Democratization,politics and punishment in Argentina

Abstract

In this paper, I will analyze the metamorphosis of penal policy during the process of democratization of the last three decades in Argentina. The beginning of the transition was characterized by an elitist, formalist, and expert-driven mode of penal policy-making that produced several initiatives towards penal moderation. In this context, a certain contraction of punitiveness was produced. This pattern changed in the 1990s. In the context of the extreme neoliberal reforms, some initiatives had emerged oriented towards the increase of penal severity and extension, in an ambivalent landscape. But in the second half of this decade, penal populism emerged “from above” as a reaction of the elites that changed radically the mode of penal policy-making and fueled a great growth of punitiveness. After the crisis of 2001, there was a new wave of penal populism “from below” supported by strong social mobilizations around the figure of the victim. This radical mutation of the mode and orientation of penal policy-making generated an image of an epochal change that seemed to set up a new relationship between penalty and democracy. However, in the mid-2000s some symptoms of blockage of penal populism started to appear, creating tensions and contradictions still present today.

Keywords

democratization politics punishment

Between 1930—when a democratic government was overthrown by the Armed Forces for the first time—and 1983—when democracy was finally restored—there were six coups d’état in Argentina. They all established military dictatorships, followed by phases of restricted democracy, except for the periods 1946–1955 and 1973–1976. Military dictatorships ruled for about 24 years in half a century. In 1983, Argentina began a complex transition to democracy that, despite obstacles and crises, has not since suffered a relapse into an authoritarian political regime.

Considering that punishment and democracy are “mutually constitutive” (Barker, 2009: 9, 26, 41; 2013: 129), in this paper I will analyze penal policy changes during the process of democratization over the last three decades in Argentina.

It could be assumed that the transition to a democratic political regime from an authoritarian one would imply a general reduction of punitiveness, broadly understood as the multidimensional degree and type of pain delivered by the penal system (Sozzo, 2011: 43–44). This assumption translates Montesquieu’s (1944) classical idea: severity of punishment is more adequate to a “despotic government” whose principle is “terror,” than to a “monarchy” or a “republic,” considered “modern states” ruled by “moderation” that protect “freedom” (p. 122). Emile Durkheim (1999) reworked this argument in his text about “two laws of penal evolution”; he established that “absolutist political regimes” are an “independent factor” that promotes the increase of “the intensity of punishment” (pp. 71–74, 89). This typological connection—between extreme form and degree of punitiveness and “despotic,” “absolutist,” or “authoritarian” political regimes—has also been supported in contemporary punishment and society literature (for example, Greenberg, 2002: 246–247; Chevigny, 2003: 78).

However, the few available statistical indicators about punitiveness in Argentina—with all their limitations—show a less clear picture, both in terms of penal extension and intensity. For example, in 2013, the incarceration rate was 95% higher than in 1982 (152/100,000 and 78/100,000, respectively). Furthermore, although sentence rates were 10% lower (71/100,000 in 2013 and 79/100,000 in 1982), they were more severe. Compared to the end of the last dictatorship, there were more effective sentences—in comparison with suspended ones—(68% in 2013 and 55.5% in 1982) and more medium and long custodial sentences than short ones—less than three years (61% in 2013 and 85.9% in 1982). But during the last military dictatorship (1976/1983), there were other massively diffused mechanisms of social control, primarily handled through the extreme use of violence—disappearances, assassinations, tortures, kidnappings, etc.—that targeted thousands of citizens suspected of being political dissidents or “subversives.” They were managed by state authorities and agencies (including penal institutions, particularly police forces), but outside the law. Evidently, official statistics do not account for the effects of these mechanisms, which made this exercise of quantitative comparison substantially problematic.

How and why penal policy has changed in the context of democratization—including but not restricting these questions to the complex problem of the evolution of punitiveness—has yet to be analyzed by sociological and criminological research in Latin America. An important recent exception was the work by Beckett and Godoy (2008)¹ which makes a comparative analysis of the connection between democratization and harsh and exclusionary anti-crime rhetoric and practices in Brazil, Guatemala, and the United States. In some way, this paper tries to present a “careful empirical research” “to further unpack the political processes that appear to fuel punitiveness in the contexts of struggles over democratization,” which these authors invited to develop (2008: 146) through the detailed exploration of the Argentine case. This is also an outstanding issue for other regions of the world that have experienced processes of transition to democracy over the last 40 years, with substantial variations in their dynamics and forms. It is an obscured dimension of the more frequently addressed connection between the political and the penal fields in the sociology of punishment, largely focused on long established liberal democracies of the Global North (Cheliotis and Xenakis, 2016). In this sense, this essay is thought as a further contribution to fill this gap and an attempt to encourage the development of comparative research into this more general problem.

Return to democracy: Elitist, expert-driven, formalist, and moderate penal policy

The democratization process began with the election of Raul Alfonsín as President of Argentina for the Union Cívica Radical, a liberal-oriented political party, traditionally linked to the middle classes. It was the first time in democracy that the Unión Civica Radical (UCR) had defeated the Partido Justicialista, the other major political party born as the institutional embodiment of the Peronist movement in the mid-1940s . Alfonsín tried to reorient his political party to social democratic positions, which was translated into his governmental program, albeit with oscillations and ambiguities.

In the penal field, the first years of the transition to democracy were marked by legal changes intended to produce moderation, as a rupture with the recent authoritarian past and as a symbolic message both inside and outside the country.² Many of these changes were immediate (in 1984), such as limiting the aggravating circumstance of recidivism and the possibility of applying an “indeterminate security measure” to multi-recidivists; expanding the use of suspended sentences and abolishing various reforms produced after the 1976 coup that aggravated penalties. Among these reforms, one stood out for its practical impact: the enactment of a law establishing a special computation for those sentenced or on remand who had been in prison during the military dictatorship. It credited 3 days for 2 days actually served; for “political prisoners,” every day actually served would be credited as 2 days.

There were also various initiatives to prosecute and punish the last military dictatorship’s crimes, not only as a way of doing justice but also to symbolically support the need to impede abuses and excesses by state authorities and institutions. Alfonsín’s government tried, almost from the beginning, to confine said prosecution and punishment to the leaders and higher officials in the Armed Forces. After military pressure and uprisings, this restriction resulted in the enactment of the so-called “Full Stop” and “Due Obedience” Laws in 1986 and 1987, respectively. However, the developments in this area made the transition to democracy in Argentina clearly different from other simultaneous or subsequent processes in Latin America (Sozzo, 2011: 9–12).

These penal initiatives were an expression of a mode of penal policy-making that could be defined as elitist, expert-driven, and formalist:

It was elitist³ in a strict sense, as it was in the hands of a relatively small network of privileged people: some elected politicians—from the Executive and the Legislative Branches—academics, criminal prosecutors, and judges. It was set up through formal—in official bodies like Commissions or Councils—and informal contacts that were closed and protected from other actors’—mainly the public’s—intrusion. It was also elitist because this network operated detached from public opinion, placing what legal experts considered “should be” at the heart of their debates. The need for shaping and guiding public opinion in this matter seemed to be part of its participants’ beliefs. In the initial phase of the transition to democracy, a certain paternalistic vision often regarded the public as influenced by authoritarianism in recent history, and dangerously leaning towards beliefs and values considered incompatible with the principles the democratic order needed to establish (Gargarella, 2010: 33–34, 41–42).

It was expert-driven because the voice of criminal law academics, in close association with elected politicians, was central to these initiatives. The legal experts’ authority was based on their academic careers and positions, but they were not part of a professionalized and specialized bureaucratic state structure built around these issues. Their voices were structured within the framework of knowledge about what “should be,” concerning legal principles and rules and their interpretations, which characterizes law schools of Spanish-speaking countries. Thus, considerations about “what is happening”—“criminal law in facts” versus “criminal law in books”—were marginalized. They were introduced by the unsystematic observations of the protagonists, many of whom were or had been criminal lawyers, prosecutors, or judges. These legal experts talked with elected politicians who, in turn, did not regard these issues as central to their agenda or to the competition with their opponents in the democratic process.⁴ Most of the legal reforms carried out in this area during the first democratic government originated in the Executive Branch, which did not prevent the political opposition—or a substantial part of it—from accepting them.⁵ There was some consensus between the major political parties on these penal initiatives in particular and, to some extent, about the general direction towards penal moderation.

It was “formalist” because it relied mainly on the creation of criminal law as the mechanism to produce changes. It overlooked the processes of law enforcement, taking for granted that they would be developed automatically as prescribed in legal texts, largely reflecting the predominant knowledge in this mode, and, therefore, giving a high degree of autonomy to penal institutions and authorities which remained unaccountable. These state structures, heavily colonized by traditional and authoritarian ways of thinking and acting, did not experience any reform processes or even renewal of their members in this period, except for a limited one in the administration of criminal justice—which particularly affected its higher echelons but was truncated as a legal and organizational change (Sozzo, 2011, 12–14).⁶ Consequently, the traditional gap between “law in books” and “law in practice” remained a dominant feature of penal policy (Iturralde, 2010: 313; Sozzo, 2011: 18–20).

Within this framework, certain dimensions of punitiveness were contracted with the onset of the transition to democracy.⁷ There is no official information available to build an incarceration rate for the entire country during this period, but it is possible to do so for certain key jurisdictions, such as Buenos Aires and Santa Fe Provinces. There is also data on the volume of inmates in federal prisons, accused and convicted of federal crimes and common crimes committed in national jurisdictions, like the city of Buenos Aires. Between 1983 and 1984, the prison population in these three jurisdictions dropped by 28%, 42%, and 51%, respectively. But from that moment on, there was a steady growth during the remainder of the decade. In 1989, the incarceration rates in Buenos Aires and Santa Fe Provinces were the same as at the end of the military dictatorship—66/100,000 and 41/100,000, respectively—but the volume of the federal prison population was still 15% smaller than in 1983.⁸ In the case of sentence rates, there was also a 28% decline nationwide between 1983 and 1989 and an expansion of suspended sentences in comparison with effective ones—44.5% in 1983 and 55.4% in 1989.

Neoliberal changes and penal ambivalence

This mode of penal policy-making was not substantially modified as a result of a major political transformation brought about by the first democratic change of government. However, a certain degree of innovation was introduced in the orientation of the penal measures adopted.

Alfonsín’s government was strongly marked by a permanent economic crisis, mainly a consequence of the 1976 military dictatorship’s adoption of neoliberal economic policies. These economic changes began the “latinamericanization” of Argentine society, characterized by the growth of poverty and social inequality. In 1974, 10% of the households with the highest income concentrated 27% of social wealth; in 1989, it grew to 41.7%. In 1989, poverty reached 47.4% of the population; it was 26.3% in 1983 and 5.1% in 1974. At the beginning of 1989, the economic crisis deepened and the country was racked with hyperinflation. In this context, the UCR lost the presidential elections that year to the PJ, whose candidate was Carlos Menem.

Once elected, president Menem adopted a neoliberal vocabulary and program, although he campaigned with a contrary rhetoric. Abruptly and unprecedentedly, neoliberal policies brutally dismantled the traditionally strong state presence in economic activities by opening up to the world market, deregulation, foreign investment stimulation, privatization of State companies, etc.⁹

The Menemist hegemony, built through this new neoliberal identity intricately intertwined with elements of Peronist tradition, was ratified with its triumph in legislative and governor elections, and the 1994 reform of the National Constitution, which allowed presidential reelection. Menem won the 1995 presidential elections and took office for the second time for a period of four years. This happened in the context of a drop of inflation, economic growth, and a decline in poverty levels—16.1% at the beginning of 1994—and despite the growth of unemployment and underemployment—a traditionally limited phenomenon—and its social and economic effects, they reached 18.6% and 30.4% of the population, respectively, at the beginning of 1995. As a result, social polarization and fragmentation became extremely marked (Pegoraro, 1997: 54–59; 2000: 115–116; Svampa, 2005: 33–34).

Street crime became more significant in the public and political debate during the first Menem administration.¹⁰ Associated with its process of multiplication and privatization, the media changed the way they addressed this issue by increasing the number of news reports, and using a sensationalist tone for selected violent crime stories (Rodriguez, 2000: 186, 195; Pegoraro, 2000: 119). In the public discourse of key Menemist actors, there was a greater presence of street crime (mainly connected with illegal drugs), perhaps associated with this change in the way media addressed the problem and with the more general “mediatization of politics” (Novaro: 2009, 402). President Menem even sent in a bill to the National Congress to reintroduce death penalty for drug traffiking (Novaro, 2009: 400). That new emphasis was not completely transferred to the political debate and competition, and remained largely marginal in the electoral campaigns, which were heavily focused on neoliberal reforms and scandals of corruption. The development of a neoliberal political program with all its local peculiarities was not initially accompanied by a decisive and intense politicization of street crime, as had happened previously in other contexts of the Global North.

The mode of penal policy-making at the beginning of the return to democracy was not substantially modified. It continued to be elitist, expert-driven, and formalist. Because the network of participants was largely not institutionalized in State bureaucracies, the change of government led to a partial replacement of its privileged members. There were no changes in the type of expertise recognized as a source of authority.¹¹ Legal experts continued to have a central place. Consequently, the creation of the penal law continued to be the main instrument of penal policy, granting great autonomy to penal institutions and to their traditional and authoritarian modes of thinking and acting.

The first Menem administration witnessed a significant growth in the number of criminal laws produced, some of which were clearly oriented towards the increase of punitiveness, an important change compared to the first moment of the transition. However, most of them had marginal impact on the operation of the penal system (Gutiérrez, 2010: 59–60). One that did produce some immediate practical effects of penal toughening was the so-called Anti-Drugs Law, passed in 1989. It punished the possession of illegal drugs for personal use, and considerably increased the penalties for other offenses. This law, passed within the context of the transition between governments, was supported by both major political parties, following the U.S. government’s pressures to adopt a more conservative, repressive approach to drug policies in Latin America. However, during the same period, other initiatives expressed a tendency towards penal moderation, e.g., the so-called “Two-for-One” Law, passed under the pressure exerted by appalling overcrowding and a wave of riots in Buenos Aires Province prisons. It established a maximum period to be remanded in custody in the criminal process, after which every day the person remained in prison was to be counted as two days serving the prison sentence they eventually received.

This penal ambivalence was partly because diverse state actors, with their own orientations, promoted these different initiatives. It was also related to the more general ambivalence shown by Menemism as a governmental program, worshiping pragmatism, and making the most of the ability to adapt to different circumstances and situations, which was also important in the Peronist tradition (Novaro, 2009: 396). Penal ambivalence was, therefore, part of a more general characteristic of this political program.¹²

In this period, the indicators of punitiveness available grew—contrary to what had happened in the first moment of the transition—and significantly in some cases. The federal prison population increased 52% between 1989 and 1995, reaching a level 28% higher than at the end of the military dictatorship. The incarceration rate in Buenos Aires Province grew 14%—reaching a rate 15% higher than in 1983—and in Santa Fe Province it increased 7%—reaching the same level as in 1983. Meanwhile, the rate of sentences in the country grew 14%, although it was still 18% lower than at the end of the military dictatorship. Similarly, short custodial sentences (less than three years) decreased from 84.4% in 1989 to 71.4% in 1995.

Penal populism “from above”

From the mid-1990s onward, there was a change in the relationship between punishment and democracy in Argentina. The mode of penal policy-making and its predominant orientation showed a marked shift that seemed to displace radically its precedent traits.

Menem’s second government started by promising the “social stage of the reforms,” but unemployment, poverty, and inequality continued to grow, making social fragmentation and polarization even stronger. In addition, the attempt to sustain the “economic model” and several cases of corruption created a political and cultural climate of delegitimization of Menemism, evident in their election losses of 1996 and 1997.

During these electoral campaigns, key actors in this governmental alliance started to develop a political discourse—through the media—about street crime as the fundamental problem of Argentine society, using the idea of “insecurity” stripped of its traditional connotation associated with the adjective “social” (Pegoraro, 1997). This discourse defined the problem through five interrelated messages: street crime is growing; the use of violence, especially firearms, is increasing; minors’ involvement is growing; crime and illegal drugs are connected; and poverty, unemployment, and crime are not linked. It explicitly appealed to the need for toughening penal policy as a solution to this problem (Chevigny, 2003: 84–85; Martinez, 2011: 3–4). The main proposals were: the reintroduction of death penalty, lowering the age of criminal responsibility; increasing penalties for crimes involving firearms and for recidivists; expanding the uses of prison on remand; expanding the powers of the police to stop, interrogate, and arrest; and adopting a “zero tolerance” policing model. It was a perfect example of a conscious strategy developed by sectors of the political elite, confronting a crisis of legitimization, trying to produce political consensus using tough on crime rhetoric, diverting public attention from other pressing social and economic problems.

As the 1999 general elections approached, this definition of the problem and proposals became more central to the Menemist discourse. Less extremist rhetoric appeals, though still oriented towards toughening penal policy, started to be heard within the main political opposition, the Alianza—an alliance of political parties against Menemism—particularly after its more moderate wing won their primary elections. As in the terrain of economic policy, the Alianza’s discourse on “insecurity” was getting closer to some ideas pushed forward by Menemist actors.¹³ Beyond the remaining differences, and through this political and electoral debate, a consensus was built across the political spectrum on the promotion of measures to toughen penal policy.

Many legal changes during President Menem’s second government increased penal severity, but they were rather symbolic in their effects (Gutiérrez, 2010: 60). However, some did have an impact on penal practices. They were far less ambitious than the promises launched by the politicians and did not match their proposals. An early example was a law that increased penalties for car theft passed in 1996. Other examples were produced in 1999, in one of the most critical moments of the politicization of crime, like increasing penalties for the possession of firearms or sexual abuses (Martínez, 2011: 5–6). Nevertheless, few penal initiatives with a different tendency, reproduced, although limitedly, the penal ambivalence of President Menem’s first government—and as a consequence of the same reasons related to the heterogeneous composition of this political alliance and the role of pragmatism in its operation. An example was the new Prison Law passed in 1996, which clearly adhered to the correctional model traditionally promoted in legal and penitentiary discourses during the 20th century.

In 1999, the Alianza won the presidential elections. President De la Rúa’s administration, characterized from the beginning by “continuism” and “possibilism,” continued to adopt neoliberal economic policy measures promoted by international organisms, such as the World Bank and the International Monetary Fund. This produced a rapid and strong crisis of legitimacy. In December 2001, constant social protests broke out in riots in different cities. Mobilized citizens from middle and popular sectors cried in the squares opposite the houses of government: “All of them must go! Not even one should remain!,” a slogan that expressed the dramatic nature of the political representation crisis. The demonstrations were harshly repressed by police forces, resulting in 40 deaths and hundreds of wounded and arrested. President De la Rúa resigned, producing an unprecedented situation. The Legislative Assembly named Eduardo Duhalde—former candidate for the PJ in the 1999 presidential elections— President, until December 2003 (Novaro, 2009, 553–615). The Duhalde administration introduced moderately heterodox economic policies. Under the deepest social and economic crisis Argentina had experienced since the beginning of the transition to democracy, levels of social fragmentation and polarization became even more extreme. In 2002, unemployment reached 21.5% and poverty reached 54.3% of the population. But 2001 and 2002 were also seen as an “extraordinary time”: the rupture with the fatalism of the neoliberal process. Numerous social organizations produced several forms of political mobilization and action, creating a high level of social conflict which, in some cases, was confronted by police repression. This brought about widespread social discontent with the Duhalde administration and the general election was called for April 2003, six months ahead of schedule (Svampa, 2005: 263–266, 271–272).

The politicization of crime did not fade away after the 1999 governmental change. The problem of “insecurity” remained in the center of the public and political agenda. President De la Rúa reached an agreement with part of the opposition to promote both national and provincial legal reforms. Some aimed at greater extension and severity of the penal system and had significant practical effects, such as the introduction of a new general aggravating cause when crimes were committed using firearms or the abolition of the special two-for-one jail-time credit for pre-trial custody as defined by the 1994 law. In Buenos Aires Province, several procedural and penitentiary reforms were introduced, expanding the use of prison on remand and restricting transitory releases.

As in President Menem’s second government, penal policy-making during the Alianza government was firmly focused on the creation of laws. As it had happened from the beginning of the transition to democracy, this was combined with delegation to the police and penitentiary authorities, who maintained their traditional and authoritarian ways of thinking and acting.¹⁴ This delegation and autonomy was amalgamated, however, with a strong political pressure on criminal prosecutors and judges, often through the media, and oriented towards toughening their everyday decisions.

Officially registered property crime rate in the country grew constantly between 1995 and 2002 (88%). This increase was similar in Buenos Aires city (87%) but extremely higher in the Buenos Aires Province (169%). Intentional homicides grew more moderately in this period in the country (28%) but to a greater degree in Buenos Aires Province (75%), compared to a 14% increase in Buenos Aires city.¹⁵ It is possible to think that the development of these punitive rhetoric and measures were made possible by the growth of street crime and the consequent diffusion of fear of crime, which placed this problem among the fundamental public concerns and demands.¹⁶ In this interpretation–what Beckett (1997: 3–4) defined as the “democracy-at-work” thesis—politicians put the problem of crime and crime control at the centre of the public agenda—particularly during electoral campaigns—and promoted toughening penal policy to respond to these public concern and demands. However, it is important to remember that during Alfonsin`s government, an even bigger growth of crime officially registered was produced, but it was not translated in a similar process of politicization of crime and development of punitive rhetoric and measures. The political elites—not in a uniform way, but affected by conflicts and struggles—have the capacity to define social problems. With their privileged access to the media and the sphere of public debate, especially when they are state officials, they can determine, to a certain extent, how some segments of the public understand these issues. This is not always artificially crafted, though, as they select meanings that resonate with the public’s experiences of everyday life (Beckett, 1997: 3–7, 63–65; Beckett and Sasson, 2001: 20, 82–83, 119, see also, Sparks, 2003a: 31; Zimring and Johnson, 2006: 268–269; Lacey, 2008: 53; Barker, 2009: 17). However, the increase in street crime, especially if it is fast and of a high magnitude, and given the presence of other political and cultural factors, may contribute to the development of punitive rhetoric and measures—but never by itself—which, in turn, can be produced without it (Becket, 1997: 15; Roberts et al., 2003: 12–13; Zimring and Johnson, 2006: 275; Pratt, 2007: 37; Beckett and Godoy, 2008: 149; Gottshalck, 2013b: 255).

This is how the first wave of “penal populism” was constructed in Argentina. Penal toughening was legitimized by appealing to what “the people” thought and wanted. These opinions and demands defined by politicians, in dialog with journalists and public opinion pollsters, were built as if they were uniform, without economic and social division and prior to these agent’s definitions—exactly the opposite of what actually happens (Bottoms, 1995: 40; Zedner, 2002: 34, Barker, 2013: 138; Gottshalck, 2013a: 232). They were built confronting the opposing views of the experts, especially criminal law professors and members of the judiciary, derogatively labeled garantistas, who were in favor of the offender’s rights and guarantees, and were seen as part of an “establishment” that had to be dethroned to do “what is needed” (Zimring, 1996–1997: 253–255; Roberts et al., 2003: 54; Pratt, 2007: 84; Lacey, 2008: 75). These actors employed a language of common sense, intentionally distanced from the technicalities of legal and criminological vocabularies, channeled through slogans that were easy to communicate through the media and could embody outrage and fear (Pratt, 2007: 12).

Undoubtedly, this shift increased the weight of the “political arm” of state structures in this field (Garland, 2001: 13–14, 111–113). Professional politicians sought political consensus through proposals to increase punitiveness, which were turned into a pseudo-commodity in the political exchange. They attempted to win voters’ support, precisely when they had lost their capacity to win it through action on other macroscopic issues as a consequence of the diffused sense of inevitability and fatalism around neoliberal reforms and rhetoric dominating democratic politics during this period (Pavarini, 2006: 122–125). Predominant political visions and strategies were linked to the short-term political situation. A sort of “state of emergency” was frequently invoked to do what had to be done quickly (Sparks, 2003b: 155, Roberts et al., 2003: 71–72; Pratt, 2007: 26). These rapid actions had to be visible to give the impression that something was being done, here and now (Bottoms, 1995: 39, Garland, 1996: 460–461).

It was a penal populism “from above,” built by members of the elites. It did not have a starting point and was not subsequently accompanied by social movements “from below” that strongly and persistently embodied this kind of punitive claims. Pratt distinguishes “penal populism” from “authoritarian populism,” which characterized political programs as Thatcherism in Britain. In the latter case, “there was no popular movement outside the establishment putting forward the view of ‘the people’ that politicians could then make synergy with” (2007: 33). For him, in the emergence of “penal populism,” this kind of “popular movement” became central. In Argentina, in this first wave, such processes did not acquire the degree and weight mentioned by Pratt (see also Pratt and Clarke, 2005: 304–307, 313–315). This is precisely the main change that penal populism would experience in the early 2000s.

During this period, punitiveness rose sharply. Argentina’s incarceration rate went from 71/100,000 in 1996 to 123/100,000 in 2002, a 73% increase in six years. A similar growth was observed in Buenos Aires Province (78%) and, to a lower degree, in federal prison population (41%). The increase in sentence rates was more moderate (17% nationwide). Additionally, there was an increase in the severity of sentences, with the reduction of suspended sentences—from 50% of the sentences imposed in 1996 to 43% in 2002—and longer custodial sentences—in 1996, 78% of the prison sentences were for less than three years, but they decreased to 72% in 2002.

Penal populism “from below”

In the May 2003 elections, various political forces born from Peronism faced each other. On the one hand, a sector led by ex-President Menem presented themselves as an obvious continuity with the 1990s. On the other hand, a sector led by Nestor Kirchner, endorsed by President Duhalde, presented themselves as a break from that decade, a return to the original sources, adopting a “post-neoliberal” position. The election campaign, as its immediate precedent in 1999, was strongly marked by the issue of crime. Menem deployed the rhetoric of being tough on crime, repeating his old proposals of the late 1990s. Kirchner’s antithetical discourse, however, highlighted the connection between insecurity and the growth of poverty and unemployment as another perverse result of neoliberal reforms, and advocated social inclusion, crime prevention, and prosecution of crimes of the powerful. Menem won 24% of the vote and Kirchner obtained 22%, but Menem resigned to participate in the second round which was constitutionally required. Thus, Kirchner became president with the lowest approval rating in Argentina’s democratic history. He then began to build “Kirchnerism,” a political alliance representing a new postneoliberal face of the Peronist tradition, which remained in power until 2015—with modifications—through Cristina Fernandez de Kirchner’s 2007 election and 2011 re-election.

President Kirchner’s progressive rhetoric was matched by measures, such as appointing Raul Zaffaroni—a recognized radical-oriented criminal law professor—to the Supreme Court of Justice, and promoting the prosecution and punishment of state crimes during the last military dictatorship through a legal reform and sustained political pressure. This began a strong alliance between most human rights organizations and Kirchnerism, held until today. It resulted in a strong, constant presence of the issue of human rights, especially in connection to the last military dictatorship’s crimes, in Kirchnerism’s agenda and rhetoric. Since then, there has been an important process of prosecution, trial, and punishment of such offenses—that produced between 2006 and 2013 632 sentences and 3180 criminal cases (Feierstein, 2015: 220).

However, in March 2004, the kidnapping and murder of Axel Blumberg, a young middle class student in Greater Buenos Aires, sparked a strong social mobilization to demand increasing punitiveness in different ways: the “Axel Crusade.” Five million citizens signed a petition to the National Congress, and three massive demonstrations in front of the National Congress and House of Government, the first of which congregated more than 150,000 people, demanded legal and policy changes. Media coverage of this campaign, featuring the victim’s father, was constant (Calzado and Van den Dooren, 2009: 98–101). It inaugurated a second wave of penal populism “from below,” supported by social mobilizations around the victim, whose pain was deemed to produce moral authority.¹⁷ It was a wave against an establishment imagined as consisting not only of experts but also of professional politicians, believed to favor experts’ opinions and to overlook what “the people” thought and wanted. This social mobilization was connected to, and made possible by, the 2001 political representation crisis (Svampa, 2005: 263–266, 271–272; Kessler and Grimson, 2005: 173–175; Schillagi, 2009: 30).

The Axel Crusade’s political impact was strong. In both the Executive and Legislative Branches, at the national and provincial levels—especially in Buenos Aires Province, epicenter of the Blumberg case—the main political parties—including Kirchnerism, despite its initial progressive rhetoric—built consensus on the need to react urgently to what was claimed to be the public’s demand for penal toughening. Some contributed to this consensus “for convenience,” others because of “conviction,” since there were politicians who had actively supported the previous wave of penal populism. An idea posed by Garland (1996: 445), and inspired by Durkheim, may be helpful to reflect on this reaction: In times of uncertainty and social unrest caused by the citizenry’s perceptions of distrust and illegitimacy, weak democratic political authorities tend to resort to repressive instruments to provide the appearance of maintaining both social order and their privileged position (see also Sparks, 2003a: 34; 2003b: 168; Zimring and Johnson, 2006: 276; Pratt, 2007: 52, 64, Barker, 2009: 7).

As in the first wave of penal populism, the preferred instrument was legal reform. Blumberg himself, his advisers, and colleagues attended the debate sessions in the Chamber of Deputies and the Senate. They were even allowed to participate in some discussions of Committees, unprecedented in Argentine legislative tradition (Calzado and Van den Dooren, 2009: 107–108). Legal changes aiming at increasing punitiveness, known thereafter in the political and media discourse as the “Blumberg reforms,” were produced. At the national level, between April and August 2004, penalties for various crimes and restrictions for the use of parole and temporary release were increased. In Buenos Aires Province, legal reforms aimed at expanding the use of pretrial detention were also sanctioned.

These legal changes and demands for greater punitiveness in the public and political debate helped to maintain a “climate” (Sparks, 2003a: 32) particularly strong in Buenos Aires Province that called for greater severity in daily decisions by criminal justice officials. This climate involved criticism and direct pressures from political actors on judicial actors around specific cases.

The previous wave of penal populism had broken with the elitist and expert-driven mode of penal policy-making, protected from any kind of intervention by the public and with its predominant orientation towards penal moderation, though always limited in its real effects. This first wave, constructed in the political and media fields, put what “the people” thought and wanted on these issues at the center of the public sphere for the first time in the transition to democracy, carrying a message that a real democratization in the penal field was still lacking. This message encouraged certain social actors confronting concrete manifestations of crime and using their victimization as a legitimating basis, to declare themselves representatives of “the people” and to present demands for penal changes. In this sense, this wave of penal populism “from below” was based on the previous wave of penal populism “from above.”

It was also made possible by the “crisis of insecurity,” socially and politically constructed since the late 1990s. This was closely connected with the devastating economic, social, and cultural effects of neoliberal reforms that had created widespread social vulnerability and exclusion, and a diffused sense of uncertainty, precariousness, and mutation—even among the socially included—that had found a channel for expression and condensation trough the problem of street crime.¹⁸

Following the previous trend, the incarceration rate in Argentina grew 17% between 2002 and 2005, arriving at 144/100,000. In Buenos Aires Province, the increase was even higher (28%). Federal prison population grew less (9%). Sentence rates increased significantly by 29%. Moreover, the severity of sentences intensified: suspended sentences were reduced—from 42% in 2002 to 35% in 2005—and longer custodial sentences imposed—in 2002, 72% of these convictions were for less than three years and decreased to 66% in 2005.

Blockages, tensions, and contradictions

The radical changes in penal policy-making mode and orientation between the late 1990s and early 2000s generated an image of an epochal change that seemed to establish a new relationship between penalty and democratic politics. However, in the mid-2000s, symptoms of blockage of penal populism started to appear, creating tensions and contradictions still present today.

The consolidation of Kirchnerism as a “postneoliberal” political alliance and program through the triumphs in the 2005 and 2007 elections coincided with a sort of blockage of penal populism. Kirchnerism’s political strength displaced crime from the center of the political and public debate, even confronting mobilizations from some social sectors demanding more punitiveness. This was not the result of a specific set of decisions and actions, as was the case in other areas of public policy, which promoted the image of rupture with the recent past, central to its political identity.

There was almost no successful initiative to increase punitiveness in those years.¹⁹ Some even attempted penal moderation, e.g., a 2006 legal reform in Buenos Aires Province restricting imprisonment on remand and overturning previous legal changes produced during the waves of penal populism. This resulted from strategies by several actors—like the federal Supreme Court of Justice and human rights organizations—in the context of a judicial process (the Verbitsky case).

Kirchnerism largely caused this blockage by imposing other issues, related to their own program and agenda, in the political and public debate that created strong social antagonisms and conflicts: from the alignment with progressive South American governments against the US policy for the Americas to the nationalization of previously privatized public service companies (Svampa, 2011: 23–27; 2013: 14). This was particularly evident during the campaigns for the 2007 presidential and governor elections: Crime almost disappeared from the rhetoric of kirchnerist candidates and from debates with the opposition. Kirchnerism won the presidential election with 45% of the votes (Colombo, 2011: 194–202; Svampa, 2011: 27–29). This proves that the politicization of the penal question is not irreversible, but subject to the outcomes of political struggles (Sparks, 2003b: 149). It is largely a result of the depoliticization of other issues, meaning it is possible to observe situations where this trend is reversed (Christie, 2004: 52–55, 58–59; Zedner, 2002: 363).

Another important condition for this blockage was the economic recovery and its social effects after the 2001 crisis. Economic growth, the decrease in unemployment and poverty,²⁰ and salary raises produced a positive climate among middle and working classes, generating barriers against the translation of social anxieties and insecurities into concerns and demands about street crime.²¹

Incarceration rate decreased 8% from 2005 to 2007, reaching 133/100,000, and so did federal prison population by 6% and in the Buenos Aires Province by 8%. This reduction is also observed in sentence rates: 10% lower in 2007 than in 2005.

Since President Cristina Fernandez de Kirchner took office at the end of 2007, Kirchnerism’s approach to penal policy at the national level was mostly maintained. In 2008, Kirchnerism lost a key vote in the National Congress about an initiative to raise taxes on commodities exportations, strongly opposed by producers and most of the political opposition. This conflict produced tensions and ruptures inside Kirchnerism. During the 2009 campaign for legislative elections, in a context of political weakness, some of its key actors introduced messages in favor of increasing punitiveness. This happened again in the 2013 campaign for legislative elections, another moment of political weakness, after growing economic problems that had become more visible since 2011, and several corruption scandals. In fact, Kirchnerism lost both elections in the most important jurisdictions.²²

Aside from these partial and contingent changes in political and electoral rhetoric, Kirchnerism continued to fill the public and political debate with issues other than crime and punishment, which produced strong social antagonisms and conflicts: from the legal recognition of same-sex marriage to the legal regulation against media corporate monopolies. In fact, in the 2011 presidential elections campaign, Kirchnerism reproduced the strategy of 2007 using a progressive rhetoric about crime and displacing its central position. President Fernandez de Kirchner won with 54% of the votes. (Svampa, 2011: 27–31, 2013: 15).²³

In general, over the past years there were no initiatives to increase punitiveness at a national level, like the ones experienced during the precedent waves of penal populism. There were some criminal law reforms that increased penal severity, promoted by sectors of the feminist movement and international organizations, supported by broad sectors of the political parties in the National Congress—including Kirchnerism—such as the 2009 human trafficking law, reformed in 2012, and the introduction of femicide as an aggravated homicide in 2012. These reforms, however, were somewhat different in their origins and dynamics from the recent ones and their practical impact was much more limited.

Some small-scale initiatives towards penal moderation were also introduced, such as a legal reform in 2009, which allowed house arrest for imprisoned women with children under five years of age. In May 2012, however, the President launched a more ambitious initiative in this direction: creating a Commission to draft a new Penal Code, presided by Raul Zaffaroni, Supreme Court judge and activist against conservative penal policies. The Commission consisted of politicians from the main political parties represented in the National Congress, some with a background in the penal field. Far from the dynamics of penal populism, legal experts returned to the spotlight, protected from the public’s direct influences, but with an important role for politicians, as a legacy of the recent politicization of crime. The new Penal Code draft, presented in February 2014, tends towards penal moderation, reducing the punishment for several offenses and creating an array of alternatives to imprisonment. Vast sectors of the political opposition rejected it, in a climate already marked by the general elections of 2015, which blocked its discussion in the National Congress.

Simultaneously, however, Kirchnerist Buenos Aires Province Governor Scioli, reelected in 2011, has promoted several legal and policy initiatives since 2008 towards increasing penal severity in matters under provincial jurisdiction (criminal procedure and penitentiary legislation). His political and electoral rhetoric favors penal toughening. For example, he promoted new legal changes expanding imprisonment on remand. In this key province, Kirchnerism has been part and parcel of a new wave of penal populism, with more limited effects over the last years.²⁴

In this context, imprisonment rates increased moderately. Between 2007 and 2013 the incarceration rate grew 14%, reaching 152/100,000 nationwide. In Buenos Aires Province, it increased by 13% reaching 176/100,000. Federal prison population grew by 9%. Sentence rates remained stable, but the amount of suspended sentences decreased (from 38% to 32%) and so did short custodial sentences (from 66% to 61%).

Conclusions

The exploration of the Argentine case demonstrates that under the transition from an authoritarian to a democratic regime two different modes of penal policy-making—elitist or populist—may emerge, articulated with two different orientations and effects—the containment or expansion of punitiveness. In this national case, both modes and directions/effects were produced in a sequential manner. Initially, an elitist—expert-driven and formalist—mode generated penal initiatives that, at least in certain key dimensions, resulted in some containment of punitiveness compared with the levels reached during the last dictatorship—albeit in a limited way because the same measures taken solely in the field of “criminal law on the books” left substantially untouched everyday authoritarian and traditional modes of thinking and acting in penal institutions. At the same time, this mode of penal policy-making did not generate the development of participatory and deliberative mechanisms, leaving a democratization deficit (Johnston, 1999; Loader and Sparks, 2012; Ryan, 1999, 2003). After a second phase of penal ambivalence introducing initiatives to increase punitiveness without substantially altering this mode, a radical mutation occurred with the emergence of penal populism. In the context of the devastating economic, social, and cultural effects of neoliberal reforms that would lead to the most serious political crisis since the beginning of the transition to democracy, sectors of the elites responded to the weakening of their legitimacy by launching a rhetoric and measures in favor of increasing punitiveness in the media and in the political arena. Based on the appeal to “what the people want” and the criticism of the “establishment”—especially of the experts—they exploited the democratization deficit of the previous mode of penal policy-making. This wave “from above” contributed to a subsequent wave “from below,” which was cemented in social mobilizations around the figure of the victim and caused even more impact in terms of penal initiatives, reinforcing the trend towards an effective increase of punitiveness. This radical mutation then acquired such strength that seemed to represent an epochal change, structuring another relation between punishment and democratic politics. However, that marked the beginning of a fourth moment, colonized by tensions and contradictions, within the framework of economic recovery and its social and cultural effects. From the rise of a post-neoliberal governmental alliance which installed other issues at the center of the political and public agenda that generated strong social antagonisms and conflicts, there was a relative displacement of the problem of crime, and especially of the rhetoric of “mano dura.” But this happened in the context of political struggles within and outside that governmental alliance, which gave rise to certain periodic but limited relapses of the punitive temptation. This in turn resulted in a certain sinuosity of punitiveness indicators, which experienced some contraction at first and some expansion afterwards.

We can also observe this sequence, beyond its connection with the transition between two political regimes, from the point of view of contemporary debates about the “quality of democracy” (O’Donnell, 1999, 330; Bieckart, 2015: 924)—which does not necessarily entail adopting the opposition between “consolidated” and “non-consolidated” democracies and its teleological and ethnocentric assumptions (O’Donnell, 1996, 2002; Cheliotis and Xenakis, 2016). Following the work of Guillermo O’Donnell (2001: 9–12), I consider it is necessary to overcome the “Schumpeterian” and “minimalist” definitions of democracy that regard it only as a political regime related to free and fair elections of the authorities and the effective exercise and protection of political rights. When defining what democracy is, it is essential to include not only political citizenship but also civil and social citizenship (O’Donnell, 1999: 331; 2001: 28)—a “democracy of citizens” and not a mere “democracy of voters” (O’Donnell, 2007: 7). In this direction, we must consider the variable capacity of the agents to exercise their civil and social rights and the variable effectiveness of mechanisms to protect and guarantee them—the degree of development of a “democratic rule of law” with its various instances of “horizontal accountability”—as a crucial element to distinguish different qualities and types of democracy (O’Donnell, 1999: 323–328; 2004). Political democratization can be combined with a low level of civil and social democratization. That would be a “democracy of low intensity citizenship” (O’Donnell, 1993: 1361; 1999: 329, 2001: 27, 2004: 42, 2007: 8). In turn, it is empirically evident that the exercise of civil and social citizenship becomes less extended and developed in contexts marked by higher levels of inequality and poverty (O’Donnell, 1996, 330; 2001: 27; 2004: 39; 2007: 8)—even when it is necessary to recognize that these two elements are not identical, but go dialectically “hand in hand” (O’Donnell, 1993: 1361, 1999: 331–335). In this sense, it is possible to make sense of a differentiation between a “thin democracy” and a “deep democracy,” while at the same time recognizing intermediate positions between these two extremes (Beckett and Godoy, 2008: 140–141).

Back to the Argentine case, one might think that the first moment of the transition to democracy was marked by a clear effort of expansion of citizenship. Undoubtedly, this was a gradual process not only in the political field—conjuring the risk of relapse into an authoritarian regime—but also, albeit to a more limited extent, in the civil and social fields. This first phase was guided by a trend towards deep democracy in the terms outlined above. During this stage, key dimensions of punitiveness experienced some containment. It does not seem accidental that it was also the time when there was an attempt to prosecute and punish crimes of the state during the last military dictatorship, in the name of the protection of human rights and fighting against state excesses—even if later on it was also truncated.

By contrast, with the development of the neoliberal reforms and their devastating effects in terms of poverty and inequality, political democracy was combined with an extremely strong deterioration of civil and social citizenship. This “thin democracy” was correlated with a strong increase in punitiveness, extending the degrading and exclusionary effects of the penal system—which, in turn, were made more intense—to a wider group of social marginality, following its perennial selective logic. Again, it does not seem to be a coincidence that over those years, there was a consolidation of a policy of oblivion and impunity for state crimes during the last military dictatorship.

From 2003 onwards, under the rise of a post-neoliberal governmental alliance and the economic recovery and its impact on the reduction of poverty and inequality—evident and generally acknowledged until 2007, but more contested and debated thereafter (Kessler, 2014: 59–113)—it is possible to identify a new effort to deepen democracy, in terms of civil and social citizenship, even with its limits in various areas and subject to political struggles, inside and outside the governmental alliance. In this context, the trend towards increasing punitiviness was not reverted, but was more limited in its reach. Between 2003 and 2013, the incarceration rate in the country grew 8% and 11% in the Province of Buenos Aires, the federal prison population increased 6% but sentence rate decreased 19%—even if its severity grew in different dimensions. Again, it does not seem accidental that in this context, the prosecution and punishment of crimes of the state during the last military dictatorship were successfully resumed.²⁵

In addition to the important issue of the impact of the transition from an authoritarian regime to a democratic one on the penal field, this exercise raises a number of interesting questions about the potential connection between punishment and various types of democracy, according to their quality, not only regarding political citizenship but also, and especially, civil and social citizenship. If a “deep democracy” entails a “wager on the dignity and autonomy of individuals” (Bieckart, 2015: 924; O’ Donnelll, 2001: 19–25), it can be expected that the level and form of punitiveness would be moderate in such context, and vice versa, in “thin democracies” they could be expected to be excessive. Such questions could be researched in a diachronic way by analyzing the process of democratization in a national case, as we have done it. But also, they lend themselves to being addressed in a comparative way, considering various national scenarios. In any case, this is another set of possibilities that makes the relationship between democratization, politics, and punishment even more complex.

Footnotes

Notes

Ma´ximo Sozzo is Professor of Sociology and Criminology at National University of Litoral (Argentina). He is Adjunct Professor of the School of Justice at Queensland University of Technology (Australia). His work in recent years has focused on the sociology of penal changes in Latin America and the history of criminology and criminal justice in Argentina.

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