As Johanna Macías entered a court house in Piedecuesta,
Santander, a furious crowd threw stones at her. The multitude yelled
“Justice! Justice!” as they waved their arms in anger, while police
officers tried to protect the woman from the flying rocks aimed at her
face.
The ire of the people was not unjustified: Ms. Macías was the main suspect in the murder of her newborn son, Esteban Alejandro, the same one that she said had been kidnapped days ago by three strangers. For almost a week, Ms. Macías
had appeared on national television, her eyes full of tears, pleading
mercy from her son’s nonexistent captors. “I forgive them. I am sure
that they will return my baby to me” she told reporters in a march for
her son’s liberation attended by all Piedecuestans. What the police later found out left Colombia speechless. Ms. Macías herself had put her baby, still alive, in a plastic bag, and abandoned him next to a rural road before making up a kidnapping story full of inconsistencies. Hence, the flying rocks.
This horrendous case intensifies a debate in Colombia about life sentences for child molesters and murderers. Coincidentally, the
Senate approved this week a proposal for a referendum on this issue
that was making its way through Congress. The initiative, heralded by Gilma Jiménez, a member of Bogotá’s city council, aims to change the Constitution and send the “thugs” (in Ms. Jiménez’s language) who commit crimes against children to spend the rest of their lives in jail. The justice that the angry crowd demanded in Piedecuesta can only be well served, it seems, if his criminal mother meets the longest, most punitive sentence possible. The depravity of her action makes life sentence even sound mild.
Yet, for at least three reasons, Ms. Jiménez’s proposal is not the right way to go. First of all, matters of penal law ought not to be decided in referenda, but by the representatives of the people in legislatures. Indeed, bizarre things happen when the populace meddles directly with the penal code. For instance, take a vote in California in 1994, which made sentences tougher and longer for people who break the law more than once. As The Economist reported recently, this “three strikes and you’re out” law has not deterred
repeated offenders from committing crimes, although it has cost
Californian taxpayers an additional US$500 million in extended
sentences for the average prisoner in that American state.
Unintentionally, goodhearted Californians voted for a law that helped
enlarge their huge budget deficit and made their streets no safer. Even if Ms. Jiménez denies it, there is no guarantee that the reform she proposes will not have a similar fate.
Second problem with the referendum against child molesters and murderers: one of its versions is poorly written. The text approved by the Senate reads: “Pagarán hasta la prisión perpetua los violadores, asesinos, explotadores sexuales, maltratadores y secuestradores de menores de 14 años”. In English, the referendum would punish child molesters and murderers with penalties of up to life in prison. As Senator and former Attorney General Alfonso Valdivieso
has pointed out, the italicized part of the text means that criminals
against children could potentially be punished with sentences ranging
from one day to life imprisonment. Dangerously, this would let child
molesters and murderers get away with penalties that are laxer than
today’s. Granted, the text approved by Colombia’s House of Representatives
leaves no ambiguity about life imprisonment for these crimes, but a
conciliation between the two versions is still pending, and we have no clue about which version shall prevail.
Ms. Jiménez’s proposal is also inconvenient because it is being used by the government and its closest allies as a hook to
attract people to the ballot box for another referendum, that of the
President’s reelection. Desperate to get the 7 million-odd votes that
they need in order to allow President Uribe to run for a third term, the government and uribista
members of Congress want both referenda to be held on the same day.
True, having one day of voting rather than two makes financial sense,
but the government cannot fool anyone pretending that they do not want to take advantage of the popularity of Ms. Jiménez’s initiative for their own wish of staying in power. Sure, they are already saying that there will be separate paper formats for each referendum, so that the people won’t be obliged to vote on both issues. But this hardly cloaks the government’s true intentions. And if I am wrong, why is it that the same uribista majorities in Congress rejected twice, in 2005 and 2006, a bill that sought to impose
the exact same punishment that this referendum seeks today? It seems
that the perspective of four more years in power awoke the zeal of uribista politicians for this issue.
We should all protect children.
They are a specially vulnerable part of society, and cheesy as it
sounds, they are Colombia’s future. As the Constitution has it,
children’s rights prevail over everyone else’s, and whoever rapes,
kidnaps, tortures or murders a child deserves severe punishment. But
this referendum is a mistake. The current law already envisions tough
penalties for these crimes. The father of Luis Santiago, another murdered baby that comes to memory, is
to spend more than fifty years in prison for the death of his son.
Rather, the problem lies in the endemic impunity in Colombia and in the
multiple sentence reductions from which criminals benefit. Changing
these reductions through an act of Congress and pumping more money into
an anemic and overworked judiciary system should solve part of the
problem.
On the contrary, pulling citizens to modify the text of the Constitution solves nothing. Foremost, law is a discipline where reason must always prevail over emotion. And with passions about this issue running so high, we have reason to suspect that, if given the choice, angry voters would prefer to stone people like Ms. Macías to death –all in the name of justice.
Author Gustavo Silva is Colombian and studies
Public Policy and International Affairs at Princeton University in the
U.S. He has his personal weblog.