covid-19 has sparked a heated debate about whether the pandemic should lead to detainee releases and, if so, who should be freed and how.
The unsanitary, overcrowded prisons in Argentina, as in most of Latin America, offer prime conditions for Covid-19 outbreaks. Social distancing and handwashing are difficult or impossible and Covid-19 could spread quickly and infect staff, contractors, visitors, lawyers, and imprisoned people who are later released and then might carry the disease back to their communities. At least one detainee and three prison staff members are confirmed to have Covid-19 in Argentina. The last thing that Argentine society wants is for prisons to become epicenters of Covid-19.
Moreover, Argentina has a heightened duty of care to the people in its custody, and the obligation to protect the health of Argentines. Where adequate social distancing and care is not feasible due to overcrowding or other conditions, releasing people is a reasonable and possibly necessary step to protect their lives and health, as well as the lives and health of people outside prisons.
Releasing prisoners to avoid an outbreak does not mean pardoning. Such releases can be—as in Argentina—a temporary measure to address a public health emergency. They can also be conditional involving house arrest or monitoring measures such as electronic anklets. Ideally, the executive should accompany these judicial decisions with public policies that ensure the conditions for the releases, for example staying in house arrest, can be effectively implemented.
Argentina could be setting an example in a region that is struggling to find a solution to this problem, but for that to happen, it needs to conduct releases in a principled and consistent manner.
Argentina and other countries should prioritize releases of people who have not been convicted but are in pretrial detention, particularly those accused of low-level or non-violent crimes. Nearly half of the prison population in Argentina is in pretrial detention, a structural problem that successive governments have failed to adequately address and generated the problem Argentina is facing today. They should also prioritize people who are close to the end of their sentences and the cases of people at higher risk of severe illness from Covid-19, such as older people, pregnant women and girls, and people with certain underlying health conditions.
Some people are understandably concerned about reports that individuals who are still at the start of their sentences for grave crimes including rape have been released, and that the national human rights secretary has requested individuals with ties to some government officials or their allies, implicated in corruption, be released. To avoid giving the impression of politicizing the justice system, releases should not be implemented in a way that appears to provide special treatment to some.
In the medium to long term, the solution to Argentina’s prison problem is to limit the extended use of pretrial detention and reduce prison overcrowding. This is a longstanding debt that the Argentine government should prioritize, but it does not exclude the need for urgent and temporary measures that should be adopted today to protect lives and health.
Argentina should continue its efforts to protect the health of all Argentines, including those behind bars. Releasing people accused of committing non-violent crimes is reasonable and necessary, and these measures can be done without undermining Argentines’ security or equality before the law.
