Mass Incarceration: A Band-Aid Placed on Gang Violence in El Salvador
By Julia Alexander
El Salvador currently has one of the largest prison populations in the world at 492 incarcerated for every 100,000 Salvadorans.[1] These numbers have only increased in the last few years due to a combination of factors, such as increased gang violence and new government leaders.[2]
In March 2022, under the government of President Nayib Bukele, El Salvador issued a state of emergency in relation to a string of gang-related killings that left over eighty people dead.[3] While a state of emergency can be implemented by a country’s government in times of crisis, it is not atypical for human rights violations to slip through the cracks during that time period.[4] Under the state of emergency, the Salvadoran police have the authority “to arrest anyone suspected of gang activity.”[5] Additionally, there have also been significant amendments to both criminal and civil procedures in El Salvador that accompanied the state of emergency, where trials can be held in absentia and teenagers can be tried as adults.[6]
From March 2022 to October 2022, more than 55,000 individuals had been arrested in arbitrary arrests.[7] These arrests amounted to one to two percent of the population being arrested during this time.[8] Of all the arrests that have taken place since the inception of the state of emergency, the majority of detentions were based on “suspicious appearances,” a smaller amount on “nervous appearances,” and the rest on anonymous tips.[9] These arbitrary arrests may also be exacerbated by quota requirements for arrests issued by Salvadoran police unions.[10] Many of those who have been arrested are accused of “unlawful association” with gangs or “membership in a terrorist organization.”[11] While many Salvadorans have lived in fear of gang violence, that fear has nearly been replaced by mass arrests during the state of emergency.[12] Of all these arbitrary arrests that have taken place, only about 3,500 have been released as of March 2023. In addition to this, ninety people have died in Salvadoran prisons since the start of the state of emergency.[13]
Thousands of inmates from prisons across the nation being transferred to the “mega-prison” in El Salvador. Image courtesy of Office of the Press Secretary to the President of El Salvador https://www.cnn.com/2023/02/26/americas/el-salvador-mega-prison-transfer-intl/index.html.
Traditionally, the government has taken the mano dura, the iron-fist, approach to confronting gang violence.[14] However, it appears that the state of emergency has far surpassed creating a long-term solution for gang violence in El Salvador and has instead turned to mass incarceration as a crutch.[15] Bukele himself has called the current state of emergency an “emergency regime” – almost timestamping the beginning of a new governmental structure in El Salvador.[16] More recently, the president has announced the country’s most recent development in mass incarceration: the creation of what is now one of the largest prisons in the world.[17] The establishment of this prison has “doubled El Salvador’s incarceration capacity.”[18] This realization does not even take current overcrowding in Salvadoran prisons into consideration.[19] Many prison facilities in El Salvador currently house prison populations anywhere from three to six times their intended capacity.[20] One Salvadoran government official stated that those who are sent to this “super prison” will “never return” to the streets again.[21]
In addition to this, the prison conditions following the state of emergency have been considered inhumane and have violated several human rights under international law.[22] The Inter-American Commission on Human Rights has stated its concerns about the isolation of prisoners from the outside world, as well as their treatment within these institutions.[23] While many of these policies, such as prison overcrowding, mass arrests and incarceration, and human rights violations, are not new to El Salvador in the last few decades, one thing remains true: they are largely ineffective at targeting the issues of gang violence and prevalence within the nation.[24]
At a point, these arrests fail to protect El Salvador and further perpetuate mass incarceration as a tool for civil unrest while ignoring the negative societal implications of mass arrests.[25] The significant detrimental impact of mass incarceration on Salvadoran society as a whole has largely been overlooked by the government of El Salvador, as well as its citizens.[26] While many Salvadorans have lived in fear of gang violence, that fear has nearly been replaced by the possibility of mass arrests during this semi-permanent state of emergency.[27]
Human rights experts have noted these punitive measures by the Salvadoran government will not eliminate problems of gang violence; rather, focusing on the root causes of gang activity such as “poverty and social exclusion” could begin to alleviate the negative impact on gang activity within the nation.[28] However, rather than creating a long-term solution to gang violence in El Salvador, President Bukele and the Salvadoran government continue to extend the state of emergency monthly in order to further violate human rights within the country.[29] El Salvador must take concrete steps to remedy its country’s problem of gang violence and activity in order to suspend the state of emergency and restore basic human rights – not only for those who have been imprisoned, but for all Salvadorans.
[1] Roy Walmsley, World Prison Population List (2011), Iɴsᴛɪᴛᴜᴛᴇ ғᴏʀ Cʀɪᴍɪɴᴀʟ Pᴏʟɪᴄʏ Rᴇsᴇᴀʀᴄʜ, 2, 5, www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition_0.pdf.
[2] A Remedy for El Salvador’s Prison Fever, Cʀɪsɪs Gʀᴏᴜᴘ (Oct. 5, 2022), www.crisisgroup.org/latin-america-caribbean/central-america/el-salvador/96-remedy-el-salvadors-prison-fever.
[3] Maria Abi-Habib & Bryan Avelar, Explosion of Gang Violence Grips El Salvador, Setting Record, Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs (Mar. 27, 2022), https://www.nytimes.com/2022/03/27/world/americas/el-salvador-gang-violence.html.
[4] Rosamond Hutt, “What Is a ‘State of Emergency’?, Wᴏʀʟᴅ Eᴄᴏɴᴏᴍɪᴄ Fᴏʀᴜᴍ (July 21, 2016), www.weforum.org/agenda/2016/07/what-is-a-state-of-emergency-and-which-governments-have-declared-one/ (noting that governments are able to “prevent demonstrations or mass gatherings . . . lock down public spaces, [and] [police] might also be able to conduct searches without warrants.”).
[5] El Salvador Travel Advisory, U.S. Dᴇᴘᴀʀᴛᴍᴇɴᴛ ᴏғ Sᴛᴀᴛᴇ – Bᴜʀᴇᴀᴜ ᴏғ Cᴏɴsᴜʟᴀʀ Aғғᴀɪʀs, https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/el-salvador-travel-advisory.html (last visited Sept. 3, 2023).
[6] El Salvador: Concern at Measures in Response to Rising Gang Violence, Oғғɪᴄᴇ ᴏғ ᴛʜᴇ Hɪɢʜ Cᴏᴍᴍɪssɪᴏɴᴇʀ ғᴏʀ Hᴜᴍᴀɴ Rɪɢʜᴛs (Apr. 5, 2022), www.ohchr.org/en/press-briefing-notes/2022/04/el-salvador-concern-measures-response-rising-gang-violence; see also, In Absentia, Cᴏʀɴᴇʟʟ Lᴇɢᴀʟ Iɴғᴏʀᴍᴀᴛɪᴏɴ Iɴsᴛɪᴛᴜᴛᴇ, https://www.law.cornell.edu/wex/in_absentia#:~:text=In%2Dabsentia%20 (last visited Jan. 21, 2023) (defining in absentia, where a trial is sometimes called trial in absentia in cases where the trial is held without the presence of the accused.).
[7] Anna-Cat Brigida, Social Media Gossip is Fueling Mass Arrests in El Salvador, Rᴇsᴛ ᴏғ Wᴏʀʟᴅ (Oct. 27, 2022), https://restofworld.org/2022/social-media-arrests-el-salvador/.
[8] Id.
[9] “We Can Arrest Anyone We Want”: Widespread Human Rights Violations Under El Salvador’s “State of Emergency”, Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ (Dec. 9, 2022), https://reliefweb.int/report/el-salvador/we-can-arrest-anyone-we-want-widespread-human-rights-violations-under-el-salvadors-state-emergency.
[10] Marcos Aleman & Christopher Sherman, A Crackdown in El Salvador, and Fears of Arbitrary Arrests, AP Nᴇᴡs (June 2, 2022), https://apnews.com/article/politics-soccer-sports-public-opinion-arrests-9f38429de1c8dd3b945ad5e3a9b2eb76.
[11] El Salvador: Leaked Database Points to Large-Scale Abuses, Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ (Jan. 27, 2023), https://www.hrw.org/news/2023/01/27/el-salvador-leaked-database-points-large-scale-abuses.
[12] Kevin Sieff, As El Salvador Arrests Thousands, Families Search for the Missing, Tʜᴇ Wᴀsʜɪɴɢᴛᴏɴ Pᴏsᴛ (Apr. 24, 2022), https://www.washingtonpost.com/world/2022/04/22/salvador-bukele-gang-arrests-crackdown/.
[13] “We Can Arrest Anyone We Want”: Widespread Human Rights Violations Under El Salvador’s “State of Emergency”, Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ (Dec. 9, 2022), reliefweb.int/report/el-salvador/we-can-arrest-anyone-we-want-widespread-human-rights-violations-under-el-salvadors-state-emergency (noting that this is the number being reported by the government of El Salvador; the amount of deaths could be higher than this).
[14] Diana Roy, Why Has Gang Violence Spiked in El Salvador?, Cᴏᴜɴᴄɪʟ ᴏɴ Fᴏʀᴇɪɢɴ Rᴇʟᴀᴛɪᴏɴs (May 4, 2022) https://www.cfr.org/in-brief/why-has-gang-violence-spiked-el-salvador-bukele.
[15] Steven Dudley, Is Nayib Bukele's 'Iron Fist' in El Salvador Working?, IɴSɪɢʜᴛ Cʀɪᴍᴇ (Feb. 9, 2023), https://insightcrime.org/news/nayib-bukele-iron-fist-el-salvador-working/.
[16] Id.
[17] El Salvador's Mega Prison, World's Largest, Aims At Gang Crackdown, Nᴀᴛɪᴏɴᴀʟ Cʀɪᴍɪɴᴀʟ Jᴜsᴛɪᴄᴇ Assᴏᴄɪᴀᴛɪᴏɴ (Feb. 28, 2023) ncja.org/crimeandjusticenews/el-salvador-s-mega-prison-world-s-largest-aims-at-gang-crackdown.
[18] El Salvador Opens 40,000-Person Prison as Arrests Soar in Gang Crackdown, Rᴇᴜᴛᴇʀs (Feb. 1, 2023), https://www.reuters.com/world/americas/el-salvador-opens-40000-person-prison-arrests-soar-gang-crackdown-2023-02-01/.
[19] León Krauze, The Scale of El Salvador's New Prison is Difficult to Comprehend, Tʜᴇ Wᴀsʜɪɴɢᴛᴏɴ Pᴏsᴛ (Feb. 26, 2023), https://www.washingtonpost.com/opinions/2023/02/26/el-salvador-prison-nayib-bukele-gangs-crime/.
[20] Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ, supra note 11 (noting that “[a]ccording to the [leaked government] database, as of August, Mariona [prison] had four times as many detainees as it could hold, and Izalco [prison] had three times as many. Other detention facilities, such as the Ilopango prison for women and the prison of San Miguel for men, had populations of six times capacity.”).
[21] Marcos Aleman, El Salvador: 2,000 More to Prison, Vows Will ‘Never Return’, AP Nᴇᴡs (Mar. 15, 2023), https://apnews.com/article/el-salvador-gang-crackdown-prison-state-of-emergency-d95e1fcd5b806c38077ffb060c8c2f48.
[22] Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ, supra note 9 (describing human rights conditions in Salvadoran prisons as amounting to “torture or other cruel, inhuman, or degrading treatment or punishment.”).
[23] Situation of Human Rights in El Salvador, Iɴᴛᴇʀ-Aᴍᴇʀɪᴄᴀɴ Cᴏᴍᴍɪssɪᴏɴ ᴏɴ Hᴜᴍᴀɴ Rɪɢʜᴛs (Oct. 14, 2021), http://www.oas.org/en/iachr/reports/pdfs/2021_ElSalvador-EN.pdf.
(stating that “[t]he Commission is concerned that 100 percent of the population deprived of liberty remains isolated from the outside world, and that procedures in maximum-security prisons are against what is suggested by international standards in this matter.”).
[24] Id.
[25] Adrian Bergmann & Rafael Gude, Set Up to Fail: The Politics, Mechanisms, and Effects of Mass Incarceration, Lᴀᴛ. Aᴍ. L. Rᴇᴠ. (2021), 51, doi.org/10.29263/lar07.2021.03 (noting that “[i]mprisonment becomes mass imprisonment when it ceases to be the incarceration of individual offenders and becomes the systematic imprisonment of whole groups of the population.”).
[26] Marcos Aleman & Christopher Sherman, A Crackdown in El Salvador, and Fears of Arbitrary Arrests, AP Nᴇᴡs (June 2, 2022), https://apnews.com/article/politics-soccer-sports-public-opinion-arrests-9f38429de1c8dd3b945ad5e3a9b2eb76.
(noting that public opinion polls have shown “broad popular support” for the state of emergency.)
[27] Sieff, supra note 12.
[28] Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ, supra note 11.
[29] El Salvador: State of Emergency Extended Until at Least Sept. 13 /Update 17, Cʀɪsɪs24 (Aug. 24, 2023), crisis24.garda.com/alerts/2023/08/el-salvador-state-of-emergency-extended-until-at-least-sept-13-update-17 (reporting that the state of emergency, initially issued in March 2022, will be extended at least through September 13th, 2023 – almost 18 months later).