Prison overcrowding as a justifying element for the weakening of the purposes of the sentence, regarding Legislative Decree N° 1585

Abstract

Legislative Decree No. 1585, published on November 22, 2023, establishes mechanisms for the decongestion of penitentiary establishments. For these purposes, it modifies various criminal regulatory bodies, with very little consideration for the conduct of the sentenced or accused individuals. The rule has not taken into account that since October 2023, various districts of Lima have been declared in emergency due to the increase in crime. Although the years 2022 and the present represented the return to normality after a long time of pandemic. and the restrictions given by the Peruvian government, but crimes also increased, and even with new and more dangerous modalities. In the face of such a situation, the norm in question weakens the purposes of the punishment, jeopardizes public safety, and advocates for impunity. Furthermore, a perception of injustice is created on the part of the victims. The judgment of the Constitutional Court, corresponding to case No. 05436-2014-PHC/TC, pronounces on the problem of prison overcrowding, has been the main basis for the creation and issuance of Legislative Decree No. 1585. However, in no part of the judgment is it stated that, in the face of overcrowding, the inmate should be granted freedom. Prison overcrowding is a complex problem; there are many strategies that can help reduce the problem. Although the mechanisms indicated in Legislative Decree No. 1585 may be alternatives that can achieve prison overcrowding, we consider that the norm is generic and that any inmate can benefit from said benefits and not only those who have committed minor crimes but also those who have been sentenced for serious crimes, making this situation the most critical point of the norm.