On El Salvador & Criminal Justice.

For over a year, I’ve been closely following what has been going on in El Salvador, and I am planning to visit the country later this year as part of my work with the United Nations. I aim to deepen my understanding of this country and the situation that it is going through.

In March 2022, El Salvador initiated a major crackdown on gang violence in response to a spike in murders. The crackdown, referred to as the “War Against the Gangs,” has involved mass arrests, expanded police powers, and reduced civil liberties under an ongoing state of emergency.

The crackdown began after 87 murders occurred over three days at the end of March, which the government blamed on gangs like MS-13. In response, the Salvadoran legislature granted emergency powers including suspending rights of association and legal counsel while increasing pre-trial detention time. Additionally, security forces were deployed for mass raids and arrests. By the end of March 2022, over 575 alleged gang members had been detained, with over 17,000 arrested after the first month. As of 12 July 2023, 71,479 people accused of having gang affiliations have been arrested. 1 Así procesarán a los 71,976 detenidos en el régimen de excepción The arrests have placed a strain on El Salvador’s prison system. Prisoners have faced reduced food rations, lack of mattresses, and confinement to cells. A new megaprison called the Terrorism Confinement Center with capacity for 40,000 inmates opened in January 2023. Other crackdown measures include increasing sentences for convicted gang members, reducing the age of criminal responsibility to 12, and destroying tombstones of deceased gang members.

The crackdown has received widespread domestic support, with many Salvadorans reporting improved security. This is not surprising, given that the homicide rate fell 56.8% in 2022 compared to 2021 from 1,147 homicides in 2021 to “only” 496 homicides in 2022. President Nayib Bukele enjoys an extremely high approval rating of approximately 85%, one of the highest in the world, likely boosted by reductions in violence. An April 2022 Gallup poll 2 Población De Acuerdo Con Medidas Tomadaspor El Gobierno Contra Pandilleros found 91% of Salvadorans supported the government’s actions, including 78% who “very much” supported them, despite international criticism. With such an overwhelming mandate from the populace weary of gang violence, Bukele has been able to institute the strict security measures. However long-lasting solutions may require securing not just public approval but public participation through community engagement and social programs. While the crackdown reflects the citizenry’s desperation for safety, its authoritarian aspects may not foster deeper change.

Let’s just think about that reduction of 651 homicides in one year.

That’s 651 lives spared, 651 futures not cut short, 651 families that haven’t lost a father, a son, a brother, or a sister. Each of those 651 represents a personal tragedy averted, tears unshed, potential still intact. Consider the relief of 651 mothers who did not have to bury their child, the steadfastness of 651 partners who did not lose their love, the wholeness of 651 families who did not have an empty seat at their table. In a country too often marked by violence, those 651 lives stand for hope’s flicker in darkness, a light kindled by the cherishing of life.

With 496 homicides in 2022 and a population of around 6.3 million, El Salvador’s homicide rate was still distressingly high at approximately 7.9 murders per 100,000 people. By contrast, Italy, with over 60 million residents, averages around 200 homicides per year – resulting in a homicide rate of just 0.3 per 100,000. While the over 50% reduction in El Salvador’s murder rate from the previous year is a positive development, the country still suffers from endemic violence. To put it in perspective, El Salvador’s 2022 homicide rate was over 26 times higher than that of Italy despite having only one-tenth the population. The Salvadoran government faces an immense challenge to stem gang activity and reduce homicides to levels seen in developed nations. While the crackdown has clearly had a major impact, lasting solutions will likely require years-long efforts across security, economic and social spheres to transform El Salvador’s homicide rate from one of the highest in the world to a figure more on par with countries enjoying greater peace and stability.

But what these statistics do not covey, is how it feels to live in a country where the homicide rate is so high. How does one begin to empathise with the people living there, who have no choice to move to another country. Can we somehow rationalise the authoritarian decisions of the government? I am often reminded of the phrase: “If you want to make an omelette, you have to break some eggs”.

Are we able to judge from a position of safety what level of state violence is acceptable in order to bring down the homicide rate? These are not simple questions, and I do not claim to have the answer, if there is even an answer that can be deemed correct.

The large-scale arrests and allegations of abuse underscore the severe human rights risks that come with expansive emergency powers. As documented in the recent US State Department report 3US State Department 2022 Human Rights Report on El Salvador’s human rights record, over 52,000 individuals were detained in just the first 6 months of the crackdown. With constitutional rights to due process suspended, accusations of gang affiliation alone have been enough to land many in overcrowded prisons.

There are credible reports of arbitrary arrests based on factors like residence in gang-heavy neighbourhoods or having gang-related tattoos. Raids have occurred without warrants, and families often go days without notification of relatives’ whereabouts. Nearly 50 alleged gang member deaths occurred in custody in the first few months, with signs of torture according to rights groups. The judiciary’s independence has been compromised, and civil society faces increased pressure.

The UN has called on El Salvador to uphold its human rights obligations amid the state of emergency. Given the astounding scale and speed of detentions, it is inevitable that innocents have been caught up in the crackdown. Even with procedural shortcuts, standards of evidence appear dangerously low, risking wrongful imprisonment. The vast incarcerations have also stretched prison capacities to the breaking point. And these criticisms are justified. You cannot arrest tens of thousands of people in a short period of time and keep any semblance of due process in the criminal justice process. Innocent people have certainly been caught up in the state machinery and been swallowed into the prison system 4‘They found hell’: innocent foreigners caught in El Salvador’s mass arrests

While seeking to restore public security, El Salvador must balance expediency with upholding basic rights. Due process and judicial oversight exist precisely to prevent overreach and arbitrary state actions. Circumventing these checks, even when pursuing worthy aims, puts civil liberties in jeopardy and undermines principles of justice. The government faces the immense challenge of curbing gang violence without violating human dignity or compromising democracy in the process.

But decision makers cannot aim for perfection, that much is clear. The criminal justice system has to strike a balance between the risk of a false positive and the risk of a false negative. Swing too much in favour of absolute certainty, and most criminals walk away free. Swing in the other direction, and far too many innocent people are convicted. This tradeoff is analogous to signal-to-noise ratio – the stronger the evidence required, the lower the risk of false positives but the higher the risk of false negatives.

However, it is always good practice to run thought experiments to understand if there is ever a situation where the government should lower these standards. For instance, many individuals have been arrested simply for having gang affiliation tattoos, without any evidence of having committed a specific crime. From the perspective of a modern democracy, this is a completely disaster on the human rights front.

But here is an uncomfortable question: at what point would this be considered legitimate?

How many people should have died in that awful weekend at the end of March 2022 for a crackdown to be seen legitimate? Obviously, there is a number where it makes sense. Perhaps it is not 87, but 870. Or perhaps 8,700 — or 87,000.

Somewhere, these is a line where this type of action is justified, but in the case of El Salvador, we have to ask if the line was crossed or not.

From the government’s perspective, it obviously was.

We also have to consider the counterfactuals, and this is where we have to play the hard game of balancing different options, and considering what is the least worst options. How many innocent people have been caught up in the gang crackdown, compared to the number of people who were not murdered in just the first year of the crackdown. Another point to consider, is who was getting murdered? Was it mostly gang members, due to gang-on-gang violence for control of specific drug territories, or did a large number of civilians get caught in the crossfire?

We have to ask whether alternatives like targeted enforcement or social programs might have also reduced murders without the mass detentions. There are no easy answers, but wrestling with counterfactuals can illuminate the full range of lives possibly saved versus rights violated, and whether less draconian measures could have also curbed the bloodshed. We may never have a definitive balance sheet, but thoughtful analysis of hypotheticals clarifies the stakes involved in such policies.

We do know one thing, every society wants to aim at two clear goals: safety and economic opportunities. These often come hand-in-hand, and there is a type of yin-yang relationship between the two. When people feel secure in their communities and safe from violence, they are able to focus their time and energy on educational and economic advancement. In turn, more economic opportunities, reduced inequality, and social mobility all work to decrease crime rates and increase stability. Middle class children don’t hang around street corners selling drugs or shooting at each other — they have brighter and more interesting prospects for their lives, and the trick is to expand this to everyone.

But the opposite causal relationship also holds true — high crime and violence stifle economic development, draining resources towards security measures and disrupting people’s ability to work and invest in the future.

Especially for developing countries plagued by gang violence like El Salvador, establishing public safety is a prerequisite for sustained growth and prosperity. The government hopes its crackdown provides enough breathing room for social programs and economic reforms to take hold. Only by tackling safety and opportunity in tandem can the cycle of violence be fully broken. It is a long road, but a balanced approach advancing both aims offers the best chance for lasting change.

As we reflect on El Salvador’s crackdown, there is one final possibility that cannot be ignored – the potential for well-intentioned emergency measures to morph into institutionalised dictatorship and profound abuses of power. History provides no shortage of cautionary tales, from Hitler’s rise in Nazi Germany to despots assuming authority amidst chaos and crisis. Once extraordinary powers are ceded, withdrawing them becomes exceedingly difficult, as those in office rarely renounce newfound control willingly. While the motivation here is understandable given rampant gang violence, we must heed lessons from the past and remain vigilant that temporary policies do not become permanent tyranny. Systems that enable dissent and oversight must be maintained even in times of duress.

El Salvador now faces a pivotal choice — whether to pursue enduring change through democratic processes, or allow fear to facilitate the slide into authoritarianism.

The people have supported this crackdown, but they must be equally firm in opposing any erosion of civil liberties and institutional constraints. With wisdom and courage, this emergency could mark the beginning of a more just society, not the end of Salvadorans’ freedoms.

The future remains unwritten, but the past sounds a chilling warning, and I am reminded of this quote by Franklin:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.


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