Crime & Justice, Headlines, Human Rights, Latin America & the Caribbean

DEATH PENALTY-GUATEMALA: Inmates in Limbo

Inés Benítez

GUATEMALA CITY, May 18 2007 (IPS) - Twenty-one inmates have spent years on death row in Guatemala because of a legal vacuum that has brought a de facto halt to executions but has done away with the president’s right to pardon prisoners or commute their sentences.

“I have never been a trouble-maker, nor a lover of violence,” said Carlos García*, a former Guatemalan police officer who has spent 11 of his 41 years of life in high security prisons, sentenced to death on charges of planning a kidnapping.

In the Centro de Detención Preventiva in Guatemala City, the dark-skinned man with a thick moustache told IPS he is innocent, and complained about the discrimination suffered by death row inmates. “The only thing they haven’t done is shackle us to the wall,” he said.

No executions have been carried out in this impoverished Central American country since 2000, but the death sentence remains in place, applicable to crimes like kidnapping (even if the victim does not die), rape of children under 10, and some drug trafficking-related offences.

The death row inmates, 16 of whom were defended by court-appointed public defenders and five of whom have private attorneys, have spent between five and 11 years in prison, most of them in isolated wings of high security penitentiaries, and with no chance of exhausting the legal process available.

During the government of Alfonso Portillo (2000-2004), Congress overturned an 1892 law on presidential pardons, leaving Guatemala without any procedure for prisoners to be pardoned or amnestied or to have their sentences commuted.

The de facto moratorium has been in place since the law was repealed, David Augusto Dávila, in charge of the death penalty and extrajudicial executions programme of the non-governmental Institute for Comparative Studies in Penal Science of Guatemala, explained to IPS.

That means Guatemala is in contravention of international conventions that it has ratified, like the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted in 1984 by the U.N. Economic and Social Council (ECOSOC).

Guatemala is one of only three countries in the Americas, along with Cuba and the United States, where the death penalty is still applicable to common crimes.

A draft law to reinstate the presidential pardon power was introduced to Congress in August 2006 by the small Unionist Party.

But according to Dávila, the draft law would actually be favourable to executing the death row inmates, because it would give the president only 30 days to decide on cases, and would allow the execution to go ahead if the president does not take a stance.

García, one of 78 prisoners who escaped in 2001 from “Infierno” (Hell) – as the Maximum Security Prison of Escuintla in the southeast of the country has been dubbed – and were recaptured, said he does not believe in the justice system. “The laws are ok, but not those who apply them,” he told IPS.

His court-appointed lawyer alleges that the courts did not respect the constitutional principle of equality when his client’s sentence was handed down, because in similar cases, the death penalty has been commuted to life in prison.

A father of five, whose partner left him, García said he does not think about death. “You don’t really accept that that moment will come, because that would be like accepting that I won’t help take care of my grandchildren, just like I have missed out on raising my children. It’s sad and fills you with a sense of desperation.”

“The uncertainty, the not knowing if or when they will be executed, creates anguish, desperation and anxiety among the inmates, and wears down their health,” said Dávila, who also pointed to the stigma borne by death row inmates and the poor overall conditions, like overcrowding and lack of basic services in prisons, where riots are frequent.

For five years, García was hardly ever allowed out of his cell. “They would open a tiny little slot in the door to give us our food, and they let us out only for showers.”

A month ago he was transferred to a wing that holds 1,500 inmates. He said he is grateful to have more contact with other prisoners.

His hope is not that his sentence will be commuted. “The justice I am hoping for is my freedom,” he said.

“Waiting to be executed is torture,” the national coordinator of the unit in the office of the public defender that challenges sentences, Nidia de Corsantes, told IPS.

She said that of the 67 death penalty cases assigned to the unit since 1994, the public defenders have gotten 51 of the sentences overturned because of procedural errors and other reasons, while 16 are still standing.

Two verdicts handed down by the Inter-American Court of Human Rights against Guatemala in 2005 warned that justice is not always properly administered in this country and called for the reinstatement of the presidential power to pardon death row inmates, Diego de León, in charge of political affairs in the Myrna Mack Foundation, a local human rights group, told IPS.

Thanks to the Inter-American Court rulings, Fermín Ramírez, who was sentenced to death for the rape and murder of a 10-year-old girl, and Ronald Raxcacó, who was given the death penalty for kidnapping charges, had their sentences commuted.

When two men were executed by firing squad in 1996, one of the executions – which were televised – was botched, requiring a coup de grace to complete the job. The howls of outrage from the international community prompted the government to switch methods.

The latest executions, one of which took place in 1998 and two in 2000, were carried out with lethal injection, and went ahead despite appeals for clemency lodged by the Inter-American Commission on Human Rights.

At least 1,591 people were executed in 25 countries in 2006, according to the London-based Amnesty International.

Sixty percent of those on death row in Guatemala have been sentenced for kidnapping (some of the cases involved the death of the victim), and 40 percent for homicide.

“It has been clearly demonstrated that capital punishment does not work as a dissuasive element,” said de Corsantes.

The secretary of Guatemala’s Catholic Bishops’ Conference, Gonzalo de Villa, told IPS that the death penalty is “indefensible” and “a morally illicit formula that does not achieve the objectives it pursues.”

Dávila argued that an increase in social spending is the only way to bring crime levels down in a country where 56 percent of the population of 12.7 million is living in poverty (or closer to 80 percent, according to unofficial figures).

Official statistics indicate that 5,000 people are murdered annually and dozens are kidnapped in Guatemala, where youth gangs known as “maras”, organised crime and extrajudicial killings are extremely pressing problems.

Opinion polls show that a majority of Guatemalans support the death penalty and even the “social cleansing” of suspected gang members carried out by members of the security forces.

“There is a great deal of hypocrisy in the justice system” because “on one hand, people are sentenced to death, and on the other you have extrajudicial killings. But it isn’t by executing people, either judicially or extrajudicially, that the problems will be solved,” said Edgar Celada, an adviser to the Human Rights Ombudsman’s Office.

The candidates in the campaign for the Sept. 9 general elections are promising “total security” and a tough approach towards crime.

“The people are tired of being victims and feeling vulnerable to appalling crimes,” said Mario Polanco, director of the Mutual Support Group (GAM), a human rights organisation that forms part of a network of groups opposed to the death penalty.

GAM reported that 927 murders were committed in the first quarter of the year, and that 116 of the victims were women, 11 were girls and six were boys.

Given the spiral of violence, the organisations fighting for the abolition of the death penalty are “swimming against the current” and draw fire from people who accuse them of “defending criminals,” said Polanco.

In 2002, then president Portillo submitted a draft law to abolish capital punishment, but it was almost immediately voted down in parliament.

Against that backdrop, it would seem unlikely that President Oscar Berger, who has publicly come out against the death penalty, or whoever is elected in the upcoming elections will take the political risk of attempting to do away with capital punishment or deciding the fate of the 21 death row inmates, say observers.

It’s visiting time at the Centro de Detención Preventiva, and dozens of women, many of them with small children, are lined up outside, waiting to see their loved ones.

“I’m afraid I might die,” García admits, finally. “I feel sorry for my daughters. I only regret not having been with them all of these years.”

* Not his real name.